Attorney General Of Kwara State & Anor V. Alhaji (Hon) Ishola Lawal & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

Upon motion ex parte filed by the respondents herein, as Claimants, seeking:

1. AN ORDER granting leave to the Claimants herein to bring this action in a representative capacity, for themselves and on behalf of 9.024 KWARA STATE Government accredited to N1.68billion withheld pensions and gratuity arrears;
2. AN ORDER deeming the originating processes filed in representative capacity properly filed and served the necessary filing fees having been paid;

the Kwara State High Court (Coram: E. B. Mohammed, J.) on 20th October, 2008, finding that the application has merit, granted it as prayed. Leave, accordingly, was granted to the Claimants now the respondents herein, to bring this action against the defendants {appellants herein) in a representative capacity on behalf of themselves and on behalf of 9,024 Kwara State accredited Pensioners entitled to N1.68Billion withheld pensions and gratuities arrears”. The originating summons filed on 2nd September, 2008 was, in terms of the motion ex Parte, “deemed properly filed, the necessary filing fees having been

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paid”.

On 30th October, 2008 the appellants, as defendants, entered a conditional appearance to the suit pursuant to Order 16 Rule 1(1) of the Kwara State High Court (Civil Procedure) Rules. It was filed by Mrs. F. I. Lawal, State Counsel. The defence thereafter did nothing further to articulate their defence. On 14th January, 2009, the Claimants through their counsel, T.O.S. Gbadeyan, through then filed a motion for judgment in terms of their claim as contained in the Originating Summons. This prompted the appellants’ application filed on 23rd January, 2009 praying for extension of time within which to file their counter-affidavit in defence of the Originating Summons. The motion was, on 26th January, 2009, moved and granted. The appellants, as the defendants, were then given up to 2nd February, 2009 to file their counter affidavit and Notice of Preliminary Objection. The appellants, in compliance with the said Order of Court, filed two processes namely: the counter-affidavit and the Notice of Preliminary Objection on 2nd February, 2009.

On 19th February, 2009 when the Court reconvened the appellants, through Mr. Akande, Senior State Counsel, withdrew

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the notice of preliminary objection filed on 2nd February, 2009. The appellants had on the said date filed a similar notice of preliminary objection. The appellants filed yet another notice of preliminary objection on 23rd February, 2009. On 3rd March, 2009 the Notice of Preliminary Objection filed on 16th February, 2009 was again withdrawn and struck out.

The Notice of Preliminary Objection filed 3rd March, 2009, was argued on the same date grounds, namely:

“i. That the action was statute barred, and

ii. That the claimants, now the respondents herein, lacked locus standi to bring their action in a representative capacity”

In the reserved Ruling delivered on 1st June, 2009 the learned trial Judge, found inter alia;

“On the whole, I find that the Claimants have not proved or established that they have the authorization or authority of substantial number of the 9.024 Pensioners purportedly represented in this case and by the nature of their claim, this (sic) cannot separate or severe their claim thus the suit cannot ensure in their favour hence the defendants’ Preliminary Objection succeeds and it is hereby sustained”.

It is

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against this decision that the claimants, on 9th June, 2009, lodged their appeal to the Court of Appeal. The Court of Appeal, Ilorin heard the appeal on 19th April, 2010, and in its unanimous decision delivered on 30th June, 2010, it allowed the appeal. On the invitation of the claimants (as the appellants in that Court) to the Court of Appeal to invoke Section 15 of the Court of Appeal Act and decide the Origination Summons on its merits, it proceeded to determining the Originating Summons on its merits. The Court of Appeal (hereinafter referred to as the Court below) at pages 347 and 348 of the Record of Appeal held, and stated thus, in the lead judgment of Sotonye Denton-West, JCA, that was unanimously concurred:

”In the circumstances, l am obliged to grant the prayers of the appellants (claimants) as claimed in their appeal with the proviso, that the payment of the money by the respondents in the sum of N1.68billion should be paid within six months from today 3oth June, 2010. The disbursement should be made to the appellant and to all the 9,024 Kwara State accredited Pensioners entitled to the N1.68billion withheld pensions and gratuities. The

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disbursement should be supervised by the Accountant-General of Kwara Stare who perhaps could be assisted by National Union of Pensioners Kwara State Chapter with logical conclusion to all the pensioners whose claims arc involved in this appeal.

