Chief (Barr) I.e. Nwufo V. Federal Judicial Service Commission (2005) LLJR-CA

Chief (Barr) I.e. Nwufo V. Federal Judicial Service Commission (2005)

LawGlobal-Hub Lead Judgment Report

V.A.O. OMAGE, J.C.A.

This is an appeal against the judgment of Egbo-Egbo J., then of the Federal High Court, Abuja. The Judgment/ruling of the Court was delivered on 2/4/2003. The judgment/ruling was on the preliminary objection raised by the plaintiff/Appellant to the writ of summons filed and statement of claim filed by the Plaintiff. The writ of summons was filed; 28/5/02 and the statement of claim shows the following reliefs:-

(1)Q Declaration that the purported dismissal of the plaintiff, a principal legal officer, enter the Federal Capital Development; Authority released to the Federal Judicial Commission or secondment; not transfer of service for ruling a memorandum not petition dated 9th December, 1999 to the 6th Defendant as conveyed to the plaintiff vide defendant letter’s of 16th and 30th May, 2000 and reaffirmed by letter of 5th February, 2002, delivered to the plaintiff on 27/02/02 is null and avoid and of no effect whatsoever;

(2) Declaration that the plaintiff not having transferred his service from the Federal Capital Development Authority to the service of the 1st defendant was not subject to the…. powers of the 1st defendant as at 10th May, 2000, when the 1st defendant purportedly lack the decision to dismiss the plaintiff at deputy Chief Registrar of Court of Appeal.

The statement of claim of the Plaintiff filed on 30/5/2002, includes nine other reliefs prayed for, with thirty two annexure. They are contained in pages 9 – 33 of the record of proceedings filed in this appeal. The Plaintiff sued eight defendants, namely:

(1) The Federal Judicial Service Commission

(2) The Hon. Justice M.L. Uwais,

(3) The Hon. Attorney-General and Minister of Justice of Federation

(4) M. Justice M.M. Akanbi

(5) Hon. Justice Nzo Anyanwu

(6) Hon. Justice Umaru Abudulalhi

(7) Accountant General of the Federation

(8) The Inspector-General of Police.

All but the eight defendants entered in appearance to the plaintiff’s claim. The 1st, 2nd and 6th defendant’s were represented by one counsel, while the 4 and 5 defendants were respectively represents by different counsel.

The counsel each filed a notice of preliminary object dated 23/1/03. the grounds of the preliminary objection is that the plaintiff’s suit in incompetent and should be truck out or dismissed. The reason being that the complaints of the plaintiff in the reliefs sought by them in the statement of claim are of the performance of the function of the defendants as public officers. (2) The action against them was not filed within three months as required by the law. In that the letter of dismissal which is the origin of the plaintiff’s complaint was issued on 30/5/2000, while the plaintiff’s suit was filed or commenced on 28/5/02.

This is well over one year after and against the provisions of the Public Officer’s Protection Act Cap. 379 Laws of the Federation of Nigeria. In arguing the motion filed first by Abdullahi Ibrahim SAN, of counsel submitted that the suit of the plaintiff been filed outside the prescribed period of three months provided by law, render the suit incompetent and the trial court has no jurisdiction to adjudicate on it. The effect of the provision is to extinguish the plaintiff, right to present the claim in any court of law in Nigeria, because the suit is statute barred. Counsel urged the court to strike out and dismiss the plaintiff’s suit. Gaffa Ayodele SAN, for the 4th defendant referred to the Preliminary Objection filed by him; on the issue of statute bar, and agreed with the submission of the Senior Advocate as stated above. In addition, counsel urged the court to dismiss the action/claim against the 4th defendant as none of the nine items of claim in the writ discloses any cause of action against the 4th defendant and referred to the relevant paragraph were references were made against the 4th defendant and that none discloses any cause of action against the 4th defendant. Counsel for the 5th defendant Mr. Ukelonu adopted the submissions of the counsel for 1, 2, & 6th respondent quoted above and urged the court to strike out plaintiff’s claim. Igwuoson of counsel for the 5th defendant referred to the Preliminary Objection filed by him and associated himself with the submissions made by the counsel for the 1st, 2nd, and 6th defendants and also urged the court to dismiss the suit. Each counsel in this submission objected to the counter affidavit filed by the Defendant/Plaintiff/Appellant. The Preliminary Objection filed by each of them is purely on grounds of law; and not supported by an affidavit, there is therefore nothing to file a counter-affidavit on, as the objection was not supported by an affidavit. Each counsel submitted that the counter-affidavit filed by the plaintiff was an excuse to making farther the defendant. They all urge the court to strike out same.

In his ruling, the trial court upheld the submission of the counsel to the 1st, 2nd & 6th defendants, and of the objection of the 4th & 5th defendants for reasons of the claim been filed after the expiration of three months, infact for the claim been filed well over one-year; when it is apparent that the defendant are public service, and that they acted in the course of their apparent public duties. In the case of the 4 and 5th defendant it is evident from the statement of claim, that the paragraphs which made references to the 4th defendant disclose to the cause of action against him. The court below held that such an objection need not be raised in a statement of defence when it is apparent that the court has no jurisdiction ab initio. The court rejected as misconceived the submission of the Plaintiff/Respondent to the preliminary objection that the action of the defendant was performed in a different colour by which the plaintiff/respondent submitted and suggested that the period of three months protection for public servants will not apply in an action for fraud until such an action is manifest the court below ruled that the plaintiff claim contain no claim for fraud against the defendants only allegation against some of the defendant which is not the substance of the plaintiff’s claim for reinstatement to service or for damages therefore. The court below struck out the suit with six thousand Naira damages against the plaintiff/respondent. The plaintiff was dissatisfied with the ruling of the court below, he has filed grounds of appeal describe as A and B each with copious particulars. He seeks an order of the Court of Appeal to set aside the ruling of the Federal High Court. In his brief, the appellant recorded that the person affected by the appeal are the appellant ad the 1st respondent only, namely the Federal Judicial Service Commission. The 2-5th defendants were not cited in the appeal. It is necessary at this stage to record that the order of the Court below to strike out the plaintiffs claim is in response to; and in upholding the submissions made by counsel to the 1st, 2nd and 6th respondent and to counsel to 4 and 5th defendants; which is duly recorded in the record of proceedings. The appellant filed this brief of argument on 10/3/05 and formulated the issues for determination of the appeal as follows:-

Whether the respondent in dismissing the Appellant from his duty post – post was acting within its statutory or constitution authority or duty as to entitle it to the protection afforded by the public officers protection Cap – 379 L.F.N, 1990.

(2) Whether the trial court was right in holding that the appellant suit was statute barred. The appellant flied also a reply brief in which the appellant submitted that the period of commencement of action, and of the filing of the writ should not include the date of the occurrence of the event. The Appellant argued and submitted that since the date he received the last communication from the respondent is 27th day of February, 2002, and the action commenced on 28/5/2002, the three months period of protection should count from 28th not 27th February, 2002, and the date of last communication to him should not count until 29th May, 2002. The reply is in response to the issue raised in the respondent brief. The respondent also raised what they, the counsel described as the Preliminary objection to the effect that the plaintiff claim is against the eight Defendants in favour of whom the court made its ruling to strike out the suit. The appeal filed by the appellant against the 1st defendant’s only suggest a devious plan of the plaintiff to seek to appeal against the other defendant one by one. The 1st Respondent counsel refers to order 3, rule 2 Rules of the Court of Appeal 202. He urged the court to hold that the appeal as constituted is improper and fundamentally defective, and should be dismissed. Subject to the above, the respondent formulated issue for the determination of the appeal thus:-

“(1) Whether the honourable court in considering the Provisions of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria, 1990, rightly held that the Respondent’s did not act outside the colours of their offices

(2) Whether the honourable trial court was right in the computation of time when it held that the action was statute barred.”

The two sets of issues of the appellant and of the respondent are on the same theme. I will deal with the two sets of issues together treating issue one of the appellant with issue one of the Respondent and issue 2 in both cases similarly. On issue one of both parties, one of the grounds, indeed, the main ground submitted by the appellant for objection to the exercise of jurisdiction on the appellant which groused the appellant in saying that the 1st Respondent has no power to dismiss him from the Services at the Deputy Chief Registrar is because he the appellant- said he is on Secondment to the service of the Federal Judicial Service Commission and that at worse he the appellant should have been sent back to the body that seconded him to the Federal capital Territory. I find in such a submission, absolute fallacy. The letter of appointment offered the appellant as Deputy Chief Registrar supports no suck averment.

The appellant applied for appointment as a Deputy Chief Registrar to the Chief Registrar Court of Appeal by his application dated 9th February, 1997, exhibit in the proceedings below. Apart from stating in the application that he “was currently a legal officer with the Federal Capital Development authority; the appellant did not state in the application that he wished to be considered on Secondment from any previous or current employer; and the appellant had responded to an advertisement for the post of a Deputy Chief Registrar see page 35 of the record of proceeding. On page 36 of the said record is the letter of offer of appointment to the appellant. Nothing is contained in the said offer of appointment made to the appellant by the Federal Judicial Service Committee; about the appointment of the appellant being on Secondment from anywhere; or from the Federal Capital Territory Authority. In particular in paragraph 2 of the letter of offer of appointment the following are recorded “Your appointment is subject to the terms and condition laid down in the Federal Public Service of Nigeria, and to the rules and regulations of the Federal Judicial Service Commission.” Please see page 36 of the record of proceedings.

At no time during the Service of the appellant with the 1st respondent did the 1st respondent participate in the vainglorious communications shown as exhibit in the record of proceedings which the appellant indulged in, with the Federal Capital Authority. The letter in response to the several letters written by the appellant was never endorsed to the Federal Judicial Service Committee and the latter did not know of the day dream of the appellant that he simultaneously belong in the Services of “two separate arms of Services” of the Federal Government of Nigeria. By the acceptance of letter of appointment as the Deputy Chief Registrar, the appellant has accepted the terms of his appointment to be bound by the conditions laid down in the Federal Public Service of Nigeria and the Rules and Regulations of Federal Judicial Service Committee. Consequently, the submission is false, that the appellant was not on a full time Service of the Federal Judicial Service Committee or that the Respondent “acted out of colour” when the appellant was dismissed from Service. In my view and I so rule the appellant by his acceptance that his appointment was subject to:

(i) Condition and rules laid down in the public service;

(ii) That he is subject to the rules and regulations of the Federal Judicial Service Commission is under the Sole and direct control and authority of Federal Judicial Service Committee; and subject to the rules of the Judicial Service Commission.

The Appellant cannot with parol statement vary or contradict the term and conditions of his appointment which is writing see Akpare v U.M 20 NLR. The order made of the dismissal of the appellant was properly made. If therefore the appellant wishes as he did, to exercise a right to go to court on the issue of his dismissal he must and should have done so within three months of the receipt of the letter of dismissal, as provided in the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria. Indeed, if the issue raised by the appellant is to be treated facetiously the answer should be, since the appellant claim to have a right of return to the Federal Capital Territory office; he should suo motu return to the latter; and the question may be asked why commence litigation, why does the appellant not just proceed to his original employer in another government as he submitted. The clear answer is that the appellant seeks to engage in unprofitable semantic argument; which in this case goes to no avail. I resolve issue one against the appellant.

Issue two of both parties is on the method of calculation of the three months period from when the cause of action arose to be caught by the Public Officers Protection Act.

The cause of action in the instant appeal of the appellant arose the date on the letter of dismissal from the service of the plaintiff/appellant unless the letter states otherwise. The letter which issued from the Federal Judicial Service Commission to the appellant is dated 30th May, 2000, but the date of the dismissal in the letter is 16/5/2000. Within three months of the date after 16/5/2000 the plaintiff/appellant may, acting within the provision of the Public Officers Protection Act Cap 397 commence an action against the Public Servants cited in the Writ of Summons if the respondents are acting within their judicial jurisdiction. The letter is contained all page 140 of the record of proceedings and it states the dismissal is with effect from 16/5/2000.

Any subsequent letter from the defendant which does not change the date of dismissal, and which conveys nothing differently from letter of the 16/5/2000 is a confirmation, of the contents of the earlier letter. The confirmation became necessary for the avoidance doubt as a result of representation made to the Federal Judicial Service Commission by the appellant. The reliance by the appellant of the respondent’s letter of confirmation of dismissal on a subsequent date as creating the fresh cause of action is idle. The subsequent letter did not renew the date the cause of action arise as that date. So certain of his dismissal from service of the Respondent that he wrote several petition to the head State appealing against his dismissal. The petition are dated 23/5/2000; see page 141 of the record. The Senate President 23/5/2000 pages 171. A letter to the Inspector General of Police praying for the reversal “the criminally” motivated dismissal from the service to name a few. The letter is also dated 23/May/2003. All the letters petitions and representations were made by the appellant in the expectation and hope that his dismissal from service on 16/5/200 which was conveyed in a letter dated 30/5/2000 could be reversed. If the appellant claimed to have received a letter from the respondent on 27/March/2002, which does not reverse the decision conveyed to him of his dismissal from the service, the cause of action and remained a date after 16/5/2000. Therefore, the date from which the appellant can institute his right of Action is 16/5/2000 if interpreted liberally 17/5/200 not 27th March, 2002. The suit was commenced against the defendants on 28th May, 2002, see The Registrars Certificate on page 1 of the record of proceedings, and the writ was issued by the Registrar on 30th May, 2002 from the time the cause of action arose on 16 or 17/5/200, to 28/May, 2002 is a period of over one year, which exceeds the three months period within which the appellant as plaintiff in he court below can commence proceedings against a public officer. In the instant case, the period has elapsed and the right of the plaintiff/ appellant to institute the action in a court below is extinguished and lost for all times See IBRAHIM V JSC (1998) 14 NWLR (pt 584) p.1. Per Iguh JSC; (ii) JARE v NUNKU 1995 5 NWLR Pt 394 129 SC.

In the instant appeal, the appellant in the court below has failed to show to the court below the true condition of service as being under the Federal Judicial Service Committee/Commission; instead he affects to be still under another service which is not alien to the Federal Government of Nigeria. It is a sufficient reason why his claim should be determined adversely against him. There is nothing in his written terms of service which suggest that the appellant is on secondment service to the lot Respondent. It is not so contained in the letter of appointment to the appellant. The appellant merely hoped to compound issue by engaging in an oral evidence to his service situation. It is settled law, that parole evidence is not admissible, to add, to vary or contradict a written document. See OLANYILE V AFRO CONTINENTAL NIGERIA LTD (1996) 7 NWLR (Pt 458) 29, 40;

(ii) MRS BISI OLATOYE V MADAM SARAH A BALOGUN (1990) 7 SCNJ 205, at 207.

There is no issue of secondment of service in the appellant’s appointment with the Respondent. Admittedly after receiving the letter of dismissal from the service of the Respondent the appellant wrote to several people, including the respondent in the hope of seeking a reversal of the letter of dismissal and hoping to be registered to his former position, such period may be described as a period of negotiation. The period of negotiation does not stultify; or renew the date of the cause of action arose.

The situation arose in the case of EBOGBE V NNPC (1994) 5 NWLR (Pt 347) 649 at 659. The Supreme Court in a majority decision held that the period of negotiation since a cause of action arrives does not revive or affect the date the cause of action arose. This decision it held despite the humane obiter dictum in the reasoning of the Hon Justice S. Onu JSC. Consequently, once the cause of action has arisen unless an intervening event alter the original event the date after the event remains the date from which calculations of applicable date should commence. See BRITISH AIRWAYS PLC V AKINSOYE 1995, 1 NWLR Pt 374, at 724; (ii) JALCLCO LTD V OWONILOYE TECH. SERVICES LTD. 1995 4 NWLR Pt 391 534 at 583 SC. The cause of action in this instant appeal is 16th May, 2000, from which date three months within which the appellant should have commenced his action against the Defendants in the court below, or Respondents in this court to fall within the period to sue under the Public Offices Protection Law Cap 397. LFN the appellant has failed to do so, his right to sue is extinguished.

I wish now to comment on the observation recorded in the respondents brief who expressed the anxiety that the ruling of the court below affects all the parties, in favour of all of whom the court struck out the plaintiffs claim, but the appeal filed is against the 1st Respondent alone. This sufficient to state here that this court is not in the habit of pronouncing judgment on hypothetical issue. Until the appellant seeks to appeal against any other of the affected parties in favour of whom the judgment of the court below is given this court will keep its peace on that issue. The appellant has complained that the objection to the jurisdiction of the court made by the Respondent months after the cause of action arose under the Public Officers Protection Act Cap 397 Laws of Federation of Nigeria and the learned trial Judge below has properly so rule. I resolve issue 2 also against the appellant in favour of the Respondent. I affirm the decision of the court below, and dismiss the appeal. I make an order against the appellant of N10,000.00.

Other Citations: (2005)LCN/1851(CA)

Central Bank of Nigeria V. Uchenna Godswill Dinneh (2005) LLJR-CA

Central Bank of Nigeria V. Uchenna Godswill Dinneh (2005)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER ODILI, J.C.A.

This is an appeal against the ruling of Honorable Justice A.I. Chikere of the High Court of the Federal Capital Territory, Abuja, whereby the learned Judge granted the application of the Plaintiff/Respondent in allowing the amendment sought of the Statement of Claim by a motion of 18/10/2004, which read inter alia:-

(1) An order granting leave to the Plaintiff/Applicant to further amend his statement of claim in term of the schedule attached hereto as Exhibit A”.

The Schedule of Amendment stated as follows:-

”SCHEDULE OF AMENDMENT”

AMENDED STATEMENT OF CLAIM

Add the following words immediately after the word ‘suit’ which is the last word in paragraph 12 “which document was made pursuant to the provision of the (law) Act setting up the defendant.
Add the following immediately after the last word in paragraph 52 “although plaintiff is still willing and able to work if given the opportunity”
Remember the original paragraph 60 in the amended statement of claim as No. 61 and add a new paragraph 60 as Follows:

“(60) But for the decision of the defendant which was based on wrong premises and unfounded. Plaintiff would have remained in the employment of the defendant until he attains the age of 60 years when he would have put in 35 years in service”

In the new paragraph 61 (that is, original paragraph 60 of the amended statement of claim dealing with reliefs) add a (new) relief as an alternative relief to relief No. 3 immediately after the said original relief 3 as follows:

“ALTERNATIVELY:

a. An order directed at or against the defendant to pay to the plaintiff his salary and other emoluments mentioned in paragraph 58 above for the remainder of 13 years which the plaintiff would have served but for the wrongful action of the defendant mentioned in the statement of claim.

b. Further, order directed at or against the Defendant for the immediate payment to the plaintiff the latter’s gratuity and pension benefit calculated as if the plaintiff had retired at the age of 60 years and as if (six) he has served the defendant for 35 years.

c. An order directed at or against the defendant for payment of all other entitlements to the plaintiff as obtain or applicable in the policy, practice and or tradition of the defendant”.

The Application was supported by a 16 paragraph affidavit with Exhibit A (Schedule of amendment). There was no counter affidavit. The motion was extensively argued by counsel on either side and the learned trial Judge on 1/12/04 delivered her ruling and stated inter alia in conclusion:

“The issue for determination is ‘whether the reliefs sought to be amended in the schedule to amendment need calling of fresh witnesses with respect the answer is No. As I have already stated the facts of the Plaintiffs salary and emoluments (sic) are pleaded already in paragraph 58 of the Statement of Claim. I agree with learned (Counsel) L.O. Fagbemi (SAN) that the evidence in support of the new relief sought to be amended is already on record, so that it is necessary and in the interest of justice that the amendment be allowed. I so hold. I am fortified in my view by the decision of the Apex Court in the case of IMONIKHE v. ATTORNEY GENERAL, BENDEL STATE, (supra).

The Defendant/Respondent may if necessary amend its Statement of Defence.

No order as to cost”.

It is against that ruling that the defendant/Appellant has appealed on four grounds of appeal contained in its notice of appeal at pages 44 and 45 of the record.

The Appellant filed its Amended Brief of argument in which it formulated through learned Counsel four issues for determination which are:-

Whether following proper application of the applicable legal principles the trial Judge ought to have granted the relief sought by the plaintiff in the light of the following facts and circumstances:-

(a) at the time the application was made the statement of claim, and hence the suit, was incompetent by reason of the fact that all the existing reliefs sought in the statement of claim were not maintainable in law on the facts and circumstances of the case, i.e, the cause of action was non-existent.

(b) the limitation period of three months within which an action could properly be instituted pursuant to Section 2(a) of Public Officers Protection Act in respect of the new relief had expired.

(c) by legal principles an amendment relating to additional reliefs does not relate back to the date of filing of the original statement of claim but from the date on which the amendment was made; and

(d) the case of both sides had been closed and the case had been fixed for hearing of addresses by counsel.

Whether the amended statement of claim which was existing at the time the motion was filed disclosed a reasonable cause of action and whether the trial judge was wrong in refusing in her ruling to entertain the oral application by the counsel for the defendant in the course of his address on the motion to have this suit struck out for being incompetent for the reason that the suit did not disclose a cause of action as the reliefs claimed in it were not maintainable, an issue that concerns the jurisdiction of the court to entertain the suit.
Whether the trial Judge acted in breach of the defendant’s constitutional right to fair hearing when she failed to consider the case put forward before her by the defendant that she ought not to grant the motion for amendment in this case because the limitation period prescribed for bringing a suit against the defendant by Section 2(a) of Public Officers Protection Act had expired because she only mentioned the fact that that submission was made to her and authorities cited before her to support the contention, but she totally neglected to embark on the consideration of them in her ruling.
Whether the ruling of the trial Judge is erroneous in that at the commencement of the suit, the writ of summons and the statement of claim did not disclose a reasonable cause of action because none of the reliefs claimed by the plaintiff in those two processes was maintainable by it because:-

(i) the employment of the plaintiff did not and was not alleged to have statutory flavour and he was not alleged to have a legal estate or right in the official quarters in which he resided;

(ii) the effect of the writ of summons and the statement of claim in a suit to disclose a cause of action is to render the suit incompetent and incurably bad and liable to be struck out;

(iii) the only remedy that is open to such a plaintiff is to commence a new suit; it is not open to the plaintiff to amend such processes;

(iv) the court lacks jurisdiction to entertain such a suit; and

(v) the court and/or the parties lack the power to confer on the court jurisdiction to entertain an incompetent suit by amendment or any other means.

The Respondent raised three issues for determination which are as follows:-

Whether having regard to the legal principles guiding amendment of pleadings and all the circumstances of this case, the learned trial Judge was wrong in granting the amendment sought?
Whether the Appellant has not waived his right to defence of limitation if any at all and whether the relief sought to be included in the Plaintiff/respondent’s claim was caught by the provisions of Public Officers Protection Act and
Whether the Plaintiff/Respondent’s suit was incompetent?

