G. K. F. Investment Nigeria Ltd. V. Nigeria Telecommunications Plc (2009) LLJR-SC

G. K. F. Investment Nigeria Ltd. V. Nigeria Telecommunications Plc (2009)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C.

This is an appeal against the decision of the Court of Appeal, Lagos Division, which affirmed the judgment of the Lagos State High Court in favour of the appellant who was plaintiff in the trial court. The case of the appellant as per its amended statement of claim was that it was allocated a telephone line No. 0012630142 formerly owned by Linx Collavino Nigeria, in April, 1996 on applying to the respondent for one. In September 1996, the telephone services were withdrawn by the respondent, leaving the appellant unable to communicate through the line. As a result of this development, the appellant lodged a complaint to the respondent, and the appellant was informed that the withdrawal was necessitated by the non-payment of the sum of N23,655.00 which the respondent charged the plaintiff.

According to the appellant it had already paid the said sum vide the Nigeria Arab Bank, and the bank remitted the money to the respondent on 23rd September 1996. Inspite of the payment the respondent refused to restore the telephone services, even after several demands. The failure to restore the line has created hardship on the appellant, to wit it claimed the following:-

“(a) The sum of N30,000,000.00 (Thirty million naira) being special Exemplary and general damages from the defendant for breach of the contract between the plaintiff and the Defendant by the defendant or for negligence.

(b) Loss of income/profits at the rate of N500,000.00 per week.

(c) Interest on the above damages and loss of income/profit at the rate of 21% per annum from the 5th day of December, 1996 till final payment, and 6% thereafter until liquidation.”

The defendant/respondent denied most of the allegations. On completion of pleadings both parties adduced evidence. The trial court appraised the evidence, and at the end of the day found for the appellant and awarded damages which it was not satisfied with, and therefore appealed to the lower court, which dismissed the appeal. Again it is not satisfied with the judgment, and it has appealed to this court on fourteen grounds of appeal. Briefs of argument were exchanged in compliance with the practice of this court. Fourteen issues for determination were raised in the appellant’s brief of argument to relate to the fourteen grounds of appeal which he has filed. The respondent however raised four Issues for determination, and the issues are:-

“1. Whether grounds 4,6,7,8, 10 and 11 of the Appellant’s notice of appeal are competent having been filed without leave of court

Whether the Court of Appeal’s evaluation of evidence and refusal to reverse damages awarded by the trial court is perverse or unreasonable so as to warrant interference by the Supreme Court
Whether the Court of Appeal was right to discountenance the appellants claim for negligence for breach of contract
Whether the Appellant is entitled to 21% interest on the judgment sum and if costs of N10, 000 awarded against the Appellant are appropriate under the circumstances”

Issues 2 and 3 I have reproduced above are more comprehensive and succinct to the appeal than those raised in the appellant’s brief of argument, and so I will adopt them for the treatment of this appeal. The appellant’s issues for determination are just as prolix and unnecessarily verbose as their grounds of appeal. I find some of them absolutely unnecessary. It was as though the learned counsel for the appellant wanted to appeal against every point the learned justice made in his lead judgment. That to my mind is poor advocacy, as the success of an appeal is not dependent on the number of the grounds of appeal, but the substantiality and competence of the grounds of appeal. See Sossa v. Fokpo 2001 1 NWLR part 693, page 16, and Kupoluyi v. Phillips 2001 13 NWLR part 731 page 736.

I will commence the treatment of the appeal with issue (2) supra. The argument of the learned counsel for the appellant is that the appellant’s appeal to the Court of Appeal did not raise the issue of findings of facts, credibility of witnesses and evaluation of evidence by the trial court, and so the lower court had no business veering or raising the issues suo motu. He placed reliance on the case of Oshodi v. Eyifunmi 2000 13 NWLR part 684 page 298. In reply, the learned counsel for the respondent argued that the true position is that the appellant in its grounds of appeal and brief of argument before the Court of Appeal severally questioned the basis upon which the trial court awarded N200,000 damages to it. On the other hand the respondent had inter alia contended that the award was proper given the fact that the appellant had failed to properly prove special damages according to the test laid down by a plethora of cases. The learned counsel referred to the cases of ACB Ltd v. BBB Manufacturing Co. Ltd 1996 4 NWLR part 444 page 564 and Incar v. Adegboye 1985 2 NWLR part 8 page 453.

According to him the questioning by the appellant of the basis of the award of damages clearly opened the issue to scrutiny by the Court of Appeal, and this it did. The learned counsel for the respondent further submitted that even though the assessment and evaluation of evidence produced at the trial is within the exclusive power of the court of trial, by virtue of section 16 of the Court of Appeal Act (Cap 36 of the Laws of the Federation of Nigeria), the Court of Appeal in its appellate jurisdiction is in as good a position as the trial court to evaluate such evidence to arrive at its own conclusion where the lower court either fails to evaluate or improperly evaluates evidence. See Fashanu v. Adekoya 1974 1 All NLR part 1 page 35, and Anyaoke v. Adi 1986 3 NWLR part 310 page 731. It is also the submission of learned counsel that the act of the lower court in reviewing the issue of damages would not lead to the disturbance of its decision, and that an appellate court will only intervene on issue of damages where there is clearly a very high or low estimate and same is perverse or appears to have been arrived at on wrong principles. See Usman v. Abubakar 2001 12 NWLR part 728 page 685, Bahegu v. Labiran 1988 3 NWLR part 80 page 66, and Lasisi v. Allied Bank (Nig) PLC 2002 7 NWLR part 767 page 542.

At this juncture I consider it pertinent to look at the record of proceedings in the lower court. In the notice of appeal in the Court of Appeal, (to be found on page 62 of the printed record of appeal), the pertinent grounds of appeal to this discussion read as follows:-

“1. The learned trial judge erred in law and facts when he failed to award the Appellant the whole amount claimed as special damages when he (learned trial judge) has held same to be unchallenged, believed and as such Appellant entitled to special damages claimed.

PARTICULARS OF ERROR

(a) The Appellant was not challenged, contradicted, or even at all cross examined on the special damages claimed or any of the damages at all.

(b) There was no iota of evidence that the amount the Appellant is claiming as special damages excessive or any alternative amount suggested by the Respondent.

(c) The Appellant in spite of being unchallenged as aforesaid led credible and relevant evidence with over two hundred documentary (Exhibits) in support of her claim for special damage

(d) By paragraph 1 of the conditions for supply of telephone services contained in the last page of the Agreement for supply of telephone services Exhibit B the Respondent covenanted or agreed to be liable to any damage(s) or loss arising from an interruption of telephone services to Appellant for a continuous period of 14 days when such interruption has been acknowledged by the respondent as in Exhibits H1-8.

The learned trial judge erred in law when he failed to award a reasonable and substantial amount as special, general and exemplary damages but awarded a paltry sum of N200,000 (Two Hundred Thousand Naira) as special, general and exemplary damages in favour of the Appellant against the respondent.

PARTICULARS OF ERROR

(a) The Appellant led credible, unchallenged and uncontradicted evidence that she suffered substantial or colossal loss or damage as a result of the respondent’s breach of contract for the supply of telephone services.

(b) The learned trial judge failed to take cognizance of or consider the relevance of the value of naira in the award of damages as enunciated in the case of Onagoruwa vs. I.G.P. (1991) 5 NWLR (part 193) 593 at 621.

(c) The essence of exemplary damages which is to teach a defendant hard lessons and to deter others is lost or unattainable in the above paltry sum awarded.”

These grounds covered the following issues raised in the appellant’s brief of argument.

“1. Is the learned trial judge right, to have failed to award the whole amount claimed as special damages to the Appellant, when he held evidence on same to be unchallenged, true and as such Appellant entitled to special damages claimed

………………………………..

Whether having regards to the circumstances, and evidence of the colossal loss incurred by the Appellant in this suit the paltry sum of N200,000.00 (two hundred thousand naira) awarded as special, general, and exemplary damages is reasonable”.

The argument covering these issues in the parties’ briefs of argument centred on the evidence before the trial court, their credibility, the very nature of their substance and consequence where they were not challenged. In a situation like that the Court of Appeal had no choice than to re-examine the pertinent pieces of evidence, albeit evaluate them where necessary if that will meet the end of justice, and for the just determination of the appeal. There was no way the lower court could have ignored this aspect of the argument, without occasioning substantial miscarriage of justice, as it was bound to raise the issues it raised, even if suo moto in the circumstance of the appeal.

In this case it is on record that issues were raised in the court vide the appellant’s grounds of appeal, issues and the arguments proffered. I refuse to subscribe to the stance of the learned counsel for the appellant that the appellant never raised the issue of finding of facts. Although an appellate court is bound by the finding of a trial court, in view of the principle of law that the trial court having seen and heard witnesses is in a better position to make findings of fact, an appellate court is at liberty to interfere with the findings of a trial court when the findings are perverse. The cardinal principle of law is that an appellate court will disturb such findings where they are not supported by evidence, and they are perverse. See Olohunde v. Adeyeru 2000 10 NWLR part 676 page 562, Ibhafidon v. Igbinosun 2001 8 NWLR part 716, page 653, Woluchem v. Gudi 1981 5 SC 29, and Nwosu v. Mbadugha 2000 1 NWLR part 641 page 486.

Besides, section 16 of the Court of Appeal Act 1976 vests the court below with wide powers in such a situation to re-appraise evidence, as the provision states inter alia thus:-

“16. The Court of Appeal may, from time to time make any order necessary for determining the real question in controversy in the appeal…

And generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part……”

A very careful perusal of the judgment of the lower court does not reveal a departure from the law, and its requirements. An appellate court cannot be put in a straight jacket (so to speak) in the pursuance of its judicial function, and power of ensuring that justice in its undiluted form is arrived at in its judgment. Anything short of that is bound to occasion miscarriage of justice.

In this wise, I endorse the finding of Muhammad JCA in the lead judgment of the lower court which reads as follows:-

“Looking at the findings of the lower court in the con of the pleadings and evidence before it, one is inclined to agree with Respondent’s counsel that Appellant’s claim for weekly loss of profit as well as that as to the amount it expended in its resort to prepaid phone cards had not been proved for same to attract any award. Appellant did not provide the trial court with its previous sales figure or cash flow to enable the court make necessary deduction there from. The total number of the prepaid telephone cards used by the Appellant following the withdrawal of the telephone line installed by the Respondent inspite of the evidence before the court, is not ascertainable. And receipt of purchase to determine the expenditure incurred in that regard has not also, been made available. These specific heads of claim cannot, in the circumstances, be said to have been made out. It does not matter that Respondent’s counsel has in one breath conceded in their brief of argument that the two heads of claim are recoverable. Counsel’s submission does not substitute evidence. Concession by counsel is relevant only where the law allows it to be so. The trial court’s finding that the special damages claimed has been proved given the reasoning’s now advanced is clearly perverse. The inadequacies recounted had made it legally impossible for the damages which relate to these two specific heads of claim to be recovered. The Appellant has also failed to prove malice on the part of the Respondent in the course of breaching the contract.”

In the light of the foregoing reasoning, the answer to issue (2) supra is in the negative, and the related grounds of appeal fail, and they are hereby dismissed.

I will now proceed to the treatment of issue (3) supra. It is necessary to reproduce and consider the pleading that is relevant to the argument covering this issue. In its amended statement of claim the appellant averred as follows;-

“22. (a) Further to (sic) in the alternative to the following, the defendant was negligent in respect of handling the said contract of and withdrawal of telephone services to the plaintiff.

PARTICULARS OF NEGLIGENCE:-

(a) The plaintiff after payment of the said sum of N23,655.00 to the bank dropped a duplicate or counterpart of the said bank acknowledging payment into the Defendant’s box placed at the said banks premises, however the defendant failed and or refused and or neglected to cross check the said box and the said charge sheet/bill before cutting or withdrawing telephone services from the plaintiff.

(b) The plaintiff pointed out the fact in paragraph A above to the defendant but the defendant refused and or failed and neglected to check same” and to properly handle the said contract and withdrawal of telephone services.

(d) The defendant would not have withdrawn, telephone services till date from the plaintiff if she had exercised reasonable or due care and diligence paying regards to the above…”

The learned counsel for the appellant in proffering argument under this issue set out the definition of the word ‘negligence’ as is set out in some Supreme Court judgments, as Odinaka v. Moghalu 1992, 4 NWLR part 233 page 1, and A.N.T.S. v. Atoloye 1993 6 NWLR part 298 page 233. In the case of Anyah v. Imo Concorde Hotels Ltd 2002 18 NWLR part 799 page 377 the conditions that have to exist before the claim of negligence can be raised were set down. Kalgo JSC in the lead judgment had the following to say:-

“The general principle is that the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached and to succeed in action for negligence the plaintiff must prove by the preponderance of evidence or the balance of probabilities that:

“(a) the defendant owed him a duty of care;

(b) the duty of care was breached;

See Agbonmagbe Bank Ltd v. C.F.A.O. (1966) 1 All N.L.R. 140 at 145

The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of duty of care against the defendant the action must fail. See Benson v. Utubor (1973) 3 SC. 19; Okoli v. Nwagu 1960 SCNLR 48; (1960) 3 FSC 16, Nigeria Airways Ltd. v. Abe 1988 4 NWLR (pt.90) 524………..”

I am fortified by the above.

The learned counsel has submitted that the respondent was very negligent in the breach of the contract for supply of telephone services to the appellant, having failed in their obligation or duty to supply the appellant with uninterrupted telephone services, which occasioned loss or damages to the appellant.

It is the submission of the learned counsel for the respondent that the evidence and the present appeal rested squarely on the issue of the quantum of damages and not negligence as contended by the appellant.

It is a fact that the claim as in the appellant’s pleading was premised on negligence in the alternative, having premised the claim on the breach of contract and the issue of the quantum of damages as the main claim. In a situation like this, the court can adopt only one of the claims for the purpose of the consideration of the case and judgment. In the instant case, the learned trial judge considered and based his judgment on the main claim, rather than the claim in the alternative, which he was at liberty to do.

The appellant by its pleadings sought for damages in respect of breach of contract, or the breach of duty arising from the tort of negligence, and the claims being in the alternative, the law permits the court to consider only one of the claims and base its damages on it. The other arguments of the learned counsel for the appellant are of no moment. My answer to this issue (3) is in the affirmative. The grounds of appeal covering the said issue fail, and they are dismissed.

On the last issue, which is in respect of the award of interest, the learned counsel for the appellant has argued that the law is trite that once a party is kept out of his/her money the party is entitled to interest on same. The learned counsel for the respondent however took solace in a rule of the Lagos State High Court Civil Procedure Rules 1994 as amended, which makes the following provision.

“The court at the time of making any judgment or order, or at anytime afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the court thinks fit, and may order interest at a rate not exceeding seven and a half per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards.”

It is the submission of the learned counsel that the provision is mandatory, as such, the entitlement is automatic unless otherwise ordered by court. He referred to the case of DPMS LTD v. Larmie 2005 5 NWLR part 655, page 138. He further submitted that it behoves the appellant to prove its claim of 21% if it wished to claim interest in excess of the statutory provision, which the appellant failed to do.

The above provision of the Lagos State High Court rules is very clear. The learned trial judge in this case did not make any order on payment of interest to the appellant. However, as one of the grounds of appeal of the appellant in the lower court complained against the failure of the trial court to award interest of 21% per annum before judgment on the damages and 6% per annum thereafter, the lower court was bound to examine and determine the issue married to the ground, which it did, and ordered as per Muhammad JCA in the lead judgment as follows:-

“In the instant case where the rules of court have provided for the recovery of interest on a judgment sum, the entitlement is automatic unless otherwise ordered by the court. Since the lower court had neither ordered the payment of interest to the Appellant nor given a direction to the contrary, the sum of N200,000.00 awarded to the Appellant automatically carries interest at the rate of 7 1/2% fixed by order 38 rule 7 of the Lagos State High Court (Civil Procedure) rules 1994 as amended.”

I endorse the above finding and affirm it. This last issue is resolved in favour of the respondent, and its related ground of appeal fail and it is dismissed. In the final analysis this appeal fails in its entirety, and it is hereby dismissed. The costs of N50,000.00 is awarded to the respondent against the appellant.

SC.177/2005

Chief (Dr.) O. Fajemirokun V. Commercial Bank Nig. Ltd. & Anor (2009) LLJR-SC

Chief (Dr.) O. Fajemirokun V. Commercial Bank Nig. Ltd. & Anor (2009)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C

The appellant brought an application exparte before the Lagos High Court for the enforcement of his fundamental rights against the respondents. He was granted leave to enforce his fundamental right. When issues were joined between him and the respondents, the trial court listened to the arguments of both sides and struck out the appellant’s application. The appellant appealed to the Court of Appeal and the appeal was dismissed. This is a further appeal to the Supreme Court. The learned counsel for the appellant filed a brief of argument on his behalf and formulated two issues for determination as follows:

“Whether the particulars as contained in the Appellant’s processes have not sufficiently made out a case for the violation of his fundamental human rights.”
“Whether the Appellant was bound to join the Police as a party having identified the Respondents as responsible for the violation of his rights”.

The respondents also filed a brief and identified two issues for determination as follows:

“1. Whether from the facts contained in the processes filed by the applicant/appellant, he ever made out against the Respondents, a case for the violation of his fundamental human rights as to entitle him to an order enforcing his rights in that regard (Grounds 1 and 4).

Whether from the circumstances surrounding the Applicant/Appellant’s claim, the Appellant’s failure to join the police in the case is fatal to his claim (Grounds 2 and 3)”.

The learned counsel for the appellant submitted that the materials placed before the trial court in the appellant’s affidavit established that his arrest and detention at the instance of the respondents were unconstitutional and a gross violation of his fundamental human rights.

The learned counsel for the respondents submitted that the appellant failed to prove his case before the trial court because his allegation that he was reported to the Police for theft was not established by producing the Police record.

This issue turns entirely on facts. It was the duty of the appellant who alleged in his supporting affidavit that he was reported to the Federal Investigations and Intelligent Bureau, Alagbon Ikoyi for theft to prove it especially as he said that he saw the report in the Police entry book. He failed to produce an extract of the police entry book. He also failed to produce an affidavit from the Police to show the reason for his arrest.

On the other hand, the respondents were able to show from their counter-affidavit that all they did was to report a case of the issuance of dud cheques against Broad Base Mortgage Finance Company Limited which has the appellant as the Chairman of the Board. It was in the course of the investigation that the Police invited the appellant for interrogation.

It is my view that the appellant woefully failed to prove his case before the trial court. The lower court rightly dismissed the appellant’s appeal and affirmed the findings of facts made by the trial court. It is not the duty of the Supreme Court to interfere with concurrent findings of facts of the High Court and the Court of Appeal unless compelling reasons justify such interference. I see no cause to interfere in the circumstances of this case. See the case of Seven-up Bottling Company Limited V. Adewale (2004) 4 NWLR (Pt. 862, 183).

On the second issue the learned counsel for the appellant submitted that the appellant was not bound to join the Police as a party to his suit as he had identified the respondents as being responsible for the violation of his right and the learned counsel submitted that the non-joinder of the police ought not to have defeated his case.

I do not agree with this submission. Since the appellant’s case was that the respondents reported him to the Police who then arrested and detained him, it was necessary for him to join the Police for them to explain the reason for the arrest, to show whether there was a reasonable cause for his arrest. Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.

For all I have said in this judgment, I see no merit in this appeal and I hereby dismiss it and affirm the judgment of the two lower courts. The appellant shall pay the costs of N50,000.00 to the respondents for this appeal.

SC.336/2002

The Administrtors/executors Of The Estate Of Gen. Sani Abacha (Deceased) V. Samuel David Eke-spiff & Ors (2009) LLJR-SC

The Administrtors/executors Of The Estate Of Gen. Sani Abacha (Deceased) V. Samuel David Eke-spiff & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C

This is an appeal against the judgment of the Court of Appeal (Port Harcourt Division) in Appeal NO CA/PH/331/99. The Administrators/Executors of the Estate of General Sani Abacha (Deceased) Vs. Samuel David Eke- Spiff & ORS. The majority judgment of which was delivered by Hon. Justice S. A. Nsofor while the dissenting judgment was delivered by Hon. Justice Ikongbe. Both judgments were delivered on the 15th of April 2002. The majority and dissenting judgments arose from the appeal lodged against the decision of the High Court of Justice, sitting in Port Harcourt, Rivers State of Nigeria.

Briefly put, the case of the 1st plaintiff is that he, a retired Permanent Secretary in the Rivers State Government was allocated a plot of land at Diobu GRA, Port Harcourt by the Government of Rivers State. The Building Lease was registered in his name as No 78 at page 78 in Volume 25 of the Lands Registry in the Office at Port Harcourt. He submitted a building plan for approval, but up till now, his plan has not been approved. What he later discovered was that his right of occupancy was revoked without any notice to him and of course no compensation was paid to him. It eventually came to his knowledge that the same piece of land was allocated to Major General Sani Abacha, now deceased. It is his contention that the court action he took was not statute – barred having regard to the provisions of Section 31 (1) (a) and (b) of the Rivers State Limitation Edict, 1988 and since the notice of the revocation was hidden from him. He also said that he was down with stroke for some time.