The appellants herein, dissatisfied with the judgment of the Court below, filed Notice of Appeal with 5 grounds of appeal to this Court. With leave of this Court they have filed one more ground of appeal. From the 6 grounds of appeal, they have formulated 5 issues for the determination of this appeal. That is –

1. Whether Order 14 Rules 2, 12 and 13 of the Kwara State High Court (Civil Procedure) Rules, 2005 is applicable to the facts and circumstances of this case to give the Court power to order substitution or addition of Parties suo motu and for the Respondents to amend their Originating Summons where there was no application made [From grounds 2 and 3]
2. Whether the trial Court had no power to discharge its ex parte orders allowing the Respondents to sue in a representative capacity when it later found out that the Respondents lacked the locus standi to institute the action (From ground

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1)

3. Whether the Court of Appeal had jurisdiction to give final judgment when the appeal before it was based on an interlocutory Ruling of the High Court [From ground 4]
4. Whether the Court below is empowered under Section 15 of the Court of Appeal Act, 2004, to determine the merit of a case which was wrongly instituted by Originating Summons and discloses no reasonable cause of action [From ground 5]
5. Whether there is sufficient evidence for the Court below to grant the reliefs claimed by the Respondents/Plaintiffs on a proper interpretation of Section 210 of the Constitution and Section 10 of the Kwara State Pension and Gratuities Law, 1994, as amended [From ground 6]”.

On 3rd October, 2013, the Respondents contemporaneously filed Notice of preliminary Objection and Respondents’ Brief of Argument. The Preliminary Objection has been argued in the Respondents Brief, from pages 2 – 30 thereof

The Respondents, under Question 1 of Preliminary Objection, contend that where leave to file Notice of Appeal has been granted, upon an application where the proposed grounds of appeal were earlier exhibited, it would not be right for the

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appellant to file grounds of appeal different from the grounds of appeal in the proposed grounds of appeal. The appellants had sought leave, under Order 6 Rule 4 of the Rules of this Court, “to appeal against the judgment of the Court of Appeal – on grounds of mixed law and facts”. The respondents contend further that the proposed grounds of appeal in the application were 8 and that when the appellants eventually filed the Notice of Appeal the 8 grounds of appeal were reduced to 5 and some grounds were totally reconstructed and or completely amended, They posit that, that amendment needed further leave and no such further leave was sought and granted.

They submit that since Order 6 Rule 2(1) (d) of the Rules of this Court require an applicant seeking leave to appeal a Judgment to exhibit “the proposed grounds of appeal from the said judgment”, it is imperative, under Order 6 Rule 4, that “where leave has been granted, the appellant shall file his Notice of appeal “containing the proposed grounds of appeal on which the leave to appeal was granted. Attractive as the argument is, prima facie, it has limitations. The order or leave granted was not shown to be

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specific: that the Notice of Appeal shall be filed in terms of the “proposed grounds of appeal”. Ours is both a Court of law and a Court of justice. This Court has led other Courts towards the direction of doing substantial justice rather than sticking to arcane technicality. Under this policy the important thing is, whether the omission or failure to do an act has occasioned any miscarriage of justice in what way, if I may ask, have the respondents suffered prejudice or substantial miscarriage of justice in the matter of their complaint That should be the question.