While the Appellant in its Amended Brief argued their four issues together the Respondent in his Brief took his issues for determination seriatim and I find it easier to handle, to utilize the issues in the form articulated by the Respondent. I shall however, take them from the bottom up that is Issues 3, 2 and 1 respectively.

ISSUE 3:

This issue has to do with whether or not, the plaintiff/respondent’s suit was incompetent since the Appellant contended that at the commencement of the suit the writ of summons and the statement of claim did not disclose a reasonable cause of action because none of the reliefs claimed by the plaintiff in those two processes was maintainable by it because:

(i) the employment of the Plaintiff did not and was not alleged to have statutory flavour and he was not alleged to have a legal estate or right in the official quarters in which he resided;

(ii) the effect of the writ of summons and the statement of claim in a suit to disclose a cause of action is to render the suit incompetent and incurably bad and liable to be struck out;

(iii) the only remedy that is open to such a plaintiff is to commence a new suit, it is not open to the plaintiff to amend such processes;

(iv) the court lacks jurisdiction to entertain such a suit; and

(v) the court and/or the parties lack the power to confer on the court jurisdiction to entertain an incompetent suit by amendment or any other means.

The Respondent in response said that the fact that a claim or action may not succeed is not a reason or basis to conclude that the court lacks jurisdiction to entertain the same. He cited the cases of Arowolo v. Akapo (2003) 8 NWLR (Pt. 823) 451 at 502 – 503, Gudu v. Kitta (1999) 12 NWLR (Pt. 629) 21.

Mr. Fagbemi (SAN) learned Counsel for the Respondent stated that it is a settled principle of law that in order to determine whether the statement of claim discloses a reasonable cause of action or not, what the court should consider are the contents of the statement of claim and not the extent to which one relief can co-exist with another. That it is irrelevant to consider the weakness of the plaintiff’s claim. That the important thing is to examine the averments in the statement of claim and see if they disclose some cause of action or raise some questions fit to be decided by the court. He cited Dantata v. Muhammed (2000) 7 NWLR (Pt. 664) 176 at 197.

Learned Counsel went on to say that the plaintiff’s statement of claim discloses his right to institute an action for a wrongful act alleged, to wit; wrongful termination of his employment and breach of his constitutional right to fair hearing by an organ or institution regulated by statute and the constitution. That Section 36 of the 1999 Constitution of the Federal Republic of Nigeria confers on every citizen with a grievance the right of access to courts. That it makes it obligatory on the court that will determine the rights of the person to accord him a fair hearing. He referred to the case of: Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 33 -34.

Mr. Fagbemi (SAN) submitted further that the two declaratory reliefs claimed by the respondent in paragraph 60 of his Amended statement of claim are the principal reliefs upon which other reliefs depend. That it is a settled principle of the law that the court can grant declaratory reliefs alone. He referred to Order 25 Rule 5 of the Federal High Court Rules 2000 and the case of Shitta-Bey v. Federal Public Service Commission (1981) SC 40.

Learned Counsel for the Respondent said the action is competent and the court has power and jurisdiction to adjudicate upon it. That what the appellant is attempting is to defeat justice on the altar of mere technicalities which the court frowns at. He cited Obiora v. Osele (1989) 1 NWLR (Pt.97) 279 at 302.

Also, that the appellant’s arguments are hypothetical and academic. That where there are two simultaneous applications, one destructive and the other curative, the court will hear the curative one before the destructive application. The learned Counsel said even if the appellant had a valid objection on the incompetence of relief No.3 which is not conceded that the said relief is incompetent the alternative relief sought to be let in and which the learned trial Judge allowed has the effect of curing the incompetence. He cited the cases of Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 667 -778. Consortium MC v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 142 paras G – H. Ceekay Traders v. G.M. Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 at 147 – 148 to 159.

The learned SAN said that the Respondent’s action is maintainable in law and in no way caught by the provision of the Public Officer’s Protection Act.

Furthermore learned Counsel said the questions raised in the pleadings can only be resolved at full trial and evidence taken.

In his reply Brief, learned Counsel for the Appellant, Aluko-Olokun (SAN) said that this is not a case in which a claim or action may not succeed but one in which the court has no right to grant the reliefs claimed as the court has no jurisdiction to entertain incompetent claims. That where multiple reliefs are claimed any relief over which the court lacks jurisdiction is liable to be struck out.

I would want to see what the judicial authorities or at least some of them said on the matter presented in this issue. See World Gate Ltd. V. Senbajo (2000) 4 NWLR (Pt. 654) 681- 682 per Galadima JCA.

“In an amendment of a statement of claim, a new cause of action which did not exist at the date of the writ cannot be introduced.

Indeed, if the true points at issue are to be determined, the pleadings of either party should be rigidly adhered to and the court should make such arrangement as are necessary for the real rights of the parties to be determined. However, if an amendment is to the effect that it would bring into an action an entirely fresh cause of action arising after the action had been started, such an amendment may not be allowed. The amendment in such a case should not be entertained in as much as it relates to a cause of action which did not exist at the time when the writ was issued. Facts which arose after the action by the 1st respondent was filed has the effect of starting a fresh cause of action (Gowan v. Ike-Okongwu (1994) 2 NWLR (Pt. 326) 355 referred to.

An amendment merely for the purpose of determining the real issue (5) in controversy between the parties ought to be permitted at any stage of the proceedings even where the action had been reserved for judgment or an appeal provided:

(a) the applicant is not acting mala fide or trying to over reach the other party;

(b) the amendment will not entail injustice or embarrassment or surprise to the other party;

(c) by his blunder the applicant has done injury to the other party which cannot be ameliorated by costs or otherwise assuaged.

An amendment which is intended by a party to change the nature of the case before the court will generally be refused because it is not made bona fide but mala fide and is intended to overreach the other party” (Oladiti v. Sungas Co. Ltd. (1994) 1 NWLR (Pt. 321) 433 referred to) P. 681 paras D-G per Galadima JCA.

A cause of action accrues when a breach of a person’s legal right occurs and not when damages are suffered. See USA Plc. v. Abdullahi (2003) 3 NWLR (Pt. 807) 359, See. Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.

In Consortium MC v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 142 per Nnaemeka-Agu JSC D – E, G – H.

”I must reiterate the fact that our courts have deliberately shifted away from the narrow technical approach to justice which characterized some earlier decisions of courts on the matter. Instead, it now pursues the course of substantial Justice….

To hold that learned Counsel for the appellant was right in his contention will tantamount to sanctioning injustice through the short arm of technicality. That is not our current aim in the administration of justice”.

The point is that the spirit of justice does not reside in Rules of Court, in forms and formalities, nor in technicalities. These should aid not defeat justice. see Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279 at 302 per Oputa J.S.C.

It is trite that jurisdiction can be raised even for the first time at the Supreme Court. See Usman Dan Fodio University v. Kraus Thompson Organisation Ltd. (2001) 15 NWLR (Pt. 736) 305 per Aderemi JCA.

If there are two motions, one seeking to raise a point of non-compliance with a rule or an order by court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve the form being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the courts are now expected to do substantial, and not technical justice. In such cases, the aim of the court ought to be to lean in favour of the proceeding that will bring about the doing of substantial justice. See Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 667 – 668 per Nnaemeka-Agu JSC.

Once there is jurisdiction in the court to adjudicate on a claim, a defendant/applicant can only determine the case in limine by application under the Rules of Court. See Ege Shipping & Trading Industry v. Tigris International Corporation (1999) 14 NWLR (pt. 637) 70 at 89 – 90; Shell BP Petroleum Dev. Co. of Nigeria v. Onasanya (1976) 6 SC 89.

It must not be lost sight of however that the jurisdiction of the court is determined by the claim on the writ of summons of the Plaintiff. See Adeyemi v. Opeyori (1976) 9 – 10 SC 31.

From all that have been stated above and the authorities enabling it is clear that the Issue No 3 raised is answered by me in the Positive. That is the Plaintiff/Respondent’s suit was not incompetent and the arguments and submissions to the contrary obviously academic and flawed, with the overreaching capacity to terminate a suit in limine without a legal basis with the added injury of causing substantial miscarriage of justice. For emphasis the trial court did not lack jurisdiction to adjudicate.

ISSUE 2:

On this issue, Mr. Aluko Olokun (SAN), learned Counsel for the Appellant said one of the grounds on which the appellant opposed the motion of the respondent was that in respect of the additional reliefs sought by the Respondent the limitation period within which the additional reliefs could lawfully be sued for had expired pursuant to Section 2(a) of the Public Officers Protection Act, cap. 359 of the Laws of Nigeria, 1990 and that being so what the respondent was seeking to do was to prosecute a stale claim as the prescribed limitation period was three months while the cause of action occurred about one year and a half before the motion was filed.

In Response learned counsel for the Respondent said this issue relates to waiver and the nature of reliefs and whether reliefs are mutually exclusive or whether they are contiguous upon one another. That assuming without conceding that Appellant’s argument is valid, considering the time it raised the issue of incompetence or noncompliance with the provisions of the Public Officers Protection Act the appellant is taken to have waived that right. That the position of the law is that a person who is entitled to the benefit of a statutory provision may waive same and allow the transaction to proceeds as though the provision had never existed. He cited the case of Udu v. Kraus Thompson Organizations Ltd. (2001) 15 NWLR (pt. 736) 305.

Learned Counsel for the Respondent stated that raising such a defence after the close of case and in response to a motion on amendment amounts to a waiver of that right. That the defence of limitation being a special defence, the way and manner in which it can be raised are governed exclusively by the rules of court. That it should be noted that demurrer had been abolished; hence the raising of the defence of limitation cannot be raised without first raising it in the pleadings for reason of fair hearing and to avoid springing a surprise on the opponent. He cited Order 25 Rules 1 and 2(1) Federal High Court Rules 2000. Ademolaju v. Adenipekun (1999) 1 NWLR (pt. 587) 440 at 450 D – E.

Learned Counsel submitted further that the appellant has failed woefully in this regard as he raised the issue of limitation for the first time in response to the motion for amendment which showed appellant’s disregard for the rules of court which are to be obeyed failing which the action taken in that regard is vitiated for noncompliance. He referred to Onyemeizu v. Orjiako (2000) 6 NWLR (pt. 659) 45 E – F.

Learned Counsel said that the statute of limitation is a defence which can be waived and so it cannot be strictly said that an action taken outside the limitation period is incompetent for lack of jurisdiction of the court. He cited Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 718 para A.

The learned SAN went on to contend that where one of the reliefs claimed is improper as complained by the Appellant that the plaintiff/respondent’s Relief 3 is not maintainable for reason of master/servant relationship between the parties, the claimant goes home without the improper relief whilst other reliefs properly claimed survive and thus saved. That it has nothing to do with the issue of jurisdiction which is a constitutional matter. That even if all the reliefs are improper, the court is not precluded from looking at their merit to know whether indeed they are improper or not and this interlocutory stage is not the right time to delve into that. Learned Counsel said courts should guard their jurisdiction jealously and anything that would restrict their power must be resisted. He cited the case of Olaofe v. University of Ibadan (2001) 10 NWLR (pt. 720) 149 paras B – C. That the court has a duty to do justice in any case before it between parties to a dispute and not to obstruct the course of justice.

In the Reply Brief learned counsel for the Appellant said it would not have served any useful purpose to raise a defence of limitation of time when the new relief was not yet in place. That it is their legal defence to the application to amend. That they were alerting the court that the time limited by statute for making such an application properly had expired and that at that point in time such an application was incompetent. learned counsel said in any event since such an additional relief by law cannot date back to date of filing the suit granting such an amendment to include it at that point in time was otiose.

That is in summary the arguments for and against the issue under review. I shall cite some of the authorities to me for a clearer picture of the legal principles guiding in the specific circumstances of this present case.

See the case of:- Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684 Held Per Iguh JSC at 710.

A Limitation Law or Act removes the right of action, the right of enforcement and the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is statute barred. Accordingly, where the law provides for the institution of an action within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be commenced after the time prescribed by such a statute. (Obiefuna v. Okoye (1961) 1 SCNLR 144; Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1; savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping Co. Ltd (1987) 1 NWLR (pt. 49) 184 referred to).

Where limitation of action is related to torts and contract, it is an accepted principle that the statute of limitation is a defence which can be waived.

To that extent it cannot strictly be said that an action taken outside the limitation period is incompetent for lack of jurisdiction of the court. However, after the plea of limitation has been raised and established, the court lacks jurisdiction to proceed further to determine other issues of merit in the case. See Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684 at 718 para A per Ayoola JSC.

See also Ademolaju v. Adenipekun (1999) 1 NWLR (pt. 587) 440 at 450 D – E per Rowland JCA:

A limitation law does not operate in a vacuum. Hence it is the defendant who ought to plead and prove that the action is statute barred (Savannah Bank Ltd. V. Pan Atlantic (1987) 1 NWLR (pt. 49) 212 at 259 referred to).

Where a statute confers specific and special powers on any person or authority for the performance of certain acts and prescribes the manner in which the powers are to be exercised he cannot deviate from that procedure, else the excess can be called into question in the court of law except where ouster of jurisdiction abound. See Oraofe v. University of Ibadan (2001) 10 NWLR (pt. 720) 126 at 146 paras F – G per Adekeye JCA.

A provision in a statute ousting the ordinary jurisdiction of the court must be construed strictly. Thus if such a provision is reasonably capable of having two meanings that meaning shall be taken which preserves the ordinary jurisdiction of the court. See Olaofe v. University of Ibadan (2001) 10 NWLR (pt.720) 126 at 147 para D – E, 149 para C per Adekeye JCA.

Generally, courts should guard their jurisdiction jealously and anything that would hamper their powers must be resisted. In the instant case, the Public Officers (Special Provisions) Act of 1984 is a punitive Act which takes away the vested right of a public officer in certain circumstances and restricts his access to court. It is interpreted strictly and narrowly against the maker. P. 149 paras B – C per Adekeye JCA in Olaofe v. University of Ibadan (supra).

A court should not be in a haste to decline jurisdiction where and when it affects deprivation of right of citizens P. 149 para E per Adekeye JCA in Olaofe v. University of Ibadan (supra).

Bearing that caution above in mind and seeing nothing to encourage me to deviate from the warning I would say without difficulty that the matter of the Statute of Limitation does not come into play in this instance the reasons not only those earlier mentioned but because the pleading as amended is to take the date of the filing of the earlier pleading which is now being amended and since by that earlier date limitation did not occur, it would therefore not be relevant to the successor of that pleading which stepped into the position of the previous. Therefore Issue No.2 is answered in the negative that is that issue whether or not limitation occurred is not relevant for the purposes of this interlocutory appeal.

ISSUE 1:

In respect of this issue the learned counsel for the Appellant referred to the reliefs sought from the trial court up to the time the motion which gave rise to this appeal was filed. He said in regard of the first three reliefs that the law is clear that an employee whose employment does not enjoy statutory flavour, where he is dismissed or otherwise relieved of his employment, cannot seek these three reliefs because the determination of the employment brings the relationship of master and servant to an end and the employee cannot obtain an order for annulment of the determination of his employment because the doing of such an act is within the right of the employer. That the only remedy that avails the employee is an award of damages for breach of contract. He referred to the cases of:

Katto v. CBN (1999) 6 NWLR (pt. 607) 390.
CBN v. Okosun (1996) 2 NWLR (pt 428) 77.
Ogbaji v. Arewa Textiles Plc. (2000) NWLR (pt. 678) 322.
Union Bank v. Ogboh (1995) 2 NWLR (pt 360) 647.
Ogbuike v. National Steel Council (1976) NNLR.
Jida v. CBN (2001) 5 NWLR (pt. 705) 165.

Learned Counsel for the Appellant went on to state that in the instant case having regard to the facts of the case the employment of the plaintiff did not have statutory flavour because there is no statute which protects it. That the terms of the employment are merely contained in a written document which gave the defendant the right to bring the employment to an end by giving the plaintiff one month salary or one month notice at the absolute discretion of the defendant. Learned Counsel said the fifth relief which sought to prevent the defendant from ejecting the plaintiff from the premises that was allotted to the plaintiff as his official residence while he was in the employment of the defendant is not maintainable because it is settled law that the plaintiff did not have an estate in the property. Learned counsel said Plaintiff/Respondent was only a licensee and following the determination of his employment, he ceased to have any legal right over the property and a party who has no legal right cannot obtain an injunction. He referred to the cases of:

Yalaju-Amaye v. A.R.E.C. (1990) 6 SCNJ 149; (1990) 4 NWLR (145) 422 at 451 – 452.
Akibu v. Oduntan (1991) 2 NWLR (pt. 171) 1 at 10.
Union Beverages Ltd v. Pepsi cola (1994) 3 NWLR (pt. 330) 1 at 12.
Paul v. Ozokpo( 1995) 4 SCNJ 119 at 139.
Akuneziri v. Okenwa (2000) 15 NWLR (Pt. 691) 526.

In respect to the 4th claim learned counsel for Appellant said that the failure of the first three reliefs makes it unnecessary to consider the claim as it is predicated on the success of the plaintiff on those claims. That it is ancillary to the first three reliefs and when an employment is determined the employee ceases to work and he ceases to have a right to demand for his salary and the payment of salary to him ceases from the day the employment is determined.

Learned Counsel for the Respondent stated on his own part that the additional relief sought by the plaintiff/respondent and granted by the lower court is sustainable by the existing facts at the commencement of the action and the relief being sought did not arise after the cause of action. That the reliefs sought to be amended need no calling of fresh witnesses as facts of the plaintiff’s salary and emolument are already pleaded in paragraph 58 of the Statement of Claim and admitted. Learned Counsel said the opposition to the amendment on the solitary ground of being statute barred is untenable since all amendments date back to the time of the commencement of the action. He cited Vulcan Gases Ltd. v. G.F. Ind. (2001) 9 NWLR (pt. 719) 610 at 640 – 641. Learned Counsel said the proper consideration for the court is whether the averments in the statement of claim can sustain the new relief. That if yes, then other Issues or arguments become otiose and academic, which the court is not enjoined to dabble into. He referred to Ogbonna v. The President Federal Republic of Nigeria (1997) 5 NWLR (pt. 504) 284 at 288.

Learned Counsel further stated that the grant of the amendment of the relief will not give rise to any need to call new evidence to prove same because the pecuniary entitlements of the Respondent is not in issue as parties had agreed in the pleadings as to the respondent’s pecuniary entitlements and the only issue remaining is whether or not the plaintiff is entitled to those reliefs in law which is to come at the hearing of the substantive case and not otherwise. Learned counsel said it is settled principle of law that when one talks of fair hearing, it must be conceived with reference to the real issues in litigation between the parties. He cited the case of Consortium MC v. NEPA (1992) 6 NWLR (pt. 246) 132 at 142 paras E- F.

Mr. Fagbemi (SAN) of counsel for Respondent said the totality of the appellant’s argument is to determine the substantive issue at the High Court at this stage of interlocutory appeal whereas, the issue in this appeal, strictly speaking relates to amendment and it is trite law that the Court of Appeal should not in an interlocutory appeal determine the substantive issue as doing so will prejudice the pending substantive cases. He cited the case of United Spinners (Nig.) Ltd. v. Chartered Bank (2001) 14 NWLR (pt. 732) 195 at 220 paras E – F. Mobil Prod. (Nig) Unlimited v. Monokpo (2001) 18 NWLR (pt. 744) 212 at 249 paras D – F.

In his reply brief learned counsel for the Appellant said in the present instance the amendment will not date back to the date of the filing of the suit because such an amendment will not be allowed to deprive the opposite party of a defence of limitation.

I would want to restate the relevant part of the statement of claim paragraph 60:

DECLARATION that the dismissal of the plaintiff from his employment with the Defendant on 20th June 2003 is illegal, ineffectual and unconstitutional for the breach of the plaintiff’s right to fair hearing and the rules and regulations governing his contract of service with the Defendant.
DECLARATION that the dismissal of the Plaintiff from his employment with the Defendant on 20th June 2003 for offences acts and or omission which occurred during the period when he was on annual/eave and not on duty is wrong and unlawful, null and void.
AN ORDER reinstating the plaintiff back to his employment with the Defendant.
AN ORDER directing the defendant whether by itself, its servants, agents, privies or assigns howsoever to pay to the plaintiff the latter’s salaries, emoluments and entitlements from July 2003 until the Plaintiff’s re-instated.
AN ORDER of injunction restraining the Defendant whether by itself, its servants, and/or privies howsoever from ejecting the plaintiff from the defendant’s quarters at Block 06 Flat 44 (Intermediate and Junior) Garki Abuja.

In seeking the amendment and further amendment the foregoing remained what was asked to be brought in the amendment was an ALTERNATIVE RELIEF:-

In the case of Ibe v. Onuorah (1998) 7 NWLR (pt. 558) 383 at 393 B – C per Ubaezonu JCA:

It is not a blank cheque that every application for amendment must be granted. Every application for amendment to correct a mistake or slip in the proceedings and designed to meet the ends of justice shall be granted no matter at what stage in the proceedings the application is made.

On the other hand, any application that is mala fide or will prejudice or cause injustice to the other side will not be granted. (Okafor v. Ikeanyi (1979) 3 – 4SC 99 referred to).

By virtue of Section 16 of the Court of Appeal Act, the Court of Appeal has powers to amend pleadings filed in the High Court. See Ibe v. Onuorah (supra) at 392 G – H.

Owata v. Anyigor (1993) 2 NWLR (pt. 276) 380 referred to In Union Bank Ltd. v. Ogboh (1995) 2 NWLR (pt. 380) 647 at 663 Paras C – E per Belgore JSC:-

Sometimes, to obviate ambiguity or to aver some facts, a party may amend his pleadings under certain principles before the end of hearing or judgment or sometimes on appeal. It is for the sake of doing justice to the parties that the court is always lenient and favorably disposed to an amendment of pleading at any stage of hearing and before judgment so as to bring to focus the trend of substantial evidence of the dispute between the parties. The appellate court can even make such an amendment if asked for so far as it will not be to the disadvantage of the other side or occasion a miscarriage of justice. (Ogwuma v, IBWA Ltd. (1986) 1 NWLLR (pt 73) 658; Kate Enterprises Ltd. V. Daewoo Nig. Ltd. (1983) 2 NWLR (pt. 5) 116 referred to.

On the exercise of a trial court’s discretionary powers, see Ceekay Traders Ltd. v. Gen. Motors Co. Ltd. (1992) 2 NWLR (pt. 222) 132 at 162 – 163 paras H – A.