For their part, the 1st and 2nd defendants admit in their pleadings that the 1st plaintiff was once a holder of Building Lease of Plot 228 Diobu, GRA, Phase II but that his right of occupancy was revoked vide Rivers State Gazette No 17 Volume 18 of 29/5/86 for failure of the plaintiff to build within two years of the allocation. They also contended that the plaintiff’s action is statute – barred. The 3rd defendant averred that the land, the subject – matter of this action, was allocated to him with effect from 1st January 1977 for 99 years and that he was given a Building Lease. He took possession of the land immediately. He was never challenged by anybody. He claimed to have started the development of the plot since 1983 through his contractors C & C Construction Company Ltd again without any interference. He also averred that the plaintiff’s action is statute barred.

In that trial court, the 1st and 2nd respondents as plaintiffs had by paragraph 19 of the statement of claim dated and filed on 30th November 1998 claimed from the 3rd and 4th respondents, as 1st and 2nd defendants together with the present appellant as the 3rd defendant, all before the said trial court the following reliefs:

“(1) A declaration that the 1st plaintiff vested with the property known as plot 288 Diobu GRA, Phase II vide the prior Building Lease Registered as No. 78 at page 78 in Vol. 25 of the Land Registry in the office at Port Harcourt is by operation of the Land Use Act 1978 the deemed holder of any Certificate of Occupancy in respect of the Plot 288, GRA Phase II property.

(2) A declaration that the subsequent grant on 8/6/77 of a Building Lease over the same Plot 288 Diobu, GRA II in favour of Sani Abacha (3rd defendant) as a private citizen (Notwithstanding the prior grant in 1975 to the plaintiff) is unconstitutional and therefore null and void.

(3) A declaration that the purported 1986 revocation of the plaintiff’s Building Lease No 78/78/25 by the 1st defendant is unconstitutional, null, void and of no effect

(4) An order setting aside the Certificate of Occupancy dated 10th March, 1987 Registered as No 84 at page 84 in Volume 124 of the Lands Registry in the Office at Port Harcourt in favour of Major General Sani Abacha therein addressed as Chief of Defence Staff, Ministry of Defence, Lagos as the same was unconstitutional and irregularly granted.

(5) An order for re-possession of the said property known as Plot 288 within the Diobu, GRA Phase II, Port Harcourt by the herein plaintiff.

Both parties filed and exchanged pleadings at the trial court with the 1st and 2nd defendants (herein referred to as 3rd and 4th respondents) filing joint statement of defence and the 3rd defendant (herein referred to as the appellant) filing a separate statement of defence. Suffice it to say that the plaintiffs filed joint statement of claim and a reply. The plaintiffs before the trial court called evidence in proof of the averments in their statement of claim. The defendants before that court, however, did not call evidence. Both sides thereafter, by order of court, submitted written addresses to the court. In a reserved judgment delivered on the 18th of November, 1999 the trial court found in favour of the plaintiffs who are now the 1st and 2nd respondents. In so doing, the trial court held:

“Based on paragraph 12 of the plaintiff’s statement of claim and the contentions of the defendants, I am in agreement that the cause of action in this suit arose in 1986 …

I hold that this action is not statute -barred within the contemplation and provisions of the Rivers State Limitation Edict of 1988 which was not in existence when the cause of action arose.

Assuming that the Limitation Edict of 1988 is applicable to this action irrespective of when the cause of action arose, will this action be held to be statute barred Section 31(1) (a) and (b) of the Edict which deals with the postponement of Limitation period in case of fraud concealment or mistake provides as follows:

“Subject to Section (E4) where in the case of any action for which a period of limitation is prescribed by the Edict, either:

(a) Either the action is based upon the fraud of the defendant; or

(b) Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.

I shall adopt the submissions of the plaintiff’s counsel to the effect that the provisions of Section 31 (1) (a) and (b) of the Edict avail the plaintiffs as to the defendant’s fraudulent concealment of facts relevant to the plaintiff’s right of action.”

The 1st plaintiff was never informed that the property was to be allocated to the 3rd defendant, another citizen for a private purpose. No notice was sent to the 1st plaintiff for any purported breach of the covenants in the plaintiff’s Building Lease and neither was the 1st plaintiff informed that his interest in the plot was to be revoked. The plaintiffs brought this suit within the limitation period stipulated in the said Edict when the plaintiffs became aware of the concealment …

Having admitted the existence of the above facts and documents, the 1st and 2nd defendants cannot honestly contend that the 1st plaintiff was in breach of a mandatory provision of the Building Lease. It is trite law that facts admitted need no further proof.

It is therefore my considered view that the 1st plaintiff was not in breach of the mandatory provision of the Building Lease warranting the revocation of this (sic) interest in Plot 288 Phase II GRA. The breach, if any, was occasioned by the acts of the 1st defendant who cannot be allowed to benefit from such acts…

In the instant case there is no evidence that any revocation notice was served on the plaintiff in the manner stated in Section 44 of the Act There was no proper revocation of the 1st plaintiff’s right of occupancy in Plot 288 Phase II GRA Port Harcourt.

The present action was brought against the Administrators/Executors of the Estate of General Sani Abacha (deceased) who, in accordance with the above provisions of the Rules of Court are cognizable persons that can sue or be sued.”

Suffice it to say that the order relied upon by the trial judge is Order 11 Rule 14(1) of the High Court Rules which provides:

“Trustees, executors and administrators may sue and be sued on behalf of or as representing the property or Estate of which they are trustees or representing without joining any of the persons beneficially interested in the trust and shall be considered as representing such persons.”

Being dissatisfied with the said judgment of the trial court, the 3rd defendant appealed against same to the court below. After taking arguments of counsel of both parties sequel to the filing and exchange of the respective brief of arguments of the parties, the court below, by a majority judgment delivered on the 18th of April 2002 dismissed the appeal; while by the dissenting judgment, the appeal was allowed. Still dissatisfied with the majority judgment, the appellants have appealed against same to this court. The appellants have identified four issues for determination by this court. As set out in their brief of argument filed on 15th of January 2003, they are as follows:

“(1) Whether the Court of Appeal was right in affirming that the issue of the competence of the action is deemed to have been waived by the appellant

(2) Whether the Court of Appeal was right in affirming that the appellant is a suable entity or a legal person and that the action could competently be maintained against it

(3) Whether the Court of Appeal was right in affirming that the action was not statute barred

(4) Whether the 1st and 2nd respondents were entitled to the reliefs granted to them”

Similarly, the proper respondents to this appeal who are (1) Samuel David Eke – Spiff and (2) Mine Eke – Spiff described as 1st and 2nd respondents, have formulated four issues before us. As set out in their brief of argument filed on the 24th of April 2003, they are in the following terms:

(1) To what extent does the competence or incompetence of the action against the appellant affect the proceedings and judgment entered against the 1st and 2nd defendants

(2) Whether a defendant who insists that he is not a suable legal person can sue for purposes of obtaining a judgment in its favour while maintaining it does not exist.

(3) Whether an act which is constitutionally null and void and of no effect also ab initio can, by effluxian of time became valid, proper and effective.

(4) Whether the court below was right in holding that there was a fraudulent concealment in equity and if so, whether the statute of limitation (assuming but without acceding its applicability) will avail the appellant”

I pause here to remind myself that the original 1st and 2nd defendants – the Military Administrator of Rivers State of Nigeria and The Attorney – General and Commissioner for Justice Rivers State of Nigeria against whom judgment of the trial court was entered along with the 3rd defendant/appellant did not appeal against that judgment. , .

When this appeal came before us on the 17th of November 2008 for argument, Mr. Uzoukwu, (SAN) learned senior counsel, appearing for the appellants referred to, adopted and relied on his client’s brief of argument filed on 15th January 2003 and urged this court to allow the appeal. Mr. Nwosu, learned senior counsel for the 3rd and 4th respondents referred to adopted and relied on his clients’ brief of argument filed on the 24th of April 2003 and while contending that the 1st and 2nd respondents (who were plaintiffs before the trial court) were the only respondents at the court below – the (1) the Military Administrator of Rivers State of Nigeria and (2) The Attorney-General and Commissioner for Justice Rivers State of Nigeria did not appeal against the judgment of the court of first instance; he finally urged us to dismiss the appeal adding that the appellants here are relying on a derivative title and the Certificate of Occupancy which is fraudulent had already been set aside by the court. Mr. Chikere, the Attorney – General of Rivers State who held himself out as representing the 3rd and 4th respondents informed the court that his clients have not filed any brief of argument.

I have carefully read the issues formulated by the parties and it is my considered view that issues Nos. 1 and 2 as set out in the appellants’ brief can be taken together with issues Nos. 1 and 2, as contained in the respondents’ (Samuel David Eke- Spiff and Mine Eke-spiff) brief for they are similar in contents. The issues challenge the jurisdiction of the court to entertain the suit. It was argued by the appellants that they (appellants) were non – legal personalities and by suing them, the 1st and 2nd respondents have not fulfilled the condition precedent to the exercise of jurisdiction by a court, reliance was placed on the decision in MADUKOLU & ORS VS. NKEMDILIM (1962) ALL NLR 589. The competence or jurisdiction of a court cannot be waived citing in support of the decisions In (1) ODOFIN & ANOR VS. AGU & ANOR (1992) 3 NWLR (PT.229) 350 and (2) ARIORI VS. ELEMO (1983) 1 SCNLR 1. This action, to the extent to which the appellants are affected, is incompetent and the 1st and 2nd respondents, as plaintiffs at the trial court, having not discharged the onus of establishing competency as required by the decision in AJAO VS. SONOLA (1973) ALL N. L. R. 449, issue No 1 must be resolved in favour of the appellants,it was again submitted. On issue No 2, it was contended that by suing the 3rd defendant and describing it as “ADMINISTRATOR OF THE ESTATE OF GENERAL SANI ABACHA (Deceased), the 3rd defendant, now the appellant is a non – legal person. It was further argued that the original 3rd defendant that was initially sued was the “ESTATE”, which, it was submitted, was a non-legal person. Amendment of such a name, that is unknown to law, to now read “ADMINISTRATORS/EXECUTORS OF THE ESTATE is not permissible in law, praying in aid, the decision in NJOKU VS. U. A. C. FOODS (1999) 12 NWLR (PT.632) 557.Administrators and/or Executors of an Estate where they exist are, beyond argument, natural persons, who can sue and be sued in respect of the Estate they administer, but such natural persons must sue or be sued in their respective names as representing the Estate to sustain the action; it was further submitted while placing reliance in the decisions in SHITIA & ORSV5 LIGALI & ORS (1941) 16 NLR 23. I pause to say that I agree with this submission as a correct principle of law. It was not even shown by evidence that letters of Administration or probate was granted to give legal life to the 3rd defendant, it was again submitted while urging that issue No 2 be resolved in favour of the appellant.

Arguing issues Nos. 1 and 2 together, the respondents, through their brief of argument, submitted that the 3rd defendant, now the appellants were sued as a nominal party adding that the reliefs claimed by the 1st and 2nd respondents, as plaintiffs were targeted at the 1st and 2nd defendants. It was also argued that by entering appearance when the writ was served on it (3rd defendant) filing its statement of defence and participating in proceedings the appellants (3rd defendant) must be deemed to have waived its right, adding that the omission to state the names of administrators on the writ was only a mere irregularity, reliance was placed on the decisions in ARIORI & ORS VS. ELEMO & ORS (1983) 1 SC. 13, and IWO CENTRAL LGA VS. ADIO (2000) 8 NWLR (PT. 667) 115. In conclusion, the respondents urged that the two issues be resolved in their favour.

I shall start the consideration of these issues alongside the submissions made in their support and/or against, by saying that it is axiomatic that only a natural or juristic person can sue or be sued. This same time- honoured rule applies in respect of joinder of parties. The general rule therefore requires that the plaintiff and the defendant should be juristic persons or natural persons existing or living at the time the action is instituted.

I go further to say that a person does not have the locus standi, indeed, he lacks the competence to bring an action in a representative capacity as an administrator of the Estate of a deceased person until he has been granted the Letters of Administration. If he brought the action before the grant, such grant has no retroactive validity. Similarly, a person, who as a plaintiff, has no legal power to sue another person as an administrator or Executor of an estate of a deceased person without naming the person of such an Administrator or Executor on the writ and ascertaining that Letters of Administration or Probate as the case may be, thus legally empowering that person sued to administer the estate of the deceased, was obtained prior to the initiation of the writ. In the instant case, the 3rd defendant, who is now the appellant, was sued by the plaintiffs (the present 1st and 2nd respondents) as THE ADMININSTATOR/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA- (deceased)”. The names of the Administrators/Executors were never stated in the processes filed. Neither is there any scintilla of evidence that Letters of Administration and/or Probate was granted to anybody in respect of the said Estate of General Sani Abacha (deceased) prior to the institution of this action. It is for the above stated principles that I agree with the submissions of the appellants that not only must a person who instituted an action in court be seen, in law, to be competent to do so, so also it is important that a person sued in his private capacity or personal name or a person sued in a representative capacity be seen, in the eye of the law to be competent to defend the action.

Let me say that competency or legal capacity to defend an action is an essential or indeed a desideratum in deciding the competency to institute an action being in itself a vital factor in determining the competency of the action itself. See AJAO VS. SONOLA (1973) ALL NLR2ND Edition Volume 1 page 449.

When challenged, in the case of the defendant as to his legal capacity to defend, the onus is on the plaintiff to establish the legal competency.

As I have said, there is no iota of proof in that direction. The 1st and 2nd respondents, in their reply submitted that the 3rd defendant/appellant has by his conduct, waived any allegation of in competency. Put in simple terminology, that if one party, by his conduct leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him to do so. But, what is the right said to have been waived here The answer to that question is that it is the right to defend an action in a representative capacity where the names of the so called representatives were not stated and no evidence that any legal instrument was given to anybody to administer the estate of the deceased – General Sani Abacha. Such a right is so fundamental that it is not only for the benefit of a supposed party to a case or suit it also inures to the benefit of the public. If somebody was not been shown, in law, to be competent to sue or to be sued, to waive such a right will lead to injustice. It is even against public policy to compromise illegality (manifest or latent). It is absurd or bizarre to encourage disobedience to the dictates of the law. See ARIORI & ORS. VS. ELEMO & ORS (1983) 1 SC. 13. The 3rd defendant who is now the appellant, from all I have been saying, it is not a competent party NAY the 3rd defendant to this case ab initio. The name of the 3rd defendant who is now the appellant ought to have been struck out by the trial judge. I hereby strike out the 3rd defendant from this matter. Consequently I resolve issues Nos. 1 and 2 raised by the appellants in their favour in other words; I answer the two issues in the negative. With respect to issue No 1 identified by the respondents, I say that the inconsistency of the action is only limited to the 3rd defendant. It has no bearing on the judgment of the trial court as it relates to the 1st and 2nd defendants who did not appeal against it. I answer the issue No 2 therein in the negative. It will be tantamount to allowing the 3rd defendant/appellant to blow hot and cold with the same mouth and at the same time. The 3rd defendant/appellant is not a party legally known to law. To that extent, this appeal is incompetent and it is hereby struck out.

I pause to say that the judgment of this court, which is the apex court of our land, must always have a bite. It must be clear in its pronouncement. True justice must be seen to have been dispensed by it. It must never be ambiguous such as to give room for an application calling on this court to interpret its judgment. After all, the pre-occupation of any court, indeed, the apex court is to dispense justice. It is in my quest to see that justice is manifested by this decision that I shall go ahead to treat other issues notwithstanding that I have made a pronouncement striking out the appeal as being incompetent.

I shall now take issues No 3 and 4 in the appellant’s brief together with issues No 3 and 4 in the 1st and 2nd respondents brief from the angle of quest for pure justice. I shall start by saying that, over the years, courts have put a stamp of permanent authority in the saying that it is an essential attribute of the administration of justice, that justice must not only be done, but it must manifestly seen to be done. What I have just said here was lucidly put by Hewart C.J. in R VS. SUSSEX JUSTICES EX PARTE MARCATHY (1924) 1. K. B, 2S6 when at page 2S9 he reasoned:

“…It is not merely of some importance, but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

The above time-honoured dictum has often been cited with approval by our courts. See LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE VS. CHIEF GANI FAWEHINMI (1985) 7 S.C. 178. It is also agreed that true justice must not be defective and no law must be defective in dispensing justice. The aphorism well established, is that justice is to be denied to none, the well known Maxim is “JUSTITIA NEMINI NEGANDA EST” In ENGINEERING ENTERPRISES LTD VS. A-G KADUNA (1987) 2 NWLR (PT. 57) 381. Eso JSC delivering the judgment of this court, declared thus, in the duty of courts to do justice, at page 398:

“One stream that permeates through all judicial decisions… is the clear unadulterated water, filled with great concern for justice.”

I shall also like to recall the all – time wise saying of this court in ALHAJI RAIMI EDU VS. ODAN COMMUNITY, ADO FAMILY and OKOKOMAIKO COMMUNITY (1980) 8 -11 SC. 103 when Aniagolu JSC reasoned thus at page 127:

“The moment a court ceases to do justice in accordance with the law and procedure laid down for it, it ceases to be a regular court to become a kangaroo court.”

Guided by the afore-mentioned principles, I shall now proceed to the last two sets of issues raised for determination by this court.

I am not unaware that judgment was entered against the 1st and 2nd defendants (The Military Governor of Rivers State of Nigeria and the Attorney – General and Commissioner for Justice Rivers State of Nigeria) Both of them did not appeal against that judgment. I wish further to say that at the hearing the 1st and 2nd defendants as well as the 3rd defendant/appellant whose name I have struck out as being an incompetent party to the suit, did not call evidence. In law, their act amounts to abandonment of their pleadings. The case against the defendants before that court as gleaned from the pleadings of the 1st and 2nd plaintiffs (now 1st and 2nd respondents) and upon which evidence was led at the trial, was that the 1st plaintiff was the State Grantee of a Building lease for a term of 99 years over the property lying and being at Plot 288 within the Diobu GRA Phase II Port Harcourt with effect from 1st January 1975. On the 24th day of June 1976, the 1st defendant (the Military Governor, Rivers State of Nigeria) published a list of properties whose instruments of title he the Military Administrator revoked. Upon a careful examination of the published list,the (plaintiff) discovered that his property was not among. Sometime in 1981, he (plaintiff) discovered that some persons had entered his land. He raised a protest to the then Military Administrator who, according to him raised a Panel of Inquiry into allocation of plots and sale of Abandoned Houses in Port Harcourt during the period 1st October 1979 to 31st December 1983. According to him, the property (Plot 288 Diobu GRA Phase II) earlier allocated to him was outside the terms of reference of the Panel. Although he claimed he got to know that the Panel recommended that his property be forfeited to the Government; that Government rejected the recommendation. Again in April 1986, he claimed he observed some trespass being committed on his said plot, he quickly lodged a protest to the Governor and warned the trespassers in writing. Thereafter, nothing happened on the land until when by Edict No 86 dated 30th April 1986 promulgated by the same Governor who had earlier rejected the recommendation for revocation of his plot made to him by the Panel he set up, now revoking the allocation of the land to him. The said plot was later by a Certificate of Occupancy No 84, at page 48 in Volume 124 allocated to Major General Sani Abacha. No Notice of revocation was sent to him in respect of the land and neither was he paid any compensation. It was his further case that he would have developed the plot of land, but his application for building approval was not attended to by the authorities. The trial court evaluated all the evidence including documentary evidence led by the 1st plaintiff and made its findings which I have reproduced above. Can it be said that the 1st and 2nd defendants, properly in law, allocated the plot of land to Major General Sani Abacha in the face of the averments in the plaintiff’s pleadings properly supported by evidence adduced No doubt, by virtue of the provisions of Section 28(1) of the Land use Act 1978, the Governor of a State has the power to revoke a right of occupancy for overriding public interest. The fact that the Right of Occupancy of the land of the plaintiff was revoked by the Governor was not in dispute. Again, that the same land was re – allocated to Major General Sani Abacha (deceased) admits of no argument. It is equally true that no notice of revocation was sent to the 1st plaintiff/respondent. By re-allocating the same plot of land to Major General Sani Abacha after revoking the right of occupancy of the plaintiff, the 1st and 2nd defendants cannot be said to have satisfied the provisions of Section 28(1) and (2) of the Land Use Act which states as follow:

Section 28 (1)

“It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest”

Section 28 (2) of the Act defines what ‘Overriding pubic interest’ in the case of a statutory right of occupancy means. By no means can the re-allocation of that plot to Major General Sani Abacha (now deceased) satisfy, the aforesaid provisions of Section 28(2). The 1st plaintiff/lst respondent has also contended vigorously that he was never served with the Notice of Revocation of his Right of Occupancy. That was never challenged; Section 44(a), (b) and (c) of the Land Use Act which relates to service of Notice provides:

“Any notice required by this Act to be served on any person shall be effectively served on him-

(a) By delivering it to the person or who it is to be served, or

(b) By leaving it at the usual or last known place of abode; or

None of the above provisions was complied with by the 1st and 2nd defendants. Service of the notice is very crucial. This was done in utter violation of the provisions of Section 28 (6) of the Act; that sub-section 6 provides:

“The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf of the Governor and notice thereof shall be given to the holder.