It is true that Notice of Appeal in Exhibit A has 8 grounds of appeal, while the Notice of Appeal in Exhibit B has 5 grounds of appeal. Grounds l, 2, 3, and 5 in Exhibit B are the grounds 1, 2, 3, 7 and B in Exhibit A. The three grounds abandoned from Exhibit A are grounds 4, 5 and 6. The respondents, in my view have suffered no embarrassment, prejudice, or miscarriage of justice from the appellants’ dropping of the three (3) grounds of appeal.

Exhibit C is the Notice of Appeal with 6 grounds of appeal. It was deemed properly filed and served on the 4th July, 2013 by order of

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Court. The party aggrieved by this decision or order has two options – either to have it set aside on appeal or having it set aside upon any application that it was made ex debito justitae. Until set aside, the order by dint of Section 168[1] Evidence Act, 2011 enjoys the presumption of regularity. The averment in Paragraph 7 of the affidavit supporting the Notice of Preliminary Objection is not only an admission against interest, it is an admission that the order of Court, which deemed Exhibit C as properly filed and served, raises the presumption that all formal requisites for the validity of that Notice of appeal, Exhibit C, had been complied with. The order, therefore, remains valid until set aside by a Court of competent jurisdiction.

For better appreciation of the complaint of the respondents against appellants’ Issue 1, earlier reproduced, to the effect that it was raised only from ground 2 which is an attack on obiter dictum, grounds 2 and 3 shorn of their particulars are herein below reproduced That is:

2. The learned Justices of the Court of Appeal erred in law by interpreting Order 14 Rules 2, 12 and 13 of the Kwara State High Court

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(civil Procedure) Rules to the effect that the trial Court ought to have suo motu ordered the substitution or addition of the parties or allowed the Respondents to amend their Originating Process.

3. The learned Justices of the Court of Appeal erred in law when they held that the Respondents hereto substantially complied with the Rules in instituting the suit for themselves and on behalf of 9,024 Kwara State accredited Pensioners entitled to N1.68billion withheld Pensions and gratuities arrears”.

While Ground 2 complains that the learned justices of the Court of Appeal erred in their interpretation of Order 14 Rules 2, 12 and 13 of the Kwara State High Court(Civil Procedure) Rules by expressing in admonitive opinion to the effect that the trial Court ought to have suo motu ordered the substitution or addition of the existing parties, or allowed the claimants to amend their Originating process; Ground 3 complains that, by holding or finding that the Claimants had substantially complied with the Rules in taking out the suit in a representative capacity, the learned justices of the Court below had erred in law. There is nothing in the appellants’ Issue

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1 suggesting that the complaint in Ground 3, of the grounds of appeal, has been captured and or reflected in the said Issue 1. I, therefore, agree with the respondents herein that the said Ground 3 has been abandoned,

That is not all yet on this appellant, Issue 1. The respondents further contend that Ground from which appellants Issue 1 has been formulated is a mere obiter dictum, and therefore an incompetent ground of appeal. I had earlier reproduced the said Ground 2 of the grounds of appeal. It appears to me to have been directed against an admonitive expression of opinion. The said admonition is not any decision that is adverse to any of the parties. An obiter dictum is just a mere side talk or remark made or expressed by a Judge in his decision upon a case which side talk, remark or opinion is just by the way or is merely collateral or incidental and not really directly upon the question or issue before the Court for decision. See ONAFOWOKAN & ORS. v. WEMA BANK PLC. & ORS. (2011) 5 SC. [pt. II); BAMIGBOYE v. UNIVERSITY OF ILORIN (1999) 6 SCN 324.

The distinction between mere obiter dictum and ratio decidendi lies in the fact that in

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the case of the latter there is a right of appeal. There is no right of appeal against obiter dictum. See NDDC v. OKEM ENTERPRTSES LTD. (2004) 10 NWLR (pt.880) 107. The respondents have made a point against appellants’ Ground 2 of the grounds of appeal and their Issue 1 formulated therefrom. The two being incompetent are hereby struck out.