A trial Judge is entitled to exercise discretion but he must give reasons for so doing to give the appellate court opportunity to know how he exercised his discretion. (Solanke v. Ajibola (1968) 1 All NLR 46 at 54 referred to) per Olatawura JSC.

Where a trial court has exercised discretion over a matter, an appellate court should not interfere on the ground that it might have exercised it differently if it were in a position to do so. An appellate court is however, entitled to interfere with the exercise of discretion of a trial court if the appellate court is satisfied that it is in the interest of justice to do so. See Kawu JSC at 146. (University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143 at 148; Demuren v. Smith (1967) 1 All NLR 329 at 333; President of Ijebu Province v. Laguija (1955) 14 WACA 549 at 552 referred to. I would answer this Issue No.1 in the negative as the learned trial Judge had the discretion to consider the amendment sought which discretion she properly exercised judicially and judiciously. I agree with the attitude of the Respondent’s Counsel that Appellant is seeking to use this forum to determine the substantive suit which this court cannot do.

In the circumstances of this case and the reasons above given this appeal lacks merit and is dismissed. I affirm the ruling of the lower court granting the amendment.

I order N5,000.00 costs to the Respondent.

Other Citations: (2005)LCN/1850(CA)

Austin Ayowe, Esq V. The President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo & Ors. (2005) LLJR-CA

Austin Ayowe, Esq V. The President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

This is an appeal from the ruling on the preliminary objection raised by the now respondent to the action of the now appellant. The appellants were plaintiffs in the Federal High Court of Nigeria.

The plaintiffs in that Court had commenced proceedings therein by originating summons dated 15/11/2004. In the said summons, the plaintiffs named Austin Awoye Esq. (ii) Dafe Karl Chuks. For themselves and on behalf of members of the Niger Delta Democratic Union (NDDU) seek through the court the reliefs hereafter itemized from the following (1) The President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo (2) The Attorney-General of the Federation (3) The Petroleum Production Pricing Regulatory Authority (PPPRA).

From whom the plaintiffs claim the following reliefs-

“1. A declaration that by virtue of (a),(b),(d) above, the office and functions of the Minister of Petroleum Resources shall/must be exercised by a Minister duly appointed for petroleum resources by the President of the Federal Republic of Nigeria.

An order directing the 1st defendant to appoint a Minister of Petroleum Resources in accordance with the mandatory provisions of the Petroleum Act Cap. 350 Laws of the Federation of Nigeria, 1990, as amended especially Section 15 thereof and Sections 5(1)(a)(b) and 315(1)a of the Constitution of the Federal Republic of Nigeria, 1999.
An order restraining the 1st and 3rd Defendants from further exercising any functions or powers of a Minister of Petroleum Resources as set out in the said Petroleum Act Cap. 350 Laws of the Federation, 1990 as amended.
A declaration that the direct activities of the President of the Federal Republic of Nigeria and (PPPRA) in respect of the Ministry of Petroleum and/or oil industry since 29th May, 1999 in the absence of a Minister of Petroleum Resources is unconstitutional, illegal, null and void.
A declaration that the 3rd defendant does not have the legal powers to fix the prices of petroleum products, including fuel, kerosene and diesel under the Petroleum Act Cap. 350 Laws of the Federation of Nigeria, 1990 as amended.”

The preamble to the plaintiffs in the originating summons in it’s a, b, c & d above are the questions posed by the plaintiffs which purport to derive from the plaintiffs interpretation of the provisions of the Petroleum Act Cap. 350 Laws of the Federation of Nigeria, 1990 as amended and Section 5(1)(b) and 315 of the Constitution of Federal Republic of Nigeria viz:

a, Whether by virtue of Section 15 of the Petroleum Act Cap. 350 Laws or the Federation, 1990 as amended there is a mandatory provision for the office of a Minister of Petroleum Resources.

b. Whether the Petroleum Act Cap.350 Laws of the Federation 1990 as amended is an existing law within the meaning of Section 315(1) (a) of the 1999 Constitution.

c. Whether by virtue of Section 5(1)(a) of the Constitution of the Federal Republic of Nigeria (1999) the President is enjoined to execute, implement and comply with all laws made by the National Assembly and or deemed to have been made by the National Assembly of the Federal Republic of Nigeria.

d. Whether by virtue of Sections 6(1) and 15 of the Petroleum Act Cap. 350 Laws of Federation 1990 as amended, any person and or body could increase the prices of petroleum products, except a Minister of petroleum resources duly appointed and sworn in.”

After filing the originating summons on 7/8/2003. The writ was supported by an affidavit. The appellant sought the leave of the court by a motion, and the court below, granted leave to the plaintiff to prosecute the claim in a representative capacity on 2/10/2003.

The originating summons has annexed to it several annexures, including a 105 page Constitution of the Niger Delta Democratic Union said to be registered with the directorate of Youths and Sports at the Governors Office – Delta State. Its certificate of registration at page 20 of the record of proceedings in the court below. Twelve newspaper cuttings from different newspapers on pages 20-24, 28-30,106-112.

When the originating summons with its annexures were served on the named respondents they filed a preliminary objection dated 11/8/03, after entering an appearance in the suit. The grounds of the preliminary objections are as follows.

The plaintiff has no locus standi to institute the action.
The court lacks jurisdiction to hear the matter.
The action is frivolous, vexatious, and an abuse of judicial process.

The respondents urge the court to dismiss the action. The learned trial Court heard arguments for and against the motion and adjourned ruling thereon to 15/9/04. On that day, the trial court found “(a) That the sole or principal question at issue is or likely to be one of the construction of a written law or of any instrument made under any written law or of any deed, will contract or other document or some question of law (b) There is likely to be any substantial dispute of facts.” The court then ruled as allows: “Beyond averments in the further affidavit there is nothing put forward in the claim to show the interests of the plaintiffs. The line of interest exhibited by these averments is to the effect that the plaintiffs are from Delta State which is said by the plaintiffs to be the largest oil producing State in Nigeria and that they are compelled by the questionable government policies and petroleum price hike to purchase the petroleum products at exorbitant prices from their meager resources. The interest deposed to in the further affidavit of the plaintiffs with all respect are not shown in any sense to have interest or injury that can be quantified to be over and above that of the general public constituting the Federal Republic of Nigeria the issue of operation of the Petroleum Act of 250 LFN 1990 and appointment of a Minister for Petroleum Resources are not issues that are personal to the plaintiffs but issues that are located in the realm of public right for the plaintiffs to invoke judicial power to determine the constitutionality of the executive action complained of in the instant case, they must show that their personal interest which are over and above the interest of other citizens of the Federal Republic of Nigeria are adversely affected. From the process filed in this case, there is nowhere the plaintiffs in this case indicate such line of interest or where it is established that they have suffered some specific injury which are particularly affecting their personal interests which are over the interest of other citizens of the Federal Republic of Nigeria are adversely affected. From the process filed in this case there is nowhere the plaintiffs indicate such line of interest or where it is established that they have suffered some specific injury which are particularly affecting their personal interest which are over and above those of the general interest of the citizens of the Federal Republic of Nigeria and it is not of the fact that other members of the Nigerian public have given them any leave to sue on their behalf too canvass for any public right which is general and not peculiar to their own personal interest since that has not been disclosed and the interests level they have shown here is not sufficient to accord them a standing in this case there is no way this court will assume jurisdiction to entertain this matter. The plaintiff in that writ have failed the test of locus standi. They have not shown any interest that is sufficient to accord them capacity to sue in this case. The objection is therefore sustained and the suit is hereby struck out.”

The plaintiffs were dissatisfied with the ruling of the trial court on the preliminary objection of the defendants. They have filed this appeal on three grounds, with copious particulars. Without their particulars these are the grounds of appeal.

GROUND ONE

“The learned trial Judge erred in law, when he held that from the processes filed in this case there is nowhere the plaintiffs in this case indicated such line of interests or where it is established that they are particularly affecting their personal interest other than those of the general interests of citizens of the Federal Republic of Nigeria.”

GROUND TWO

“The trial court erred in law when he held that for the plaintiffs to invoke the judicial power to determine the constitutionality of the executive action complained of in the instant case, they must duly show that their personal interest which are over and above the interests of other citizens of the Federal Republic of Nigeria are adversely affected.”

GROUND THREE

“The learned trial Judge completely misunderstood the plaintiffs case which complained essentially of the non-appointment of a Minister of Petroleum Resources as required by law, and the constitutional activities of the 1st and 3rd respondents.”

The appeal was filed on 16/11/2004.

The plaintiffs also filed appellants brief of forty seven pages, in which the appellants formulated the following issues.

“Whether from the originating summons and affidavits filed by the appellants in the lower court, they established sufficient interest which conferred “locus standi” on them to bring this action.
Whether in order for the appellants to have locus standi to challenge the constitutionality of the executive action, they must show a special interest which is over and above the interests of other citizens of Nigeria.
Whether the learned trial Judge completely misunderstood the appellants cases.”

The respondents jointly filed a nine page brief and formulated only one issue which reads thus “Having regard to the relevant laws and the facts before the court, whether the learned trial Judge was correct in his decision that the appellants lacked the locus standi to maintain their action.” Each party presented arguments in its brief:

Before I answer, and consider the issues raised in both briefs, I wish to respond to the prayer contained in paragraph 6-9 of the appellants brief, when it wrote “on the other hand, if this Honourable Court in the likely event holds that the appellants have locus standi, this Honourable Court should thereafter proceed to pronounce on the appellants case as filed at the lower court and enter judgment as per the relief claim by the appellants herein pursuant to its powers under Section 16 of the Court of Appeal Act 1976 and Order 3, Rule 23 of the Court of Appeal Rules 2002.”

The prayer made by the appellant appears to me with respect to the counsel either to be actuated by ignorance of the application of the provisions of the 1976 Act Section 16, or by mischief. The jurisdiction of an appellate court is limited to determination of the manner, mode of trying a case or correction of the errors contained in the decision of the trial court BANKOLE V. PELU (1991) 8 NWLR (PT 211) 523 AT 547. It may necessitate rehearing of the case but it does not extend to giving judgment on an issue not contested in the court below. Unless the law so provide, the Court of Appeal does not determine a live matter in the first instance. The provisions of Section 16 of the Court of Appeal Act and or Section 3, (23) of the Rules are to enable the Court of Appeal to correct the error made in the court below, when the latter has heard the case before him and determine same on its merit. It is only on issues of consequential decision raised by the appellant that the Court of Appeal may correct in an obvious error and may rule on what the court below should have done.

In the instant appeal, the court below did not hear the appellant’s case, and did not decide it on merit. This court therefore declined the invitation to pronounce judgment on the appeal at this stage.

I have read the issues formulated by both the Appellant and the Respondent as contained in both their briefs of argument. It seems to me that the root of issue for determination in the contention of both parties and the ruling of the court below is whether or not-

The appellant has shown sufficient interest which affect him personally or whether his interest could suffer injury if the prayer sought by him is not granted by the court.
Whether the appellant has shown sufficient interest or loss to his interest over and above that of the citizens of this country in the first instance, and over and above those of the citizens of Nigeria if the reliefs he seeks from the court is not granted. The relief he seeks from the court are two fold.
To compel the President of the Federal Republic of Nigeria to appoint a Minister of Petroleum.
To restrain the 3rd respondent from exercising the functions constitutionally assigned to the Minister of Federation that is fixing the price of petroleum products.

It is to obtain this results that the appellant asked whether the Petroleum Act is an enforceable Act in Nigeria. In the above summary, I have of course simplified the issues to the barest. The legal terminology of the question posed by the respondent is whether or not the appellant has locus standi to institute the action to seek the reliefs in a court of law. Locus standi has been described as the standing, the legal capacity to institute the action for the reliefs sought in a court of law. The issue to be determined therefore, includes the determination as to whether or not the appellant has the legal capacity to demand the reliefs sought in a court of law. The appellant also asked whether the trial court understood the reliefs sought by them. The claim of the appellant that the Petroleum Act Cap. 19 of 1990 imposed a duty on the President of the Federal Republic of Nigeria to appoint a Minister of Petroleum is assumed from the provision in the Act of the functions of a Petroleum Minister. There is no specific provisions in the same act, and no specific statement is made in the Petroleum Act which compels the President of Nigeria to appoint a Minister of Petroleum.

The rule of interpretation of statutes is to exclude what is not stated in the statute. It is expressed in latin phrase as EXPRESSIO UNIOUS ET EXCLUSIO ALTERIUS. What is not stated in a statute is deemed excluded. The court is to apply from the statute clear and unambiguous words In the statute EMESEN V NWACHUKWU 1999 NWLR (Pt 605) 154; (ii) DOMA V ADAMU (1999) 4 NWLR Pt 598 311; (iii) DAILY TIMES PLC V AMAIZU (1999) 12 NW 12 Pt 630 242. The court may only interpret a statute according to what is expressed in the statute. UDU V KRAUS THOMPSON ORGANISATION LTD 2001 15 NWLR (Pt 736) 305. In the Petroleum Act Cap 350, there is nowhere therein where compulsion is made on the President of Nigeria to appoint a Minister of Petroleum. The bold assertion made by the appellant that the Petroleum Act Cap. 350 together with its amendments compel the President of Nigeria to appoint a Minister of Petroleum is false. It is a conclusion reached by the appellants from what the law does not provide. It is an assumption only made from provisions of the expressed law. There is no such provision, in the law cited, which compels the President of Nigeria to appoint a Minister of Petroleum.

In answer to the question asked by the appellant as to whether the learned trial Judge understood the plaintiffs/ appellants claim in the court below. I hold and rule that the trial court understood clearly the plaintiffs claim considering the learned and considered ruling delivered by the learned trial Judge, the learned trial court has shown that the plaintiffs claim before him fail to show the special interest of the plaintiffs, or the injury not shared by other citizens of Nigeria which may be or which has been occasioned to the plaintiff. It is my respectful view that it is the plaintiffs who had misconstrued and misunderstood the provisions of the law. The learned trial court has ruled that the plaintiffs need to established their locus standi in order to institute and maintain their claim against the respondents in a court of law. Such a view is correct. In their brief, the respondents submitted that the only viable issue for determination by this court, is one of locus standi and the appellants claim that they have locus standi to seek relief from the court to compel the President of Nigeria to appoint a Minister of Petroleum and also to restrain the 3rd respondent from fixing the prices of petroleum products. From my earlier pronouncement in this judgment, I am of the view that the plaintiffs demand to compel the function is founded on an erroneous and false understanding of the Petroleum Law 1999 Cap. 350 and its amendment in 1999. There is nothing in the law which makes it mandatory for the President to appoint a Minister for petroleum, though the functions and powers of the minister for petroleum as stated in the amended petroleum law exist in any case, assuming that such a provision exist which is denied, the plaintiff must have a locus standi to institute and maintain an action against the decision of the executive. A locus standi exist where the statement of claim discloses interest which have been or are in danger of being violated, invaded, or for acts of the defendants which adversely affect the interest of the plaintiffs. See: ADESANYA V. THE FEDERAL REPUBLIC OF NIGERIA 1981 5 SC 12. Put in another way, locus standi is the legal capacity to institute and maintain proceeding in a court of law. See OWODUNNI V. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (1994) 3 NWLR (PT. 333) p.481; in OKAFOR V. ASOH (1999) 3 NWLR (Pt. 593).

The court prescribed in ordinary cases, two indexes for identifying the evidence of locus standi, These are

(i) Whether the issue is justiciable;

(ii) Whether there is a dispute between the parties.

Where the two tests have not been met by the appellant, the proper order to make is to strike out the suit. See CHIEF BONIFACE AMDI OGECHI & 3 ORS V. THE GOVERNOR OF IMO STATE & 3 ORS (1995) 9 NWLR (Pt. 417) 53 at 82.

In the instant appeal, where the plaintiff/appellant seeks redress from the government or its agency, it is apt to employ the tests for determination of locus standi formulated by the Hon. Justice Niki Tobi, JCA, as he then was. He is now JSC, in Re IJELU (1992) 9 NWLR (Pt. 266) p.414 at p.422- 423. per H-A. In that case, his Lordship proposed that any plaintiff seeking to sue (a government agency) must have a locus standi, which arises from a cognizable and conferred right created by the law. Where there is no such law, the plaintiff cannot be said to possess a right to sue, and therefore has no standing to sue. “When the above principle is applied to the instant case, it will be seen that there is no cognizable law which vests the appellant with any right to sue the respondents. The index for locus standi formulated by the late Justice Mohammed, JSC is that a claimant to the right to locus standi to institute an action against the decision of the executive must have a real, not intangible or vague or speculative right. The interests claimed by the plaintiff must not be an interest he shares with other people. In MOROUNFADE V. ADEOTU reported in (1997) 6 NWLR, at p.508 (Pt. 326) at 335 the Court of Appeal formulated the index which in my view encapsulates the requirement of a locus standi, when it asked, (1) Whether the plaintiff would have been joined as a party to the suit if the suit had been instituted by another person, or Whether the plaintiff would have been included in the suit if filed by another. The imputation being if the plaintiff had rights in the subject matter of the claim on which he seeks redress, he would have been joined in the action if commenced by another. The plaintiff/appellant has failed in my opinion to meet any of the indices for proving the existences of even a liberal requirement to prove locus standi in this case. The interests of the plaintiff on any injury he claims to occur to him are shared by every and all other members of the society, and as observed by the learned trial Judge the appellants have not shown any right of mandate of the community to the appellants to represent the interest of the community. The test formulated for determination of such a right. The locus standi initialed by Justice Oputa in THOMAS V. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669, 690, and Justice Niki Tobi JCA referred above as he then was, is the question where is the legal right under which the plaintiff makes his claim? Or who or what invested the plaintiff with the legal right to defend the constitution or is the plaintiff just a busy body? Without such a right. I answer the question in the negative, there is no such right. The plaintiffs/appellants appear to me to be busy bodies who have no legal right to defend the Constitution of Nigeria. It is for this reason that I affirm the decision of the court below on the preliminary objection raised by the respondent to the originating summons and strike out the plaintiffs claims after, I have dismissed the appeal. The appeal is dismissed. I make no order as to costs.

Other Citations: (2005)LCN/1849(CA)

Campagnie Generale De Geophysique (Nig) Ltd V. Prince Charles Anidi (2005) LLJR-CA

Campagnie Generale De Geophysique (Nig) Ltd V. Prince Charles Anidi (2005)

LawGlobal-Hub Lead Judgment Report

U.M. ABBA AJI, J.C.A.

This is an appeal against the decision of Ehiwairo J, of the High Court of Delta State, Sapele, contained in the Ruling dated 8th day of July, 2002, which transferred this suit to the Federal High Court Benin, for want of the State High Court jurisdiction by virtue of Section 22(3) of the Federal High Court Act Cap 134 laws of the Federation of Nigeria, 1990.

The Respondent as Plaintiff filed this action vide Amended Writ of Summons and Statement of Claim dated 10th day of July, 1997, at the Delta State High Court Sapele, claiming for the following reliefs;-

(a) “Declaration that the plaintiff is entitled to compensation from the Defendant jointly and severally for damages to plaintiff’s cassava and trespass on plaintiff’s cassava farm by the Defendant.

(b) The sum of N350,000.00 (Three Hundred and Fifty Thousand Naira) being damages for Plaintiff’s cassava that were destroyed by the defendants three (sic) seismic operations on the land vide seismic survey Peg No. SL-1376-5412, while prospecting for crude oil on Plaintiff’s cassava farm sometime in June, 1996.

(c) The sum of N1,000,000.00 (One Million Naira) being damages for trespass on plaintiff’s cassava farm by the Defendants.

(d) Other suitable reliefs.”

Pleadings were duly filed and exchanged. Before hearing could commence, Appellant filed a Notice of Preliminary objection on 19th March, 2002, challenging the jurisdiction of the Court being a State High Court to hear the matter and asking the court to strike out the suit.

At the hearing of the objection, the Respondent conceded on the point of non jurisdiction but the court upheld the Respondent’s counsel application to transfer the matter to the Federal High Court Benin in view of the provisions of Section 22 (3) of the Federal High Court Act, Cap 134 Laws of the Federation of Nigeria, 1990. This is what the learned trial Judge said in his ruling, allowing the Respondent’s application.

“At this stage, I have not seen anything new which will make me shift position which I held in the case of Monday Ojeba vs. United Geophysical (Nigeria) Limited and Ors suit No. S/120/09, which matter is not dissimilar from the present one.

In that matter, I relied on the authorities of Mokelu vs. Federal Commissioner for Works & Housing (1976) 1 NMLR 329 and Aluminium Manufacturing (Nigeria) Limited vs. Nigeria Ports authority (1987) 2 S.C 254 which interpreted Sections 22(2) and 22(3) of the Federal High Court Act 1976 to the effect that the State High Courts could transfer a matter rightly belonging to the Federal High Court which matter was wrongly initiated” at the State High Court to the Federal High Court.

Accordingly, I hereby transfer this matter to the Federal High Court sitting at Benin City for its determination and completion.”

The Appellant being dissatisfied with the decision of the lower court has now appealed to this court by a Notice of appeal, dated 15th day of July, 2002, upon two grounds of appeal. The grounds of appeal without their particulars are:-

(1) “Learned trial Judge erred in law, when he transferred suit No. S/134/96 to the Federal High Court instead of striking it out by virtue of Section 22(3) of the Federal High Court Act.

(2) The learned trial Judge erred in law in relying on his Earlier unreported decision in S/120/99 – MONDAY V. UNITED GEOPHYSICAL (NIG) LTD to justify the Transfer of this suit to the Federal High Court.”

Brief of arguments were duly filed and exchanged. In his Appellants brief settled by D.O Ezaga, Esq a lone issue was formulated for the determination of this appeal viz:-

“Whether the State High Court has the jurisdiction to transfer a suit to the Federal High Court where it lacks the necessary jurisdiction to hear same.”

In the Respondent’s brief settled by Dejo Lamikanra Esq, learned Counsel adopted the lone issue formulated by the Appellant in the determination of this appeal.

At the hearing of the appeal, learned Counsel for the Appellant D.O. Ezaga Esq adopted and relied on his brief deemed filed on the 17th day of August, 2004 and urged us to allow the appeal.

Lamikanra Esq for the Respondent adopted and relied on his brief deemed filed on the 16th day of May, 2005 and urged us to dismiss the appeal.

It is my view that in the determination of this appeal, the lone issue formulated by the Appellant is apt to dispose of the question raised in the appeal. The issue here is, whether the State High Court has the jurisdiction to transfer a suit to the Federal High Court, where it lacks the necessary jurisdiction to hear same.