Of course, no compensation was paid to the 1st plaintiff by the 1st and 2nd defendants for illegally allocating the same land to Major General Sani Abacha. Section 28 and all the Sub-sections I have referred there – under are expropriatory statutes, the like of which I have reproduced above, which encroaches on a person’s proprietary rights must always be construed ‘FORTISSIME CONTRA PREFERENTES’, (i.e: strictly against the acquiring authority but sympathetically in favour of the person whose property rights are being taken away). Thus, the law imposes the duty on the acquiring authority to strictly adhere to the formalities prescribed by the law. See (1) LSDPC VS. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (PT.50) 413 and (2) PEENOK INVESTMENT LTD VS HOTEL PRESIDENTIAL LTD (1983) 4 NCCR 122. The 1st and 2nd defendants have woefully failed to comply with the provisions of the aforesaid Act and consequently they transferred NOTHING to Major General Sani Abacha. Even if the 3rd defendants had been a proper party, in law, to this case, would he have in the face of the materials before the court, had the case of the plaintiffs dismissed I think not. The 1st and 2nd defendants – the allocating authority- failed to comply with the provisions of Section 28(2) and (6) of the Land Use Act which enjoin that revocation of land by the Government must be for nothing other than for the overriding public interest and that the notice of revocation, served in accordance with the provisions of Sub-section (6) of the Act. Certainly the re – allocation of the land to Major General Sani Abacha cannot be assimilated to an action taken in the overall public interest. Major General Sani Abacha, in this con was an ordinary citizen.

Section 28 (4) and (6) of the same Act provides:

Sub- section (4)

‘The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes’

Sub – section (6)

‘The revocation of right of occupancy signified under the Land of a public officer duly authorized in that behalf by the Governor and notice shall be given to the holder.

Referring to Sub -Section (4) quoted supra, I repeat, the revocation was not carried out in the overall interest of the public. What is more, no notice of revocation was sent to the 1st plaintiff/respondent; they (1st and 2nd defendants) have also breached the provisions of Sub -section (6). Failure to serve on the 1st plaintiff/respondent the notice of revocation smacks of some fraud. Let me say it loud, it is not only unconscionable to take away a piece of land already allocated and now re-allocate same to someone else without serving a notice of revocation on the earlier allottee and not paying that person compensation, it is also very unlawful and unconstitutional to so do. The court always has an undoubted jurisdiction to relief against every species of fraud. The fraud here is an unconscientious use of the power arising from the circumstance or condition of the parties. The 1st plaintiff, a former Permanent Secretary of the Government of Rivers State had since retired, no longer at the corridor of power. The person to whom the plot was later re-allocated was a weighty man of authority.

It was also submitted that the present action is statute -barred. Faced with the facts of this case as presented supra can statute of limitation apply where the person to be affected has been fraudulently denied the opportunity to react simultaneously It will be most unconscionable to allow the provisions of statute of limitation to apply in a situation such as this where the 1st plaintiff – the allottee was fraudulently denied the service of notice of revocation and more importantly where his application for building approval was never attended to. It is those who denied him all these that now want to reap the fruit of their fraudulent misdeeds. Whatever pact that might be between the 1st and 2nd defendants and the non – existent 3rd defendant is loaded with malicious intent and no court will even uphold any pact made from malicious intent. Any wrongful act tending to the damage of another must not receive support in the seat of justice.

And no one shall be allowed to benefit from his own wrong doing; the Maxim is “EX TURPI CAUS ANON ORITUR ACTIO” SEE ONYIUKE VS OKEKE (1976) 1 NMLR 285. It is true that Section 1 of the Limitation Edict 1988 of Rivers State forbids the bringing of an action in court for the recovery of land after the expiration of ten years from the date in which the right of action accrued to him. However Section 31(5) (a) and (b) of the same Edict provides for the postponement of Limitation period in case of fraud, concealment or mistakes. It provides:

‘Subject to Section (E4) where in the case of any action for which a period of limitation is prescribed by the Edict either:

(a) The action is based upon the fraud of the defendant; or (b) Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendants.’

The saying is that, no prescription runs against a person who was hindered in bringing a court action.

For all I have been saying, issues No.3 and 4 on the appellant’s brief of argument are hereby answered in the affirmative. I answer Issue No 3 in the 1st and 2nd plaintiffs/respondents’ brief in the negative; I resolve it in favour of the 1st and 2nd plaintiffs/respondents. Finally, I answer Issue No 4 in the same brief in the affirmative.

Before concluding this judgment, I wish to say that the 2nd plaintiff/respondent (Nine Eke-Spiff) the daughter of the 1st plaintiff/respondent has no locus in this matter. She is a busy-body whose name ought to have been struck out from the start. I hereby strike out that name.

In conclusion, it is my judgment that this appeal lacks any merit. The person or group of persons described as appellant are unknown to law. The appellant who was described as the 3rd defendant ought to have been struck out from the inception of this case. For the avoidance of doubt, I hereby strike out the so-called 3rd defendant/appellant and consequently I strike out this appeal brought by a person unknown to law.

For the avoidance of doubt again and in the interest of justice, I affirm the judgment of the trial court against the 1st and 2nd defendants who did not even appeal against the judgment. The majority judgment of the court below ought to have struck out the appeal and of course the name of the appellant.

Finally, I wish to say that; by this judgment, the legal title or interest of the 1st plaintiff/respondent in the property known as Plot 288, Diobu GRA, Phase II vide the Building Lease Registered as No 78 at page 78 in Volume 25 of the Land Registry in the Office at Port Harcourt remains intact and inviolable. I make no order as to cost.

SC.344/2002

Rt. Hon. Michael Balonwu & Ors. V. Governor Of Anambra State & Ors (2009) LLJR-SC

Rt. Hon. Michael Balonwu & Ors. V. Governor Of Anambra State & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

The Appellants in this appeal as Plaintiffs had commenced their action by Originating Summons at the High Court of Justice of Anambra State sitting in Awka claiming a number of declaratory reliefs, the principal of which reliefs is on their tenure of office as members of the Anambra State House of Assembly who were elected in the general election conducted for all the Houses of Assembly in Nigeria in May, 2003. The Appellants action was against the Governor of Anambra State and the members of the Anambra State House of Assembly who were elected in the general election conducted for Houses of Assembly in the States of the Federation of Nigeria on 14th April, 2007. The reliefs claimed by the Appellants were based on the undisputed facts or factors surrounding the success of the Anambra State Governor Peter Obi in the election petition dispute between him and Governor Dr. Chris Ngige in the election to the office of the Governor of Anambra State held in 2003. The main ground of the Appellants’ claims however was hinged on the interpretation of Section 105(1) and (3) of the 1999 Constitution prescribing the tenure of office of the members of the State House of Assembly.

At the conclusion of the hearing of the action by the trial Court, on the application of the law to the undisputed facts arising from the affidavit in support of the Originating Summons and the counter-affidavit opposing the same, the learned trial Judge in his judgment delivered on 17th September, 2007, refused all the reliefs claimed by the Appellants and dismissed their action.

Dissatisfied with the decision of the trial Court, the Appellants appealed to the Enugu Division of the Court of Appeal which also in a unanimous decision given on 26th June, 2008, dismissed the appeal, hence the present appeal by the Appellants to this Court.

The circumstances that gave rise to the dispute between the parties in this appeal are very clearly stated in the affidavit in support of the Originating.

Meanwhile, on the approach of the date of the election in April, 2007, Governor Peter Obi went back to the Courts to ascertain the tenure of the office which he occupied on 20th March, 2006 though he was actually elected since May, 2003. He was successful at the Supreme Court which upheld his claim that his tenure of four years would not expire until March, 2010. Consequently, Governor Andy Uba who was declared the winner of the election conducted in April, 2007, was asked to vacate the seat for Governor Peter Obi to complete his tenure. The current members of the Anambra State House of Assembly who are the present 2nd to 30th Respondents held their first session in June, 2007 after the proclamation issued by Governor Andy Uba after taking his oaths of allegiance and office as the Governor of Anambra State. In their action at the trial Court which culminated in this appeal, the Appellants are in all in earnest challenging the tenure of office of the 2nd – 30th Respondents who were elected and came into office and started their tenure in June, 2007.

Before the appeal came up for hearing, in compliance with the rules of this Court, the Appellants’ brief of argument, the 1st Respondents’ brief of argument, the 2nd – 30th Respondents’ brief of argument and the Appellants’ Reply briefs to the 1st Respondent and 2nd – 30th Respondents briefs of argument, Summons and the counter-affidavit of the Respondents. The Appellants were elected into the House of Assembly of Anambra State in May, 2003 to serve a four year term. Dr. Chris Nwabueze Ngige who was declared by the National Electoral Commission as the winner of the election to occupy the seat of the Governor of Anambra State in 2003, was duly sworn in as the Governor of the State. As required under Section 105(3) of the 1999 Constitution, the Governor duly issued a proclamation on 5th June, 2003 and the State House of Assembly held its first session on 9th June, 2003. After electing its officers and subscribing to the appropriate oaths of allegiance and oaths of office, the house continued to function in accordance with the Constitution until the vacation of office of the Governor of the State by Dr. Ngige following the judgment of the Court of Appeal declaring Mr. Peter Obi as the winner of the election and his subsequent swearing in as the Governor of Anambra State on 20th March, 2006.

Although the House of Assembly comprising the Appellants had been functioning for nearly three years, all the same, the newly sworn in Governor Obi issued another proclamation under Section 105(3) of the Constitution on 20th March, 2006. The following day 21st March, 2006, the Appellants as members of the House of Assembly elected since May, 2003, held what they described as their first session.

“1. Did the Appellant’s Counsel misquote Justices of the Supreme Court, was he dishonest, and was the decision of of Omage J.C.A in that respect cause a miscarriage of justice (Formulated from ground 1)

Was the lower Court right by not giving Section 105(3) of the Constitution of the Federal Republic of Nigeria, 1999 its ordinary meaning and by not giving effect to the word “Shall have power” when interpreting same, despite the fact that His Excellency Mr. Peter Obi is the elected Governor of Anambra State who made the Constitutional proclamation (Formulated from grounds 2, 4 and 5)
Are actions of Dr. Chris Ngige and Mr. Andy Uba saved in law contrary to the decision of the Supreme Court of Nigeria in Adefulu v. Okulaja (1996) 9 N.W.L.R. Part 475 Pg. 668 @ 693 D – E (Formulated from ground 3)”

In the 1st Respondent’s brief of argument, in addition to a Preliminary Objection raised to ground one of the Appellants’ ground of appeal, the following three issues were also identified from the five grounds of appeal filed by the Appellants:

“1. Assuming but without conceding that ground 1 of the Notice of Appeal is competent, whether

the Court of Appeal judgment can be faulted on ground of wrong citation of authorities or wrong citation of names of justices that decided a case, when such alleged wrong citation of authorities and names of Justices of Supreme Court or Court Appeal did not affect the correctness of the decision of the Court (ground 1 of the Notice of Appeal).

Whether the Court of Appeal was right in the Court’s interpretation of Section 105(3) of the 1999 Constitution of Nigeria as it relates to proclamation of the first sitting of Anambra State House of Assembly of which the Appellants were members (Grounds 2, 4 and 5 of the Notice of Appeal).
Whether the declaration of the election of Dr. Chris Nwabueze Ngige null and void by the Court of Appeal rendered null and void, the proclamation by Dr. Chris Nwabueze Ngige of the first sitting of Anambra State House of Assembly made up of the Appellants as well as whether the Supreme Court decision in Obi vs. INEC reported as Peter Obi vs. INEC (2007) 11 N.W.L.R. (Pt. 1046) page 565 affected the proclamation of the first sitting of Anambra State House of Assembly by Dr. Andy Uba. (Ground 3 of the Notice of Appeal).”

The 2nd-30th Respondents also raised a Preliminary Objection to ground one of the grounds of appeal and in addition, had formulated three issues for determination. They are-

“1. Whether the opinion of the Court of Appeal expressed obiter in its judgment on the conduct of Counsel for the Appellants at the hearing of the appeal including the allegation that the Court of Appeal did not consider in its judgment the cases of Obi v. INEC (2007) 11 N.W.L.R (Pt. 1046) page 436 and Adefulu vs. Okulaja (1996) 9 N.W.L.R. (Pt. 473) at 688 cited by the Appellants in the Court of Appeal occasioned any miscarriage of justice.

Whether the Court of Appeal was correct in its interpretation of Section 105(3) of the 1999 Constitution which provides that the person elected as the Governor of a State shall have power to issue a proclamation for the holding of first session of the State House of Assembly is directory because the section is confined and qualified by other provisions of the Constitution.
Whether the Honourable Court of Appeal was right when it affirmed the judgment of the High Court that Dr. Chris Ngige and Dr. Andy Uba were defector Governors of Anambra State and their actions while acting as such are saved in law.”

Looking at these issues as identified in the respective briefs of argument of the parties, it is quite plain that the first issue in all the three briefs of argument was predicated on the alleged derogatory comments made on the conduct of the learned senior Counsel for the Appellants by the learned Justice of the Court of Appeal, Omage J.C.A who prepared and read the lead judgment. It is not surprising therefore that both the 1st Respondent and 2nd – 30th Respondents had attacked the ground of appeal from which this first issue was formulated in their respective notice of preliminary objection duly argued in their Respondent’s briefs of argument. I shall dispose of these preliminary objectives in a word or two before facing the main appeal. The first ground of appeal at pages 439-440 of the record of appeal reads-

“1. The learned Justices of the Court of Appeal erred in law and came to an erroneous decision when Omage, JCA held that:-

“My lord Justice Aderemi who made contribution to the judgment (2006) 14 N.W.L.R. did not make reference to the acts of Dr. Ngige as null and void and Justice Tabai JSC did not participate in the judgment. I find such practice by the Appellants’ counsel dishonest particularly when statements of Supreme Court Justices are quoted out of con.”

The learned Justices of the Court of Appeal erred in law and came to an erroneous decision when

Omage, JCA held that:-

This affected the judgment of the Court of Appeal despite the fact that the Appellants Counsel was not dishonest and quoted only once at page 6 of his Appellant’s brief paragraph 3.5 when he stated that the “The case of Ngige v. Obi (2007) 14 N.W.L.R. (Pt. 999) page 1 @ 209 A – B decided that in the interpretation of statutes, words must be given their ordinary meaning” but insisted as he cited ADEFULU vs. OKULAJA (1996) 9 N.W.L.R. pt. 475

page 668 @ 693 D – E at page 8 paragraph 3.17 of the Appellants’ brief that – ‘when an appointment is declared null and void, all it means is that the appointment was never made and all acts of the appointee when he defactor held the appointment are unlawful, null and void and of no effect.’ The acts of Dr. Ngige were indeed unlawful, null and void.

PARTICULARS

(a.) Omage JCA was unfair to the Appellants’ Counsel Learned Senior Advocate of Nigeria, Nnamdi Ibegbu Esq. when he said that he is dishonest

(b.) It is unfair for a Justice of the Court of Appeal to use such derogatory expression of being dishonest against the Appellants’ Counsel and there is nothing to show that the conduct of the Appellants’ Counsel is clearly beyond peradventure as decided in Saeby Jernstoberi Maskin Fabri A/S vs. Olagun Enterprises Ltd. (1999) 14 N.W.L.R. Pt. 637 page 128 @ 143 G – H.

(c.) Appellants Counsel who did not cite Ngige vs. Obi (2007) 14 NW.L.R. instead cited Adefulu vs. Okulaja (1996) 9 N.W.L.R. Pt. 999 page 668 at 693 D – E at page 8 paragraph 3.17 of his Appellant’s brief Contrary to the assertion of Omage JCA.

(d.) By this said decision there was a miscarriage of Justice.

The 1st Respondent and 2nd – 30th Respondents in their preliminary objections to the above ground of appeal did not quote the ground of appeal in support of their arguments. The Appellants in their response to the Preliminary Objections in their Reply brief also did not bother to reproduce the ground of appeal either. I have therefore decided to quote the said ground one of the grounds of appeal the subject of the Preliminary Objections to show that the ground is entirely based on the derogatory comments or remarks made by Omage JCA in the lead judgment now on appeal on the alleged conduct of the learned Senior Counsel for the Appellants.

While it is the stand of the Appellants as reflected in paragraph (d) of particulars of the ground of appeal and in their arguments opposing the Preliminary Objection that the comments of the learned Justice of the Court of Appeal is part of the decision of the Court below which occasioned a miscarriage of justice, the 1st and 2nd – 30th Respondents saw nothing in these derogatory comments or remarks than a mere obiter dicta which by law, is not appealable.

Although on close examination of the remarks or comments made by the learned Justice of the Court below which were made the subject of this first ground of appeal show that they are highly uncomplimentary touching on the integrity and honesty of the learned senior Counsel to the Appellants, all the same “these comments or remarks to me were merely passing remarks not against the Appellants who were parties to the appeal but against their learned senior Counsel who is not a party to the appeal. Therefore, it is difficult to see how remarks on the learned senior could constitute a decision, to support a ground of appeal, within the meaning of Section 318(1) of the 1999 Constitution. The law is quite clear that a good ground of appeal must constitute a complaint against the decision of the Court. In other words an appeal is usually against the ratio decidendi of the judgment of a lower Court and not in respect of an obiter dicta made by the Court in the course of the said judgment, except to be deemed to have radically influenced the ratio the obiter dicta is so clearly linked with the ratio decidendi. See Saude vs. Abdullahi (1989) 4 N.W.L.R. (Pt. 116) 387 and Saraki vs. Kotoye (1992) 9 N.W.L.R. (Pt. 264) 156 at 183 – 184.

In the present case, the derogatory remarks of the learned Justice of the Court below has no link whatsoever to the Appellants case in which the Appellants were seeking elongation of their tenure as members of the Anambra State House of Assembly from May 2003 to March, 2010 by the interpretation of Section 105(1) and (3) of the 1999 Constitution. The obiter dicta which affected

only the person of the learned Counsel to the Appellants, cannot therefore be deemed to have formed part of the ratio decidendi of the case, the merits of which is the correct interpretation of Section 105(1) and (3) of the 1999 Constitution in relation to the tenure of office of the Appellants. Putting it differently, the Appellants have no right under the Constitution, the law and rules of Court to fight the cause of or grievances of their learned Counsel in the course of the prosecution of their own appeal challenging the decision of the Court below against them. In the result, the Preliminary Objections to ground one of the Appellants grounds of appeal succeeds and it is hereby allowed.

Consequently, ground one of the grounds of appeal of the Appellants is hereby for being incompetent. Consequently issue one arising from that Ground of appeal just struck out shall be disregarded in the determination of this appeal.

On the remaining two issues for determination in the respective briefs of argument of the Appellants and the Respondents, it appears to me that the real and only issue for determination in this appeal having regard to the case of the Appellants at the trial Court and the Court of Appeal, is the interpretation and application of Section 105(1) and (3) of the 1999 Constitution to the main complaint of the Appellants that their tenure as members of the Anambra State House of Assembly elected in 2003 shall not come to an end until 20th March, 2010. This is the issue raised as issue number two in the briefs of argument of the parties. It is my view that in the course of the resolution of this main issue for determination of the dispute between the parties, the ancillary issue number three relating to the status in law of the three distinct proclamations issued by the three Governors namely, Dr. Chris Ngige, Mr. Peter Obi and Mr. Andy Uba respectively on the first sittings of the Anambra State House of Assembly can also be easily resolved. In fact this was what the learned Counsel for the Appellant did when the third issue was argued together with the second issue in the Appellants brief of argument.

In support of the main issue for determination learned senior Counsel for Appellants had placed more emphasis on the interpretation of Section 105(3) of the 1999 Constitution which henceforth in this judgment shall referred to simply as ‘the Constitution’ Counsel explained that the provisions of the subsection are quite clear Chris Ngige upon which the Appellants started sitting was unconstitutional as he was not the lawfully elected Governor of Anambra State; that the two gentlemen, Dr. Chris Ngige and Dr. Andy Uba who were not the duly elected Governors of Anambra State, had no Constitutional powers to make proclamations for the first sitting of the Anambra State House of Assembly and consequently all the sittings and proceedings of the Appellants were null and void being also unconstitutional; that the House of Assembly of Anambra State constituting the Appellants elected in the year 2003, only came into lawful being and functioning in accordance with the Constitution after the proclamation by the duly elected Governor of the State Mr. Peter Obi on 20th March, 2006 and therefore the life tenure of that House shall not come to an end until March, 2010. A number of cases including Andrew Ajayi vs. Military Administrator of Ondo State (1997) 5 N.W.L.R. (Pt.504) 237 at 271; Achineku VS. Isagba (1988) 4 N.W.L.R. (Pt. 89) 411 at 120 and Edewor v. Uwegba (1987) 1 N.W.L.R. (pt. 50) 313 at 339 were relied upon in support of the stand of the Appellants that the words “shall have power” used in Section 105(3) of the Constitution are mandatory and must be complied with by the lawfully elected Governor of a State before the commencement of the first sitting of a State House of Assembly. Learned senior Counsel finally submitted that until the Anambra State House of Assembly was Constitutionally proclaimed and the Appellants inaugurated, the Appellants remained private citizens and the 1st Respondent who is the elected Governor had a duty imposed on him for which he has the power to perform as public functionary which enures to the Appellants who could not have started to function as a House of Assembly without the proclamation in accordance with Section 105(3) of the Constitution.