Appellants Issues 3 and 4 also came under scrutiny in the preliminary Objection. They were said not to have been raised before the lower Court and that they were nowhere resolved by the lower Court. The respondents posit, vehemently, that since they are new issues being raised for the first time in this Court, the appellants need leave to raise them here.

It was the respondents who invited the Court below to invoke its powers under Section 15 of the Court of Appeal Act, and determine the merits of the Originating Summons. The Court below accepted the invitation and then delved into considering the merits of the Originating Summons and thereafter it gave its judgment on the issues in the Originating Summons. The appeal against those decision and Orders in respect of the merits of the Originating Summons

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cannot be said to be raising new issues or points. I, therefore, agree with the appellants’ senior counsel that a point which has been raised by all or any of the parties at the lower Court and on which that Court made authoritative pronouncements on does not constitute a fresh issue or point. It is sufficient that a party raised the point at the Court below and the Court addressed it. See A.C. FEDERATION v. AGBAKOGBA (1999) 3 SCNJ. 1 at 12. Following on the heels of Issue 3 is the question raised in issue 4: Whether the Court below is empowered under Section 15 of the Court of Appeal Act, 2004, to determine the merits of the suit brought wrongly on the Originating Summons which is alleged not to have disclosed a reasonable cause of action. This issue 4 questions the competence and or jurisdiction of the trial Court to entertain the Originating Summons that is said not to have been properly constituted.

The main grouse of issue 4, as submitted by the senior counsel for the appellants, is that since the issue in the interlocutory appeal is whether the leave granted to the claimants to bring forth their action in a representative capacity was proper, the

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Court below, at the interlocutory stage, had no vires to dabble into deciding the substantive dispute in the Originating Summons purporting to be acting under Section 15 of the Court of Appeal Act. The respondents’ objection to the appellants’ Issues 3 and 4 cannot be sustained. It is accordingly overruled.

I had earlier ruled on the competence of Ground 6, of the additional ground contained in the Amended Notice of Appeal that was deemed filed and served by this Court on 19th June, 2012. The statement of the law made by Ariwoola, JSC, in MAOBISAN INTER-LINK ASS. LTD. V. U.T.C. [NIG.) (2013) 3 – 4 sc. (pt. 1) 109 at 118 that when the 10 additional grounds of appeal are not filed as ordered, they are incompetent, is not apposite.

Ground 6 of the grounds of appeal is contained in the Amended Notice of Appeal, Exhibit C, that was deemed filed and served by this Court on 4th July, 2013. That order or leave having not been set aside remains extant and valid. The respondent, objectors, do not seem to appreciate the distinction between preliminary objection and a ground of appeal. The main objective of Preliminary Objection is to terminate the appeal in

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limine without going into its merits or substance. The usual complaint in Preliminary Objection is that the appeal is incompetent and should not be heard, because the Court lacks jurisdiction to hear and determine an incompetent appeal, ground of appeal or Notice of Appeal. See NEPA v. ANHO (2011) 15 NWLR (pt.737) 627 SC; NDIGWE v. NWUDE (1999) 11 NWLR (pt.626) 314 sc. On the other hand the ground of appeal attacks and questions the correctness of the decision on a point or issue, if successful, the ground of appeal invariably leads to the setting aside of the decision on the point.

The fact that the appellants herein at the Court below, where they were respondents, offered argument in defence of or against the invocation of Section 15 of the Court of Appeal Act, at interlocutory stage, to decide the merits of the 0riginating Summons is not the determinant of whether the issue on the point raised from a valid ground(s) of appeal is competent or incompetent. An issue for determination of the appeal is only invalid if there is no valid ground[s] of appeal from which it is formulated from: See FASORO v. BEYIOKU (1988) 2 NWLR (pt 76) 263; JAJAU v. AHMED

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(2003) 4 NWLR (pt. 811) 498; UNITY BANK PLC v. BOUARI (2008) 7 NWLR (pt 1086) 243. Accordingly, I am inclined to overrule the respondents on this point of objection, and they are hereby overruled on it.