It is the submission of learned Counsel for the Appellant Ezaga Esq that in transferring the suit to the Federal High Court the lower court placed reliance on two previous decisions of the Supreme Court, viz: CHIEF P.I. MOKELU VS. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) ALL NLR 224 and ALUMINIUM MANUFACTURING (NIG) LTD VS. NIGERIA PORTS AUTHORITY (1987) 2 SC 254 AT 294. Learned Counsel submitted that both cases could be distinguished from this since it was the Federal High Court’s jurisdiction to transfer that formed the basis of the appeal, and it was held that the court could rely on Section 22 (2) of the Federal High Court Act to transfer a suit in which it had no jurisdiction, to the State High Court.

Learned Counsel posed the question whether the State High Court has a commensurate power to transfer suits vice-versa. Mr. Ezaga submitted that Mokelu’s (supra) was decided before the coming into effect of the 1979 Constitution but that his argument will be based on the Aluminium Manufacturing case (supra) which was decided after coming into effect of the 1979 Constitution. Mr. Ezaga referred to page 299 in the Aluminium Manufacturing case (supra) per Karibi Whyte JSC, and submitted that after highlighting the practice and procedure of the State High Court vis-a-vis the 1979 constitution, Karibi Whyte JSC concluded that where reliance is solely placed on Section 22(3) of the Federal High Court Act as was done in this case, then the State High Court lacks the jurisdiction to transfer. That the jurisdiction to transfer is hinged on Section 230 (2) of the 19979 constitution. Learned Counsel further submitted that the Supreme Court per Nnamani JSC in E.T. AWOLEYE VS. BOARD OF CUSTOMS AND EXCISE (1990) ALL NLR 127 AT 128, held that since the commencement of the Constitution of the Federal Republic of Nigeria 1979, the State High Court can no longer exercise the power hitherto conferred by section 22 (3) of the Federal High Court Act, 1973 to transfer to the Federal High Court, a matter before it in which it had no jurisdiction to try. Learned Counsel therefore, submitted that the lower court erred when he relied on his previous ruling in the unreported Delta State High Court Suit No. S/120/99 – MONDAY OTEBO VS. UNITED GEOPHYSICAL (NIG) LTD & ORS to hold that the decision of the Supreme Court in E.T. Awoleye’s case (supra) was decided per incuria. Learned Counsel further submitted that the lower court also erred in law, when it said in Monday Otebo’s ruling that notwithstanding any provisions of the State law to the contrary, the power to transfer a matter wrongly brought up in a State High Court to the Federal High Court and vice-versa provided for in Sections 22 (2) and (3) of the Federal High Court Act, 1976 had remained intact till this day.

Learned Counsel also submitted that the State High Court derives its jurisdiction to transfer from Section 230(2) of the 1979 Constitution. That Section 230(1) referred in its Subsection (2) merely highlighted the items which constitute the sphere of jurisdiction. Mr. Ezega submitted that these spheres of jurisdiction were later expanded in the new Section 230 (1) under the Constitution (Suspension and Modification) Decree (now Act) No. 107 of 1993. These expansion now became Section 251(1) of the 1999 Constitution. He submitted that before the amendment of 1993, the State High Court could also act as Federal High Court since it had unlimited jurisdiction and that was the basis of the Supreme Court’s decision in E.T. Awoleye’s case (supra). Mr. Ezaga submitted that from the foregoing, with the coming into effect of the 1979 Constitution, its Section 236 gave the State High Court unlimited jurisdiction to do what the Federal High Court could do including the power to transfer. Learned Counsel contended that if the State High Court had no jurisdiction to try a suit as was given it by Section 230(2) and 236 of the 1979 Constitution, it could not have had the jurisdiction to transfer even if it is specifically so provided as was done in Section 22(2) and (3) of the Federal High Court Act. Learned Counsel referred to power of transfer under Section 31 (1) of the High Court Law of Western Nigeria and submitted that the supreme Court held in KARIMU IGE VS. ABRAHAM OBIWALE (1967) ALL NLR 294 that the section does not empower a Judge of the High Court to transfer an appeal to a court of competent jurisdiction where the appeal is one in which the High Court itself has not jurisdiction.

Learned Counsel posed the question whether by the current state of the statutes and the Constitution of 1999, can the State High Court still transfer suits to the Federal High Court where it lacks the jurisdiction to try same? Mr. Ezaga answered the question in the negative. Learned Counsel submitted that the Federal High Court Act has been amended by the Federal High Court (Amendment) Decree No. 60 (now Act) of 1991 after the cases of MOKELU, ALUMINIUM MANUFACTURING and E.T. AWOLEYE cases cited supra were decided. He submitted that Section 7 (6) of the Federal High Court (Amendment) Act No. 60 of 1991 and Section 230 (1) of the constitution (Suspension and Modification) Act of 1993 jointly limited the unlimited jurisdiction of the State High Court as both statutes were then Decrees which suspended the 1979 Constitution (i.e. its Section 230(2) and 236) and thus, gave the Federal High court exclusive jurisdiction in certain matters. He contended that since the 1993 Act have been abrogated by virtue of the 1999 constitution, the provisions of the said Section 230(1) were brought back to life as Section 251(1) of the 1999 Constitution. Mr. Ezaga submitted that, that being the case, the old position enunciated in the above three cases decided on the strength of the 1979 constitution are no longer relevant as they died even during the 1979 Constitution after the amendment and were buried by the 1999 Constitution. Learned Counsel further submitted that the Federal High Court (amendment) Act No. 60 of 1991 made a clear distinction on cases pending at the commencement of the said Act in its proviso to Section 7 (6) (b) which states that:-

“Provided that any decisions taken by any court other than the court as a result of the power of concurrent jurisdiction so conferred shall be valid, but all other cases pending in the said other courts, other than Appeal Court, shall at the commencement of this section, abate and the judge before whom it is pending shall transfer them to the Registrar of the court to be heard as new suits.”

Mr. Ezaga contended that from the above provision, it is clear that the constitutionally recognized concurrent jurisdiction (i.e. Section 230(2) and 236 of the 1979 constitution) is only relevant for matters which have been concluded or still on appeal. He submitted that, other than that, all matters in which the Federal High court have exclusive jurisdiction by virtue of the Act must abate and be transferred to it if same is pending in other courts such as State High Court. He contended that the State High Court will have the jurisdiction to transfer only at that stage to the Federal High Court in line with Section 22(3) of the Federal High Court Act and IGE VS. OBIWALE’S case (supra). Learned Counsel submitted that by Section 7 (6) (b) of the Amended Act No. 60 of 1991, any decision including a decision made thereafter is void. Learned Counsel contended that after the commencement of the Act, all subsequent matters ought not to even go to the State High Court again because up to the stage before commencement, the jurisdiction only abated, but thereafter, it becomes a case of lack of jurisdiction ab initio.

He submitted that this is so because the concurrent jurisdiction by the State High Court and the Federal High Court shared transfer cases under Section 22 (3) of the Federal High Court Act (as Amended) have been taken away by the ouster of concurrent jurisdiction to try. Thus, the order to transfer being a decision by virtue of the definition of decision in Section 7(9)(b) of the same Act, is void by virtue of Section 7 (6) (b) thereof. He contended that in abatement, the transfer could be based on former jurisdiction but in ab initio, the power to transfer cannot be based on anything and cannot stand on anything from the beginning citing GARBA VS. FEDERAL CIVIL SERVICE COMMISSION (1988) 2 SC 221 AT 233.

Learned counsel also contended that when Section 7(6) (b) of the Federal High Court (Amendment) Act No. 60 of 1991 and its proviso is read alongside Section 22(3) of the Federal High Court Act, 1973, it could lead to a contradiction. He submitted that in this circumstance, Section 7(6)(b) and the proviso to the Federal High Court (Amendment) Act is said to have impliedly repealed Section 22(3) of the Federal High Court Act citing OLU OF WARRI VS; KPEREGBEYI (1994) 4 NWLR (PT.339) 416 AT 438.

Learned Counsel further submitted that the State High Court by virtue of Order 10 of the High Court (Civil Procedure) Rules of Bendel State as applicable to Delta State only has jurisdiction to transfer matters in which it has jurisdiction but declined same for another High Court due to administrative convenience. Other than in such situations, it has no option but to remove same from its cause list by the only available means of striking out citing OKOYE V S. NIGERIA CONSTRUCTION AND FURNITURE CO. LTD (1991) 6 NWLR (PT.199) 501 and YAKUBU VS. GOVERNOR OF KOGI STATE (1997) 7 NWLR (PT. 527) 391. SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD VS. ISAIAH (2001) 11 NWLR (PT 723) 168, where the Supreme Court adopted the method of striking out from the High court cause list, and the Court of Appeal in MPIDI BARRY VS. OBI ERIC (1088) 8 NWLR (PT. 562) 404. Learned Counsel urged that same course of striking out be followed in this case as the State High Court lacks the jurisdiction to transfer a case to the Federal High Court where it lacks jurisdiction to try same. Learned Counsel urged us to set aside the Ruling of the Delta State High Court Sapele, dated 8th July, 2002 and strike out same for want of jurisdiction.

In the Respondents brief, learned Counsel for the Respondent Mr. Lamikanra submitted that the decision of the learned trial Judge transferring this suit to the Federal High Court was based on the provisions of Section 22 (3) of the Federal High Court Act 1973 and the question is whether having regard to the provisions of the Constitution of the Federal Republic of Nigeria 1999, this Section of the Act is still extant. Mr. Lamikanra submitted that it is the view of the lower court that Section 22(3) of the Act is still valid and effective to enable a State High Court exercise the power to transfer causes in which it has no jurisdiction to the Federal High Court.

Learned Counsel submitted that the Federal High Court Act has been substantially amended by the provisions of Section 2 of Decree No. 60 of 1991. He submitted that this section amends Section 7 of the principle Act by repealing the original Section 7 and substituting therefore a new Section 7. Learned Counsel referred particularly to Section 7(6) (b) thereof and submitted that by virtue of Statutory Instrument No.9 of 1993, the Federal High Court Amendment Act No. 60 of 1991 came into force on the 26th day of August, 1993. He submitted that from that date, all cases pending before a State High Court, in respect of which the proper court of trial ought to be Federal High Court, will abate and be transferred to the Federal High Court. Learned Counsel further submitted that Section 22(3) of the Act and Act No. 60 of 1991 are by virtue of Section 315 of the 1999 Constitution deemed to be existing law and are therefore incorporated into the said Constitution as if they are enactments of the National Assembly, and that Decree No. 60 of 1991 did not expressly or impliedly repeals or nullifies the provisions of Section 22(3) of the Act. That the amendment only affected Sections 7 and 58 of the Act and not any other Section. It is the view of learned Counsel that Section 22(3) of the Act invests the High Court with the power to transfer causes in respect of which it used to but no longer has jurisdiction to the Federal High Court. He submitted that the provision of Section 22(3) of the Act is not inconsistent with the provisions of Act No. 60 of 1991 or the provisions of the 1999 Constitution. That it is still an extant law by virtue of the provisions of 1999 Constitution which deems it an existing law and not by the provisions of 1979 Constitution. Mr. Lamikanra submitted that all cases decided under and by virtue of the 1979 constitution, particularly as regards the purport and effect of Section 22 (3) of the Act are wholly inapplicable to the consideration of the issue for determination citing OLADIRAN VS. THE STATE (1986) 1 NSCC 62 AT 76 PER OPUTA, JSC; and ADISA VS. OYINLOLA (2000) 10 NWLR (PT. 674) 116.

Learned Counsel further submitted that in examining whether Section 22 (3) of the Act is inconsistent with any of the provisions of the 1999 Constitution, Section 251 vis-a-vis Section 272 of the 1999 Constitution must be considered. Learned Counsel submitted that it is clear that the legislature intend to preserve Section 251 of the 1999 Constitution of the matters stated therein to the exclusive jurisdiction of the Federal High Court to the exclusion of any other court. That Section 272 subject to the provision of Section 251 invests the State High Court with considerable wide power but not as provided under the 1979 Constitution where the State High Court exercised concurrent jurisdiction with the Federal High Court. To that extent learned counsel submitted that the provision of Section 22(3) of the Federal High Court Act is not in collision with the 1999 Constitution, but complementry in that it recognizes and gives effect to the exclusive jurisdiction of the Federal High Court to the exclusion of any other court.

Mr. Lamikanra also submitted that the State High Court is a Superior Court of record and referred to the powers of the court under Section 6(6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 and submitted that the aim of the Constitution is to facilitate access of every person, authority or Government to the courts established for the Federation of Nigeria where they may lawfully ventilate their grievances. Learned counsel further contended that by Section 74 of the Evidence Act Cap 112, Laws of the Federation of Nigeria, 1990, the State High Court is enjoined to take judicial notice of all statutes and enactments whether adjectival or substantive, thus, making the State High Court not only bound by statutory enactments but also bound by its own rules of practice and procedure, the High Court (Civil Procedure) Rules 1988 of the then Bendel State, applicable to Delta State. Learned Counsel referred to Order 2 Rule 2, Order 10 Rules 4, 5 and 6; Order 24 Rule 3 and Order 47 Rule 1 and submitted that reading Section 22 (3) of the Federal High Court Act with these adjectival provision and the provisions of the 1999 Constitution read as a whole, the State High Court has the power to transfer causes in respect of which it has no jurisdiction and in respect of which it has determined that the Federal High Court is the proper court of trial to the Federal High Court. Mr. Lamikanra submitted that it is in the interest of justice to do so as it aids and facilitates the speedy dispensation of justice as provided for under Chapter IV of the 1999 Constitution. He also submitted that the power of transfer is not in any way prejudicial to the interest of the Respondent.

Mr. Lamikanra further submitted that where the words of a statute are clear and unambiguous, effect must be given to it, and when the statute being construed is a great document of a state such as the Constitution, the construction must be liberal and progressive and plain words must be given to their literal meaning citing FAWEHINMI VS. IGP (2000) 7 NWLR (PT. 665) 481 AT 520; and FAWEHINMI VS. IGP (2002) 7 NWLR (PT. 767) as per Uwaifo JSC on the Construction of Section 308 of the 1999 Constitution. Learned Counsel concluded that there is nothing in any of the provisions of the 1999 Constitution which expressly or impliedly repeals or nullifies the effect of Section 22 (3) of the Federal High Court Act, or which denudes a State High Court of the power to transfer causes in respect of which it has determined that it has no jurisdiction, to the Federal High Court.

It is also the view of Mr. Lamikanra that it is in the interest of justice that the power of the State High Court to transfer must not only be preserved but reinforced. That unless this power of transfer is preserved, the Court of Appeal would not under Section 16 of the Court of Appeal Act be able to transfer such a cause: to the Federal High Court when it has determined that the State High Court has not jurisdiction.

Learned Counsel for the Respondent Mr. Lamikanra, has filed a Respondent’s notice and contended that the decision of the court below dated and made on the 8th day of July, 2002, be affirmed on grounds other than those contained or set out in the said decision appealed from. Learned Counsel relied on the provisions of Sections 6, 251, 272 and 315 of the Constitution of the Federal Republic of Nigeria, 1999. Learned Counsel finally submitted that the power of transfer is derived from the 1999 Constitution and that Section 22(3) of the Federal High court Act is an integral part of the 1999 Constitution by virtue of Section 315 of the said constitution. It is his view that Section 22(3) is in consonance with Section 251 of the Constitution to the extent that any jurisdiction conferred on the Federal High Court must be exercised to the exclusion of any other court. Therefore, a State High court which transfers a cause it has determined should be tried by the Federal High Court is fully Compliant with the 1999 Constitution. This court is therefore urged to dismiss the appeal and affirm the order of the learned trial Judge transferring the suit to the Federal High Court.

The main issue now before this court is whether the State High Court has by coming into force of the Constitution of the Federal Republic of Nigeria 1999, the power to transfer a suit to the Federal High Court in which it lacks jurisdiction to try same.

The decision of the learned trial Judge transferring this suit to the Federal High Court was based on Section 22 (3) of the Federal High Court Act No. 134 Laws of the Federation of Nigeria 1990. The Section provides:-

22(3) “Not withstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a state or of the Federal Capital Territory, Abuja, on the ground that such cause or matter was taken in the High Court instead of the court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law, shall by virtue of this subsection be deemed also to include power to make rules of court for the purpose of this subsection.”

It is the submission of the learned Counsel for the Appellant that the cases relied upon by the learned trial Judge in transferring the suit; CHIEF P.I. MOKELU VS. FEDERAL COMMISSIONER FOR WORKS & HOUSING (supra) and ALUMINIUM MANUFACTURING (NIG) LTD VS. NIGERIA PORTS AUTHORITY (supra) could be distinguished from the instant appeal, since it was the Federal High Court jurisdiction to transfer that formed the basis of the appeal and in both it was held that the Federal High Court could rely on Section 22 (2) of the Federal High Court Act to transfer a suit in which it had no jurisdiction to the State High Court. Learned Counsel contended that the State High Court has no commensurate power to transfer suits vice-versa, since the coming into force of the 1999 Constitution. He submitted that the State High Court enjoyed such power under Section 230 (2) of the 1979 Constitution and not under Section 22 (3) of the Federal High Court Act citing Aluminium Manufacturing case (supra).

The learned Counsel for the Respondent however contended that the Section 22(3) of the Federal High Court Act is still extant by virtue of the Section 315 of the 1999 Constitution which deemed it to be existing law. That the Federal High Court (Amendment) Decree No. 60 of 1991 did not expressly or impliedly repeals or nullifies the Provisions of Section 22(3) of the Federal High Court Act. That Section 22 (3) of the Act vest on the High Court the power to transfer causes in respect of which it used to but no longer has jurisdiction to the Federal High Court.

Now the question is whether, the cases relied upon by the Lower Court in arriving at its decision transferring the suit to the Federal High Court based on Section 22(3) of the Federal High Court Act could be distinguished with the present appeal. In arriving at its decision, the Lower Court relied on its previous Ruling in the unreported suit No. S/120/99 – MONDAY VS. UNITED GEOPHYSICAL (NIG) LTD dated 10th June, 2002. In that suit, the Lower Court places reliance heavily on the cases of CHIEF P.I. MOKELU VS. FEDERAL COMMISSIONER FOR WORKS & HOUSING (supra) and ALUMINIUM MANFACTURING (NIG) LTD VS. NIGERIA PORTS AUTHORITY (supra). In these two cases, it was the Federal High Courts jurisdiction to transfer that formed the basis of the appeal and in both it was held that the Federal High Court could rely on Section 22 (2) of the Federal High Court Act to transfer a suit in which it had no jurisdiction to the State High Court. The case of MOKELU VS. FEDERAL COMMISSIONER FOR WORKS & HOUSING (supra) was decided before the coming into force of the 1979 Constitution, when the Federal High Court was the Federal Revenue Court and derives its jurisdiction from Federal Revenue Act of 1973 and the State High Court derived their unlimited jurisdiction from the Constitution of the then Northern and Southern Regions. Section 22 (3) of the Federal High Court Act gave the State High Court a commensurate right to transfer to the Federal High Court cases, in which it has come to the conclusion that it has no jurisdiction to try instead of striking out the suit.

It is to be observed that before the promulgation of the 1979 Constitution, High Courts both in Northern as well as Southern States of Nigeria were regarded as courts of unlimited jurisdiction by virtue of their status as superior courts of record. Thus, prima facie, the High Court being a superior court of record was a court of unlimited jurisdiction. The jurisdiction is described as unlimited only because it is presumed to exist in any case unless it is expressly curtailed by statute, as has been done in several regional or state laws before the promulgation of the 1979 Constitution. The coming into force of the 1979 Constitution had a considerable impact on the jurisdiction of the High Courts of the States, while prior to that Constitution there was no express vesting of judicial power in the judicature and the jurisdiction of the High Courts of the States was to be found in the states legislation which tended to vary from state to state, a change was effected by Section 236 (1) of the 1979 Constitution.

Thus in the case of ALUMINIUM MANUFACTURING (NIG) LTD (supra) decided after coming into being of the 1979 Constitution, the Supreme Court per Karibi-Whyte JSC, after highlighting the practice and procedure of the State High Court vis-a-vis the 1979 Constitution and the power of the High Court to transfer suit in which it has no jurisdiction to try under section 22(3) of the Federal High Court Act to the Federal High Court concluded as follows:-

“It seems to me that a Judge in Lagos State High Court cannot, without relying on the provisions of Section 230 (2) of the Constitution instead of dismissing an action for want of jurisdiction exercise powers under Order 22 Rule 3 of the Lagos State High Court (Civil Procedure) Rules to transfer the matter to another court. There is certainly no power to transfer the matter to the Federal High Court.”

From the above, it is clear that the High Court derives its jurisdiction to transfer from Section 230 (2) of the 1979 Constitution and not Section 22 (3) of the Federal High Court Act. Section 230(2) of the 1979 Constitution provides:-

“Notwithstanding subsection (1) of this section, where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such Court shall as from the date when this section comes into force be restyled “Federal High Court”, and shall continue to have all the powers and exercise the jurisdiction conferred upon it by law”.

Section 230(1) of the 1979 Constitution enumerates the matters which constitutes the jurisdiction of the court, where therefore reliance is solely placed on Section 22 (3) of the Federal High Court Act as was done in the instant appeal then the State High Court lacks the jurisdiction to transfer.

In E.T. AWOLEYE VS. BOARD OF CUSTOMS & EXCISE (supra) decided before coming into being of the Decree No. 107 of 1993, the Supreme Court per Nnamani JSC held that;

“Having heard the learned Counsel to the parties and read the proceedings, I am of the view that the law is well settled that since the commencement of the constitution of the Federal Republic of Nigeria 1979, The State High Court can no longer exercise the power hitherto conferred by Section 22(3) of the Federal High Court Act 1973 to transfer to the Federal High Court a matter before it in which it had no jurisdiction.”

With the coming into effect of the 1979 Constitution, its Section 236 gave the State High Court unlimited jurisdiction to do what the Federal High Court could do including the power of transfer. Therefore, the States High Courts could rely on Section 230(2) of the Constitution to either hear the suit or transfer to the Federal High Court. Where therefore, the State High Court had no jurisdiction to try a suit as was given to it by Sections 230(2) and 2.36 of the 1979 Constitution, it could not have had the jurisdiction to transfer even if it is specifically so provided as was done in Section 22(2) and (3) of the Federal high Court Act.

The salient question that arises from the foregoing is whether by the current state of the statutes and the 1999 Constitution, can the State High Court still transfer suits to the Federal High Court, where it lacks jurisdiction to try same under Section 22(3) of the Federal High Court Act.