For the 1st Respondent however, his emphasis is on the provision of Section 105(1) of the Constitution by which the Appellants’ House of Assembly elected in the year 2003 stands dissolved at the expiration of four years commencing from the date of the first sitting of the House which in the present case was the date the House first sat, elected its officers and conducted the business of the House; that this date of first sitting need not necessarily be the same day as the date of inauguration of the House pursuant to Section 105(3) such in any case is subject to the provisions of the Constitution. Learned Counsel then urged this Court to adopt liberal approach to the interpretation of the provision of Section 105(1) and (3) of the Constition having regard to the authoring of the cases such as Attorney General Bendel State vs. Attorney General of the Federation (1981) All N.L.R. 85; Awolowo vs. Shagari (1979) 6-9 SC. 51; Salami vs. Chairman L.E.D.B. (1989) 5 N.W.L.R. (Pt.123) of 539 and Rabiu vs. The State (1981) 2 N.C.L.R. 293 in dismissing this appeal.

With regard to the status and the effect of the actions of the persons elected and sworn as Governors of Anambra State whose elections were later nullified by the decisions of Tribunals and the Court of Appeal, learned Counsel observed that all their actions while in office were saved by the provisions of Section 138(1) and (2) of the Electoral Act 2002; that the attempt by the Appellants to rely on the proclamation by Mr. Peter Obi as a subterfuge for extension of the tenure of the Appellants, does not find support in Sections 59(c) and 138(1) of the Electoral Act, 2002.

As for the interpretation and application of the provisions of Section 105(3) of the Constitution regarding the meaning of the words – “shall have power,” learned Counsel pointed out that whether or not the word ‘shall’ in this phrase is regarded as mandatory or directory is a non issue or academic as the power was infact exercised by all the three Governors whose actions are part of the dispute to be resolved in the appeal; that in any case, the use of the word ‘shall’ is always regarded mandatory where it confers a public duty as stated in Ifezue vs. Mbadugha (1984) 1 S.C.N.L.R. 427; Odi vs. Osafile (1985) 1 N.W.L.R. (Pt. 1) 17 and Ogualaji vs. Attorney General Rives State (1997) 6 N.W.L.R. (Pt. 508) 209; that since the proclamation by Governor Ngige in 2003 was in pursuance of a public duty under the Constitution in Section 105(3), it remains Constitutional and valid with further support by Sections 59(c) and 138(1) of the Electoral Act. Learned Counsel therefore urged this Court to dismiss the appeal.

As for the 2nd – 30th Respondents, their learned Counsel after citing Section 10 of the Interpretation Act CAP 123 Laws of the Federation, 2004 dealing with the manner power or duties conferred by statute may be exercised, proceeded to submit that this case has to be assessed from the stand point of the construction of Section 105(1) and (3) of the Constitution; that it is quite clear from these provisions that sub-section (3) of Section 105 is subject to the provisions of subsection (1) of the same section of the Constitution. On guidance of Courts to the interpretation of the provisions of the Constitution, learned Counsel referred to the case of I.M.B Securities PIc vs. Bola Tinubu (2001) 3 N.S.C.Q.R. 1 at 13; that it is a cardinal rule of interpretation of statutes that where a provision in a statute is made subject to another provision that provision must be read subordinate to the provision it is subject to as stated in Ngige vs. Obi (2006) 14 N.W.L.R. (Pt. 999) 1 at 227; N.P.A. vs. Eyamba (2005) 12 N.W.L.R. (Pt. 939) 409 at 442 and Yusuf vs. Obasanjo (2003) 15 N.W.L.R. (Pt. 847) 55 at 602; that for this reason, Section 105(3) shall not be interpreted to override the provision of Section 105(1) of the Constitution. Learned Counsel finally concluded that on the undisputed facts of this case, the proclamation of the first sitting of the Appellants was made on 9th June, 2003 and the Appellants having served their statutory tenure in June, 2007, there is no merit at all this appeal which this Court was urged to dismiss.

The facts of this case which I have earlier narrated in this judgment are not in dispute between the parties. What is in dispute between the parties is the interpretation and the application of the provisions of Section 105(1) and 105(3) of the Constitution. It has been said time without number in many decisions of this Court that the Constitution is an organic instrument which confers powers and also creates rights and limitations. It is the supreme law in which certain principles of fundamental nature are established. Thus, once the powers, the rights and the limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of law. However, the extent of such powers rights and limitations and their implications may be sought to be interpreted and explained by the Court in cases properly brought See Attorney General Ondo State vs. Attorney General Federation (2002) 9 N.W .L.R. (Pt. 772) 222. This is exactly what happened at before the trial Court and the Court of Appeal where the parties took their disputes requiring the interpretation and explanation by those Courts of the provisions of the Section 105(1) and 105(3) of the Constitution. The provisions of the entire of Section of the Constitution now in dispute reads –

“105(1) A House of Assembly shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House.

(2) If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in sub-section (1) of this Section from time to time but not beyond a period of six months at anyone time.

(3) Subject to the provisions of this Constitution, the person elected as the Governor of a State shall have power to issue a proclamation for the holding of the first session of the House of Assembly of the State concerned. Immediately after his being sworn, or for its dissolution as provided in this Section.”

In dealing with these provisions of the Constitution in his judgment delivered on 17th September, 2007, the learned trial Judge Nweke J. has this to say at pages 235 – 238 of the record –

“The Constitution of Nigeria authorised the National Assembly to regulate elections in Nigeria.

See Section 184 of the Constitution. The National Assembly enacted the Electoral Act 2002 and Electoral Act 2006. In Section 138 and 149 there in respectively it was enacted that where the Tribunal or Court as the case may be, determines that a candidate returned as elected was not validly elected, the person elected should remain in office pending the determination of the appeal. These provisions are not inconsistent with Section 105(3) of the Constitution or any other Section of the Constitution. My view is that if a person is asked to remain in office by law, while his fate is determined by the Electoral Tribunal, the law cannot turn round to nullify his actions while he held forth as a defacto office holder.”

Having dealt with Section 105(3)I shall now touch on Section 105(1) of the Constitution. My view is that Section 105(1) of the Constitution regulates the sitting and dissolution of the House of Assembly. It is that sub-section that is mandatory. It is mandatory that the House of Assembly shall stand dissolved at expiration of a period of 4 years commencing from the date of the first sitting of the House. The Plaintiffs had their first sitting on 9th June, 2003. So their tenure had expired by effluxion of time. The Plaintiffs do not have any right to go back to the House of Assembly of Anambra State under any guise.”

The above views expressed by the learned trial Judge on the provisions of Section 105(1) and 105(3) of the Constitution and his findings on the facts as to the actual date of the first sitting of the Appellants House of Assembly elected in 2003, were completely affirmed by the Court of Appeal in its decision of 26-6-2008 which dismissed the Appellant’s appeal against the decision of the trial Court. I must say here that the views expressed by the learned trial Judge and his findings which were affirmed by the Court below on the position of the Constituion and the law on the elongation of tenure of office claims of the Appellants as the Plaintiffs at the trial Court are quite in order.

Starting with the provisions of Section 105 (1) of the Constition which I have earlier quoted in this judgment, the subsection is quite plain and clear. The section means exactly what it says. That is, a House of Assembly including the Appellants’ House of Assembly, shall and dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House. All what is required in applying the provisions of the subsection is to ascertain the date of the first sitting of the House in determining its tenure of four years prescribed by the subsection. The date of the first sitting of the Appellants having been determined to have been 9th June, 2003, counting from that date, there is no doubt all that the four year tenure of the Appellants had already expired even before filing their Originating Summons dated 25th June, 2007 at the trial Court.

As quite rightly found by the trial Court and affirmed by the Court below the proclamation issued by the elected Governor Chris Ngige on 5th June, 2003 before the first sitting of the Appellants on 9th June, 2003, is quite valid in law under Section 105(3) of the Constitution being a serving Governor of the State ‘who issued the same immediately after his being sworn in as the Governor of Anambra State. The fact that he had to vacate office at the end of the Court proceedings challenging his election in accordance with the provisions of the Constitution and the Electoral Act, cannot invalidate any powers or duties exercised or performed by him while in office. This is in line with the provisions of Section 138 of the Electoral Act 2002 which allows the Governor to remain in office and perform the functions of the office pending the determination of his appeal against the decision of the Election Tribunal by the Court of Appeal. The fact this period lasted for over 35 months is of no moment having been effectively covered by the law.

In similar circumstances, the proclamation issued by Governor Andy Uba before the first sitting of the 2nd to 30th Respondents as members of the Anambra State House of Assembly elected during the 14th April, 2007 election, also being challenged by the Appellants is also quite valid in law inspite of his vacation of the office on the orders of this Court to allow Governor Peter Obi to complete his tenure of office on 20th March, 2010. This is by virtue of the provisions of Section 149 of the Electoral Act, 2006 which had clearly saved any power exercised or functions performed by him as the Governor of Anambra State during the period he served in the office. In this respect, since the powers exercised and the functions performed by the Governors Dr. Chris Ngige and Dr. Andy Uba have been saved by the provisions of the law in Sections 138 and 149 of the Electoral Acts of 2002 and 2006 respectively, the arguments of the Appellants on the application of the case of Arlefulu vs. Okulaja (1996) 9 N.W.L.R. (Pt. 475) 668 to the present case can hardly arise.

In the instant case, the provisions of Section 105(1) and (3) of the Constitution are quite plain and clear and must be given their ordinary meaning on the tenure of a House of Assembly. Section 105(1) of the Constitution is on its own and its application does not depend on the provisions of Section 105(3) of the Constitution at all. In other words, whether or not there had been proclamations for the holding of the first session of the House of Assembly or for its dissolution by a person elected Governor of a State, that House stands dissolved at the expiration of a period of four years commencing from its first sitting. Proclamation for the holding of the first session of the House under Section 105(3), is not a condition precedent to the date of the first sitting of the House under Section 105(1) of the Constitution. it is indeed not true as argued by the Appellants that without proclamation by the Governor under Section 105(3) of the Constitution, the House of Assembly cannot function. The Constitution does not say so.

The law is indeed trite that in the interpretation of the provisions of statute including the Constitution, where the words of the statute are clear and unambiguous, the words must be given their plain and ordinary meamng. See Abioye vs. Yakubu (1991) 5 N.W.L.R. (Pt. 190) 130 and Odubeko vs. Fowler (1993) 7 N.W.L.R. (Pt. 308) 637.

It is my view therefore that the attempt by the Appellants to have the period of their tenure as members of the Anambra State House of Assembly elected since the year 2003, extended to March, 2010, must fail woefully having regard to the undisputed date of the first sitting of the Appellants as members of that House. This appeal has no merit at all and the same is hereby dismissed. The decision of the trial Court as affirmed by the Court below is hereby further affirmed.

There shall be N50,000.00 costs to each of the two sets of the Respondent

SC.233/2008

Alhaji Ibrahim Abdullahi V. The Military Administrator & Ors (2009) LLJR-SC

Alhaji Ibrahim Abdullahi V. The Military Administrator & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, J.S.C.

The appellant was born in 1943. He was appointed as a painter and decorator in the former Ministry of Works and Water Resources in the then Northern Region and later known as the Northern States of Nigeria. The appointment took effect from 5th December, 1962. The appellant was later transferred to the North Central State and finally to Kaduna State.

Appellant, who rose to the rank of Chief Works Superintendent, Ministry of Water Resources and Rural Development, Kaduna State was retired from the service of Civil Service by virtue of implementation Guidelines on the Civil Service Reforms of 1988 and Establishments Circular E BD 111996 No. S/PEN/24/1/320 of 13th January, 1996 made pursuant to Civil Service (Re-organization) Decree 1988.

The appellants, aggrieved by the action of the respondents, sued by way of originating summons on 16th October, 1998 after entering into several correspondences with the respondents. The reaction of the respondents was that of a rebuff. He asked for the following reliefs:

“(a)A Declaration that the purported retirement of the plaintiff by the 1st to 5th defendants is contrary to Decree 102 of 1979 and is illegal, null and void.

(b) A Declaration that the stoppage of the plaintiffs salary and emoluments with effect from March 31st 1998 is illegal, null and void.

(c) A Declaration that the breaking into the plaintiff’s office and the removal of his items there from by the 6th defendant on April 29th, 1998 is illegal.

(d) A Declaration that the plaintiff is entitled to consideration for and promotion to Grade level 16 by the 1st to 5th defendants.

IN THE ALTERNATIVE: That the emoluments and benefits accruing to Grade Level 16 Officer enure to the plaintiff and same be made and paid personally to him.

(e) An order of immediate reinstatement of the plaintiff to his office by the defendants.

(f) An order that all emoluments of the plaintiff withheld since March 31st 1998 till his reinstatement in office be paid to him.

(g)An order that the 4th defendant consider and effect the overdue promotion of the plaintiff to a Grade Level 16 officer with its attendant emoluments or make payment of same personally to him

(h) Damages in the sum of N50,000.00 against the 6th defendant for breaking into the plaintiff’s office.

(i) The return of the items removed from the plaintiff’s office by the 6th defendant or damages in the sum of N10,000.00 being cost of replacing same.

j) For the determination of the following questions:

(i) Whether Decree 102 of 1979 makes it mandatory for civil servants as the plaintiff to retire from service after serving for 35 years only

(ii) Whether Decree 102 of 1979 precludes the plaintiff from remaining in service after serving for 35 years and before attaining 60 years of age

(iii) Whether the plaintiff can be retired from service on the basis of Implementation Guidelines, on the Civil Service Reforms of 1988, which are pursuant to and founded upon the Civil Service (Re-organisation) Decree 1988, which was repealed on 1st April, 1995

(iv) Whether the defendants can stop the payment of the plaintiff’s salary and emoluments and break into his office without lawful orders and without any authority whatsoever

(v) Whether the plaintiff was entitled to promotion in 1991 based on the Implementation Guidelines on the Civil Service Reforms and thereafter entitled to promotion in 1998 on the 3-year rule in operation before the said Guidelines came into effect”

The learned trial Judge dismissed the suit of the appellant. His appeal to the Court of Appeal was also dismissed. He has come to this court.

Briefs were filed and duly exchanged. Appellant also filed a reply brief. The appellant formulated the following issues for determination:

“1. Whether the learned lower court Justice was right when he held that: “The Civil Service Commission’s letter communicating Appellant’s Retirement to him, exhibit 1A 16 did not state that appellant was retired on the provisions of Pension Act Cap. 346 rather it categorically stated that the Retirement was in accordance with the provision of Implementation Guidelines, on the Civil Service Reform of 1988 and Establishments Circular ED.1/1996, NO.S/PEN.24/1/320 of 14th January, 1996.”

Whether the learned Justice was right when he held that: “An action taken or an operation carried out under enactment subsists or is unaffected after the legislation is repealed by dint of Section 6 (1) (b) of the Interpretation Act, Cap 192 of the Laws of the Federation of Nigeria, 1990. It survives in spite of the repeal of the Law under which the action was taken. Section 6 (1) (b) of the said Act Cap. 192 reads as follows:

6(1) The repeal of an enactment shall not:-

(a) xxxxxxxxxxxxxxxxxxxxxxxxxx

(b) Affect the previous operation of the enactment or anything duly done or suffered under the enactment.”

The respondents adopted the issues formulated by the appellant. Appellant, appearing in person, submitted on issue NO.1 that the Court of Appeal misunderstood the law of retirement. He submitted that the only law under which any public officer, including him can be retired is the Pensions Act, Cap 346 and not the provisions of Implementation of the Civil Service Reform of 1988 and Establishments Circular ED.1/1996, NO.S/PEN.24/1/320 of 14th January 1991 as wrongly held by the Court of Appeal. He argued that apart from the fact that the Implementation Guidelines on the Civil Service Reforms of 1988 (Re-organisation) Act, Cap.55, Laws of the Federation of Nigeria, 1990 contained no provision of retirement of civil servants or any public officer, the Act was repealed with effect from 1st April, 1995. Even if the Act was not repealed at the time the Civil Service Commission retired him, it was ultra vires of the Commission because section 5 of the Implementation Guidelines on the Civil Service Reforms of 1988 (Reorganisation) Act, Cap 55, Laws of the Federation of Nigeria, 1990 vested no power on the Civil Service Commission to retire him or any civil servant of the State, appellant argued. He called the attention of the court to Establishments Circular ED. 1/1996 No. SIPEN.24/1/320 and submitted that the purpose of the circular was to draw the attention of civil servants of the existence of the provision of section 4 of the Pensions Act, Cap 346. He urged the court to hold that his retirement was illegal, being contrary to the provision of the Pensions Act, the only law that can retire him and any public officer in the country. Appellant submitted on Issue No.2 that the application of section 6 (1) (b) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 was an anachronism. He pointed out that the subsection refers to operation or anything duly done or suffered previously that is, when the Act was in force and not repealed. He contended that the relevant paragraph applicable to this case is (a) not (b). He contended that the Implementation Guidelines on the Civil Service Reforms of 1988, (Re-organisation) Act, was repealed on 1st April, 1995 and the Civil Service Commission retired him on 8th July 1998 – that is after three years of the repeal of the Act. Relying on UBA v. G.M.B.H (1989)3 NWLR (Pt. 110) 374 at 391, Obatoyinbo v Oshatoba (1996) 5 NWLR (Pt. 450) 531 at 548 and Eduok v Nwoko (2003) 28 W.R.N. 85 at 105, appellant submitted that the Court of Appeal was in error in holding that his retirement was in accordance with the Implementation Guidelines on the Civil Service Reforms of 1988, Cap 55 and that section 6 (1) (b) of the Interpretation Act is applicable. He urged the court to allow the appeal.

Learned counsel for the respondents Mr. Paul Ananaba submitted on Issue No.1 that the appellant is wrong in arguing that the only law under which any public officer including the appellant, can be retired is the Pensions Act Cap 346. He relied on the Implementation Guidelines on the Civil Service Reforms of 1988 (Reorganisation) Act, Cap. 55 Laws of the Federation of Nigeria, 1990 and the two letters communicating the retirement to the appellant. Accordingly, the Honourable Commissioner for Water Resources and Rural Development Kaduna State and the Civil Service Commission of Kaduna State are the appropriate statutory authorities for the retirement of Civil servants in Kaduna State, including the appellant, learned counsel contended. He relied on section 5 of the Implementation Guidelines on the

Civil Service Reforms of 1988, Cap 55.

Learned counsel submitted on Issue No.2 that section 6(1) (b) of the Interpretation Act, Cap 192, Laws of the Federation of Nigeria, 1990 was properly construed by the Court of Appeal. The repeal of the Implementation Guidelines on the Civil Service Reforms of 1988 Cap.55, on April, 1995 does not affect those already proceeding on retirement. Implementation Guidelines on the Civil Service Reforms of 1988 subsists notwithstanding the repeal by the Civil service (Reorganisation) Act, Cap 55 Laws of the Federation of Nigeria on 1st April, 1995. He relied on Adewunmi v. Attorney General Ekiti State (2002) 2 MJSC, 1, Afolabi v. Government of Oyo State (1985) 2 NWLR (Pt.9) 734, Uwaifo v Attorney General of Bendel State (1982) 7 SC 124. He urged the court to dismiss the appeal.

Appellant in his reply brief, submitted that as he had not attained sixty years before he was retired, the retirement did not comply with section 4 (1) of the Pensions Act, Cap 346, Laws of the Federation of Nigeria 1990. As the reply brief is essentially repetitive of the appellant’s brief, I shall not go into it any further because that is not the function of a reply brief. The function of a reply brief is to answer the arguments in the respondent’s brief which were not taken in the appellant’s brief.

The first issue I should take is whether the Pensions Act is applicable in this case. It is the submission of the appellant that the Act is applicable. It is the submission of counsel for the respondents that it is not, as the appellant was not retired on the basis of the Pensions Act but on the basis of the Implementation

Guidelines on the Civil Service Reforms of 1988 (Re-organisation) Act and Establishments Circular ED.1/1996, No. S/PEN 24/1/320.

Dealing with the issue, the Court of Appeal said at pages 192 and 193 of the Record:

“But if I must answer the question, the respondents did not state in the correspondence conveying appellants retirement to him that he was retired on the strength of the provisions of section 4 (1) of the Pension Act, Cap.346 of the Laws of the Federation of Nigeria, 1990. The Civil Service Commission’s letter communicating Appellant’s -retirement to him, exhibit 1A16 did not state the appellant was retired on the provisions of the Pension Act Cap.346. Rather it categorically stated that the retirement was in accordance with the provisions of Implementation Guidelines on the Civil Service Reform of 1988 and

Establishments Circular ED.1/1996, No.S/PEN.24/1/320 of 14th January 1996”

This conclusion, with the greatest respect, is not vindicated by Circular No.ED.1/1996 written by Dr. Saidu Goje, Director General (Establishments). Paragraph 2 of the circular reads:-

“I wish to point out that the number of these cases are becoming too numerous just as they are unbearable on Government’s slim purse, because the practice of condoning the period of over-stay in service by officers with impunity have encouraged civil servants to continue to grossly abuse the favour and, therefore, become pretentiously unmindful of their retirement dates and as such do not vacate office as and when due. Thus, it has become inevitable to draw your attention to section 4 of the Pension-Decree No. 102 of 1979 (underlining provided for emphasis only) as well as the provision of our circular ED.9/1995 (reference NO.S.GEN.24/Vol.1/74 dated 20th October (1985) all of which make it mandatory for all grades of officers in the civil service, (with exception of High Court Judges whose retirement age is 65 years of service) which ever comes first. Besides, no additional pension or gratuity is earned by any officer who remains in service after his 60th birthday or after the completed 35 years of public service.”