Finally, the respondents allege that the appeal, an abuse of Court process, is vexatious and invalid; the appellants, they say, having simultaneously put in motion two subsisting processes in different Courts to achieve the same result – the setting aside of the decision of the lower Court. The law is trite that where two actions of similar or same nature are between the same parties and on the same subject matter seeking the same result are being prosecuted simultaneously or concurrently before the same Court or different Courts, the latter action is an abuse of the Court’s process. l agree with the respondents on this. The authorities cited by them are quite apposite. That is: DOMA v ADAMU (1999) 4 NWLR (pt.589) 311; BANA PLASTIC INDUSTRIES v. VASILYER [1999) 10 NWLR (pt 624) 620; ABUBAKAR v. UNIPETROL PLC (2002) 4 SC (pt. 2) 100; IKENNA v. EDIERODE (2001) 12 SC (pt.12) 94 The consequence of the latter action being an abuse of the former is that latter

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action stands to be the dismissed.

Now, where or what is the abuse of process here The Notice of Preliminary Objection offers no evidence in the supporting affidavit of any action or application filed either in this Court or the Court below seeking the setting aside of the judgment or decision, the subject matter of the appeal. The law is settled, he who alleges must prove. It follows, too, that what is alleged without proof can be denied without proof.

In any case, I am satisfied from the response of the appellants, contained in Paragraph 0.40 of the Appellants’ Reply Brief on Question 4, that at page 368 of the Record of Appeal the appellants only filed an application at the Court below for an order vacating the garnishee order nisi. See also page 364 of the Record. Upon my painstaking search or surfing of the Record the appellants at no time filed an application praying that the judgment appealed be set aside. The objection on this particular point is frivolous and reckless. It is accordingly, overruled.

The issue very fundamental to the determination of this appeal, is the appellants’ Issue 2. At the Court below, the present appellants,

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as the respondents there, had formulated the issue thus as their Issue 2:

“whether the learned trial judge having granted leave to appellants (the claimants at the trial Court to commence a representative action is functus officio from considering the issue of locus standi of the appellants to institute a representative action, when same was raised and challenged by the respondents [the present appellants here]”.

The Court below, at page 331 of the Record, reframed this same fundamental issue thus: whether the lower (trial] Court can review itself, most especially, after granting leave to the appellants (the claimants] to commence action in representative capacity At pages 332 and 333 of the Record the Court below resolved the issue thus:

“The trial Court having granted the order to bring the action in a representative capacity as prayed, cannot reopen the matter or review itself even if the evidence upon which it acted was wrong. The lower Court is functus officio and cannot vary the form of its earlier decision because it cannot sit on appeal on its own case.

The appropriate thing for the respondents [the defendants at the trial and

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the present appellants) to do is to appeal. The lower Court was wrong to have struck out the order after granting the appellant’s leave to bring the action in a representative capacity”.

The Court below was right on this stance that a Court of law cannot review or overrule itself except, under the slip rule, to correct a typographical error which would not alter the decision. There are circumstances the Court that rendered a decision may be called upon, ex debito justitiae, to set aside its own decision that is a nullity. See SKENCONSULT v. UKEY (1980) 1 NSCC 1 at 6; OKAFOR v. A.G. ANAMBRA STATE (1991) 6 NWLR (pt.200) 659; OLORUNFEMI v. ASHO [2000) 1 NWLR (pt.643) 1; ALAO v. ACB LTD. {2000) 9 NWLR (pt.672) 246 at 282; IGWE v. KALU (2002) 14 NWLR (pt.787) 435 at 454, just to name a few. This is not the case in the instant appeal.

On the trial Court being funtus officio having granted leave to the claimants [presently the respondents] to prosecute the instant action in a representative capacity, the Court below cited and relied on the decision of this Court in NIGERIAN ARMY v. IYELA (2008) 7 -12 SC 35 at 48 -51 where it is held, per Tabai, JSC:

“It

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is settled law that, once a Court has given a final decision on a matter placed before it for adjudication, it becomes functus officio and is precluded from reviewing or varying the term of the judgment or order apart from the correction of clerical mistakes or accidental slips.