By virtue of Section 7(1) of the Federal High Court (Amendment) Decree No. 60 of 1991, the Federal High Court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to among others, mines and minerals including oil fields, oil mining, geological surveys and natural gases. This provision was reinforced by the amendment of Section 230 of the 1979 Constitution by the Constitution (Suspension and Modification) Decree No. 107 of 1993 which stipulates in its section 230 (1) that the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil matters enumerated therein. In effect, Section 7 (6) of the Federal High Court (Amendment) Act Decree No. 60 of 1991 and Section 230(1) of the Constitution (Suspension and Modification) Decree No. 107 of 1993 jointly limited the unlimited jurisdiction of the State High Court and gave the Federal High Court Exclusive jurisdiction in certain matters and these provisions were reinforced as 251(1) of the 1999 Constitution.

In fact, Section 7 (6) of Decree No. 60 of 1991 has given finality to the concurrent jurisdiction of the State High Court to transfer suit in which it has decided that it has no jurisdiction to the Federal High Court. The Section provides:-

“Any decision made after the commencement of this section by any court of law in any purported exercise of any power under the Constitution of the Federal Republic of Nigeria or of any Federal or State law shall as from the date of making the decision be null and void”.

I therefore agree with the submission of learned Counsel for the Appellant that after the commencement of the Act No. 60 of 1991, all subsequent matters ought not to even go to the State High Court because up to the stage before commencement, the jurisdiction only abated, but thereafter, it becomes a case of lack of jurisdiction ab initio. The concurrent jurisdiction of the State High Court and the Federal High Court shared transfer cases under Section 22(3) of the Federal High Court Act have been taken away by the ouster of concurrent jurisdiction to try. Therefore, the order of transfer being a decision in Section 7 (9) (b) of the Act, it is void by virtue of Section 7 6) (b) thereof. In abatement, the transfer could be based on former jurisdiction but in ab initio the power to transfer cannot be based on anything and cannot stand on anything from the beginning. In GARBA VS. FEDERAL CIVIL SERVICE COMMISSION (supra) the Supreme Court at page 233 held as follows:-

“Abatement of an action is, in my view a different thing from ouster of jurisdiction. It concedes that before the abatement provision of legislation comes into operation, the court has no jurisdiction to entertain the proceedings.”

It is not the intendment of the 1999 Constitution that a court of coordinate jurisdiction should transfer a case in which it has no jurisdiction to a court of competent jurisdiction. The order of transfer is invalid and whatever is contained in the Federal High Court Act in justification of that transfer is void and of no effect whatsoever. Now, the question is whether Section 22 (3) of the Federal High Court Act is still extant or can be said to have been impliedly repealed by Section 7 (6) (b) and the provision of decree No. 60 of 1991. It has been contended by the Respondent that Section 22 (3) of the Federal High Court Act as well as Decree No. 60 of 1991 are by virtue of Section 315 of the 1999 Constitution deemed to be existing law incorporated into the 1999 Constitution. It is therefore, submitted that unless Section 22(3)of the Federal High Court Act is inconsistent with the provisions of Decree No. 60 of 1991 or the 1999 Constitution, it is still an extant law. In interpreting statutory provisions, the general scope and perview of the statute must be looked at with a view to determining the meaning sought to be applied and then consider what was the former state of the law and what it was that the legislature contemplated. See MILITARY GOVERNOR ONDO STATE VS. ADEWUNMI (1988) 3 NWLR (PT. 82) 280. The general rule of interpretation is that a subsequent general Act does not affect the provision of a prior special or private Act, unless it is expressly provided. In other words, a subsequent general Act will not interfere and modify or repeal the provisions of a special or private Act, unless the intention is clearly manifested in the general Act. But this general rule is not without exception. Where a special or private Act is absolutely inconsistent and repugnant with a subsequent general Act, the courts are bound to declare the prior special or private Act or any of their provisions repealed by the subsequent general Act. See MILITARY GOVERNOR, ONDO STATE VS. ADEWUNMI (supra).

With the enactment of Decree No. 60 of 1991, amending certain provisions of the Federal High Court Act particularly Sections 7 thereof and its proviso clearly ousted the concurrent jurisdiction of the State High Court to try certain matters and directing all such matter already pending in the State High Court to abate and further a transfer of these matters already pending in a State High Court to the Federal High Court. Section 230(1) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree NO. 107 of 1993 gave exclusive jurisdiction to the exclusion of any other court to try these matters.

The State High Court therefore, has no power to try those matters. This position is further reinforced by the coming into force of the 1999 constitution in its Section 251(1) thus, limiting the unlimited jurisdiction of the State High Court. This Section gives exclusive jurisdiction to the Federal High Court in matters enumerated thereunder. It clearly excludes the jurisdiction of the High Court in such matters. It is therefore true to say that where the State High Court has no power to entertain the matter, it clearly has no power of transfer under Section 22 (3) of the Federal High Court Act. The provision of Section 23 (3) of the Act is clearly contradictory or inconsistent with the provisions of Section 251(1) of the 1999 Constitution and therefore deemed impliedly repealed by the 1999 Constitution. It therefore could not continue to invest Judges of the State High Court with the power to transfer to the Federal High Court cases outside their jurisdiction but found to be given within the jurisdiction of such Federal High Court.

The question of jurisdiction strikes at the root of any cause or matter and consequently raises the issue of the competence of the court to adjudicate in the particular proceedings. Any defeat in competence is fatal and such proceedings must be null and void. MADUKOLU VS. NKEMDILIM (1962) SCNLR 314 and SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6. Likewise, where a court has no jurisdiction to try a suit before it, it lacks the competence to transfer that suit to a court of competence jurisdiction to try the matter. What the court should do in such circumstance is to strike out the matter before it for want of jurisdiction. As the decision to transfer under Section 22(3) of the Federal High Court Act was based on the concurrent jurisdiction of the State High Court and Federal High Court, now that the position has changed giving the Federal High Court exclusive jurisdiction on all such matters, the provisions of Section 22 (3) of the Federal High Court is impliedly repealed by the provisions of the 1999 Constitution. The power of transfer is absolutely taken away by the exclusive jurisdiction vested in the Federal High Court of all matters enumerated under Section 251(1) of the 1999 Constitution. That is to say, any enactment before the coming into force of the 1999 Constitution and which contradicts any of the provisions of the said constitution after it came into force is either modified or repealed to conform with the constitution. It is therefore my considered, view that the provisions of Section 22 (3) of the Federal High Court Act stood impliedly repealed or modified by the 1999 Constitution. I am fortified in my view with the decision of the Supreme Court in OLU OF WARRI VS. KPEREGBEYI (supra) where it held as follows:-

“Where a new enactment is couched in a general affirmative language and the previous law, whether a law of custom or not, can well stand with it for the language used is all in the affirmative, there is nothing to say that the old law shall be repealed. But when the new affirmative words are such as, by their necessity, to import a contradiction and it is clear that the two should be in conflict, the two should not stand together, the second repeals the first”.

From the foregoing, the provision of Section 22(3) of the Federal High Court Act is clearly inconsistent with the provision of Section 251(1) of the 1999 Constitution and therefore the provision of Section 22(3) of the Act are deemed to have been modified either by implied repeal or by modification so as to bring the law into conformity with the Constitution. The Constitution of Nigeria is the basic law of the land. It is the supreme law and any enactment that runs contrary to its provisions, that enactment shall to the extent of its inconsistency be null and void. Courts are likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the court whether in order that the citizen may be deprived altogether of remedy or in order that his grievance may be remitted to some other court or tribunal.

The learned trial Judge was clearly in error, when he transferred this suit to the Federal High Court instead of striking out the same and wrongly came to the conclusion that the decision of the Supreme Court in E.T. AWOLEYE VS BOARD OF CUSTOMS & EXCISE (supra) was given per incuriam. The learned Counsel for the Respondent submitted that because Section 22(3) of the Act allows transfer of matters within the exclusive jurisdiction of the Federal High Court so, there is no conflict with the provisions of the 1999 Constitution. That is not the position, Section 22(3) does not allow transfer of matters within the exclusive jurisdiction of the High Court. Section 215(1) of the 1999 Constitution gave exclusive jurisdiction to the Federal High Court in respect of matters enumerated therein, and the State High Court ought not in the first place to have taken cognizance of the suit. It has no jurisdiction ab initio as it has no concurrent jurisdiction with the Federal High Court. In KARIMU IGE VS. ABRAHAM OBIWALE (supra) it was held that Section 31(1) of the High Court Law of Western Nigeria does not empower a Judge of the High Court to transfer an appeal to a court of competent jurisdiction where the appeal is one in which the High Court itself has no jurisdiction to try.

Learned Counsel for the Respondent also argued that by virtue of Order 2 Rule 2, Order 10 Rules 4, 5 and 6; Order 24 Rule 3 and Order 47 Rule 1 of the High Court (Civil Procedure) Rules of Bendel State as applicable to Delta State read along with Section 22(3) of the Federal High Court Act and the Provisions of the 1999 Constitution, a State High Court has the power to transfer causes in respect of which it has no jurisdiction and in respect of which it has determined that the Federal High Court is the proper court of trial to the Federal High Court. The position has now been settled on the authority of KARIMU IGE VS. ABRAHAM OBIWALE (supra) that the State High Court has no jurisdiction to transfer a matter before it to a court of competent jurisdiction where itself has no jurisdiction to try. Section 22 (3) of the Federal High Court Act to the extent that it gives the State High Court the power to transfer to the Federal High Court cases outside its jurisdiction, but found to be within the jurisdiction such Federal High Court is null and void.

In conclusion, it is my considered view that by the combined effect of Sections 7(6) (b) and 7 (9) (b) of the Federal High Court (Amendment) Act of 1991 and Section 251 of the 1999 Constitution and the case of KARIMU IGE VS. ABRAHAM OBIWALE (supra) the State High Court lacks the jurisdiction to transfer a case to the Federal High Court, where it lacks the jurisdiction to try same. The order of transfer of this suit to the Federal High Court is done without jurisdiction and same is therefore null and void. The appeal succeeds and it is hereby allowed. The Ruling of the Delta State High Court Sapele dated 8th July, 2002, which transferred this suit to the Federal High Court, Benin, is hereby struck out. The Appellants are entitled to costs assessed at N5,000.00k.

Other Citations: (2005)LCN/1848(CA)

C.G.G. (Nig) Ltd V. Moses Amino (2005) LLJR-CA

C.G.G. (Nig) Ltd V. Moses Amino (2005)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

Endorsed on the writ of summons issued from the Registry of the High Court of Delta State, Oghara Judicial Division on 15/6/99 is the Respondent’s claim against the appellant: “The plaintiff claim against the Defendant is for the sum of N5M (Five Million Naira), only being special and general damages (particulars of which shall be given in the Plaintiff’s statement of claim to be filed in this suit) for negligence in that nor about the month of January, 1999, plaintiff’s right wrist which became swollen excruciatingly painful and had to be operated upon on the 9th day of February, 1999, due to the tasking job assigned to plaintiff virtually useless. In spite of the knowledge of the Defendant regarding the terrible plight of the plaintiffs, the Defendant has failed, refused and or neglected to pay to the plaintiff the above stated sum of in spite of letter and personal call on Defendant. Wherefore the plaintiff claim against the Defendant the of N5M as above equitable reliefs as this Honourable Court may deem fit to grant in the circumstances.”

There is an affidavit dated 21/6/99 to the effect that the writ was served on the said 21/6/99.

The Statement of Claim was dated 30/7/99 but filed on 16/8/99. The defendant (now appellant) entered a conditional appearance on 1/11/99.

On 4/11/99, the Respondent then plaintiff filed a motion pursuant to Ord. 27 Rule 7 of the High Court (Civil Procedure) Rules of Bendel State 1988 as applicable to Delta State.

There is another affidavit sworn to on 16/11/99 to the effect that the writ of summons and motion/affidavit were served on 15/11/99. The motion was taken on 17/11/99. The relevant portion of the record of the Court below on 17/11/99 is reproduced hereunder:
“Having heard P.K. Ogbimi Esq. of Counsel for the Plaintiff/Applicant who moved his motion on Notice, the Court ordered as follows:-

‘Application granted as prayed. Final Judgment is hereby entered in favour of the plaintiff/ Appellant in whose favour Judgment is hereby entered in the sum of N5,000,000.00 (Five Million Naira) against the defendant based on special and general damages for negligence and injuries suffered by the plaintiff in the cause of his employment as an employee in the defendant’s company. In other words, judgment is entered for the Plaintiff as per paragraph 37 of the Statement of Claim.” As a prelude to its order reproduced above, the Court noted that “The writ of summons and statement of claim were filed since June/August, 99 and there has been no response since from the defendants as time allowed by the rules having lapsed.” The significance of this observation by the Court below will be made clearer in the course of this judgment.

On 24/1/2000, the appellant filed a motion asking for extension of time to apply, and an order to, set aside the defendant on 12/11/99.

There is another motion dated 27/11/2000 and filed on 28/1/2000 for an order to set aside the writ of attachment and an order to stop further execution of the default judgment.

Again on 10/10/2000, the appellant filed yet another motion for reliefs identical with the reliefs in the motion filed on 24/1/2000.

On 25/10/2000, the appellant filed another of the series of motion, this time asking for the following orders:

“1. Extending time within which applicant can apply to set aside the default judgment in this suit dated 17/11/99.
2. Setting aside the said default judgment.
3. An order setting aside the writ of attachment and/or execution including attachment of Applicants vehicles in execution of the default judgment in this suit.
4. An order discontinuing further execution of the applicant’s properties.

The Court heard the motion and in a considered ruling struck same out on 11/4/2001.
Aggrieved by the ruling, the appellant appealed to the Court on six grounds, hereunder reproduced without their particulars:
“Ground 1.
The learned Trial Judge erred in law when she adopted the bailiffs affidavit of service of the writ of summons as conclusive proof of service in the face of denial of service by the Appellant.

Ground 2.
The learned trial Judge erred in upholding the service of the motion for judgment on an unnamed secretary of Appellant Company.

Ground 3.
The learned trial Judge erred in upholding the date of service of the statement of claim disclosed in the bailiff’s affidavit as conclusive.

Ground 4.
The learned trial Judge erred and robbed Appellant of his right to fair hearing when she held that there was no defence shown on the affidavit.

Ground 5.
The Oghara High Court lacks jurisdiction to try the suit and ought to set it aside and strike it out.

Ground 6.
The learned trial Judge erred in not setting aside the judgment.

Consistent with the rules of the Court, the parties herein, by their respective learned Counsel, filed and exchanged briefs of argument. The appellant filed a reply brief.
In his brief dated, and filed on 10/5/2002 and 15/5/02 respectively, the appellant formulated the following three issues for determination:
“(i) Whether there was proper service of the relevant Court processes to warrant upholding the default judgment against the Appellant (framed from Gds 2 & 3).
(ii) Whether the Appellant’s right of fair hearing was not breached when the Court failed to consider the Appellant’s defence (from Gds 1 & 4).
(iii) Whether the Court ought not to set aside the relevant judgment on grounds of jurisdiction amongst other grounds (from Gds 5 & 6).

In its own brief the Respondent raised a preliminary objection to ground 5 of the grounds of appeal. The preliminary objection was incorporated in the Respondent’s brief.
In the said brief, the Respondent raised the following lone issue for determination by the Court:
“Whether the trial Court correctly exercised its discretion to refuse the application to set aside the default judgment entered against the defendant/appellant.”

A decision on the preliminary objection on the issue of jurisdiction will necessarily involve a pronouncement on same material points in the case. This would preempt the trial Court in case of hearing de novo and jeopardize the interest of one of the parties.
It is safer to determine the appeal on the appellant’s issues (i) & (ii) in which the respondent’s lone issue is subsumed.
In issue 1 in his brief, learned Counsel for the appellant submitted that the three processes which ought to be served on a party before default judgment can be entered against him are the writ of summons, the statement of claim and the motion for judgment. Learned Counsel contended that neither the writ of summons nor the motion for judgment was served on the appellant and that the statement of claim was served on 28/10/99 and not sooner or later than the said date. Counsel argued that in view of the conflict in the affidavit evidence relating to service of the processes on the appellant the Court below should have called oral evidence to resolve the material conflict.

He relied on Mobil v. Pam (2000) 5 NWLR (Pt.657) 506 at 528 and argued that the bailiff should have been called to give oral evidence of service. He cited Bello v. National Bank of Nig Ltd (1992) 6 NWLR (Pt.246) 206 in support of his contention that the affidavit of service deposed to by the Bailiff is not conclusive proof of service of a process. He relied on Martin Schroder & Co. v. Major & Co. Nig Ltd (1989) 2 NWLR (Pt.101) 1 and submitted that the Court had no jurisdiction to entertain the case when the appellant, as defendant, was not served the writ of summons. Counsel argued that it was necessary for the Court to determine the actual date of filing the statement of claim in view of the claim by the bailiff that he received the statement of claim for service on 28/10/99. He argued that if the process was received by the bailiff on 28/10/99, the default judgment dated 17/11/99 was entered against the appellant within the 30-day period in Grd. 25 Rule 2 of the High Court Rules. Counsel said there was no conclusive proof that all relevant processes were served on the appellant before the lower Court entered a default judgment against it.

In his reply in his brief, learned Counsel for the Respondent relied on U.T.C. V. PAMOTEI (1989) 2 NWLR (PT.103) 244 at 282-283 for the hearing of default judgment. It is difficult to ascertain the part of the Respondent’s prolix argument directed at the appellant’s issue 1. Learned Counsel could not have done better if he prepared a paper for a seminar for law professors.
Issue 1 in the appellant’s brief is whether or not the relevant Court processes were proved to have been served on the appellant before default judgment was entered against. In determining the issue I will adopt the appellant’s list of processes necessary to be served on the appellant before entering a default judgment against it. There are: –
(1) Writ of Summons
(2) Statement of Claim and
(3) Motion on Notice for judgment.

The affidavit of service of the writ is on page 4 of the records and service was effected on “The secretary of C.G.G. (Nig) Ltd” on 21/6/99 at 9.30 a.m. Page 16A of the records contains affidavit of service of “Writ of summons/motion/ affidavit …” on “the sect to H.O.D. The affidavit indicated that the bailiff did not know the “sect to H.O.D. at C.G.G. Nig Ltd before he served the motion. He did not know “her” personally, but when the bailiff asked if “he” were the sect to H.O.D. ‘he’ said ‘he’ was.

The service was effected on 15/11/99 and the affidavit deposed to on 16/11/99.
Now, who is the secretary to C.G.G (Nig) Ltd upon whom the writ of summons was served on 21/6/99? And who is “the sect to H.O.D” upon whom the bailiff claimed to have served “the writ of summons/motion/affidavit” or simply motion. It is not even clear what process was served.
The same affidavit mentioned Writ of Summons/motion/affidavit and later mentioned motion as the process served. In the two affidavits, the name of the person served was not stated. In the affidavit of 16/11/99 the “sect to H.O.D was referred to as ‘her’ as well as ‘he’. In any case service of any process for service on the appellant company on “the sect H.O.D at C.G.G. (Nig) Ltd is not service on the appellant. It therefore follows that neither the writ of summons, nor the motion for judgment was served on the appellant in accordance with the relevant High Court Rules.

The writ of summons and the motion for judgment are processes required to be served on the appellant. Failure to serve the processes as provided by the rules renders the subsequent proceedings a nullity and the lower Court should have set aside the default judgment. See Wimpey Ltd v. Balogun (1986) 3 NWLR (Pt.28) p.324 at 325; Scott Emuakpor Ukavbe (1975) 12 SC 4 at 46; Obimoriore v. Erinoshe (1961) All NLR 250. The fact that there was no response to processes filed “since June/August 1999” is no proof that the process were served on the appellant. Issue 1 is resolved in favour of the appellant.

In issue 2, the appellant argued that the failure of the Court below to consider its defence in the application to set aside the default judgment was a breach of the appellant’s right to fair hearing. I agree with learned Counsel for the appellant that the Court below tacitly conceded that the appellant had a defence, when it stated in paragraph 15 at p. 60 of the records that “In the reply to Counter-Affidavit of paragraph 10, paragraph 7 is the only area where reference to a defence was mentioned. It states “in specific reply to paragraphs 17, 18, and 19 of the Counter-Affidavit. Applicant hereby annex as Exhibit B, the statement of Defence that was to be filed, but was aborted when Defendant discovered its amazement that the Plaintiff had already obtained a fraudulent judgment.” Though the records at page 60, contain the assertion that “Defendant/Applicant shall further state that it is not contesting the issue of a good defence, but the regularity of the judgment” the Court below had no basis for holding that the affidavit did not show good defence. I cannot think of a better way to show a good defence than a statement of defence which appellant would rely on at the trial. The Court below did not say that the Statement of Defence marked Exh. B was not good defence. The Court posed the question “Does the affidavit in support of defendant’s application therefore present a good defence on the merit?”

The Court said “the need for the applicant to show in his affidavit that he has a defence on the merit is a prerequisite for an application of this types to have any chance of success.” The Court below was in error not to have considered the Statement of Defence exhibited and marked Exh. B in the reply to the Counter-Affidavit. The Statement of Defence is as good as if it was itemized and stated as paragraphs of the affidavit. I agree with the appellant that the failure of the lower Court to consider the defence marked Exh. B is a denial of the appellant’s right to fair hearing entrenched in …
I resolve issue 2 also against the respondent.
As I mentioned earlier the decision on the preliminary object may affect the merit of the case and jeopardize subsequent trial. The matter is better left to be dealt with in trial de novo.

In summary, I hold that there is no proof of service on the writ of summons and/or the motion for judgment on the appellant. The failure of the Court below to consider the appellant’s Statement of Claim is a breach of the appellant’s right to a fair hearing. The appeal is meritorious and is hereby allowed. The default judgment of the lower Court dated 17/11/99 and the orders dated 11/4/2000 are hereby set aside. The suit No. HCH/14/99 is sent back to the High Court of Delta State for trial de novo by a Judge other than Onajite Kuejubola J.
I make no order as to costs.

Other Citations: (2005)LCN/1847(CA)

Abbnny Educational Publishers & Anor. V. The Comm. For Education C.r.s. & Ors. (2005) LLJR-CA

Abbnny Educational Publishers & Anor. V. The Comm. For Education C.r.s. & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

THOMAS, J.C.A.

This ruling is on the motion on notice dated and filed 23rd September, 2005 by the respondents/applicants. The motion was brought under Order 1 rule 20(1), (3), (4) and (5) of the Court of Appeal Rules.

The applicants are seeking two reliefs namely:-

To grant leave to the applicants to argue a point or an issue which was not brought for consideration in the lower Court, i.e. the applicability or otherwise of the High Court (Civil Procedure) Rules of Akwa Ibom State in the determination of territorial jurisdiction of the State High Court; and
Permitting the respondents/applicants to present to the Court of Appeal as further evidence in support of their case, i.e. A document from the Union Bank Plc – Calabar Branch dated 9-8-2005 written to the applicants in connection with the matter under consideration in the appeal.