The above is a general circular. It clearly made reference to the Pensions Act. I must concede that the reference to the Pensions Act is not important because the circular was not sent to the appellant. I will refer to the relevant document. It is Exhibit 17, a letter written by the Director General on behalf of the Commissioner for Water Resources and Rural Development to the appellant. The letter reads:

“RE: RETIREMENT AND HANDING OVER OF OFFICE

Subsequent to ours REF No.WRRD (PER/504/T/Vol.1/11 dated 31st March, 1998 and in accordance with the provisions of section 4 of the Pension Decree No.102 of the year 1979 (Again underlining for emphasis only) you were due for retirement by December, 1997. Up to now, you have refused to submit your retirement notice accordingly;

I am directed to ask you to hand over your Office latest by Monday, 27th day of April, 1998. An advance copy of the handing over note should reach my office by 10.00a.m of the same day.”

Again, Exhibit 17 clearly mentioned section 4 of the Pensions Decree No.102 of 1979. Is the Court of Appeal therefore right in holding that the appellant was not retired on the strength of the Pensions Act” I think not. The Court of Appeal, reacting to the above letter, said at page 195 of the Record:

“Exhibit 17, a letter written. by the Director General on behalf of Commissioner for Water Resources and Rural Development with reference No. WRRD/PER,504,T/V.1/15 dated 24th April, 1998, making reference to Pension Act is irrelevant. It is not only irrelevant but also premature in the sense that the letter was written on behalf of a person or by a person who has no constitutional power to retire the

appellant. It is a mere irritant emanating from an exuberant officer and should or ought to be treated with contempt it deserved especially when it pre-dated serving the Civil Service Commission’s letter exhibit 1A 1b on the appellant on 23rd July, 1998.”

With the greatest respect, I am not with the Court of Appeal. I am unable to go along with the Court at all. What is irrelevant about the letter What is premature in respect of the letter Something is said to be irrelevant when it is not relevant. I do not think. I have said much. I should go further. Something is irrelevant when it does not have any real connection with or relation to something else as one can say

“If Amatare can do the job well, his age is irrelevant”. If do not see any irrelevance in a letter which relies on the Pensions Act as basis for the retirement of the appellant, a fortiori, when the respondents deny that the appellant was retired on the basis of the Pensions Act. Can there be a more relevant situation than this Are the Circular to the entire Civil Service and the letter to the appellant not admission against interest I would like to think so, and I think I am correct in so thinking.

I come to the word “premature”. The word dictionary means developing or happening before the natural or proper time, as one can say his premature death at the age of 18years is a great loss. What is premature about the letter Could the letter have waited for tendering after the case was completed That cannot be because at that time there will be no legal basis for tendering the letter. There will be nowhere to tender the letter. I do not therefore agree with the Court of Appeal that it was premature, “in the sense that the letter was written on behalf of a person or by a person who has no constitutional power to retire the appellant.” That is certainly not my understanding of the word. In my humble view, the appellant tendered the letter at the appropriate time. He tendered it at the proper time.

The Court of Appeal went further to pass aspersion on the Director General. The court referred to him as an “exuberant officer” With respect, I do not think so. I do not agree with the Court of Appeal that the Director General was “an exuberant officer and should or ought to be treated with contempt it deserved” There is no such evidence before the trial court and I will certainly shy away from that conclusion. Exhibit 17 was written on behalf of the Commissioner for Water Resources and Rural Development. In my humble view, the letter duly emanated from constituted authority. While I agree with the Court of Appeal, that the Director General has no constitutional power to retire the appellant, I must say that by section 5 of the Implementation Guidelines the Civil Service Reforms of 1988 (Re-organisation) Act,

Cap 55, Laws of the Federation of Nigeria, 1990, the Commissioner was vested with the power to appoint, dismiss and take disciplinary measures against civil servants. Whether the above powers cover retirement is a different matter altogether. I will not go there. One other reason why the Court of Appeal did not think much about the letter is because it pre-dated serving the Civil Service Commission’s letter, exhibit 1A16 on the appellant on 23rd July, 1998. While I agree that it is the fact, I do not see how it reduces the evidential or probative content of the letter. I think the appellant has the right to use the letter in a number of ways to contradict the respondents, particularly as Exhibit 1A16 of 23rd July 1998 did not make reference to the letter by nullifying it.

Which of the Pensions Statute is applicable Is it the Pensions Act as contended by appellant or the Pensions and Gratuities Law of Kaduna State The applicable statute, in my view, is the Pensions and Gratuities Law, Cap III, Laws of Kaduna State 1991. Section 9(1) of the Law provides:

“Every officer shall retire upon attaining the age of sixty years, so however that officers retiring on or before 31st March, 1977, the compulsory retiring age shall be fifty-five years.”

As it is, the subsection is mandatory, imperative and pre emptory as it provides for the word of command, “shall”. In the con of section 9(1), it connotes “must” as it is inconsistent with exercise of discretion. While the word may at times be construed as conveying a permissive or directory meaning of “may” it is my view that it maintains its usual meaning of command or compulsion in section 9(1). See generally Chief Ifezue v Mbadughan (1984) 5 SC 19., Captain Amadi v NNPC (2000) 10 NWLR (Pt.674) 76, General Bamaiyi v Attorney General of the Federation (2001) 12 NWLR (Pt.727) 468, Ogidi v The State (2005) 5 NWLR (Pt.918) 268.

Interpreting the word in its mandatory, imperative and pre emptory content means that an officer, including the appellant, must retire from the service upon attaining the age of sixty years. That is the first leg of the subsection. The second leg does not apply to the appellant. The twist in this matter comes or arises from the retirement of officers who have completed thirty five years in the service but who have not clocked sixty years. The question is this: Where does the requirement of completion of thirty five years come from The Pensions and Gratuities Law of Kaduna State does not specifically provide for the alternative of thirty-five years service. I will answer the questions later in this judgment. For now let me take other areas. It is the case of the respondents that the appellant was retired by virtue of the Implementation Guidelines on the Civil Service Reforms of 1988 (Reorganisation) Act, Cap. 55 and Establishments Circular ED.1/1996 NO.S/PEN.24/1/320. I sound repetitive here; it is good for emphasis and so I repeat it.

I will take them in turn. First, the Civil Service (Re-organisation) Act, Cap. 55. Appellant submitted that the Act was repealed with effect from 1st April, 1995. What I want to take now is whether the Civil Service (Reorganisation) Act, Cap. 55 Laws of the Federation of Nigeria, 1990, even if not repealed, is applicable in the case. I say this because the statute, being an Act should apply only to the Federal Civil Service and accordingly in respect of Federal Civil Servants. Section IV of the Schedule to the General Guidelines for the Implementation of the Civil Service Reforms, does not pretend to apply to the States, although section 3(2) of the Act seems to involve the States. It does not appear that the provision is in conformity with the 1979 Constitution which was in force at the material time. I will not pursue this as it was not raised by the parties. I merely thought aloud. The respondents agreed with the repeal when their counsel submitted that “the repeal of the Implementation Guidelines and the Civil Service Reforms of 1988 Cap. 55 in April 1995 does not affect those already proceeding for retirement”.

Assuming that the Act applies, does it cover retirement of civil servants Appellant argued that by section 5, only the Ministries in the Civil Service have the power to appoint, dismiss and discipline persons. I do not think the section covers the situation in this appeal, which is retirement. The section does not provide for retirement. Retirement is certainly different from appointment, dismissal or disciplinary control as provided in section 5 of the Act. In my humble view, the applicable law is section 9 of the Pensions and Gratuities Law of Kaduna State, 1991 which provides for retirement of officers.

Appellant kindly copied the Establishments Circular at pages 11 to 13 of his brief. The relevant portion is in paragraph 2 of the circular. I reproduce it once more:

“Besides, no additional Pension or gratuity is earned by any officer who remains in service after his 60th birthday or after the completed 35 years of public service.”

While the requirement of the 60th birthday of an officer is in conformity with section 9(1) of the Pensions and Gratuities Law of Kaduna State, 1991 the additional requirement of 35 years, in the alternative, is not specifically provided in the Statute.

So far so good for the appellant, but it is not a bed of roses for him at the end of the day. In the course of preparing this judgment, one of my brothers in the Panel called my attention to section 9(2) of the Pensions and Gratuities Law, Cap 111, Laws of Kaduna State, 1991. The subsection reads:

“The Commission may require an officer to retire from the service at any time after he has attained the age of 45 subject to three months notice in writing of such requirement being given.”

The subsection clearly stops or prohibits any possible fortunes of the appellant in this appeal. Although the subsection does not specifically provide for the alternative thirty five years service, the totality of the provision is consistent with the retirement of the appellant. There is no dispute that he was more than forty-five years when he was retired. By the subsection, the appellant or any other civil servant can be asked to go on retirement if he has completed a service of thirty five years. In my view, the appellant’s retirement was in accordance with section 9(2) of the Pensions and Gratuities Law, 1991 of Kaduna State, and I so hold.

I think I can stop here. It is not necessary to take Issue 2 in the light of my conclusion on Issue 1, because it is largely academic to do so. Courts of law are not interested in academic matters.The appeal fails and it is dismissed.

I award N50,000.00 costs to the respondents.

SC.146/2003

Henry Stephens Engineering Ltd V. S.A. Yakubu (Nig) Ltd (2009) LLJR-SC

Henry Stephens Engineering Ltd V. S.A. Yakubu (Nig) Ltd (2009)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C.

This is another Interlocutory appeal against the Judgment of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 29th April, 2002, dismissing the appeal to it by the Appellant. Dissatisfied with the said Judgment, the Appellant, has further appealed to this Court on, three Grounds of Appeal. Without their particulars, they read as follows:

(1) The learned Justices of the Court of Appeal erred in law when they held as follows:

“……In paragraph 9 of the Statement of Claim, it was pleaded that the deposit paid to the defendant was made in three installments the last of which was made on 21/10/86.

It is manifest therefore that by the contract of the parties themselves, the obligation of the defendant to commence repair work and to return the equipment to the plaintiff would only mature subsequent to 21/10/86 when the last installment of the deposit was made. The conversion, if any, of plaintiff’s equipment could not therefore have arisen earlier than 21/10/86.

(2) The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court and held that the action of the Plaintiff was not statute barred and that it disclosed a reasonable cause of action.

(3) The averment in paragraph 10 of the Statement of Claim that the Plaintiff made a demand for the return of the equipment from May 1984 must be read subject to the averments in paragraphs 5 and 9 of the Statement of Claim”.

The facts of this case, are simple. The Respondent as Plaintiff in Suit No. LD/277/92 in the High Court of Lagos, sitting in Lagos, claimed from the Appellant, the sum of N750,-000.00 being money due and payable to the Respondent, for the wrongful conversion of its concrete mixer and for damages suffered by the Respondent for the loss of use of the said mixer. After the service of both the Writ of Summons and the Statement of Claim on the Appellant, who did not file a Statement of Defence, but instead, filed a motion pursuant to Order 22 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 (hereinafter called “the Rules”) praying for an order dismissing the said suit.

The grounds for the application are:

“1. That the facts and matters relied on in support of this action occurred more than six(6) years before the issue of the writ in this case and the claim (if any, which is denied) is barred by Limitation Law Cap.70 Laws of Lagos State 1973.

That the action is vexatious and constitutes an abuse of the process of the court”.

I note that the Respondent, filed a counter-affidavit in which paragraphs 3 and 4, read as follows:

“3. That Plaintiff made a payment of N2, 000.00 to the defendant on 21/10/86 which the Defendant accepted and issued a receipt thereon.

Although the concrete mixer and compressor were delivered to the Defendant in 1984, the Defendant on 29/10/86 in reply to a letter from the Plaintiff wrote and undertook to return the said items of machinery in due course”.

[The underlining mine]

I will therefore, pause here to state that it is now settled that failure to swear to a further-affidavit where there is a counter-affidavit which is unchallenged, it is deemed that the counter-affidavit, is admitted as being correct. In other words, where there is an unchallenged counter-affidavit evidence, the court is at liberty, to accept it as true and correct. See the cases of Jumbo Nwanganga & 5 ors. v. Military Governor of Imo State & 2 ors. (1987) 3 NWLR (Pt.59) 182 @ 193 C.A. and Attorney-General orPlateau State v. Attorney-General of Nassarawa State (2005) 4 SCNJ 120 @ 175; (2005) 4 S.C. 55.

Obadina, J. (as he then was), heard the application and dismissed it on the ground that it was premature. On appeal to the court below, that court, also dismissed the appeal on the ground that the trial court, correctly found that the Respondent’s Statement of Claim, disclosed a reasonable cause of action. It is against this decision, that the instant further appeal, has been brought.

The Appellant, has formulated only one issue for determination namely,

“Were the learned Justices of the Court of Appeal right in all the circumstances in holding that the Respondent’s claim for conversion was not statute barred”

The above issue has been adopted by the Respondent in its Brief.

When this appeal came up for hearing on 24th February, 2009, the leading learned counsel for the Appellant – Akinlawon (Mrs.), adopted their Brief. He/she told the Court that there is only one issue for interpretation as regards Sections 8(4) and (14) of the Limitation Law of Lagos State and whether the court below, was right in holding that the action, was not statute barred. He/she referred to page 4 paragraph 10 of the Statement of Claim and submitted that it is a case of conversion and not on contract. That, that is, the cause of action. That the Respondent, are bound by their pleading. Learned counsel referred to paragraph 11 of the said claim which she stated refers to a contract. He/she urged the Court, to allow the appeal.

Akerele, Esqr, – learned counsel for the Respondent, also adopted their Brief. He told the Court that they used the word conversion in their claim. That they did not claim on the basis of contract. He referred to the meaning of conversion and stated that this was/is not applicable in this case. He also referred to paragraph 12 of the Statement of Claim at page 5 of the Records and stated that in 1986, the Appellant took their money and still kept their goods. He urged the Court, to dismiss the appeal. Thereafter, the Court was minded to give on the Bench Judgment, but because of the fuss or forceful reference by Mrs. Akinlawon as to the import of Section 14 of the said Law, Judgment was reserved till to-day.

The real or crucial issue to be determined in my respectful view is, whether the said action of the Respondent, was/is statute-barred as claimed by the Appellant. In order to determine the said issue, it will be necessary for me, to reproduce some of the relevant or material averments in the Statement of Claim. I shall reproduce paragraphs 9, 10, 11, 12 and 13 thereof. They read as follows:

“9. Immediately upon, and from time to time after the said delivery of the said items of plant and equipment to them, the 1st Defendant demanded performance by the Plaintiff of the condition-precedent or material pre-condition mentioned in paragraph 6(1) above, (namely, the payment of a deposit), and in compliance with this demand, the Plaintiff avers that they did pay the Defendant the specific sums and on the specific dates shown in the table below and the Defendant took possession of the Plaintiff’s items of plant and equipment accordingly.

Particulars

Date Amount of Deposit Paid to 1st Defendant

(i) 11.4.84 N3, 000.00 (vide Defendant’s Receipt No. 4651 of 11.4.84).

(ii) 10.10.86 N2, 400.00 (vide Defendant’s receipt No. 8855 of 10.10.86)

(iii) 21.10.86 N2,000.00 (vide Defendant’s receipt No….. of 21.10.86)

The Plaintiff states that during the period of May 1984 to date, he has orally demanded the return of his (sic) Concrete Mixer and Compressor on numerous occasions, but states that the Defendant his failed to return them to him.
By their letters dated the 28th of April 1986 and the 22nd of October 1986 respectively, and by their Solicitors letter dated the 20th of October, 1987 (all written to the Defendant), the Plaintiff demanded from the Defendant the return of their items of machinery and equipment referred to in paragraph 4(i) and (ii) above.
By the Defendant’s letters dated the 16th of October, 1986 and the 2gth of October, 1986 and delivered to the Plaintiff, the Defendant undertook to return the said items of machinery and equipment the property of the Plaintiff to their rightful owner in due course.
The Plaintiff however avers that from the diverse dates referred to in paragraphs 10-12 hereof up until the time of the commencement of these proceedings, the Defendant has refused to return the same and has wrongfully detained and/or still detains the same, whereby the Plaintiff has suffered loss and damage.

Particulars of Damages

N300, 000.00 – value of Winget Concrete Mixer

N200, 000.00 – value of Compressor

N250, 000.00 – for loss of use of the equipment

Total N750,000.00

WHEREUPON the Plaintiff claims the sum of N750,000.00 from the defendant being money due and payable to the Plaintiff for the wrongful conversion of its Concrete Mixer S/No. 300/1035781 and for damage suffered by the Plaintiff for loss of use of same”.

As can be seen from the above in paragraph 10 of the Claim, an oral demand by the Respondent, was made to the Appellant for return of the item or equipment, during the period of May, 1984. But in paragraph 11 thereof, the Solicitors of the Respondent, wrote two letters – one dated 28th April, 1986 followed by another letter dated 20th October, 1987. In paragraph 12, the Appellant, re-acted to the said demand by their two letters dated 16th October, 1986 and 29th October, 1986, respectively, undertaking to return the said items of machinery and equipment of the Respondent, in due course. At the time the Respondent sued in September, 1992, the Appellant had not made good of their said undertaking. In view of these clear and unambiguous averments in the said Statement of Claim, could it be honestly said or stated that the cause of action began to run from 1984 as has been done by the Appellant in this case up to this Court I think not. The court below, – per Oguntade, JCA (as he then was), was very clear when it correctly or rightly in my respectful view, held at page 45 of the Records inter alia, as follows:

“…….A period of six years under the Limitation Law when computed from 21/10/86 would enable the plaintiff to have validly brought its suit sometime in October, 1992 at the earliest. Viewed from that angle, plaintiff’s suit which was filed on 8/9/92 could not have been statute barred It would be unfair to tie the plaintiff only to May, 1984 without the benefit of evidence at the trial……….”

See also the finding of fact and holding of the court below, reproduced in ground 1 of the Appellant’s Notice of Appeal earlier reproduced by me in the beginning of this Judgment. I note that it was in the circumstances of the issues before it, that His Lordship had to state at the same page 45 of the Records as follows:

“. .. … .. It is therefore my view that the lower court was right to have concluded that the plaintiff’s Statement of Claim disclosed a cause of action.”

In the case of Chief S.A . Dada & 3 ors. v. Otunba Adeniran Ogunsanva & anor. (1992) 3 NWLR (Pt.212) 754; (1992) 4 SCNJ 162 this Court – per Kawu, JSC. @ 765, held inter alia, as follows:

” Determining reasonable cause of action in so doing, it is irrelevant to consider the weakness of the plaintiffs claim. What is important is to examine the averments in the pleadings and see if they disclose some cause of action or raise some questions fit to be decided by a Judge – See the case of Irene Thomas v. Dr. Olofosoye (1986) 1 NWLR (Pt.18) 669′.

On the duty on a party seeking to strike out pleadings for failure to disclose a cause of action, – Olatawura, JSC – @ 767 – 768, of the above case, held, inter alia, as follows:

“When pleadings have been filed, a party resorting to Order 22 of the High Court of Lagos State (Civil Procedure) Rules, (as was/is the case in the instant case leading to this appeal), must ensure that the pleadings disclose no reasonable cause or action”.

[The underlining mine]

As to when the court is obliged to strike out a Statement of Claim which discloses no cause of action, see the cases of Adimora v. Ajufo & ors. (l988) NSCC Vol.19 (pt.1) 1005; (1988) 3 NWLR (Pt.80) 1,’ (1988) 6 SCNJ 18 and Alhaji Ibrahim v. Mr. Oshin (1988) NSCC Vol. 19 (Pt.1) 1184; (1988) 3 NWLR (Pt.82) 257,’ (1988) 6 SCNJ 203, just to mention but a few.

In the said suit leading to the instant appeal, there is the said counter-affidavit of the Respondent which is a part of the Records. It is now settled that affidavit evidence, constitutes evidence and any deposition therein not challenged, is deemed admitted. See the cases of Ajomale v. Yaduat & anor. (No.2) (1991) 5 NWLR (Pt.191) 226 @ 282-283; (1991) 5 SCNJ. 178 and Magnusson v. Koikoi (l993) 12 SCNJ 114.

Frankly speaking, this is a most worthless appeal. The hearing of the suit which was instituted since September, 1992, is yet to commence. The Appellant, it is obvious to me, is using this frivolous application, to have the suit dismissed on the porous and laughable ground that it is statute-barred and as a ploy to frustrate the hearing of the case on its merits. I wish this ‘suit on the facts, should have been brought on the undefended List. I say this because, up till now, the Appellant is yet to return to the Respondent, its equipments and machinery. It is now about seventeen (17) years, since the suit was initiated.

I have a feeling that this appeal may have been brought, because of the dismissal of the Appellant’s said motion by the trial court. But I agree with the court below, when it stated at page 48 of the Records that,

“The order dismissing the defendant’s case was only ‘final’ to the extent to which it barred the defendant from bringing the same application at that stage of the proceedings. It could not be regarded as final for all purpose”.

As to the effect or consequences of either a striking out or a dismissal of a motion, perhaps, See the cases of Irogbu v. Ugbo (1970 – 71) 1 ECSLR 162 – per Aniagolu, J. (as he then was); Nzekwu v. Nzekwu & 2ors. (1977) 1 ANLR 224 @ 226 citing the case of Bozson v. Altrineham Urban Council (1903) 1 K.B. 547 @ 548 – per Lord Alverstone, C.J.; Alhaji Mohammed & ors. v. Olawunmi & 11 ors. (No.3) (l993) 5 SCNJ 126 @ 135 and The Vestry of Paddington (1880) 5 Q.B.D. 368.