This principle has been explained in several cases. Firstly, it is well settled that every judgment takes effect on pronouncement. This principle was articulated — in the English case ofTHYME v. THYME [1955) 3 ALL E.R. 139 at 146, the Court of Appeal, per Mofis, L.J, stated the principle thus-

Where a Court has decided an issue and the decision of the Court is embodied in some judgment or order that has been made effective, and then the Court cannot reopen the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter (it) must, in those circumstances, invoke appellate jurisdiction as may apply. But if a case arises where in the interest of justice it seems desirable to amend some part of a judgment other than it’s operative or substantive part it would seem to be regrettable if the inherent power of the Court were

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limited or confined.

To further corroborate the English Court of Appeal on this point, this Court has held in EJAKPOMEHWE AKPOREDE & ANOR v ISICHERI OKEI & ORS. (1973) 12 SC 137; MBA ORIE & ANOR v OKPAN UBA & ANOR. (1976) 9 – 10 SC 123 that all order made, on application for leave to bring an action in a representative capacity, can only be set aside on appeal by the party aggrieved thereby.

It would seem from S.P.D.C. NIG. LTD. v. EDAMKUE (2009) 14 NWLR (pt.1160) 1 at 27 – 28 that the defendant, in a suit or action brought in a representative capacity, upon authorization of the other persons with common interest, has no locus standi to object to the said representation since he is not member of the group of persons that authorized the named plaintiff(s).

I notice from the Appellants’ Brief of Argument that a lot of energy was expended to show that an ex parte order made pursuant to Order 11 Rules 12 and 15 of the Kwara State High Court (Civil Procedure) Rules can be subsequently varied or discharged. The cases: 7UP COMPANY v. ABIOLA (1995) 3 SCNJ 37 at 43 and PROV. LIQUIDATOR, TAPP INDUSTRIES V. TAPP INDUSTRTES (1995) 5

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NWLR (pt. 393) 9 at 38 were decided on the provisions of the Rules of Court in pari materia with Order 11 Rules 12 and 15 of the Kwara State High Court (Civil procedure) Rules. The order made in this appeal authorizing the respondents, the claimants at the trial Court, to take out or sue the appellants, the defendants, in a representative capacity was not made pursuant to Order 11 Rules 12 and 15, but under Order 14 Rules 12 and 13 of the said Kwara State High Court [Civil Procedure] Rules, The order made pursuant to Order 14 Rules 12 and 13 is in respect of, and it activates, an Originating process. The orders made under Order 11 Rules 17 and 12 of the said Rules do not belong to the same genre or class. Orders made under Order 11 Rules 11, 12, 13 and 14 are intended to be interim and temporary, and Rule 15 thereof specifically empowers the Court to either modify or discharge them or make them absolute, or adjourn the consideration thereof or permit further evidence to be produced in support of or against the order, as the justice of the matter may justify. There is no such equivalent provision in Order 14, particularly in relation to Rules 12 and 13 thereof.

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Where Rules of Court are made for different or distinct purposes the rules made for one purpose should not be used or imported for another purpose. Thus, where the Court of law is exposed to two provisions: one specific and the other general, the Court will fall upon the specific provision, in the event of any apparent conflict. See ARAKA v. EGBUE (2003) 17 NWLR (pt.848) 1. It will not resort to the general provision to solve the issue for which specific provisions have been made.

The Court below, having correctly in my view, held that the trial Court upon granting leave to the claimants (now herein the respondents to) sue and maintain their action in a representative capacity against the defendants (who now are the appellants herein), had become functus officio and lacked jurisdiction or powers to review that order. It ought, at that point, to have allowed the appeal and remitted the suit back to the trial Court for hearing de novo. The Court below, in my firm view, erred in law in this regard, and this error led it to wrongly taking over or usurping the function that in law belonged to the trial Court. Section 15 Court of Appeal Act does not permit the

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Court below to usurp the functions of trial Courts.