The motion is supported by a 14 paragraph affidavit in support thereof. The respondents objected to the reliefs sought by the applicants and after moving, parties were allowed and they argued vehemently their respective issues.

There is no doubt that the Hon. Attorney-General, learned Counsel for the respondents did not file their counter-affidavit to the motion on notice, but this court allowed learned Attorney-General to reply on points of law.

Applicants’ argument is that none of the counsel to the parties raised the issue of the applicability or non-applicability of the provisions of Order 10 rules 3 of the (Civil Procedure) Rules of Akwa Ibom State to the issue of territorial jurisdiction in their arguments at the lower Court.

The learned Attorney-General on the other hand, however referred to their preliminary objection at the lower Court as shown on page 30 of the record of appeal as well as pages 68 lines 21 – 26 and page 74 line 8, where the respondent actually raised the issue of lack of jurisdiction of Akwa Ibom State High court in accordance with the High court (Civil Procedure) Rules under Order 10 rule 3 thereof.The respondents/applicants can raise and argue the issue of the jurisdiction of a trial court and can be accepted because the issue of jurisdiction is fundamental to adjudication. See Eze v. A.-G., Rivers State (2001) 18 NWLR (Pt.746) 524.

But it is important to know that the appellant had earlier on at the lower court, raised the issue of jurisdiction of Akwa Ibom High Court. The basis was made in the preliminary objection to the claim, which was on undefended list. The appellant’s infact filed the motion provided under Order 10 rule 3 of the Akwa Ibom High Court (Civil Procedure) Rules, 1987.

It is very surprising that the present respondents/applicants have brought their motion as if such an issue was not raised in the lower Court.careful perusal of paragraphs 10 and 12 affidavits will of the applicants show flagrant abuse and a clear contradiction that the issue of jurisdiction of the court was not raised at the lower Court.

Paragraph 10 provides:-

“10. That none of the counsel to the parties … raised the issue of the applicability or non-applicability of the provisions of Order 10 rule 3 of … Akwa Ibom State to the issues of territorial jurisdiction …”

The above is thus contradictory to paragraph 12 thereof which states as follows:-

That the appellants/respondents based their objection to the jurisdiction of the lower court in the matter on the said provisions of the High Court (Civil Procedure) Rules of Akwa Ibom State.

I am of the considered view that, the preliminary objection raised by the appellants/respondents at the lower court, was properly argued by both counsel. In other words, it is not a fresh issue, worthy to be granted by the applicants because the issue of territorial jurisdiction of court was argued and considered by the lower court. It cannot be regarded as a fresh issue or point, which was not brought up for consideration in the lower court. See the concession made by the applicants in paragraph 12.11 of their brief pages 4 – 5. The true fact remains, that it was considered in the lower court, and what the appeal court will do in the substantive appeal is to accept or reject the decision of the lower Court, as to its territorial jurisdiction to hear the writ of summons on the undefended list. Relief one in the motion paper is hereby refused.

The second relief is to permit the applicants to present to this court as further evidence in support of their case.

It is to be noted that the applicant’s motion on notice is badly headed “Motion on Notice brought pursuant to Order 1 rule 20(1), (3), (4) and (5) of the Rule of the Court of Appeal Rules.” It is bad and incompetent because the year of the Court of Appeal Rules is not stated. Can this court assume that the rules of this court referred to in this application is for the Court of Appeal, 2002, which is applicable to this court? Certainly not so, because Order 1 rule 20(1), (3), (4) and (5) of the Court of Appeal, 2002 is contrary to the rules of this court in Order 1 rule 20(1), (3), (4) and (5), 1981.

In my considered opinion, the second relief appears to be an after thought. The document sought to be admitted, as further evidence could not have just emanated from the blues as the applicants would want this court to believe. If the purported documents was just served on the applicants, before commencement of the suit and after they had filed their respondents’ brief as stated in their paragraph 4 of the affidavit in support, Union Bank Plc, Calabar could not have just written a letter to support their evidence. The obvious fact is that the applicants, had probably, seen the weakness of their case in relation to the jurisdiction where to institute their case vis-a’-vis the citation of their Bank namely Union Bank Plc, and therefore asked the bank to write to them.

The heading and the words are clear, showing that the applicants tele-guided their bank thus:-

ABBNNY EDUCATIONAL PUBLISHERS REMITTANCE …”

…

Was opened to remit

…”

I cannot believe that a learned counsel who filed the writ of summons in June, 2004, was not aware of the remittance of his client’s bank from one bank to the other, until a letter was just served on his clients on 9th August, 2005, thus, after the suit as the lower court had been closed and the matter had reached this court. In fact, the purported letter was created due to the appellants/respondents brief of argument already filed and served. For the above reasons, relief 2 is refused.

In the final analysis, the motion on notice dated and filed 23rd September, 2005 is hereby refused and is accordingly struck out with no costs to any party.

Other Citations: (2005)LCN/1846(CA)

Hon. Justice E.i. Isuama V. Governor of Ebonyi State of Nigeria & Ors (2005) LLJR-CA

Hon. Justice E.i. Isuama V. Governor of Ebonyi State of Nigeria & Ors (2005)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

The appellant/applicant Hon. E.I. Isuama was removed from the office of the Chief Judge of Ebonyi State by the Governor of Ebonyi State by a letter communicated to him on the 13th day of September, 2000. The removal was then supported by more than two-thirds majority of the Ebonyi State House of Assembly members in accordance with the provisions of section 292(1)(a) (ii) of the Constitution of the Federal Republic of Nigeria 1999. At that point in time, the National Judicial Council, a body charged with the responsibility to investigate any complaint or act of grave misconduct against any Judge or justice and make recommendation as deems fit, was taking the necessary steps in respect of the development in Ebonyi State involving their Chief Judge, the applicant. The appellant/applicant headed for the law courts to prevent any abuse of his rights and his removal from office. He sought leave of the Federal High Court Enugu in suit No. FHC/EN/CP/188/2000, pursuant to Order 47 rules 1(1), 3 and 10 of the Federal High Court Rules 2000 to apply for an order of certiorari and prohibition, which leave was granted by that court. He thereafter filed an application before the court for judicial review asking for declaration, damages, certiorari, prohibition, perpetual mandatory injunction and perpetual injunction against the governor of Ebonyi State, Clerk of Ebonyi State House of Assembly, Ebonyi State House of Assembly, Hon. Justice Elechi, Commissioner of Police Ebonyi State Command, Inspector General of Police and The National Judicial Council. The applicant predicated his argument before the court on Article 7(1)(a) of the African Charter on Human and Peoples Rights because his major grouse was that he was removed from office without being granted the opportunity of being heard by his accusers, which was an infringement of his right under the Nigerian Constitution and the African Charter. A preliminary objection was raised to the jurisdiction of the Federal High Court and that names of the 6th and 7th respondents, the Inspector- General of police and the National Judicial Council are struck out. The court dismissed the preliminary objection and found that it had jurisdiction. Being dissatisfied with the ruling, the respondent appealed to this court. The Court of Appeal granted the application to strike out the name of the 6th respondent from the suit, but retained that of the 7th respondent, the National Judicial Council being a necessary party. The appeal was however dismissed, thus confirming the jurisdiction of the Federal High Court but the order was made that the main case be tried by another Judge of the Federal High Court. Vide pages 219-239 of the record. The case was resumed at the Federal High Court before another Judge – Justice A.A.B. Gumel. By that time the applicant had by an order of court granted on the 26th of April, 2004 amended the reliefs sought and the application for judicial review was brought pursuant to Order 47 rule 5 of the Federal High Court (Civil Procedure) Rules, 2000 and Articles 3, 7 and 26 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation, 1990.

The respondents objected to this action for being incompetent and an abuse of court process. The issue of the jurisdiction of court to entertain the application arose as this was not properly addressed by the Court of Appeal in its judgment. It is the contention of the respondents that the reliefs being sought and the parties before the court do not come under the provisions of section 251(1) of the Constitution affecting the jurisdiction of the Federal High Court.

The 1st and 2nd respondents are State Agencies, while the facts of the case do not disclose any right of action against the 3rd respondent. The reliefs being sought are not predicated on the African Charter on Human and Peoples Rights and are therefore not cognizable before the Federal High Court.

The respondents before the court were reduced to three, the Governor of Ebonyi State, Ebonyi State House of Assembly and the National Judicial Council. The applicant relied upon the Court of Appeal’s decision in Governor of Ebonyi State & Ors. v. Isuama (2004) 6 NWLR (pt. 870) 511 to hold that the issue of jurisdiction cannot be reopened. If the court were to hold that the issue of jurisdiction is not res judicata, the court has ample jurisdiction over the matter. All the respondents have constitutional roles to play in the matter. The Federal High Court in its ruling declined jurisdiction in the matter. It held that the suit ought not to have been brought against the 3rd respondent based on the averments in the affidavit in support of the action. The case was struck out by the court based on the case of NEPA & Ors. v. Edegbero (2002) 18 NWLR (pt. 798) 79 and Arjay Limited v. Airline Management Support Lid. (2003) 2 SCNJ 148; (2003) 7 NWLR (Pt.820) 577.

Being aggrieved by the ruling delivered on the 14th day of July, 2004, the Hon. Justice E.I. Isuama appealed to this court. Processes of appeal were complied with in accordance with the Court of Appeal Rules, 2002. Briefs were filed and exchanged by the parties. At the hearing of the appeal, the appellant relied on his brief filed on 7/12/04 and the reply brief filed on 26/5/05. In the appellant’s brief two issues were settled for determination as follows:

(1) Whether the issue of jurisdiction raised suo motu by the learned trial Judge is not res judicata and if answered in the affirmative, whether the trial Judge could in law sit on appeal over the earlier finding of his learned brother and the Court of Appeal on the same issues and in the same suit after arguments inter parties.

(2) Whether in the circumstance of this case 3rd respondent – National Judicial Council acted as an agency of the 1st respondent or as an agency of the Federation pursuant to section 153 of the Constitution which conferred jurisdiction on the lower court?”

The respondents adopted and relied on the brief filed on 8/5/05 whereupon two issues were formulated as follows:-

(a) Whether res judicata operated in this case to rob the court the jurisdiction to entertain arguments on jurisdiction.

(b) If the answer is in the negative whether as constituted on the date the lower court directed the parties to address it on jurisdiction, the court was right in holding that it had no jurisdiction.

Since the issues raised by the respondents are subsumed in the appellant’s issues, I shall adopt the appellant’s issues for the purpose of this appeal. I also observe that both issues can be argued together.

The appellant argued and submitted that a State High Court though will have jurisdiction over the 1st and 2nd respondents, it definitely will not have over the 3rd respondent to grant order of prohibition, injunction and demand for payment of salaries against it. Where there is total jurisdiction over claims and parties in a matter as against another court with partial jurisdiction over claims and parties, the former with total jurisdiction would be more competent to hear and determine the matter. The learned Judge speculated into the possibilities of suits Nos. AD/90M/2000 and AB/1051/2000 in determining his jurisdiction when no material facts about these suits were placed before him. By considering those suits, the learned trial Judge took extraneous matters into consideration and that affected his decision on the issue of jurisdiction of his court. The appellant urged the court to allow the appeal, and referred to the cases of Brawal Shipping Ltd. v. E.C.S Ltd. (2001) 14 NWLR (Pt. 732) 172; FGN v. Oshiomhole (2004) 3 NWLR (Pt. 860) 305; NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79; Unreported case of Olugbani v. Governor of Lagos State suit No. FHC/L/CS/99/2003; Mobil Oil (Nig.) Plc. v. IAL 36 Inc. (2000) 6 NWLR (Pt.659) 146; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1; Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126; Fawehinmi v. Attorney-General of Lagos State No.2 (1989) 3 NWLR (Pt.112) 740; Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159.

The respondent urged this court to dismiss this appeal as the cause of action upon which the court below initially held it had jurisdiction namely breach of the African Charter on Human and Peoples Rights did not feature in the amended reliefs sought and therefore res judicata does not arise.

The reliefs sought at the hearing did not include any legal grievance against the 3rd respondent.

The remaining two parties are clearly under the jurisdiction of the State High Court.

The appellant having attained his retiring age, the extant reliefs sought are clearly within the exclusive jurisdiction of the State High Court.

The respondent cited the case of Oloba v. Akereja (1988) 7 SCNJ (Pt. 1) 56; (1988) 3 NWLR (pt. 84) 508.

I have painstakingly considered the issues raised and submission of counsels in this appeal. It is however noteworthy that the appellant had to bow out of the service of Ebonyi State on attaining the statutory age of 65 years on the 12th of November, 2004. His grouse and the cause of action is the unsavoury way he had been relieved of his post as Chief Judge of Ebonyi State prematurely before his statutory retiring age of sixty-five years and without being afforded the opportunity of a hearing to defend himself. The notice of his removal from office was served on him by a letter dated the 13th of September, 2000 emanating from the executive Governor of the State acting on a resolution passed by the 2nd respondent. The 3rd respondent was joined in the suit by an order of this court as a proper party because of its role under the constitution in respect of the appointment and removal of superior court Judges of all cadres in the country, Vide section 153, and Part 1, item 21 paragraphs a-i of the third Schedule of the 1999 constitution of the Federal Republic of Nigeria. The 3rd respondent – National Judicial Council is a proper party to an application for judicial Review for the Removal of a High Court Judge from office. In this instance the National Judicial Council was in the process of exercising this power. Vide the letter dated 2nd of August, 2000 to the Governor of Ebonyi State Ref. No. NJC/S.584.11.780. The appellant’s efforts to seek redress in court against his removal from office had been stultified by the issue of a condition precedent, determination of which court is competent to entertain the suit as parties concerned are public officers, the 1st and 2nd respondents and even the appellant are state functionaries- Ebonyi State. In the circumstance of this case, the court will have to decide whether the National Judicial Council is a Federal or State Agency.

The issue of jurisdiction is fundamental being the crucial question of competence of a court. It is the power of the court to decide a matter in controversy and this presupposes the existence of a duly constituted court with control over the subject-matter and the parties. Courts are creatures of statutes and the jurisdiction is therefore confined, limited and circumscribed by the statute creating it. A court cannot give itself jurisdiction by misconstruing a statute. Ogunmokun v. Milad Osun State (1999) 3 NWLR (Pt.594) 261; African Newspapers of Nig. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137; Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

Parties relied heavily on the case of NEPA v. Edegbero (2002) 18 NWLR (Pt.798) 79 (supra) which has suddenly become the locus classicus on the proper court for instituting an action against a Federal Government Agency. I would like to point out that the case arose from unlawful dismissal of the respondent – Edegbero based on a contract of employment. The Supreme Court held that it is the Federal High Court that has jurisdiction to entertain the suit. This case thereby established the new doctrine and concept of party jurisdiction, which in effect means that where the parties are agencies of the Federal Government irrespective of whatever the claim, whether for declaration, or injunction or damages, it is the Federal High Court that has jurisdiction. The case did not decide on subject-matter jurisdiction.

The National Judicial Council has a unique role to play in the affairs of the Judiciary of this country, in respect of the appointment, discipline and removal of justices or judges. It is empowered to play this role by the constitution to both Federal government and State government judiciary alike.

The National Judicial Council can be a party to a suit at any of the courts, Federal or State in which the issue of the appointment or removal of a judge is being questioned. I observe from the records that the reliefs sought at the lower court in the amended application covers judicial review brought pursuant to Articles 3, 7 and 26 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation 1990. By virtue of Order 1 rule 2 of the fundamental Rights (Enforcement Procedure) Rules made pursuant to the 1979 Constitution, a court is defined as the Federal High Court or the High Court of a State.

Section 46 of the 1999 Constitution is a special provision which deals with matters of fundamental Rights. It confers jurisdiction on any High Court in a state in matters of fundamental rights irrespective of who is affected by an action founded on such rights. Section 42 of the 1979 Constitution is now 46 of the 1999 Constitution. Decree 107 of 1993 did not repeal or abrogate the provision of Section 42 of the 1979 Constitution in respect of the enforcement of fundamental right; rather, the Decree preserved the provisions. In short, a person whose fundamental right is breached, being breached or about to be breached may apply to a High Court or Federal High Court in that state for redress. Jack v. University of Agriculture Markudi (2004) 5 NWLR (Pt.865) 208.

In this instance the appellant was relieved of his post as a Chief Judge by the same government which employed him and paid his salaries in his own State – Ebonyi State. He was not heard before he was served with a letter and moves were made to deprive him of all the rights and benefits attached to that post. The cause of action here to my mind should have been predicated on wrongful dismissal from employment or breach of a contract which is supposed to terminate on his attaining the age of sixty-five years, in other words, he was supposed to be in office until the 14th of November, 2004.

His relief cannot be brought under the Fundamental Rights Procedure. Wrongful dismissal is a relief under the common law which should be commenced by a writ of summons and the trial based on the pleadings of the parties to which the rules of pleadings must apply. Fundamental Rights Enforcement rules is constitutional and is a special procedure, it is not applicable to an action which is mainly and substantially for wrongful dismissal.

Tukur v. Government of Taraba State (1997) 6 NWLR (pt. 510) 549; Egbuonu v. Bomu Radio Television Corporation (1997) 12 NWLR (pt. 531) 29; Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (pt. 696) 159.

In view of the fact that the appellant is now statutorily out of office as a judicial officer, an action for wrongful dismissal would be more appropriate in which necessary parties must be brought before the High Court of Ebonyi State.

The appeal lacks merit and it is dismissed accordingly. No order as to costs.

Other Citations: (2005)LCN/1845(CA)

Cyril Okpara V. The State (2005) LLJR-CA

Cyril Okpara V. The State (2005)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment delivered by Maranzu, J., while sitting at the High Court of Justice,Owerri in Imo state of Nigeria on 10th August, 1995. The trial Judge convicted and sentenced the Appellant to death for the murder of one Victor Igbo Opara, contrary to Section 319(1) of the Criminal Code,Vol. II Laws of Eastern Nigeria, 1963 applicable in Imo State of Nigeria.

The facts garnered by the trial Judge in the murder trial are very revealing. They are not far fetched. For a proper appreciation of the issues canvassed in this appeal, it is apt to reproduce the salient facts at a reasonable length.

P.W.1 Stella Opara, is the deceased’s wife and the star witness. According to her, the deceased set fire on waste papers used in their pit latrine/toilet. The fire got out of control and spread to plantain shrubs, belonging to Alexander Opara – Appellant’s father. It also led to the fall of a bean tree which destroyed Alexander Opara’s toilet. The deceased opted to repair the toilet. Alexander Opara asked him not to repair the toilet, but maintained that he should be paid for the burnt plantain shrubs. Kevin Opara, Appellant’s elder brother, reported the matter at the Army Barrack at Obinze.

P.W.1 and the deceased went to the Army Barrack at Obinze on 5th February, 1987. As well, Kevin Opara and Alexander Oprara went to the stated army Barrack where the rift was settled. P.W.1 and the deceased left the Barrack. At Obinze/Nekede junction, P.W.1 said she saw P.W.4 and her brother who were returning from school. P.W.1 said she asked the deceased to go home in company of the school children while she went to Owerri. She said the deceased; her husband agreed and accompanied the school children.

P.W.1 said on return to their village in the evening, she did not see her husband. The deceased was not seen again alive. P.W.4 said on her way home, she saw the Appellant sharpening a stick on that day along the road. A search party was mounted and the deceased corpse was found on 7-2-87. The prosecution maintained that the Appellant who did not take part in searching for the deceased ran away. The co-accused who was acquitted joined in the search, but later ran away for fear of being arrested. Police later shot at him to effect his arrest. An autopsy was done on the corpse, but the report was not tendered. The Medical Officer who performed the Post Mortem did not testify.

P.W.1 said she overheard the Appellant at about 9.00 p.m. on 5-2-87 saying he had killed the deceased. She said one Adiele Ononugbo, also heard the Appellant’s utterance. Adiele did not testify. What P.W.1 said she heard from the Appellant is not contained in any of her three statements.

P.W.1 said one corporal Umoh alleged that one huge boy came to them and asked to be protected in that they way-laid someone on the road from Obinze to Nekede. She said the Police gave the name of the huge boy as Cyril Opara – the Appellant. The Police did not arrest the ‘huge boy’ and never testified.

The Appellant maintained that there was no quarrel between him and the deceased. He admitted that there had been some family dispute over land, which had long been settled before the incident. He did not go to the Army Barrack with those who went there on 5-2-87. He said on 1-2-87, the co-accused and himself caught P.W.1 in the bush having illicit amorous affairs with one Ozurumba Nze. He said P.W.1 had a grudge against them and threatened to deal with both of them. He admitted that he did not participate in the search for the deceased before he ran away to avoid indiscriminate arrest of youths by the Police after the incident. Appellant said on 5-2-87, he,along with the co-accused, went to the house of Mbakwe’s driver to keep watch as security men. When he heard that the co-accused had been arrested, he reported willingly at the Police station.

After trying to apply the relevant laws to the evidence adduced, the trial Judge found the Appellant guilty and sentenced him to death. The co-accused was discharged and acquitted. Alexander Opara, Appellant’s father, died in prison custody, while awaiting trial.

The Appellant felt unhappy with his conviction and sentence and has, ex-debito justitiae, appealed to this court. From the grounds of appeal filed, three issues were formulated for an appropriate determination of the appeal.

I accordingly set them out as follows:

“2.1. Whether the circumstantial evidence adduced met the requisite standard in a murder trial thereby, proving the case against the Appellant beyond reasonable doubt as laid down by S.138(1) of the Evidence Act.

2.2. Whether the conduct of the proceedings by the learned trial Judge was done in accordance with the law.

2.3. Whether the Appellant’s conviction was valid and proper after the co-accused was discharged on the same evidence.

On behalf of the Respondent, three issues were couched as follows:

“(i) Whether the totality of the circumstantial evidence at the trial was not enough to find the Appellant guilty of the number of the deceased.

(ii) Whether the steps adopted by the learned trial Judge in this case vitiates the trial or Proceedings.

(iii) Whether the evidence against the 2nd Accused is the same as that against the Appellant.”

It has been restated times without number by the Supreme Court and this court that, wherever there is a charge for the capital offence of murder, to successfully establish same against the accused person, the prosecution must prove the following:

(a) the death of the deceased;

(b) the act of commission or omission of the accused which caused the death; and

(c) that the act of commission or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.