Since the trial court as affirmed by the court below, held that the Respondent’s Statement of Claim, discloses a cause of action, the hearing of the suit, can now proceed unimpeded. This appeal I believe, has strengthened my desire or insistence that interlocutory applications, should end at the Court of appeal in order to save parties, the agonies or stress of putting on hold by the adversary or opponent, of a clear, or simple and legitimate relief or reliefs sought by a Plaintiff.

However, in view of the averment in paragraph 13 of the Statement of Claim, I will refrain from commenting on or dealing with it. This is because, if I do so, I mayor will be pre-empting the decision of any trial court that will eventually try the suit. Whether the action is in conversion or detinue, it remains a live issue, more so or since the Appellant, up till now, is still in custody of the said equipment and machinery of the Respondent which it, long undertook to return to the Respondent, but has still not done so.

In conclusion, this appeal lacks substance and merit. It hopelessly, with respect, fails and it is accordingly dismissed with N50,000.00 (Fifty Thousand Naira) costs in favour of the Respondent payable to it by the Appellant.

I hereby and accordingly, affirm the decision of the court below dismissing the said Appellant’s motion/application.

SC.153/2002

Otunba Adesesan Oguntayo (Oraderemo Of Ijebu-ife) V. Prince Fatai Adelaja & Ors (2009) LLJR-SC

Otunba Adesesan Oguntayo (Oraderemo Of Ijebu-ife) V. Prince Fatai Adelaja & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

J.O. OGEBE, J.S.C

The 1st Respondent in this appeal who was the plaintiff in the High Court of Ogun State sued the appellant and the other respondents claiming in his writ of summons as follows:

“1. A declaration that being a Kingmaker by virtue of the registered declaration for Ajalorun of Ijebu-Ife Chieftaincy, the 1st Defendant is not eligible to be nominated, selected or appointed, approved and installed as the Ajalorun of Ijebu-Ife in the Ijebu East Local Government Area of Ogun State.

A declaration that being the Oraderemo of Ijebu-Ife the 1st Defendant is not eligible to be nominated selected or appointed, approved and installed Ajalorun of Ijebu-Ife.
A declaration that the purported nomination of the 1st Defendant as a candidate by the Afurukeregboye House for the filling of the vacant stool of Ajalorun of Ijebu-Ife is irregular, illegal, unconstitutional, null and void.
A declaration that the purported selection or appointment of the 1st Defendant by the 2nd, 3rd, 5th 6th and 7th Defendants as the Ajalorun of Ijebu-Ife is irregular, illegal, unconstitutional, null and void.
An order setting aside the purported nomination, selection or appointment of the 1st Defendant as. Ajalorun of Ijebu-Ife.
Perpetual injunction restraining the 8th and 9th Defendants from giving approval to the purported selection or appointment of the 1st Defendant as Ajalorun of Ijebu-Ife”.

Pleadings were exchanged between the parties and the matter went into full trial. The question turned on the illegibility of the appellant to be nominated and appointed the Ajalorun of Ijebu-Ife on the ground that as the head of the Kingmakers he was not qualified to take the title, and also as a descendant from the male-line he was not qualified. The 1st respondent did not raise the question of the appellant’s descent from the male line in his statement of claim. He only raised it in his reply to the appellant’s Statement of Defence.

Witnesses were called on both sides but the appellant did not testify on his own behalf. During the course of the trial the 1st respondent’s counsel sought to tender proceedings in suit No. SCJ/6/85 to show that the appellant had given evidence in the proceedings that he was of male descent. There was objection to the admissibility of that document. The learned counsel for the 1st respondent failed to reply to the objection. Instead he applied to withdraw the document and the Higher Registrar of the High Court through whom he had tendered the document. The trial court marked the document rejected.

At the conclusion of the case the trial court evaluated the evidence and dismissed the 1st respondent’s claim. He was aggrieved by that decision and appealed to the Court of Appeal Ibadan Division which allowed the appeal and ordered a retrial of the case before another Judge mainly on the view of the Court of appeal that the 1st respondent was not given a fair hearing by the trial court before the proceedings in HCJ/6/85 was rejected.

Dissatisfied with the decision the appellant appealed to this court and the 1st respondent also cross-appealed to this Court. Both of them exchanged briefs in respect of their respective appeal. It should be noted that all the other defendants/respondents have not shown interest in this appeal. The appeal is simply between the appellant and the 1st respondent.

The learned counsel for the appellant in his brief of argument formulated 3 issues for determination as follows:

“(a) Whether having regard to the pleadings and evidence, the Court of Appeal was right in overturning the decision of the trial Court by which that Court held that the 1st Defendant did not descend from the male line of the Afurukeregboye Ruling House. This issue is distilled from Ground 1 of the grounds of appeal.

(b) Whether in the face of the provisions of Section 34 of the Evidence Act and the evidence before the trial Court, the Court of Appeal was right in holding that the learned trial Judge breached the rule of natural justice and was wrong in law in rejecting the proceedings in Suit No. HCJ/6/85 in evidence. This issue is distilled from Grounds 2, 3 and 4 of the grounds of appeal.

(c) Whether in all the circumstances of the case, the Court of Appeal was right in ordering a re-trial of the case This issue is distilled from ground 5 of the grounds of appeal.”

The learned counsel for the 15th respondent filed a brief and distilled 2 issues for determination as follows:

“1. Whether, having regard to the circumstance of this case, the way and manner the proceedings in Suit No. HCJ/61/85 was rejected did not occasion a miscarriage of justice warranting the Court of Appeal to interfere with the decision of the trial court; and

Whether the Court of Appeal was right in its decision ordering a new trial.

In his brief the 1st respondent’s counsel raised a preliminary objection to the competence of the appeal. During the oral hearing of the appeal he abandoned the objection and I hereby strike it out.

The 1st issue raised in the appellant’s brief showed that the learned counsel for the appellant misunderstood the findings of the Court of Appeal on the question of the appellant’s descent from the male line of the AFURUKEREGBOYE RULING HOUSE. The Court of appeal did not overturn the decision of the trial court that the appellant did not descend from the male line.

The Court of Appeal at pages 335, 336, and 337 of the Record found exhaustibly as follows:

“Whereas, it can be said, that it is doubtful that the appellant proved that the 1st Respondent is a member of the Afurukeregboye Ruling House on the male line, the 1st Respondent pleaded and proved that he is a member of the said house on the female line. In his statement of defence the following facts were averred –

With reference to paragraphs 17, 18 and 19 of the Statement of Claim, the 1st Defendant avers as follows:

(a) That he is a member of the Afurukeregboye Ruling House of the female line.

(b) That his great paternal grandmother, Princess Adeite Adeoti was a daughter of Oba Olumona Afurukeregboye the 30th Ajalorun of Ijebu-Ife and his claim to the vacant stool of Ajalorun is through Princess Adeite Adeoti.

A cousin of the 1st Respondent, Yekinni Adesanya Oguntayo gave evidence on the genealogy of the 1st Respondent, in a bid to support the supra averment, as follows:

“The 1st defendant is my 1st cousin. The 1st defendant and myself are related to Afurukeregboye through the female line. Olumona was the first to bear the name Afurukeregboye. No other Oba bore the name Afurukeregboye before Olumona. It is not possible that anyone can claim to belong to the Afurukeregboye Ruling House without being related to Oba Olumona. I know Adeiti. She is the daughter of Olumona. Adeiti Adeoti is the mother of Olufowobi Oguntayo and he begat Raji Osibade and he begat Adesesan Oguntayo the 1st defendant.”

Suffice to say that the above piece of evidence, even though not coming from the 1st respondent himself has established his claim that he is a member of the Ruling House by female line through Adeiti his great grand mother.

Then there was the allegation of complaint of the eligibility of the 1st respondent on his descendancy by the Appellant and some other members of the Afurukeregboye Ruling House. In his evidence the Appellant testified that he thought his protest was recorded, but looking at the record of the meeting Exh. ‘C10’ the complaint on the genealogy of the 1st Respondent is not contained therein. The only protest recorded is in respect of the impropriety of the Oladeremo, the position he held, to be nominated or appointed as an Ajalorun. In fact the petition he wrote to the then Military Administrator of Ogun State Exh. ‘C’ did not raise any complaint or protest on the genealogy of the 1st respondent. The complaints on Exhibits ‘C10’ – are all in respect of the 1st respondent’s disqualification because he was an Oladeremo, a Kingmaker, who should not be nominated to fill the vacant stool of Ajalorun. It is as clear as crystal therefore that the Appellant has not established his claim and allegation that the 1st Respondent was not qualified or eligible to be nominated or appointed as the Ajalorun because he did not come within the category of those eligible as stated in the Declaration Exh. ‘L’. In the circumstance I fail to see that the first stage is irregular, illegal, unconstitutional null and void as professed in the Appellant’s brief of argument. I am satisfied therefore that the 1st Respondent was validly nominated, and so the argument canvassed in respect of a second stage of the appointment by the appellant is of no importance”.

It follows therefore that the appellant’s first issue is not relevant to this appeal and I discountenance it.

The remaining two issues are identical with the two issues raised in the respondent’s brief and I shall adopt them in this judgment. The learned counsel for the appellant submitted under the second issue that the trial court was right in rejecting the proceedings in suit No. HCJ/6/85 because its admissibility was objected to and the Respondent’s counsel who had an opportunity to reply to the objection failed to do so. Instead he withdrew both the document and the witness. The learned counsel submitted that that document could only be used to contradict the evidence of the appellant who in this case did not testify at all. The Court of Appeal was therefore wrong in holding that the rejection of the document amounted to denial of fair hearing resulting in miscarriage of justice.

The learned counsel submitted that the proceedings could not be admitted under section 34 of evidence Act as the whole purport of that document was to contradict the evidence of the appellant who as it turned out never testified in the case. He relied on the case of Ogunaike V. Ojayemi (1987) 1 NWLR (Pt. 53) 769.

On this issue, the learned counsel for the 1st respondent submitted that the Court of Appeal was right in holding that the rejection of the proceedings without calling on the 1st respondent’s counsel to reply to the objection to its admissibility amounted to denial of fair hearing and miscarriage of justice. He said that that document was critical to the proof of the 1st respondent’s claim. For proper resolution of this issue it is necessary to quote what transpired in the High Court. It is at pages 90 – 92 of the record:-

“P.W.2 – (He is not sworn). I am Kolawole Olufowobi, Higher Registrar, High Court of Justice, Ijebu-Ode. I live at 7, Lagos Road, Obalende, Ijebu-Ode. I have subpoena to tender the proceedings in HCJ/6/85 dated 28th March, 1989. Here is the Certified True Copy of the Proceedings.

Mr. AYANLAJA:

I object to the admissibility of this document. See Section 34 of the Evidence Act. It is evidence in a previous proceedings, it is inadmissible in this proceedings. Lagos State Development and Property Corporation vs. Adoldstamn Inter Nig. Ltd. (1994) 7 N.W.L.R. (Part 358) 545 at 561, C-D, F-G.

Submits that in so far as the proceedings contravene Section 34, it is irrelevant and inadmissible.

MR. OSIMUGA:

I object to the admissibility. I associate myself with the submission of counsel.

MR. MABEKOJE:

I object to the admissibility of the document.

CHIEF COKER

At this stage I withdrew the evidence and the witness.

MR. AYANLAJA:

The document should be marked rejected.

CHIEF COKER:

The witness is withdrawn (sic), the document cannot be marked rejected.

COURT:

This document has already been tendered before an objection was raised on point of law. After the document and the witness were withdrawn by counsel for the plaintiff. Chief Coker submitted that since he had not addressed the court on the submission made by counsel for the 1st defendant, the court ought not to mark the document rejected. It is my view that in view of the facts already placed before this court, the fact that Chief Coker had not replied to the objection raised by learned counsel for the 1st defendant does not preclude the court from making a ruling on the admissibility of the document.

In my view the document is not admissible. It is to be marked rejected.”

It is clear from the proceedings that P.W.2 Kolawole Olufowobi a High Registrar of the High Court of Ijebu Ode was only called to tender the proceedings in case No. HCJ/6/85. The defendant’s counsel objected to its admissibility. The plaintiff’s counsel Chief Coker chose not to reply to the objection even though he had ample opportunity to do so. Instead he applied to withdraw the evidence and the witness. What the trial court ought to have done was to have asked him to reply to the objection so that it could properly rule on -the admissibility of the document or the court would have granted the request to withdraw the evidence and the witness. The trial court was clearly wrong in marking the document rejected when argument had not been concluded on its admissibility. But can it be said that the 15th respondent to this appeal was denied fair hearing as held by the Court of appeal At pages 341 to 342 the Court of Appeal opined as follows:

“That is a very wrong view, for the principle of fair hearing and audi alteram paterm (sic) has been violated. When the Respondents gave their reasons for objecting to the admissibility of the document, it was incumbent on the learned Judge to hear Appellant’s Counsel’s address on it. Equity and fair play demands that both parties be heard in order to ensure that justice prevails, for in depriving the other side the opportunity of being heard before rejecting the document in totality, a miscarriage of justice has been occasioned. See Olagunju V. Oyeniran (1996) 6 NWLR part 453 page 127. The heavy weather made about the breach of the rule of audi alteram paterm to my mind is warranted even if the evidence and witness were voluntarily withdrawn by learned counsel for the Appellant before the ruling. I refuse to endorse the argument of learned State Counsel that the fact that the learned trial Judge failed to give reasons for rejecting the said document is immaterial. That he conceded that the document was inadmissible and withdrew it at that stage does not warrant the rejection of it at that stage, for by so doing the Appellant was completely shut out as far as the record of proceeding of Suit No. HCJ/6/85 upon which he relied heavily was concerned. If it had not been marked rejected he would have found another avenue of tendering it”

With the greatest respect, the Court of Appeal misunderstood the purport of the proceedings sought to be tendered and wrongly castigated the trial court for denying the 1st respondent’s counsel the opportunity to reply to the objection to the admissibility of that document The learned counsel for the 1st respondent who tendered the document heard the objection and had every opportunity to reply to it. For reasons best known to him, he refused to reply. To my mind this was abandonment of his right to reply. Not only that he then withdrew both the document and the witness which meant that he conceded the objection. How else can one explain his withdrawal of both the document and the witness

It is trite law that evidence of a witness taken in an earlier proceeding is not relevant in a later trial except for the purpose of discrediting such a witness in cross-examination and for that purpose only.

See L.S.D.P. V. AdoldStamm Int. Ltd. 19947 NWLR (Pt. 357) 545 at 561 – 562, and Okonji V. Njokanma 1999 14 NWLR CPt.638 at 280-281. The point was succinctly made in the case of Ogunaike V Ojayemi 1987 1 NWLR (Part 53) 769 in the following words:-

“In Ariku V. Ajiwogbo (1962) 1 All NLR (Part 4) Page 629 at Page 631 Ademola CJN delivering the judgment of the Supreme Court stated the law as follows:-

This Court has frequently directed attention to the practice, now not uncommon, of making use of evidence of a witness in another case as if it were evidence in the case on trial. As was pointed out in Alade V. Aborishade 5 F.S.C. 167 at P. 171, this is only permissible under Section 33 or 34 of the Evidence Act. Where a witness in a former case is giving evidence in a case in hand his former evidence may be brought up in cross-examination to discredit him if he was lying, but evidence used for this purpose does not become evidence in the case in hand for any other purpose. There are also pre-requisites to the making use of the former testimony of a witness; for example, his attention must be called to the former case where such evidence was given and he should be reminded of what he had said on that occasion.

In this case at the trial, the respondent was never confronted with Exhibit “C” when she gave evidence and neither was her attention drawn to any specific portion of her testimony in Exhibit “C”. In fact this could not have been possible as Exhibit “C” was tendered by 3rd D.W. towards the end of the case after the respondent and her witnesses had closed their case. In my view the Court of Appeal’s criticism of the Appellate Judge’s use of Exhibit “C” was justified. Accordingly this ground of appeal also fails”…

In the present case the appellant did not testify on his own behalf and so he could not be contradicted by showing him the earlier proceedings. The learned counsel, who sought to tender the proceedings, withdrew both the document and the witness. For all practical purposes that document ceased to be relevant in the case even if it was not marked rejected since the learned counsel who tried to tender it, had withdrawn it. If he tried to tender it again he would be met with the same objection as he had withdrawn the only witness through whom it could be tendered.

It can be seen from my analysis above that nobody violated the 1st respondent’s right of fair hearing and no miscarriage of justice resulted from the rejection of the document.

On his 3rd issue the learned counsel for the appellant submitted that the Court of Appeal was wrong in ordering a retrial just because the proceedings in suit No. HCJ/6/85 was marked rejected. He said that sending it back just because of that document which was withdrawn by the 1st respondent’s counsel would not in any way help their case.

The learned counsel for the 1st respondent submitted otherwise and urged this Court to admit the document under section 22 of the Supreme Court Act and use it in favour of the 1st respondent’s claim.

This submission is totally misconceived since the 1st respondent’s counsel did not press for the admission of the document in the trial court but withdrew it. How can we now admit it at the Supreme Court level I agree with the learned counsel for the appellant that the Court of Appeal was wrong in ordering a retrial as that document was no longer relevant.

The 1st respondent/cross-Appellant filed a cross-appellant’s brief and identified 3 issues for determination as follows:

(1) Having regard to the Ajalorun Chieftaincy Declaration, whether the 1st respondent can validly contest for the office of Ajalorun and whether the 1st respondent’s selection was not fraught with irregularities which vitiate the entire exercise; Grounds 2,3 & 4.

(2) Whether the learned justices of the court below were not in error in holding that the 1st respondent was qualified to contest for the office of Ajalorun without evaluating or properly evaluating the crucial effect which the proceedings in HCJ/6/85 have on the qualification of the 1st respondent; (Ground 1)… ; and

(3) Having regard to the totality of the evidence before the court below, whether it was fair and unconscionable for the 1st respondent to be chosen as the Ajalorun and whether the court below was right not to have found for the plaintiff as per his statement of claim – Grounds 5,6 and 7.”

The appellant/cross-respondent also filed a cross-respondent’s brief and formulated 3 issues for determination as follows:

“(a) Having regard to the Ajaolorun Chieftaincy declaration, whether the 1st Defendant could validly contest for the office of the Ajalorun and whether the 1st Defendant’s selection was tainted with irregularities capable of vitiating the selection process. (Grounds 2, 3 of the Grounds of Appeal).

(b) Whether having regard to its finding that the proceedings in HCJ/6/85 were wrongly rejected in evidence, the Court of Appeal was right in (a) ordering a retrial of the case (b) holding that the 1st Defendant is a member of Afurukeregboye Ruling House through (sic) the female line (Grounds 1 and 4 of the Grounds of Appeal).

(c) Whether the Lower Court was right in upholding the finding of the High Court that neither the allegation of undue influence on the part of the 1st Defendant nor likelihood of bias on the part of 2nd – 7th Defendants was substantiated. (Ground 5).”

On these three issues the learned counsel for the cross-appellant submitted by way of summary that the Ajalorun Chieftaincy declaration is not exhaustive on the qualification of candidates into that office and by Native Law and Custom of Ijebu-Ife the 1st defendant as the head of kingmakers could not contest for that office and the court below was wrong in holding that he was qualified to contest.

The learned counsel for the cross-respondent submitted that the lower court was right in holding that the cross-respondent was properly nominated and selected as Ajalorun despite the fact he held the post of Oradememo and carried out certain procedural functions during the selection process.

The trial court found as a fact that the appellant/cross-respondent was properly nominated and appointed to the disputed stool in accordance with the relevant chieftaincy declaration exhibit ‘TC1’ The Court of Appeal confirmed these findings of facts as I have shown earlier in this Judgment. This amounts to two concurrent findings of facts by the two lower courts and it is not for the Supreme Court to interfere with concurrent findings of facts of lower courts unless they are shown to be perverse and that is not the case in this appeal See MOJEKWU V. IWUCHUKWU (2004) 11 NW.L.R. (Pt. 883) 196, AGBANA V. OWA (2004) 13 NWLR (Pt. 889) 1. I see no merit in the cross-appeal.

Consequently, I see merit in the main appeal, and I allow it. I set aside the judgment of the Court of Appeal as it relates to its order of retrial and restore the judgment of the trial court I dismiss the cross-appeal for lack of merit. I award costs of N50,000.00 in the main appeal in favour of the appellant and N50,000.00 in the cross-appeal in favour of appellant/cross-respondent.

SC.365/2001

Dr. Taiwo Oloruntoba-oju & Ors. V. Professor Shuaib O. Abdul-raheem & Ors (2009) LLJR-SC

Dr. Taiwo Oloruntoba-oju & Ors. V. Professor Shuaib O. Abdul-raheem & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

O. ADEKEYE, J.S.C.

This appeal emanated from the majority judgment of the Court of Appeal Ilorin, delivered on the 12th of July 2006. The 1st – 5th appellants, Dr. Taiwo Oloruntoba -Oju, Dr. A.S. Ajayi, Dr. Adeyinka Banwo, Dr. Sola Ademiluka and Mr. O.O. Olugbora were employed by the 3rd Respondent, the University of Ilorin, as members of the academic staff in various departments of the University.