The only issues arising at the Court below, for the determination of the appeal before it, centred on whether the trial Court was right or wrong in setting aside the leave it granted earlier for the claimants to sue in a representative capacity and consequentially striking out the suit. The resolution of that core issue to the effect that the trial Court was functus officio as regards its order granting leave to the claimants to sue in a representative capacity and therefore that the order striking out the suit was wrong in law means that the suit remains on the cause list of the trial Court. The jurisdiction donated by Section 272 of the Constitution to the trial High Court to hear and determine the proceedings in the instant suit is not one Court below can partake in and share with the trial Court; it cannot be shared or usurped by the Court below under the pre of Section 15 of the Court of Appeal Act.

The suit at the trial Court was struck prematurely, and at the stage before the trial Court could exercise its direction one way or the other on the evidence before it. The totality of the

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evidence in the Originating Summons had not been evaluated. No findings of fact had been made, and no decision on merits on any part of law or fact had been made. The enabling environment for the invocation of Section 15 of the Court of Appeal Act were not available at the time the Court below invoked Section 15 of the Court of Appeal Act to decide the merits of the Originating Summons in spite of the alleged conflicting affidavit evidence

Section 15 of the Court of Appeal Act, 2004 provides –

The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquires or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in

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the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by the Court of competent jurisdiction.

These provisions of Section 15 of the Court of Appeal Act have been interpreted by this Court in a number of cases, including OBl v lNEC (2007)1 NWLR (pt.1046) 465; AMAECHI v INEC (2008) 5 NWLR (pt.1080) 227; INAKOJU v. ADELEKE (2007) 7 NWLR [pt.1025) 423; AGBAKOBA v. INEC (2008) 18 NWLR (pt.1119) 489; EZEIGWE v. EZEIGWE (2010) 4 NWLR (pt.1183) 159. In all these cases, this Court consistently stated that for the provisions to apply the following conditions must exist, to wit: (a) that the lower Court or the trial Court must have legal power to adjudicate in the matter before the appellate Court can entertain it; (b) that the real issue raised by the claim of the appellant at the lower

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Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; [c) that all necessary materials must be available to the Court for consideration; (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship will follow if the case is remitted to the Court below must be clearly manifest.

Now, taking condition[b) out of the five conditions enumerated

by this Court in those cases above cited; the real issues raised in the Originating Summons are not capable of being formulated from the grounds of appeal contained in the Notice of Appeal before the Court below. The Court below, therefore, acted in error of law when it invoked Section 15 of the Court of Appeal Act and decided the merits of the Originating Summons. ln the appeal before the lower Court, the dispute was whether the trial Court had vires to set aside its earlier order granting leave to the claimants before it to sue in a representative capacity. From the grounds of appeal, and the issues distilled therefrom, no aspect of the merits of the

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Originating Summons was before the Court below to warrant its invocation of Section 15 of the Act was ultra vires. The Court below, therefore, lacked jurisdiction to decide the merits of the Originating Summons at the interlocutory stage when the question was whether or not the suit at the trial Court was initiated in accordance with the due process of law for initiating it.

The law is settled that at interlocutory stage no Court, whether trial or appellate, is allowed to delve into the substantive matter in the pending matter and decide it. See FSB INTERNATIONAL BANK NIG. LTD. v. IMANO NIG. LTD. [2000] 11 NWLR (pt.679) 620 at 639. The Court below had done that which is prohibited in our jurisprudence. Its decision and all the orders made touching the merits of the Originating Summons, being null and void, are hereby set aside. The case is hereby remitted to the Chief Judge of Kwara State to be heard de novo by a Judge of the Court other than Hon. Justice E. B. Mohammed.

Parties shall bear their respective costs.

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SC.321/2011