It is no longer a moot point that the above stated ingredients must be clearly proved beyond peradventure. Refer to ONAH v. STATE (1985) 3 NWLR (Pt. 12) 236; OKEKE v. STATE (1992) 2 NWLR (Pt. 590) 246; OMOGODO v. STATE (1981) 5 S.C. 5; NWOSU V. STATE (1998) 8 NWLR (Pt 562) 443, ABOGEDE v. STATE (1996) 5 NWLR (Pt. 448) 270; OGURU v. STATE (2000) 8 NWLR (Pt. 769) 367; UDOSEN v. STATE (2005) 8 NWLR (Pt.928) 587.

To sustain conviction for the capital offence of murder, it is not enough to merely prove that the deceased died. The prosecution has the abiding duty to prove beyond reasonable doubt that the death of the deceased resulted from the act of the accused person and that the act was intentional. The cause of death of the deceased must be traceable to the act of no other person, other than the accused. Where the prosecution fairs to prove beyond reasonable doubt that the act of the accused caused the death of the deceased, a verdict of discharge and acquittal must be entered. See OKAFOR v. STATE (1990) 1 NWLR (Pt. 128) 614; OKOROGBA v. THE STATE (1992) 2 NWLR (Pt. 222) 244.

It is the law as dictated by section 138(1) Evidence Act, cap 112, Laws of the Federation of Nigeria, 1990, that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. This has been given clear stamp of authority by our apex court. See NASIRU V. STATE (1999) 2 NWLR (Pt. 589) 98. The pace on the point was set about seven decades ago in WOOLMINGTON v. D.P.P. (1935) A.C. 462.

It is clearly not a moot point that Victor Igbo Peter is dead. The parties are ad idem on same. It was found out that the man died on 7-2-87 when his corpse was recovered in the bush.

I need to point it out here that, there is a dearth of evidence in respect of the cause of death of the deceased. The picture which the prosecution attempted to paint through circumstantial evidence is that the appellant and the co-accused attacked the deceased and caused his death. The medical officer who performed the autopsy on the body of the deceased did not testify. No medical report was tendered as well. It can be safely presumed that the medical evidence which could be produced and was not produced, would, if produced,be unfavourable to the prosecution’s case. Section 149(d) of the Evidence Act is in Point here.

Further, throughout the whole gamut of the evidence proffered by the prosecution, there is no evidence as to the nature and type of injuries that led to the death of the deceased. It has been depicted earlier on in this judgment that in a murder trial, cause of death is a fact in issue that must be proved by the prosecution. There must be direct evidence linking the cause of death of the deceased with the appellant. As there is none herein, medical evidence is a sine qua non. It cannot be dispensed with. See IGAGO v. STATE (1999) 6 NWLR (PT. 608). It is only when the caused of death is obvious that medical evidence can be dispensed with. Refer to EMVENYA v. A.G. BENDEL STATE (1993) 6 NULR (Pt. 297) 29; ADAMU v. KANO N.A. (1956)1 FSC 25; (1956) SCNLR 65.

The prosecution’s omission to tender the medical report was,no doubt fatal to the prosecution’s case. This is more so as there was no viva voce evidence showing any attack on a vital region of the deceased’s body. At page 146 lines 15-20 of the transcript record of appeal, the trial Judge bemoaned the situation created by the prosecution as follows:

“It is frustrating to Court to be given the burden of inferring from circumstantial evidence the fact of death and murder of the deceased in the face of the abundant evidence by the prosecution witnesses that an autopsy was performed on the body of the deceased and the medical report issued.”

To my mind, it was not necessary for the trial Judge to feel disturbed that the prosecution did not tender the desired medical report. After all, it is their case which must stand or fall based on their performance. The trial Judge attempted to cover the yawning gap created by the prosecution as at page 150 lines 10-15 he had this to say:

“…The 1st accused was seen with a sharp knife alone, along the road that the deceased passed on the fateful day, 5th February, 1987. That means that the 1st accused had opportunity to harm or maim and or kill the deceased along that road.”

In short, the trial Judge erroneously attempted to cover the vital yawning gap created by the prosecution through, what I may describe as conjecture or permutation, if not assumption. It is not within the realm of the constitutional responsibility of a Judicial Officer to embark upon such a stance.

For more elucidation on the vital issue being discussed herein as at this point, I need to further refer to the decision of the Supreme Court in the case of AHMED v. STATE (2001) 18 NWLR (Pt. 746) 622 at 649; 652. In a charge of murder as herein, it is not enough to show that the alleged act of the Appellant could have caused the death of the deceased. The prosecution has the onus to prove that it did in fact, cause the death. Even where death follows injury inflicted on a deceased and the fact of the injury is relied on without medical evidence as circumstantial evidence of cause of death, the injury suffered must be so well described and be of such nature from such description, that the injury itself must speak clearly and unmistakably for itself taken together with the surrounding circumstances to amount to prima facie cause of death.

In short, since the cause of death of the deceased remains in the air, it has not been proved that the act of commission or omission of the appellant caused the death of the deceased. It was erroneous of the trial Judge to hang in vacuo on his proposition that, the appellant had opportunity to harm or maim and or kill the deceased along that road that day. Such sounds in the realm of conjecture with no legal backing; as has been demonstrated above.

This should have been an appropriate time to allow the appeal. However, since this is an intermediate court, I need to consider the circumstantial evidence upon which the trial Judge relied in convicting the appellant.

Circumstantial evidence is said to be evidence of surrounding circumstances which by undersigned co-incidence is capable of proving a proposition with mathematical accuracy Refer to R v. TAYLOR & 2 ORS (1930) 21 CAR 20 at p.21 OBUKOR v. THE STATE (1984) 8 S.C.1

For circumstantial evidence to be in tune with the reality of the matter, such must be strong, cogent and compelling as to convince a jury that on no rational hypothesis other than the inference therefrom can the fact be accounted for. Refer to UWE ESAI & ORS v. THE STATE (1976) 11 S.C. 39; PETER N. EZE v. THE STATE (1976) 1 S.C. 125. Circumstantial evidence must be competing and unequivocal. They must point only at the direction of the Appellant and no other person.

Refer to OMOGODO v. THE STATE (1981) 5 S.C.; PEBA v. STATE (1980) 8-11 S. C.76, Circumstantial evidence, to be sufficient, must read conclusively and indisputably to the appellant’s guilt. Such is in line with the dictate of Section 138 (3) Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. Let me observe that circumstantial evidence must be examined narrowly and with care. It must be closely examined if possible with a tooth comb. Refer to STATE v. NAFIU RABIU (1980) 1 NCR 4 at p.50. To be sufficient for conviction such evidence must point only to one conclusion, namely that the offence had been committed and that it was the accused who had committed it. See NASIRU V. STATE (1999) 2 NWLR (Pt.589) 87 at 89; TEPER V. R (1952) A.C.480. A court must carefully appraise circumstantial evidence because it may be fabricated to cast suspicion on another. Refer to ADEPETU v. STATE (1996) 6 NWLR (Pt. 452) 90 at p. 113.

The trial Judge said that the Appellant did not look for the deceased. He felt that a well meaning or casual friend will certainly join in the search for his missing friend how much more someone, one calls a brother. With due diffidence to the trial Judge, this statement sounds rather sentimental. And sentiment has no place in a serious criminal trial relating to murder. I am at one with the learned Counsel for the Appellant that being callous is not a crime.

The trial Judge felt that it was wrong for the Appellant to run away after the incident. The Appellant said he ran away like some other youths of the village to avoid indiscriminate police arrest. In any event, the fact that the Appellant ran away to escape arrest, after the incident without more is no proof of his guilt. Refer to AKINSANYA v. STATE (1961) WRNLR 222 at 229. It should be noted that the Appellant willingly reported himself at the Police station, unlike the acquitted co-accused, who also ran away from the village and was shot on the waist by the Police to effect his arrest.

The learned trial Judge relied heavily on the evidence of P.W.1 who alleged that she overheard the Appellant say that he had killed the deceased. From the evidence of P.W.2, as at 9.00 p.m. when P.W.1 said that the Appellant made the comment credited to him, the appellant and the co-accused were on guard duty at the house of Chief Mbakwe’s driver P.W.1 said one Adiele Ononugbo, also heard the Appellant’s alleged comment. But Adiele was not called to testify and corroborate P.W.1’s assertion. And more importantly, what P.W.1 credited to the Appellant about five years after the incident is not contained in her statements which are Exhibits A, AA and AAA copied at pages 5-11 of the record, of appeal. These were statements made by P.W.1 when the incident was fresh. Also, she did not report what she heard the Appellant say in the night of 5-2-97 to any one in the vicinity. P.W.1’s testimony in this regard is outside what is contained in her three extra-judicial statements. P.W.1 appears inconsistent. The evidence that is not part of her statements should be taken as an after thought. Failure to call Adiele Ononugbo, weakened the case of the prosecution. The doubt arising must be construed in favour of the Appellant. See OBIOSA V. NIGERIAN AIR FORCE (2000) 12 NWLR (Pt. 680) 112.

The trial Judge talked of land case between the deceased and Appellant’s family. P.W.1 did not seriously say much about land case between her late husband and Appellant’s family. P.W.5, a police investigator who mentioned it did not have direct knowledge of the facts. In any event, the Appellant said the misunderstanding between the deceased and his family had been settled long before the deceased died. I see no big deal in the surmised land dispute.”

P.W.1 said in her evidence that one corporal Umoh said that the Appellant came to them and asked to be protected in that they way-laid someone on the road from Obinze to Nekede. Ironically, Cpl. Umoh did not arrest the Appellant and never testified. Viewed critically and carefully, one can see that P.W.1 was out for skirmishes all over the place.

It is extant in the record of appeal that P.W.1 was, off 1-2-87, caught by the Appellant and the acquitted co-accused f or having illicit amorous affairs with one Ozurumba Nze in the bush. She admitted that the Appellant and the co-accused reported her to the town elders for desecrating the land. It is equally extant in the record that PW.1 was customarily sanctioned. Appellant said because of this, P.W.1 promised to deal with them.

From all indications, it appears to me that P.W.1 embarked upon real vendetta. She was in for total revenge. Indeed, she was out for a pound of fresh from the Appellant’s throat; it seems.

I am of the strong opinion that the trial Judge ought to have sufficiently warned himself as to the veracity of the evidence of P.W.1, who had other interest to serve. She was out to get even with the Appellant. In the same vein, she was deceased’s wife. Refer to OLALEKAN v. STATE (2001) 18 NWLR (Pt. 746) 793 at 816. See also, OKONKWO v. THE STATE (1998) 4 NWLR (Pt. 544) 142 at p.154. The evidence of a close relation must be treated with caution.

It is my considered opinion that no jury that is composed of reasonable men and women of affairs and honour, whose opinion should be respected would return a verdict of guilty based on the inconsistent and incredible, evidence of PW.1 who, no doubt was actuated by malice to implicate the Appellant. I do not think that the evidence of P.W.1 deserve any credence and reliance. Her evidence was not coherent, cogent and compelling.

The trial Judge should have discharged and acquitted the Appellant. After all, the existing reliable evidence against him is substantially the same as that against the co-accused who was discharged and acquitted. So also is the applicable law the same.

This is a clear case, where it can be said without any equivocation that the prosecution failed to prove their case against the Appellant beyond reasonable doubt. It has been shown that an essential ingredient of the offence of murder to wit: the act of commission or omission of the Appellant which caused the death of the deceased was not proved. There is a failure to comply with the dictate of section 138(1) of the Evidence Act as it has not been proved that the death of the deceased resulted from the act of the Appellant. Again, see NASIRU v. STATE (supra), AKINYEMI v. STATE (1999) 6 NWLR (Pt. 607) 449 at 464.

I come to the conclusion that the appeal has merit and it is hereby, allowed. The conviction and sentence of death passed on the Appellant on 10th August, 1995 are hereby, set aside.

The Appellant is hereby discharged and acquitted forthwith.

Other Citations: (2005)LCN/1844(CA)

Chief S.O. Maduabuchukwu V. Engr. Boniface O. Maduabuchukwu(2005) LLJR-CA

Chief S.O. Maduabuchukwu V. Engr. Boniface O. Maduabuchukwu(2005)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

By the application filed on the 26th of January, 2005, the defendant/applicant is praying this Court for an order:

“Extending the time within which to appeal against the ruling of the Abia State High Court, sitting in Umuahia, in Suit No. HU/78/2004, dismissing his motion, praying for an order striking out the plaintiff/respondent’s suit for incompetence by reason of being statute barred.”

The said application was supported by a 13-paragraph affidavit, to which were attached two exhibits viz: (a) copy of the Notice of Appeal and (b) a certified true copy of the ruling of the Court below – marked Exhibits A and B respectively. In opposition to the said application is a 14- paragraph counter-affidavit. When this application came before us on the 6th of June, 2005 for argument, for the reason that many matters among which were substantive appeals, were calling for attention in the Court and with the time available, we could not entertain oral argument of counsel, this Court ordered counsel on both sides to reduce their submissions for and against the grant of the application into writing; and thereafter, adjourned the application to 11th October, 2005 for the adoption of their different written submissions and argument of the said application.

On the 11th October, 2005, when this matter came upon Court, Dr. Ijiomah, learned Counsel for the applicant, in arguing the said application, filed on 26th January, 2005; he referred to, adopted and relied on the applicant’s written submissions filed on the 15th of June, 2005 and the applicant’s reply filed on the 7th of July, 2005 in response to the respondent’s written submission filed on the 27th June, 2005; he further submitted that the grounds contained on the proposed Notice of Appeal are purely grounds of law and as such no leave of Court was needed to appeal against the said ruling. While citing the decision in NELSON ONYEO & ORS. V. REV. CHUN [2005] 29 WRN 125 at 146 – 147 at support of his argument; he urged that the application be granted.

Mr. Amechi, of Counsel for the respondent adopted and relied on his client’s written submission filed on 27th June, 2005 and urged us to dismiss the application.

What led to the filing of written submissions by the parties was the clear manifestation of opposition to the grant of the application on the ground that the appeal arose from an interlocutory ruling and that leave of Court was required by the applicant to file the appeal. Suffice it to say that no leave was sought by the applicant who, through his counsel, had submitted orally in the open Court, that having regard to the proposed grounds of appeal contained in the proposed Notice of Appeal, leave of Court was not required to file the Notice of Appeal. In his written submissions three issues were identified for the determination of this application and as set out, they are in the following terms:

“(1) Having regard to the provisions of Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999, whether the applicant needs leave of Court to file the appeal in this case.

(2) Whether the proposed grounds of appeal attached and marked Exhibit A in the affidavit in support of the motion are arguable.

(3) Whether the applicant has shown good and substantial reasons for failure to appeal within the prescribed period.”

The respondent, in his contention that leave of the Court to appeal is a sine qua non and as such the trinity prayers i.e; (i) order extending the time within which to apply for leave, (ii) leave to appeal and (iii) and an order extending the time to file the Notice of Appeal – must be sought and obtained, formulated two issues for determination and as set out in his written address; they are as follows:

“(1) Whether the application which failed to incorporate the trinity prayers for extension of time to apply for leave, leave to appeal and extension of time to appeal can be said to be competent having regard to the subject ruling and the proposed grounds of appeal exhibited to the application.

(2) Whether having regard to the deposed facts in this application and the proposed grounds of appeal the applicant can be said to have satisfied the two legal conditions for granting an extension of time to appeal.”

After a very careful examination of the issues identified by both parties; it is my view that Issue Nos. 1 and 2 in the applicant’s written submission can be taken together with issue No. 1 in the respondent’s written submission; while Issue No. 3 in the written submission of the applicant will be taken along with issue No.2 in the respondent’s written submission.

In his written submission, the applicant argued that the grounds of appeal contained in the proposed Notice of Appeal are purely grounds of law and by the provisions of Section 241(1)(a) and (b) of the 1999 Constitution leave of the Court below was not necessary to appeal against the ruling to Abia State High Court, sitting in Umuahia Judicial Division in Suit No. HU/78/2004: B.O. MADUABUCHUKWU ‘V. S.O. MADUABUCHUKWU wherein the motion of the defendant/applicant seeking an order striking out the plaintiff/respondent’s action for incompetence by reason of being statute barred. A number of judicial decisions, which construed Section 220(1((b) of the 1979 Constitution which is in pari materia with the aforesaid Section 241(1)(b) of the 1999 Constitution were cited in support: they are (1) ALL STATES TRUST BANK LTD v KING DAVIDSOIV ENT. (NIG) LTD [2000] 14 WRN 19 at 31(2) ILEKUN & ORS v THE MILITARY ADMINISTRATOR OF OGUN STATE [2000] 17 WRN p. 137 and (3) GOV. OF KWARA STATE v LAFIAGI (2003) 12 WNR 127 and (4) A.C.B. LTD v LOSADA (NIG) LTD & ORS (1992) 2 NWLR (Pt. 225) 572.

The respondent in his written submission, conceded the point that where in an appeal the grounds of appeal involve question of law alone, an aggrieved party who desires to appeal does not have to seek leave and that where he is out of time in such circumstances, all he needs to pray for is an order extending the time within which to appeal; reliance was placed on the decisions in (1) ILEKUN supra, (2) KHALIL v. YAR’ADUA [2003] 49 WRN 50 at 78 -79. But, he argued resolutely that the grounds of appeal set out in the body of the proposed Notice of Appeal are, at best, grounds of mixed law and facts for which leave, of Court is required.

For a clear understanding of the issues involved in this application, I feel compelled to reproduce the proposed grounds of appeal; they are in the following terms:

“GROUND 1

The learned trial Judge erred in law, when in dismissing the defendant/applicant’s motion he held that:

The first thing that is wrong with the motion is that it offends Order 24 of the High Court (Civil Procedure) Rules, 2001.

PARTICULARS OF ERROR

(1) The motion of the applicant is for an order of Court, striking out the plaintiff’s suit because the plaintiff’s writ of summons was issued beyond the period allowed by the Limitation Law applicable to the plaintiff’s action;

(2) The Limitation Law applicable to the plaintiff action is Section 17(a) of the Limitation Law Cup. 24 Laws of Abia State of Nigeria 1998 – 2000.

(3) The procedure followed by the defendant in bringing the application did not amount to a demurrer.

GROUND 2

The trial Court erred in law, in dismissing the defendant/applicant’s motion (sic) held as follows:

The defendant has not filed his statement of defence and did not raise this matter in any pleading. It is not a jurisdiction issue that can be raised at any state of the proceedings.

PARTICULARS OF ERROR

(1) The said motion of the defendant raised a point of law, which can determine the action in his favour in limine.

(2) The above view of the trial Judge is in conflict with the principle set down by a full Court of the Supreme Court in the case of EGBE v. ALHAJI (1990) 1 NWLR (Pt. 128) 546 which principle allows an applicant to bring up such point of law by motion without filing pleadings.

GROUND 3

The learned trial Judge erred in law, when in dismissing the defendant’s application he held that the claim(s) of the plaintiff in his action is not within the purview of the provisions of Section 17 of the Limitation Law Cap. 24 Laws of Abia State of Nigeria (1998 – 2000) Vol. 11.

PARTICULARS OF ERROR

(1) The limited meaning placed by the learned trial Judge on the provisions of Section 17(a) of the Limitation Law Abia State is a distortion of the provisions and intendment of the said law.

(2) The word ‘claim’ is contained in the said law includes ‘a demand’ by any person ‘to any share or interest’ in the estate of a deceased person (whether under a will or intestacy).

(3) The plaintiff’s claim (demand) for an older for distribution of the estate, and account for rent collected from the estate falls within the preview of Section 17 of the Limitation law of Abia State.

(a) The word ‘claim’ does nor in the con of Section 17(a) of the Limitation Law mean an assertion to ownership simpliciter of the Estate as erroneously stressed by the learned trial Judge.”

The above are the proposed grounds of appeal, which the defendant/applicant is holding out as pure grounds of law and which the plaintiff/respondent is contending are, at best, of mixed law and facts. Before I proceed to examine these proposed grounds of law, it is not often that this seemingly complex issue of procedural law comes to Court, and given the zeal with which counsel on both sides approached the matter, I fell very much called upon here to review the judicial decisions on when an appeal lies as of right from the decision of the High Court to the Court of Appeal and when the leave of Court is required; also right of appeal over interlocutory decisions shall equally be examined.

Generally, an appeal is not a matter of common right, but of special provisions; indeed, in Nigeria, it is a matter that must receive constitutional blessing. Appeal can either be as of right or with the leave of Court. Presently, Section 241(1) of the 1979 Constitution which is in pari material with the provision of Section 220(1) of the 1979 Constitution which deals with appeal as of right from the Federal High Court or a State High Court; provides:

“An appeal shall lie from the decisions of the Federal High Court or a State High Court to the court of Appeal as of right in the following cases:

(a) final decisions in any civil or criminal proceedings before the Federal High Court of a High Court sitting at first instance.

(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”

In sub-section 1(a), once it is clear on the face of the decision that it is final in nature, an appeal lies, as of right, from the decision of the Federal High Court of a High court to the court of Appeal. But, how does one determine whether the order is a final one or an interlocutory one? The test to be applied in its determination is one which looks at the order made and not at the nature of the proceedings; if the rights of the parties are finally determined by the order appealed against that decision is a final one, see (1) BLAY V. SOLOMON 12 WACA 175(2) UDE & ORS. V. AGU & ORS [1961] ALL NLR 65, (3) OJORA & ORS. V. ODUNSI (1964) ALL NLR 55(4) TOTAL INTO. LTD. V. AWOGBORO (1994) 4 NWLR (Pt. 337) 147 and (5) F.B.N. PLC. V. FASHAR (2000) 6 NWLR (Pt. 662) 573.

In construing Section 241(1)(b) of the Constitution supra, where the ground of appeal in a Notice of Appeal against an interlocutory decision of the Federal High court or a State High Court raises a questions of law alone, the leave of Court need not be sought before the Notice of Appeal is filed, see (1) ADETONA v EDET [2001] 3 NWLR (Pt. 699) 186 and (2) NWABUEZE & ORS v NWORA & ORS [2005] 8 NWLR (Pt. 926) 1. Obviously, the next question to be answered is how one determines whether a ground of appeal is purely one of law: or mixed law and facts or facts alone? I shall answer that question anon. For the reason of the importance of procedural law under discussion, I shall now go on to treat cases of appeals, which require leave of Court. Section 242(1) of the 1999 Constitution, which makes provision for appeals with leave, reads:

“Subject to the provision of Section 241 of this Constitution, an appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court of that High court or the court of Appeal.”

In construing this provision, it was held that an appeal shall lie from the decision of a High Court with the leave of the Federal High Court or the High Court or even the Court of Appeal in the following circumstances:

“(a) appeals in interlocutory decisions of the High Court involving facts, or mixed law and facts;

(b) appeals in final decisions of the High Court in ‘double appeals involving mixed law and facts or facts alone.”