The 1st – 4th appellants were Assistant-lecturers and the 5th appellant was a junior Research fellow. The appellants were employed on terms and conditions stated in their letters of appointment and memorandum of appointment. All the foregoing documents portrayed the appellants as senior staff of the university on permanent and pensionable appointment. A clause in the letters made their appointments subject to other conditions of service specified for such status in the University Regulations governing the senior staff conditions of service, Exhibit II before the court, and the University of Ilorin Act – Cap 455 Laws of the Federation 1990. All the foregoing documents also make provisions for the termination of appointments of the appellants. The appellants executed the memorandum of appointment at the inception of their appointment. On gleaning through the provisions of the University Senior Staff Regulations Exh. II, Regulations 1.1.3 at page one provides as follows:-

“A member of staff shall hold office on such terms and conditions of service as may be set out in any contract in writing between him and the university. Such contract being signed on behalf of the university, by the Registrar or by such other persons as may be authorised for that purpose by the university, and any such contract shall contain or be deemed to contain a provision that the terms and conditions therein specified are subject to the provisions of the Act, the statutes and Regulations of the University.”

On the 15th of May 2001, the university wrote to all the appellant’s letters of cessation of their appointments. A copy of this letter produced verbatim reads as follows:-

Dr. I. Oloruntoba – Oju

Dept. of modern European Language,

University of Ilorin

Ilorin.

Dear Dr. Oloruntoba – Oju

Cessation of Appointment

“I am to inform you that the university does not require your services any longer and, in tune with your letter of appointment Ref. No.UI/SSE/PF/1910 of 24th February 1987 and the memorandum appointment which you signed on 4th March, 1987 you will be paid three month salaries in lieu of notice.”

You will please ensure that you settle immediately any indebtedness that may be outstanding against you.”

Thank you,

Yours sincerely

M.T. Balogun (Sgn)

Registrar and Secretary to Council.

A replica of this foregoing letter was sent to all the other four appellants. They headed for the Federal High Court Ilorin, which shall henceforth be referred to as the trial court to challenge the termination of their appointments. They filed declaratory and mandatory reliefs claiming against the Respondents – Professor Shuaib Oba Abdulraheem (VC University of Ilorin), the University of Ilorin and the Governing Council (Unilorin) as follows:-

a. A declaration that the defendant’s letter dated 15th May 2001, to the plaintiffs titled “Cessation of Appointment” purporting to terminate the plaintiff’s appointment with the 3rd defendant is ultra vires, null and void and of no effect whatsoever.

b. A declaration that the plaintiffs are still in the service of the 3rd defendant.

c. A declaration that the defendants are bound to comply with the directive of Federal Government of Nigeria to reinstate the plaintiffs as contained in the letter of National Universities Commission dated 29th June 2001 with reference NUC/ES/261 to the Pro-Chancellor of the 4th defendant and the 1st defendant.

d. A declaration that the defendants are not entitled to summarily terminate the plaintiff’s appointment without complying with the provisions of the University of Ilorin Act Cap 455 Laws of the Federation and other relevant statutes as to discipline.

e. A declaration that the purported termination of the plaintiffs by the defendants under the guise of cessation of appointment or under any guise whatsoever is contrary to the provision of the Pension Act of Nigeria in that plaintiffs are permanent and pensionable staff of the university.

f. A declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiffs cannot override the provisions of University of Ilorin Act Cap 455 LFN 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other matters connected or pertaining thereto.

g. A declaration that the purported termination of the plaintiff’s appointments by the defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria 1999.

h. An order setting aside the purported termination of the plaintiff’s appointments and nullifying the defendant’s letters to the plaintiffs in that regard.

i. An order compelling the defendants to comply with directive of the Federal Government through the National Universities Commission dated 29th June 2001 with Reference No.NUC/ES/261 to the defendants to reinstate the plaintiffs.

J. An order compelling the defendants to reinstate and/or restore the plaintiffs to their posts as lecturers in University of Ilorin with all their rights, entitlements and other perequisites of their offices.

k. An order compelling the defendants to pay to the plaintiffs all the salaries and allowances from

February 2001 till the day of judgment and henceforth.

The cassus belli of the appellants as plaintiffs before the Federal High Court Ilorin was that they were permanent and pensionable staff hence, their appointments could therefore not be terminated save for disciplinary reasons under section 15 of the University of Ilorin Act as opposed to the ordinary letters which brought their appointments to an end without adducing reasons. Even if the reason was that they disrupted examinations of the University in connection with the roles they allegedly played in the national strike action embarked upon by the Academic Staff Union of Universities ASUU in April 2001, they were still entitled to be heard before the termination of their appointment. Finally they asserted categorically that the Federal High Court was the only competent court to hear their matter and not the National Industrial Court. The issue between the appellants and respondents was on their contract of service, which commenced in 2001, two years before the Federal Government and ASUU appeared before the Industrial Arbitration panel.

It is only the Federal High Court that can grant the nature of declaratory reliefs as claimed by the appellants. On the overall, the appellants saw the termination of their appointments as wrongful and illegal and that they were therefore entitled to reinstatement and the payment of their salaries, allowances etc.

The case of the Respondents was that the termination of the appointments of the appellants was not based on disciplinary grounds but in line with clauses contained in their respective memorandum of appointment signed by them. The termination had nothing to do with the strike action by ASUU in April 2001. Since the termination was not illegal or run contrary to the provisions of the University of Ilorin Act and the Constitution, it was wrong of them to claim for salaries and allowances. Finally, that the trial court lacked the jurisdiction to entertain or grant the reliefs sought by the appellants. In the considered judgment of the trial court delivered on the 26th of July 2005, it was held that the letters of appointment and memorandum as to terms of agreement signed by the appellants were subject to the Senior Staff Regulations and the University of Ilorin Act. The appellants were not afforded the opportunity to defend themselves on the allegation of disrupting examination on the campus of the University of Ilorin contrary to the provisions of section 15(1) of the University of Ilorin Act. The case of the appellants and Respondents are different from that between ASUU and the Minister of Labour which led to the award of the Industrial Arbitration Panel. The court granted all the reliefs of the appellants by way of entitlements, salaries and allowances. The Respondents being aggrieved by the decision of the trial court – went on appeal to the Court of Appeal, Ilorin. In a split judgment delivered by that court on the 12th of July 2006, the majority decision reversed the judgment of the trial court and held that the appeal was meritorious.

Orders were made as follows: –

a. That the subject matter of the suit before the trial court, had elements of trade disputes which the Federal High Court was not the proper venue. The proper court ought to have been the National Industrial Court.

b. The award made by the Industrial Arbitration Panel (IAP) was still valid as the Minister had no power to withdraw same.

c. The trial court had no jurisdiction to entertain the matter because it was caught up by issue estoppel.

Dissatisfied and aggrieved by the foregoing judgment, the appellants came to this court by way of an appeal. They filed five grounds of appeal from where four issues were distilled for determination.

At the hearing of the appeal, the appellants adopted and relied on four issues as follows: –

Whether the majority Justices of the Court of Appeal were right in holding that the Federal High Court had no jurisdiction to entertain the appellant’s case.
Whether the learned majority Justices of the Court of Appeal were right in holding that the Minister of Labour has no right to set aside, nullify or withdraw an award having regard to existing laws and in view of the fact that no award from IAP was legally in existence and none was tendered in evidence by the Respondents.
Whether the learned majority Justices of the Court of Appeal were right in allowing the respondents appeal when it was apparent from the evidence on record that the respondents did not comply with the procedure laid down in section 15(1) of Unilorin Act Cap 455, Laws of the Federation 1990 before terminating the appellants appointments without any reason and without giving the appellants any fair hearing.
Whether the learned majority Justices of the Court of Appeal were right in holding that the appellants were offered opportunity for fair hearing before their appointments were terminated by the respondents having regard to the general circumstances of the case.

The respondents in their brief settled three Issues for determination as follows: –

Whether the Court of Appeal was not right in its conclusion that the trial court lacked jurisdiction to entertain the appellant’s case.
Whether the decision of the Court of Appeal that the Minister of Labour had no right to withdraw, set aside or nullify an award made by the Industrial Arbitration Panel was assailable.
Whether the Court of Appeal was not right in allowing the respondents/defendants appeal to it, having regard to the material available at its disposal.

Prior to the hearing of this appeal, the respondents gave notice of preliminary objection to the competence of grounds 1 – 5 of the grounds in the notice of appeal on the grounds that:

(i) The appeal was filed in flagrant violation of the Rules of this Honourable court and the law.

(ii) All the grounds of appeal offend against the Rules of the Honourable court and are liable to be struck out for incompetence.

The learned senior counsel for the respondents submitted that the grounds of appeal are not filed in compliance with the traits of a valid appeal as stipulated in Order 8 Rules 2(2)(3) and (4) of the Supreme Court Rules. Grounds 1 and 2 are argumentative, verbose, narrative and certainly not concise. They are liable to be struck out.

He cited cases in support.

Amuda V. Adelodun (1994) 8 NWLR Pt. 360 page 23 at page 31.

ASR Co. Ltd v. O. O. Bwasal and Co. Ltd (1997)11 NWLR Pt.527page 145 at page 156.

Ground 3.

The grouse against this ground was that besides being argumentative and narrative, the substance of the ground is not based on the ratio or the reasoning in the judgment of the lower court. The complaint in the ground is against the obiter in the judgment and not the ratio. The ground is therefore not competent and is liable to be struck out.

Ground 4 is prolix and argumentative. It does not constitute an appeal against the ratio in the judgment. This ground must be struck out for incompetence.

Ground 5 is an appeal against the concurrent judgment of Tijani Abdullahi, JCA as opposed to the leading judgment. An appeal can only be against the lead and not the concurrent judgment. This ground is also incompetent and same must be struck out. The cases of Re Shyllon (1994) 6 NWLR Pt.353 page 735 at page 753 and Egbe v. Alhaji (1990)1 NWLR Pt.128 page 546 at page 590 were cited in support of the prayers in this objection.

If this court finds substance in the objection and decides that all grounds are incompetent, the defective grounds are to be struck out and the appeal dismissed. The learned senior counsel referred to the case of Kurfi v. Mohammed (1993) 2 NWLR Pt 277 page 602 at page 612. The learned senior counsel for the appellant’s in his Reply Brief considered all the grounds of appeal and blamed the objection raised by the respondents on a clear misunderstanding of the provisions of Order 8 Rules 2(2)(3) and (4) of the Rules of the Supreme Court. The cases of Amuda v. Adelodun and Shyllon cited by the respondents are irrelevant and inapplicable.

Ground 5 is raised against the leading judgment of which the concurrent judgment of Tijani Abdullahi JCA is part. The entire objection is to be discountenanced and dismissed and thereafter this court is to hear the appeal on its merit.

I have considered the argument and submission of learned senior counsel for both parties in this appeal. The enabling order for filing an appeal in this court by virtue of Order 8 Rules 2(2)(3) and (4) of the Supreme Court Rules 1990 provides as follows: –

Order 82(2)(3) and (4).

(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Registry of the court below which shall set forth the grounds of appeal, state whether the whole or part of only the decision of the court below is complained of (in the latter case specifying such part) and state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.

(2) If the grounds of appeal alleged misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

(4) No ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.

An appeal is a challenge against the judgment of a trial court and it is never predicated on what a court has not decided in its judgment or ruling.

Therefore, a ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by the appellant. In other words a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against.

Govt of Akwa Ibom State v. Powercom (Nig) Ltd (2004) 6 NWLR Pt. 868 page 202 Babalola v. The State (1989) 4 NWLR Pt 115 page 264.

Azaatse v. Zegeot (1994) 3 NWLR Pt.342 page 76.

According to the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point, that as soon as it is read, the error and misdirection complained against can be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading the particulars. It should also not be argumentative. The particulars must relate to and flow from the grounds of appeal. Where a ground of appeal cannot stand as a result of its incompetent particular that ground of appeal is defective and it ought to be struck out.

Ajaokuta Steel Co. Ltd v. O. O. Biosah Co. (Nig) Ltd (1997) 11 NWLR Pt 527 page 145.

Honika Sawmill (Nig) Ltd v. Hoff (1994) 2 NWLR Pt. 326 page 252.

Ogbonnaya v. Adupalm Nig Ltd (1993) 5 NWLR Pt 292 page 147.

I have gleaned through the grounds of appeal, and the crux of the preliminary objection of the respondents , I cannot consider any of the grounds as defective. The grounds and their particulars are related. The particulars may appear verbose, they are not rendered unintelligible by such verbosity. The particulars still serve their purpose in the appeal which is to elucidate and advance the complaint in the ground. The essence of a ground of appeal and its particulars is to acquaint the respondent with the issue involved in the appeal- once that purpose is served, a ground of appeal cannot be seen as defective and therefore liable to be struck together with any issue formulated therefrom. By virtue of Order 8 Rule 2 (4) of the Supreme Court Rules,no ground of appeal which is vague or general in terms and which discloses no reasonable ground of appeal shall be permitted.

Vagueness of a ground of appeal may arise where it is couched in a manner which does not give allowance for its being understood, or where what is stated there is so uncertain and robs it of any form of intelligibility. It may also be vague when the complaint is not defined in relation to the subject-matter or the particulars are clearly irrelevant to the grounds. The grounds of appeal and their particulars in this appeal do not suffer any of the described shortcomings.

Atuyeye v. Ashamu (1987) 1 NWLR Pt. 491 page 267.

I must repeat the clarion call that courts nowadays denounce judgment by mere technicality. Courts are set up to do substantial justice and in the pursuit of this all forms of technicalities which will act as a detriment to the determination of the substantial issues between litigants must be shunned. While recognising that rules of court should be complied with by parties to a suit, it is also in the interest of justice that parties should be afforded a reasonable opportunity in appropriate circumstances for their claims to be adequately investigated and properly determined on merit. With this at the back of my mind I shall not hesitate to overrule the objection of the respondents as lacking in merit. I shall in the circumstance proceed to consider the substantive appeal and the issues for determination therein.

ISSUE ONE

Whether the majority Justices of the Court of Appeal were right in holding that the Federal High Court had no jurisdiction to entertain appellant’s case.

The Appellants senior learned counsel Mr. John Baiyeshea SAN submitted that relying on the statement of claim of the appellants the nature of the reliefs sought before the trial court are declaratory and injunctive orders challenging the executive act and decision of the respondents. Such reliefs are squarely within the jurisdiction conferred on the Federal High Court by section 251(1) (p) (q) and (r) of the 1999 Constitution of the Federal Republic of Nigeria. The appellants challenged the breach of their contract of employment and wrongful termination of their appointment by their employer – the 3rd respondent. The 3rd respondent – the University of Ilorin is undoubtedly an agency of the Federal Government. The appellants learned senior counsel referred to the case of NEPA v. Edegbenro & ors. (2002) 12 SCNJ 173 at paragraph 183.

He explained further that because the claims of the appellants are declaratory and injunctive they are not within the jurisdiction of either Industrial Arbitration Panel or the National Industrial Court. The learned counsel cited the case Western Steel Works Ltd & Anor v. Iron & Steel Workers Union of Nigeria 40 2 (1987) 1 NWLR Pt.49 page 284.

The totality of the reliefs sought by the appellants in their statement of claim do not relate to a trade dispute or implementation of collective agreements as concluded by the majority Justices of the lower court. He urged the issue therefore to be resolved in favour of the appellants. The learned senior counsel for the respondent Alhaji Yusuf Ali, explained that jurisdiction which is the bedrock of a case is determined on the statement of claim of the plaintiff. The kernel of the appellant’s case before the trial court was the alleged termination of their appointments by the respondents as a result of their participation in a National Strike by ASUU. The appellants alleged that the termination was a flagrant violation or breach of the agreement signed between the Negotiation Team of the government and the officials of the Academic Staff Union of Universities (ASUU). The learned senior counsel concluded that a careful consideration of the statement of claim especially paragraphs 14 – 16 of the Amended Statement of Claim which form the kernel of the appellant’s case bordered on Trade disputes being issue of employment and non-employment of the appellants. The proper forum for the appellants to institute their action was the National Industrial Court which has exclusive jurisdiction to determine questions as to interpretation of collective agreement and make awards for the purpose of settling Trade Disputes. The respondents learned counsel supported his submission with cases like Adelusola v. Akinde (2004) 12 NWLR Pt 887 page 295 at page 312.

Arika v. Egbue (2003) 17 NWLR Pt. 848 page 1

Adewumi v. A.G. Ekiti State (2002) 2 NWLR Pt.751 page 424 at page 512.

Madukolu v. Nkemdilim (1962) 2 SCNLR page 341.

The learned senior counsel urged this court to resolve this issue in favour of the respondents.

I have carefully read and digested the submission of the learned senior counsel for both parties on this issue which is whether the trial court had rightly assumed jurisdiction in the appellant’s suit.

It is trite that the competence of a court to adjudicate upon a matter is both a legal and a constitutional prerequisite. Hence any defect in the competence and jurisdiction of a court or an action is fatal. The proceedings therein would result in a nullity howsoever well conducted and determined, because such defect is not just extrinsic, but intrinsic to the adjudication. Where a court lacks jurisdiction it lacks the necessary competence to try the case.

Kalogbor v. General Oil Ltd (2008) All FWLR Pt. 418 page 303

Forestry Research Institute of Nigeria v. Gold (2007) 5 SCNJ 302 (2007) 11 NWLR Pt.1044 page 1

Uzoho v. National Council on Privatization (2007) All FWLR Pt.394 page 370

Oke v. Oke (2006) 17 NWLR Pt. 1008 page 224

S.P.D.C Nig. Ltd v. Isaiah (2001) NWLR Pt.723 page 168

Peenok Investments Ltd v. Hotel Presidential Ltd (1983) 4 NCLR page 122.

A court is only competent when: –

It is properly constituted as regards numbers and qualifications of members of the court and no member is disqualified for one reason or the other.
The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction and
The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Madukolu v. Nkemdilim (1962) 2 SCNLR 341

Akeem v. Unibadan (2003) 10 NWLR Pt 829 page 584

Afribank (Nig) PLC v. Bonik Ind. Ltd (2006) 5 NWLR Pt. 673 page 300

Oloriode v. Oyebi (1984) 1 SCNLR 390

NDIC v. CBN (2002) 7 NWLR Pt.766 page 272

Ezemo v. Oyakhire (1985) 1 NWLR Pt.2 page 195

Further by way of simple analogy, jurisdiction is to a court as what a gate or door is to a house. That is why the question of a courts jurisdiction is called a threshold issue because it is at the threshold of the temple of justice. In order to be able to gain access to the temple of justice to ventilate his grievance a prospective litigant must show that he not only has a genuine cause but he must also ensure that he addresses his complaint to the competent court. Hence jurisdiction is fundamental and essential to adjudication.

The jurisdiction of a court or tribunal is not inferred or imagined but statutory.

Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts; they cloak the courts with the powers and jurisdiction of adjudication. If the statutes do not grant jurisdiction to a court or tribunal the court and the parties cannot by consent endow it with jurisdiction. The jurisdiction of a court is confined, limited and circumscribed by the statute creating it.

The Industrial Arbitration Panel (IAP) is constituted for the consideration of trade disputes by the Trade Dispute Act Cap. 432 Laws of the Federation.

By virtue of section 19 (1) of the Trade Dispute Act Cap 432 Laws of the Federation 1990 – the National Industrial Court is conferred with powers to settle trade disputes, the interpretation of collective agreements and matters connected therewith. By virtue of section 20(1) the National Industrial Court has exclusive jurisdiction to determine questions relating to the interpretation of collective agreement and make award for the purpose of settling trade dispute.

While the trial court concluded that it had jurisdiction to try the suit of the appellants, the Court of Appeal declared that it lacked jurisdiction as the issues before the court affecting the appellants emanated from Trade Disputes.

It is my humble opinion that the learned majority Justices of the lower court erred in their perception.

The issue before the court is for the determination of whether the administrative or executive act of the University of Ilorin in the termination of the employment, of her employers the appellants, was lawful. It is a matter simple, straight forward and within a narrow compass. The majority Justices of the lower court unnecessarily extended the scope of their cause of action to include their activities during the National universities Strike as the local officials of ASUU on the 3rd respondent’s campus. Their suit under the umbrella of ASUU against the Federal Government is quite separate and distinct from their grievances with their employer who brought to an abrupt end their employment without given due consideration to all the terms and conditions of their employment as expressed in documents. The issue of cessation of their employment has no connotation of trade dispute or collective agreement. The appellants approached the Federal High Court for declaratory and injunctive reliefs as covered by section 251(1) (q) (r) of the 1999 Constitution. It has now become legally customary through long practice to determine the issue of jurisdiction of court on the reliefs sought by the claimant, in the writ of summons and statement of claim.

Adeyemi v. Opeyori (1976) 9 – 10 SC page 31

Felix Onuorah v. Kaduna Refining Petrochemical Co. Ltd (2005) All FWLR Pt. 256 page 1356 at page 1364.

Alhaji Ibrahim Abdulhamid v. Total Akar & 1 or (2006) 5 SCNJ page 45 at page 54.

C.G.G (Nig) Ltd v. Ogu (2005) 8 NWLR page 927 page 366.

Adelusola v. Akinde (2004) 12 NWLR Pt. 887 page 295 at page 312.

In the determination of the exclusive jurisdiction of the Federal High Court in respect of section 251(1) of the 1999 Constitution, the court must carefully examine the facts of the case to see whether they justify the application of that section. In the case of Trade Bank Plc v. Benilux (Nigeria) Ltd (2003) 9 NWLR Pt.825 page 416. The Supreme Court held that “It is only on careful examination of the pleadings filed by the parties in a cause or matter namely the statement of claim not the defence that the court can ascertain whether or not the Federal High Court have exclusive jurisdiction pursuant to section 251(1) (p) (q) (r) of the 1999 Constitution.”