I pause to say that Section 242(1) of the 1999 Constitution quoted supra is in pari materia with the provisions of Section 221(1) of the 1979 Constitution. In AQUA LTD v ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (Pt. 91) 622, Wali, JSC in construing that provision observed at page 640 and I quote him:

“The next question that came into focus in the arguments of learned Counsel is Section 221(1). It states thus:

‘Subject to the provision of Section 220 of this Constitution an appeal shall lie from the decisions of a High Court to the Court of Appeal with leave of the High Court or the Court of Appeal.’

This Section caters for situation other than those covered by Section 220(1) of the Constitution. To be more explicit, it is meant to cover;

(1) appeals in interlocutory decisions of the High Court involving mixed law and facts or facts alone.

(2) appeals in final decisions of the High Court in ‘double appeals’ involving facts or mixed law and facts.

In any of these two situations mentioned supra, a person wishing to appeal must first obtain the leave of the High Court or the Court of Appeal. It is a condition precedent to the validity of such appeal.”

I now go back to the issue of determination of whether a ground of appeal is one of law, mixed law and facts or facts alone. Again, let me quickly say now that when a ground of appeal relates to an interlocutory decision which did not finally dispose of the rights of the parties and the appeal itself is against the judgment, which finally determined the case between the parties, such ground of appeal cannot be brought as of right particularly, when it involves issues of mixed law and facts or facts alone see (1) AJANI V. GIWA [1986] 3 NWLR (Pt. 32) 796 and (2) ONWE & ORS v OKE & ORS [2001] 3 NWLR (Pt. 700) 406; in the latter case Ejiwunmi, JSC at page 417 observed:

“It is clear from the passage from the judgment of this Court in OGIGIE V. OBIYAN (supra) per Uwais, CJN that by section 25(2)(a) of the Court of Appeal Act 1976, the period prescribed for appealing against a final decision is three months. It therefore follows that where an appellant has failed to appeal within the period of time to stipulated, he must, to have a competent appeal, obtain leave to appeal out of time against the interlocutory ruling. Having said that, it must also be noted that in that passage, it was also observed that an appeal against an interlocutory ruling may be included in the appeal against the final decision of the Court. This would, it was further noted help avoid unnecessary delay in the determination of the main issues joined by the parties in the case under consideration. An appellant wishing to adopt that procedure would however need to obtain the leave of Court.”

A ground of appeal which questions the exercise of the discretion by a lower Court is undoubtedly, not a ground of law but, at best, a ground of mixed law and facts, see (1) COKER v UBA PLC (1997) 2 NWLR (Pt. 490) 643 and (2) N.N.S.C. LTD v ESTABLISHMENT SINA OF VADUG (1990) 7 NWLR (Pt. 164) 526. This is very much so as the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact depending on the facts and circumstances of each case; whether or not, he exercised it rightly in any particular case is at least a question of mixed law and facts. In OGBECHIE V. ONOCHIE [1986] 2 NWLR (Pt. 23) 484; in laying down the principles that will guide the Court in the determination of whether a ground of appeal is one of law simpliciter or one of mixed law and facts or facts, Eso, JSC said at page 491 thus:

“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact, but what is required is to examine thoroughly the ground of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that will require questioning the evaluation of the facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”From the above dictum, if upon a careful examination of the grounds of appeal one can justifiably reach the conclusion that it reveals a misunderstanding by the Court below of the law to apply to admitted or proven facts then such a ground is one of law, simpliciter. But where it reveals facts or misunderstanding of the facts that, at best, is a question of mixed law and facts. I hasten to further say, however, that it is not every case where the facts in issue are undisputed that the available inference will result in a question of law. Undisputed facts will only lead to a question of law where there are authoritatively predetermined rules of law, which govern the conclusions from such facts. It has been held that in determining whether a ground of appeal alleges error of law or of fact, it is of essence to construe the grounds of appeal together with the particulars of error alleged. Suffice it to say that for the classification of a ground as a ground of appeal can only give competence to an appeal without leave if the nature of the misdirection or error in law clearly stated in the particulars bears out the category assigned to it. If the ground postulates a question which the Court is bound to answer in accordance with a rule of law. lf a question as to what the true rule of law is on a certain matter, issue; that question of law here arises out of uncertainty of the law; construction of statutory provision falls within this meaning. Again, if the question is committed to and always answered by the authority charged with answering questions of law only like the Judge – example of which is the interpretation of documents such a ground is one of law, see METAL CONSTRUCTION (W.A.) LTD v MIGLIORE [1990] I NWLR (Pt. 126) 299. A reading of plethora of judicial authorities on the guide to the classification of grounds of appeal boils down to this reasoning:

“(1) Where the ground of appeal shows that the trial Court or the appellate Court misunderstood the law or misapplied the law to admitted or proved facts; that is certainly a ground of law.

(2) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts or which challenges the findings of fact made by the trial Judge or where the evaluation of the evidence tendered is exclusively challenged that is a ground of fact or at best a ground of mixed law and fact.”

I derive support for this categorization from the decision of the Supreme Court in MAIGORO v GARBA (1999) 10 NWLR (Pt. 624) 555. Having reviewed the authorities, as I do know them to be it only remains for me to say that an appellant cannot convert a ground of mixed law and fact into a ground of law by merely captioning it “ERROR IN LAW OR MISDIRECTION IN LAW”, See ONWADIKE v IBEKWE (1987) 4 NWLR (Pt. 67) 718 and (2) OJEMEN v MOMODU II (1983) 15 CNI-R 188. Applying the principles I have set out supra to the proposed grounds of appeal, it is my view that proposed ground imposes on this Court (the Court of Appeal) to answer the question therein in accordance with an established law – the Limitation Law. Reading the particulars in proposed ground No. 2, as I have done in proposed ground No. 1, it is my view that this ground is about a question as to what the true rule of law is on the matter involved here – uncertainty of the law or the construction of statutory provision as in one. Again, proposed ground No. 3 reveals the question of construction of statutory provision. I therefore have no hesitation in holding that the three proposed grounds of appeal are pure grounds of law. They are on firma terra.

I now proceed to deal with the main application for extension of time within which to appeal against the ruling of the Court below delivered on 15th November, 2004. The respondent has canvassed argument, in his written submission that the application is devoid of merit in that good and substantial reasons for failure to appeal were nor given – the affidavit in support and that the grounds of appeal do not show why the appeal should be entertained. Suffice it to say that the applicant has canvassed arguments to the construing.

In considering whether or not to grant an application for extension of time within to appeal; it must always be borne in mind that first and foremost the rules of Court, commanding that certain things should be done within a specified time, must, prima facie, be obeyed. The rules are there commanding obedience to them. Therefore to justify the exercise of Court’s discretion in extending the time to take some procedural steps, which ought to have been taken within the time prescribed by the Rules, there must be materials placed before the Court upon which to predicate the exercise of that discretion, see WILLIAMS & ORS v HOPE RISING VOLUNTARY FUNDS SOCETY (1982) 1 – 2 SC 145 and (2) OBIKOYA v WEMA BANK LTD (1989) 1 NWLR (Pt 96) 157. The grounds of appeal, which I have carefully examined supra, show good cause why the appeal should be heard. The affidavit in support reveals that immediately, indeed two days after the ruling, the applicant instructed his lawyer to enter an appeal against the ruling. The lawyer did not act timeously due to what he termed urgent and unavoidable domestic issue, which he had to attend to – paragraphs 6, 7, 8, 9 and 10 of the affidavit contain facts explaining the delay. I shall hereunder set out the contents of the aforementioned paragraphs of the affidavit and later set out the contents of the relevant paragraphs of the counter-affidavit which the plaintiff/respondent has put forward in opposition to the grant of the application; they are thus:

“Para 6

That the defendant/applicant two days after the said ruling came to Dr. I.N. Ijioma’s Chambers and found him absent, but left instruction with me to ask Dr. I.N. Ijioma to file an appeal against the said ruling.

Para 7

That soon after the said instruction and before Dr. I.N. Ijioma carne to the Chambers, a very urgent and unavoidable domestic issue compelled me to travel out immediately after the said instruction, from Umuahia to Arochukwu for about 2 days and when I came back, I forgot to deliver the defendant’s message to Dr. I.N. Ijioma.

Para 8

That it was only on 27/11/2004, when the defendant/applicant came to our Chambers to know of what has happened to the said instruction he gave me, that I remembered the message he gave to me, but I could not deliver it to Dr. I.N. Ijioma because he was not available in Chambers, till the evening of 30/11/2004, due to professional engagements.

Para 9

That I immediately on his arrival, gave the said message, but he told me and I verily believed him that the statutory period for filing the Notice of Appeal has expired.

Para 10

Dr. I.N. Ijioma told me and I verily believed him:

(a) That he has quickly prepared the prepared Notice of Appeal which is hereby, attached and marked Exhibit ‘A’.

(b) That the grounds of Appeal on the proposed Notice of Appeal are substantial and arguable and prima facie, disclose genuine reasons for the prosecution of the appeal.”

The relevant paragraphs of counter-affidavit put in opposition to the affidavit in support are 3, 4 and 5 the depositions of which are as follows:

“Para 3

That further to the above grounds of the proposed appeal are not substantial and do not disclose any good-reason for granting the application.

Para 4

That the failure of the defendant/appellant to file the appeal within time was deliberate in that he wants to continue wasting the time of hearing the main case.

Para 5.

That after the death of his father in 1992, the plaintiff put the title documents to the estate of their late father, which his mother and members of the family handed over to him as the first son in their father’s box and left back for America.”

The contents of the counter-affidavit as set out above have not, in my view, dislodged the reasons for the delay in filing the Notice of Appeal within the time prescribed as set out in the affidavit in support. The fault in filing that process is that of the Chambers of Dr. Ijiomah and not of the applicant. It has never been the law that the sin of a counsel will be visited on an innocent litigant. The application, in my judgment is meritorious.

The application is accordingly granted. Time to appeal against the ruling of the High Court of Justice sitting at Umuahia, Abia State, delivered in Suit NO. HU/78/2004; ENGINEER BONIFACE OKEKE MADUABUCHUKWU V SUNDAY OKEKE MADUABUCHUKWU on 15/11/2004 is extended by twenty-one days from today.

There shall be no order as to cost.

Other Citations: (2005)LCN/1843(CA)

Aprofim Engineering Construction Nigeria Limited V. Sidov Limited (2005) LLJR-CA

Aprofim Engineering Construction Nigeria Limited V. Sidov Limited (2005)

LawGlobal-Hub Lead Judgment Report

UDOM-AZOGU, J.C.A.

This is an appeal against the judgment of Hon. Justice N. O. Adekola, Chief Judge of High Court Ibadan, Ibadan Judicial Division delivered on 9/7/99 in which he refuse the application by the defendant/appellant to set aside its judgment dated against the plaintiff dated 24/3/99.

(a) In the court below the plaintiff now (respondent) claimed against the defendant (now appellant) the sum of N4, 625,809.00 being the balance of money due to the plaintiff under the contract by which the plaintiff supplied 330 of 18mm thick coloured plywood and 10 tonnes of 12mm diameter high yield reinforcement to the defendant.

(b) Interest on the said sum at the rate of 21% from 21/5/97 till judgment is delivered and thereafter at the rate of 10% until the judgment is liquidated.

In his statement of defence the defendant denied the entire claim of the plaintiff and in paragraph 12(c) of the statement of defence he averred as follows:

“the defendant did not at any time or in any manner whatsoever, enter into any agreement with the plaintiff in the sum of N5, 119, 500.00 or that there is a balance of N4, 625, 809.00 due to the plaintiff at all.”

On 6/1/99 when trial commenced the plaintiff was in court while the defendant was absent, except that one Mr. Alimi of counsel from defendant’s counsel’s chambers announced appearance for the appellant. Throughout the entire proceedings including December 4th 2001 despite the fact the plaintiff’s counsel and defendant’s counsel were in court on February 25th 1999 when the case was adjourned to March 17th 1999, on 17/3/99 when the case came up for hearing the defendant was absent. Plaintiff’s counsel announced to the court that defendant had abandoned its defence by their absence from court and urged the court to enter summary judgment. The case was adjourned to 24/3/99 for judgment. The trial Chief Judge held,

“In the circumstance I hereby hold that by all the available evidence and all the exhibits tendered by the plaintiff in course of this case the defendant is indebted to the plaintiff in the sum of N4, 132, 480.00. I hereby give judgment in the sum of N4, 132, 480.00 being the balance due to the plaintiff from the defendant in respect of exhibits A and B. The defendant shall pay interest at the rate of 10% per annum on the judgment debt until the judgment debt is liquidated. The plaintiff has not offered sufficient evidence to prove that it should be entitled to interest of 21% per annum from the defendant when the action was filed. That shall be the judgment of the court.”

When the defendant/appellant company became aware of the judgment, it briefed its counsel S. A. Afolabi Eso to file a motion urging the court to set aside its judgment for want of jurisdiction.

After looking into the appellant’s counter-affidavit and further affidavit including notice of preliminary objection filed by the plaintiff/respondent the court on 9/7/99 ruled refusing the appellant’s application to set aside its judgment on the grounds that the judgment was one on the merit and that the issue of jurisdiction could not be raised after judgment.

This appeal is against the ruling of the court below. In addition to the 4 grounds of appeal filed, the appellant with leave of court amended and filed one additional ground of appeal bringing the number of grounds to five (5).

The appellant distilled four issues for determination from the said grounds of appeal.

Issue 1

In the face of exhibits AA2 and AA3 attached to the appellant’s motion on notice before the lower court, was there a subsisting cause of action against the appellant when the lower court proceeded to trial on 6/1/99 and delivered judgment on 24/3/99 such as to clothe the judgment with validity and strip the lower court of the power and jurisdiction to set aside the judgment upon the appellant’s application.

Issue 2

Whether having regards to the affidavit evidence before the lower court upon the appellant’s application, the appellant’s motion on notice dated 24/6/99 presented an instance when the lower court ought to have exercised its discretion to interfere with its judgment by setting it aside.

Issue 3

Whether the judgment of the lower court delivered on 24/3/99 was on the merit.

Issue 4

Was there an issue of jurisdiction properly before the learned trial Judge upon the appellant’s motion on notice which ought to have been determined by the lower court? The plaintiff/respondent elicited 5 issues for determination.

Issue 1

Whether in the absence of a valid further amended notice of appeal in the suit the court has jurisdiction to entertain the appeal.

Issue 2

Whether the judgment in the suit is a judgment in default of defence and if the answer is in the negative whether the appellant in its application before the court to set aside the judgment adduced reasonable reason why the appellant and its counsel were not in court during further hearing of the suit.

Issue 3

Whether the compromise agreement among Costain W.A Plc, the appellant and the respondent was established by credible evidence.

Issue 4

Whether a debtor by duress or fraud can impose terms of payment or settlement on a creditor.

Issue 5

Whether the application to set aside the judgment is not an abuse of the court process.

I shall address the issues based on issues raised by the appellant. In my view, they encompass the issues raised by the respondent. I shall summarise the argument of counsel for the defendant/appellant and plaintiff/respondent hereunder.

Issue 1

It is the case of the appellant in view of exhibits AA2 and AA3, the compromise agreement that the lower court lacked jurisdiction to hear and determine the suit at the time it did, the claim having been extinguished by the compromise agreement.

He argued that exhibit K attached to respondent’s counter-affidavit admitted the receipt of the money remitted via exhibit AA3. He submitted that exhibits AA2 and AA3 constitute a compromise agreement that supercedes the claim of the respondent before the lower court, more so as they came earlier than the trial and judgment of the lower court. He cited Akio Abbey & Ors v. Chief A. Ibrahim (1999) 11-12 SC SCNJ 234 where the Supreme Court held –

“Where the parties settle or compromise pending proceedings, whether before at or during trial, the settlement or compromise constitutes a new and independent agreement between them made for good considerations. Its effects are:

(1) To put an end to the proceedings for they are thereby spent and exhausted.

(2) To preclude the parties from taking any further steps in the action except where they have provided for liberty to apply to enforce the agreed terms.

(3) To supercede the original cause of action altogether, that is to say, the terms of the settlement or compromise must henceforth regulate the relationship and entitlement of the parties in regard to the matter.”

He submitted that the lower court failed to examine and make a pronouncement on the effect of exhibits AA2 and AA3 on the cause of action of the plaintiff before the lower court when the judgment of 24/3/99 was delivered, the lower court was totally devoid of all powers, statutory or inherent to entertain the claim of the respondent and its entire adjudication there was a nullity. He cited Madukolu v. Nkemdilim (1962) 1All NLR 548; (1962) 2 SCNLR 341. He posited that there must be an existing or subsisting cause of action for a court to assume jurisdiction and concluded that the cause of action in the respondent’s claim had ceased to exist prior to the trial and judgment. The long and short of the appellant’s argument in issue one is that the judgment of 24/3/99 was given without jurisdiction in view of the fact that the compromise agreement, exhibits AA2 and AA3 had extinguished the cause of action which was therefore a nullity and ought to have been set aside.

It will be necessary to examine closely exhibits AA2 and AA3 in relation to the proceedings in the court below, which resulted in the judgment of 24/3/99. The writ of summons and the claim in suit No. 1/399/97 were filed on 21/5/97 and 30/4/97. The statement of defence was filed on 30/4/99. No where in the statement of claim or defence were exhibits AA2 and AA3 pleaded or mentioned in evidence. Exhibits A and Bare LPOs and C and C1, are invoices and delivery notes. Exhibits C and C1 were tendered. PW 1 testified that the defendant paid N493, 69.00 before they sued. While the case was in court the defendant paid another N493, 691.00. He also issued a cheque for N3, 197.250 signed by only one signatory instead of two. The cheque was sent back to defendant on his request. The total balance owed the plaintiff by the defendant was therefore N4, 132, 118 only. The motion to set aside judgment of 24/3/99 was filed on 26/4/99 i.e. about one month after the judgment. It was only in paragraph 40 of the affidavit in support of the motion to set aside that exhibits AA2 andAA3 were mentioned. The defendant claimed that the payments of N493, 691.00 of 9/5/97 and N493, 691.00 of 20/11/97 were made in “full and final settlement” of the plaintiff’s claim.

This claim was however debunked by exhibit K letter from Managing Director of plaintiff/respondent part of which reads:

“We hereby reiterate that we can never accept the cheque of N493, 691 in full and final settlement of your indebtedness by your company.”

The claim of the appellant that the compromise agreement extinguished the cause of action is therefore without foundation.

Issue 1 is resolved in favour of the respondent.

On issue 2, learned counsel for the appellant submitted that the claim was fundamentally defective and the lower court ought to have set aside the judgment of 24/3/99 since it was a nullity. He cited Ojiako & Ors. v. Ogueze & Ors. (1962) NSCC VOL 2 P.44; (1962) 1 ANLR 58.

It is on record that on 6/1/99 when the trial commenced plaintiff was in court. Defendant was absent but one Mr. Alimi Esq appeared for defendant, took objections to tendering of documents and finally asked for adjournment to early February. The case was adjourned to 25/2/99 for further hearing. On 17/3/99 when the court sat, the plaintiff was in court and defendant and counsel were absent. Throughout the proceedings thereafter, the defendant failed and or neglected to appear to defend its case. No reason was given to the court explaining defendant’s absence. Paragraphs 2 and 3 of the supplementary record of proceedings depose as follows:

(1) “That the matter came up on 25th February 1999 for defence to open.

(2) That the court did not sit on 25th February 1999 and I was informed by the Court Registrar that the Presiding Chief Judge Hon. Justice Nurudeen Adekola was attending a conference out of Oyo State and the matter was consequently adjourned to 17/3/99 by the Registrar.”

The trial Judge had no option but to enter judgment for the respondent. Where the plaintiff’s claim remained unchallenged and uncontroverted the consequences are that the court will accept the available evidence as true and act on it. See the case of Lawal v. UTC (Nig.) Plc. (2005) 13 NWLR (Pt. 943) 601 at 622.

In Omoboriowo v. Ajasin (1984) 1 SC 206 at 207 per Sowemimo CJN, it was held:

“If, therefore, issues are joined on any averment, but no evidence is led to support such, the result is a striking out or a dismissal of such averment in the pleadings.”

Failure of defendant/appellant to adduce evidence in proof of the statement of defence filed renders it liable to be struck out or dismissed.

Issue 2 is resolved in favour of the plaintiff/respondent.

On issue 3, whether the judgment was on the merits, learned counsel for the appellant submitted that a judgment on the merit is a decision that was rendered on the basis of evidence led by the parties in proof of or disproof of the issues in controversy between them. He cited Mohammed v. Hussein (1998) 14 NWLR (Pt. 584) 108 at 144 where Supreme Court quoted with approval the meaning of judgment on the merit as enunciated in UTC (Nig.) Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 558-559. He finally submitted that the judgment of 24/3/99 was not a judgment on the merit and the learned trial Judge was in error in refusing to set it aside.

Since exhibits AA2 and AA3, the much vaunted compromise agreement have been discredited the issue of jurisdiction does not arise since the cause of action was not destroyed by the compromise agreement.

In addition to the definition of judgment on the merit contained in UTC (Nig.) Ltd v. Pamotei cited supra, section 37(2) of Oyo State High Court Law provides as follows:

“Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such term as may see just, upon an application made within 6 (six) days after the trial or within such longer period as the court may allow for good cause shown.” (Italics mine).

It is obvious that the attempt by the appellant to place reliance on the law cited supra is liable to fail, because, as has been pointed out earlier in this judgment the motion to set aside was filed one month after the judgment, and no explanation was given for failure of the appellant and counsel to appear to defend the case. No good cause was therefore shown for failure of defendant/appellant to appear to adduce evidence in support of the statement of defence. It is in my view that the judgment was without doubt, a judgment on the merit. The learned trial Chief Judge was therefore right in refusing to set it aside. The defendant/appellant’s remedy is to appeal against the judgment. This issue is also resolved in favour of the plaintiff/respondent.

It is the case of the appellant on issue 4 that jurisdiction was raised in the appellant’s application to set aside the judgment of 24/3/99 since issue of jurisdiction can be raised at any stage. He further submitted that at the time the learned trial Judge took evidence from plaintiff/respondent and delivered judgment, the cause of action had ceased to exist in view of exhibits AA2 and AA3. I have already dealt with the aspect of the agreement earlier in this judgment and it is not necessary to repeat it here. All the issues have therefore been resolved in favour of the respondent. The appeal of the appellant therefore fails, and is hereby dismissed. The judgment of the court below is hereby affirmed.

I award costs assessed at N5, 000 in favour of the respondent.

Other Citations: (2005)LCN/1842(CA)