Section 251(1) (p) (q) and (r) of the 1999 Constitution provides that:-

“Not withstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by the Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes or matters relating to-

(p) The administrative or the management and control of the Federal Government or any of its agencies.

(q) Subject to the provision of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies.

(r) Any action or proceeds for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”

The community reading of the foregoing provisions reproduced above is that the Federal High Court is vested with the power to enter into adjudication of any action or proceeding seeking declaratory or injunctive reliefs which is the fulcrum of the cause of action of the appellants.

Section 251 (1) creates a situation whereupon by party jurisdiction – one of the parties must be a Federal Government Agency and by subject-matter jurisdiction it must be an action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal government or any of its agencies.

This was confirmed by the Supreme Court in the case of NEPA v. Edegbero & Ors. (2003) 12 SCNJ 173.

This also brings into focus that the action or proceeding under section 251(1) of the Constitution must be for declaration or injunctions as in the case under consideration. Whereas in the case of Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR Pt.49 page 284 the Supreme Court specified that section 15 of the Trade Dispute Act 1976 conferring jurisdiction on the National Industrial Court did not include jurisdiction to make declaration and to order injunction.”

The foregoing was echoed in the case of Kalango & Ors. v. Dokubo & Ors. (2003) Vol. 16 WRN page 32 at 49 where the Court of Appeal held as follows: –

“Considering the nature and scope of the jurisdiction and powers of the National Industrial Court as clearly spelt out in the Act, the court lack competence to make declarations and orders of injunction of the type sought by the plaintiffs/respondents in the instant case.”

The majority Justices of the lower court were misguided by not reading the paragraphs of the statement of claim of the appellants as a whole but extracted a few paragraphs 9, 10, 11, 12, 13, 14, 16 which exposed the presumed reasons for terminating the appointment of the appellants. These paragraphs are only meant to throw more light into the grievances of the appellants and the reliefs sought as compensation for wrongful and illegal termination of their appointments by the respondents. It is apparent that the majority Justices of the Court of Appeal erred in holding that the Federal High Court had no jurisdiction to entertain the appellants’ case.

Finally I find the case of Dr. Taiwo Oloruntoba-Oju & 5 Others v. Prof. P. Dopamu & 6 Ors. (2008) 2 SCNJ page 87 at pages 104 and 111 extremely relevant to the case in hand. The case which was referred to the Industrial Arbitration Panel was between the Federal Government and Academic Staff Union of Universities via Exhibits 4 and 5. In unanimously allowing the appeal- the Supreme Court said: –

“That while it may appear from the circumstances of the claim that the plaintiffs claims suggest a pursuit of Trade Union Activities, a closer look at the claims by the trial Judge should have revealed that the claim alleged in the main, the failure of the University authorities to abide by the provisions of the University of Ilorin Act, Cap 455 LFN 1990 than a Trade Dispute as defined by section 47(1) of the Trade Dispute Act Cap 432 1990 LFN.

That the dispute in the suit appears mainly to be whether or not the provisions of the University of

Ilorin Act were complied with by the defendants/respondents in the discharge of their statutory duties and both the trial court and the lower court were wrong in viewing this case as a Trade Dispute. The Federal High Court therefore has jurisdiction. The case is remitted back to the Federal High Court for trial before another Judge.”

The foregoing case is a sister case, similar in con referred to the Industrial Arbitration Panel constituted on the matter between Federal Government and the Academic Staff Union of Universities as affecting the University of Ilorin and its staffers.

The learned senior counsel for the appellants has rightly drawn our attention to the decision of this court in that sister case. This confirms the submission of the learned counsel for the respondents before the panel in Exh. DW5. We adopt the view of the court in that case in respect of the jurisdiction of the Federal High Court in this case. Issue one is consequently resolved in favour of the appellant.

ISSUE TWO

Whether the learned majority Justices of the Court of Appeal were right in holding that the Minister of Labour has no right to set aside, nullify or withdraw an Award having regard to existing laws and in view of the fact that no Award from IAP was legally in existence and none was tendered in evidence by the respondents.

The learned senior counsel for the Appellants argued and submitted that the learned majority of Justices wrongly decided that the Minister of Labour has no right to set aside, nullify or withdraw an Award without regard to the relevant laws and circumstances of the case. This purported award of the Industrial Arbitration Panel was not produced and tendered by the respondents during the trial of this case. The appellants filed this case at the Federal High Court since August 2001 to challenge the purported termination of their appointments by the respondents. The case has nothing to do with any matter before the IAP, as the appellants were not parties there. The learned majority Justices wrongly based the doctrine of issue estoppel on an award they could not see physically so as to determine the legality of its withdrawal by the Minister of Labour. The learned senior counsel cited the case of Samona v. Ilesanmi (2001) FWLR Pt.54 page 373 at page 382 on the applicability of section 132(1) of the Evidence Act. The learned senior counsel submitted further that the issue of estoppel is not applicable to this case in view of the dissimilarities between the case in hand and the matter referred to the IAP in respect of parties subject-matter and jurisdiction of court. The learned senior counsel cited cases in support of the submission.

Western Steel v. Iron Workers (supra)

Kalango v. Dokubo (supra)

Ezekwilhe Ikoku v. Reuben Ekenkwu (1995) 7 SCNJ page 190 at page 190 paragraphs 18 – 22.

Makeen Ikem v. Chief Efeamo & 2 ors (2001) 5 SCNJ page 144 at page 157.

The learned senior counsel for the respondents replied that the lower court rightly held that the Federal High Court lacked jurisdiction to entertain the appellant’s suit – in that the Industrial panel had made an award in the matter which according to the lower court, the Minister of Labour lacked the vires to set aside. The lower court rightly reversed the decision of the trial court that the Minister had withdrawn the award. The lower court refused to pronounce on the other issues submitted for its consideration stemming from the fact that the trial court lacked the jurisdiction to entertain the suit. This court cannot pronounce on such issues also since the opinion of the Court of Appeal is not known. The learned senior respondents counsel emphasised that it was the finding of the learned trial judge that there was an award made by the Industrial Arbitration Panel which the appellants did not appeal against and that finding has therefore become sacrosanct, valid, extant and correct. Since the appellants did not raise the issue against the finding that IAP made an award before the Court of Appeal, they can not raise same before this court without leave. This issue based on the award is not valid or competent and same must be struck out. The learned senior counsel further submitted that the appellants did not appear before the Industrial Arbitration Panel as parties but as privies as the matter was pursued on their behalf by the National body of Academic Staff Union of Universities. From this angle the rendering of an award by the Industrial Arbitration Panel on the issue of termination of appointments of the appellants constitute an issue estoppel against the appellants and the trial court cannot make any decision, declaration or order on same issue. The learned senior counsel supported same with the dictum in the case of Osunrinde v. Ajamogun (1992) 6 NWLR Pt.246 page 57 at paragraph D where the Supreme Court observed that: –

“It is trite that where a court settled, by a final decision, the matters in dispute between the parties neither a party nor his privy may relitigate that issue again by bringing a fresh action. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed facts and law.”

The learned senior counsel for the respondents urged this court to regard the conclusion of the Court of Appeal on the award of the Industrial Arbitration Panel as sound, firm and unassailable. The learned senior counsel for the respondents finally submitted that the Federal High Court is not vested with the requisite powers and/or vires to entertain any matter that has to do with settlement of Trade disputes and where jurisdiction is ousted by statute there must be strict compliance with it.

Ajuebok v. A.G. Edo State (2001) 5 NWLR Pt.707 page 476 at 481 C-D.

NUC v. Oluwo (2001) 3 NWLR Pt.699 page 90 at page 102 -103.

Section 1A of the Trade Disputes Act as amended by the Trade Disputes (Amendment) Decree No. 47 of 1992 has clearly ousted the jurisdiction of any court in Nigeria in respect of Trade Disputes and has exclusively vested jurisdiction in the National Industrial Court. The court is to resolve the issue in favour of the respondents.

In the prevailing circumstance of this case the pertinent question to resolve in this issue is whether any award delivered by IAP on the termination of the appointments of the appellants now constitutes an issue estoppel which will amount to an abuse of judicial process if the trial Court has to make any decision on the same issue all over again. In short, whether the trial court lacks the jurisdiction to entertain the case before it having been caught by issue estoppel. I do not intend to belabour this issue as I found the argument and submission of the learned senior counsel for the appellants sound and convincing for the following reasons.

(a) The Instrument referring the trade dispute between Federal Government of Nigeria and the Academic Staff Union of Universities of Industrial Arbitration Panel for settlement was signed by the Minister of Labour and Productivity on the 20th of May, 2003, with the Terms of Reference specified in Exhibit DW2.

(b) Exhibit DW4 was a Notice of Objection to the award sent to the honourable Minister dated the 31st of March, 2004.

(c) By the 2nd of August 2004 the matter was referred by the Minister to the Industrial Arbitration Panel by the Minister for reconsideration as it has no binding effect on the parties.

This is the reason why the learned senior counsel for the appellants emphasised that the learned trial judge could not have declined jurisdiction on a non existing award having failed to put it in evidence during the trial of this case. On whether rendering of any award by the Industrial Panel can ground any plea of estoppel, it has to comply with the yardsticks for invoking a plea of issue estoppel as stated in the cases cited by the parties like

Osunrinde v. Ajamogun (1982), 6 NWLR pt 246 pg 57.

Ezekwilhe Ikolu v. Rueben Ekenkwu (1995) 7 SCNJ pg 180 at pg 190 and

Mackeen Ikem v. Chief William Efeamo & 20 ors (2001) 5 SCNJ 144 at pg. 157.

Generally speaking within one cause of action there may be several issues raised which are necessary for the determination of the whole case. Once an issue has been raised and distinctly determined between the parties neither party can be allowed to raise that issue all over again. For a plea of estoppel to succeed the pre- conditions namely are:-

(1) That the parties or their privies are the same in both the previous and present proceedings.

(2) That the claim or issue in dispute in both actions is the same.

(3) That the res of the subject matter of the litigation in the two cases are the same.

(4) That the decision relied upon to support the plea of estoppel is valid, subsisting and final

(5) That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction.

All the foregoing requirements of the doctrine must be fully established before the plea can be sustained.

Adone v. Ikebudu (2007) 14 NWLR pt 733 pg 385 SC.

Oke v Atoloye (1985) 2 NWLR, pt 9 pg 578

Yoye v. Olabode (1974)..NLR pt 2 pg 118.

Alase v. Olori-Ilu (1965)NMLR pg 66

Fadiora v. Gbadebo (1978) 3 SC 219

Iga v. Amakiri (1976) 11 SC 1

In the instant case, the appellants filed their case in the Federal High Court in August 2001, whereas the Minister referred the trade dispute to the Industrial Arbitration in May 2003. The matter before the Federal High Court filed by the appellants pre-dated the trade dispute referred to the IAP.

(2) The parties in the matters are different

(3) The parties before the Federal High Court are the appellants who are members of staff of the

University of Ilorin and their employer, the University of Ilorin – a domestic affair. The parties in the trade dispute before the Arbitration Industrial Panel are the Federal Government of Nigeria and the Academic Staff Union of Universities.

(4) The subject matter of dispute before the Federal High Court challenges the administrative and executive act of the employer – the respondents for terminating their employments by not adhering strictly with the provision of the documents stipulating their conditions of service. The subject matter before the IAP is a trade dispute and the terms of reference are the following points:-

(a) Demand of rights of students to lectures since December, 29th 2002.

(b) Withholding of students examination Result Since March 2002.

(d) Insistence of definite annual allocation of the universities over the next five years.

(e) The matter before the IAP is not valid, subsisting or final.

(f) IAP is an inferior tribunal while the Federal High Court is superior court of record, and as observed by the learned senior counsel for the appellants – a temporary award of an inferior tribunal cannot be used as a retroactive bar to the appellant’s case before a superior court of record.

On the overall there was no basis to invoke the doctrine of estoppel while the lower court was clearly wrong in reversing the decision of the trial court for being caught by the doctrine of estoppel. Issue Two is resolved in favour of the appellants.

ISSUE THREE

Whether the learned majority justices of the court of appeal were right in allowing the respondents appeal when it was apparent from the evidence on record that the respondents did not comply with the procedures laid down in section 15(1) of Unilorin Act Cap. 455 Laws of the Federation 1990, before terminating the appellants appointment without any reason and without giving the respondents any fair hearing.

The kernel of the argument of the learned senior counsel under this issue is that the respondents did not have the right to terminate the appellant’s appointments without following the due process of fair hearing provided for by section 15(1) of the University of Ilorin Act notwithstanding the purported signing of the Memorandum of Appointment and the fact that their cessation letters were silent on the reasons for terminating their appointments. The reversal of the decision of the trial court by the Court of Appeal is perverse and has occasioned great miscarriage of justice to the appellants, Exhibit 20 – the Minutes of the Emergency Meeting of Council held on Tuesday 15th May, 2002 in the University of Ilorin Council Chambers gave in insight into the decision of the council to terminate the appointments of the appellants. The documents relating to the appointments of the appellants, such as the Letters of Appointment, Memorandum of Appointment, University Senior Staff Regulations and the University Act cap 455 Laws of the Federation- amplify on the terms and conditions of their service.

The learned senior counsel for the respondents concluded that the argument canvassed by the appellants under this issue three has become merely academic and of no moment.

The Court of Appeal refrained from pronouncing on the correctness of the decision of the trial court that the termination of the appointments of the appellants was wrongful, because of its view that the Federal High Court had no jurisdiction to entertain the suit. This Court will therefore not make it a practice to pronounce on an issue over which it has not had the benefit of the opinion of the Court of Appeal. There is no constitutional provision whereby this court can entertain an appeal directly from the High court. Both the appellants and respondents executed the Memorandum of Appointment exhibits 28-29 thereby making the documents valid and enforceable against the parties. The Revised Regulations governing conditions of services of senior staff also confirm the enforceability of Exhibits 28-29 the Memorandum of employment. It is therefore expressly implied in the conditions of service that parties can bring the relationship to an end before the employees reach the mandatory age of retirement. Section 15(1) of the University Act is not applicable as Exhibits 12-16 the Letters of Cessation of Appointment did not indicate that they were issued on disciplinary grounds. The learned senior counsel further submitted that the termination in the instant case was occasioned by the invocation of the power in clause 10 of the Memorandum of Appointment wherein the proper notice or salary in lieu of notice was given to the appellants. If the termination was done on basis of misconduct, the appellants would not have been entitled to notice or salary in lieu of notice as provided in clause 10 of exhibits 28-29. Furthermore, he submitted that the appellants have waived their legal rights under the University of Ilorin Act by appending their signature to the Memorandum of Appointment embodying clauses 1 and 10. The learned trial judge was not expected to go outside their letters of termination of appointment Exhibits 12-15 and doing so has occasioned a miscarriage of justice. The learned senior counsel further explained that the only relevant section of the University Act is section 15(3) which stipulates that the University council can terminate the appellant’s appointment on other grounds other than misconduct for good cause. The respondents do not have to obtain leave of this court to argue this issue in respect of invocation section 15(3) of the University of Ilorin Act. It is a new argument not a fresh issue on the invocation of the University Act to terminate the appointment of the parties, as the Court of Appeal had the right to look into the applicability of the University Ilorin Act to the termination of appointment of the appellants.

The respondents cited cases to support the foregoing argument

Oluseye v. Lawna (2003) 17 NWLR pt 849 pg. 307 at pg.318

Ariori v. Elemo (1983) 1 SCNLR 139

Mobil Producing (Nig.) Unlimited v. LASEPA (2002) 18 NWLR pt 798 pg. 1 at pg 37

Menakaya v. Menakaya (2007) 16 NWLR pt 738 pg 203 at pg 263

Idoniboye-Obu v. NNPC (2003) 2 NWLR PT 805 pg. 589 at pg. 630

Bamgboye v. University of Ilorin (1999) 10 NWLR pt 622, pg. 290 at pg. 302

Esiaga v. University of Calabar (2004) 7 NWLR pt 872,pg.366

Olaniyan v. University of Lagos (1985) 2 NWLR pt 9 pg.559.

Before considering the submission of learned senior counsel on this issue, I cannot but express my amazement at the inconsistency of the respondents on this issue particularly on the steps required to terminate the appointments of employees of the respondent. Secondly since the lower court did not properly consider the issue of termination of the appellants in view of the pronouncement that the lower court lacked jurisdiction to entertain the suit instituted by the appellants, this Court cannot consider this issue as it does not have the benefit of the opinion of the lower court. The respondents have now introduced a new issue which was not their case before the trial court or even in their letters of termination Exhibits 12-16, that the University terminated the appointment by invoking section 15(3) of the University Act.

I make bold to say that such submission is unacceptable. A party cannot make out a case solely on the address of counsel but on facts pleaded and evidence adduced in support of such facts. It will not only amount to springing a surprise to the appellants; it will be akin to hitting the appellants below the belt in the defence of their case before the court. Invocation of section 15(3) of the University of Ilorin Act to terminate the employment of the appellants is a very strong wicket for the respondents. This should have been raised by way of pleadings at the trial court, and the appellants given the opportunity to react to it. It is now too late and obviously belated to consider such defence in favour of the respondents. Page 61 paragraph 12-16 of the respondents Brief of Argument which states that

“we therefore pray your lordship to hold that given the circumstance of this case, the applicable section of the University of Ilorin Act is 15(3) and further to hold that the termination of appointments of the appellants pursuant to section 15(3) is valid, proper, lawful and complete” shall be discountenanced by this court. The learned senior counsel for the appellants rightly submitted that it is a fresh issue which requires the leave of this court to raise same, and I so hold.

NEPA v. Savage (2001) 9 NWLR Pt.717 page 230.

The strong point canvassed under this issue is non-compliance particularly with the requirement of fair hearing as a procedure laid down in section 15(3) of the University Act Cap. 455 Laws of the Federation 1990 before terminating the appointments of the appellants.

It is trite law that the onus is on the plaintiffs/appellants to prove that the termination of their appointments is unlawful and to discharge this onus, they must proof that:

(a) They are employees of the respondents

(b) Placing before the court the terms of the contract the terms and conditions of their employment.

(d) In what circumstances the appointments can be determined by the employer and breach of the terms.

Okomu Oil Palm Co. Ltd. V. Isehienrhien (2001) 6 NWLR Pt 710 pg 660 at pg 673 Emokpae v. University of Benin (2003) 17 NWLR, pt 795 pg. 139. Amodu v. Amode (1990) 5NWLR pt 150 pg. 356 Adeniran v NEPA (2002) 14NWLR pt 786 pg 30

The case of the appellants is that the terms and conditions of their appointments are as stipulated in these documents before the court as follows:-

(1) Letters of appointment Exhibits 1-5

(2) Memorandum of Appointment Exhibits 28, 29 and DW1

(3) University of Ilorin Revised regulations governing the conditions of service of senior staff of the University dated 24th March, 1994. Exh II.

(4) The University of Ilorin Act Cap 455 Law of the Federation.

By virtue of the foregoing documents the appellants claimed that their employment is protected by statute and that they therefore enjoy special legal status over and above the ordinary common law master and servant relationship. I must express that where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made there under – it is said to be a contract protected by statute or in other words an employment with statutory flavour.

Olaniyan v. University of Lagos (1985) pt 9 pg 599

Eperokun v. University of Lagos (1986) 4 NWLR pt 34 pg. 162

Bamgboye v. University of Ilorin (1999) 10 NWLR pt 622 pg. 290

University of Maiduguri Teaching Hospital Management Board v. Dawa (2007) 16 NWLR pt 739 pg.424

Shitta-Bey v. FPSC (1981) 1 SC Pg. 41

UNTHMB v. Nnoli (1994) 8 NWLR Pt 363 pg. 376.

The question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or the relevant statute. The duty to construe is the exclusive preserve of the Courts. In this case there is no dispute that contract of employment of the appellants was governed by statute.

What is left to investigate here is whether in the process of writing cessation of appointment letters to the appellants the procedure laid down in the applicable statute was complied with. Provisions of Regulations and memorandum of appointment must be followed to the letter as any breach would render the exercise of termination null and void.

Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR, pt 300 pg. 426

The respondents strenuously argued that the termination of appointment of the appellants were based on the bilateral agreement of the parties executed by the appellants in their memorandum of appointment Exhibits 28 – 29 which remain legally binding on the parties. Clause 10 of Exhibits 28, and clause 6 in Exhibits 29 and DW1. The relevant clause reads:-

“Whether the University or the Assistant Lecturer shall terminate the appointment without having given three months notice in writing of his intention to do so or having tendered payment of three months’ salary in lieu of Notice. In the case of Notice already given the University may tender payment of the amount of salary applicable to the period of notice unexpired and upon doing so the appointment of the Assistant Lecturer shall terminate immediately provided always that in the event of any act of omission, which an appropriate organ of the University may adjudge wilful misconduct on the part of the Assistant Lecturer the University may terminate the appointment summarily without notice or salary in lieu of notice”

Such letter of appointment has embodied in the first paragraph the provision that:-

“The appointment, which is subject to the University regulations, shall be for a total period of two years only”

The Memorandum of appointment Exhibit 29 in clause stipulates that:-

“Other conditions of service will be as specified for the status of the Assistant lecturer in the University Regulations governing the conditions of service for senior staff which is subject to periodical review by the University”.

It is noteworthy that the letter of appointment is made subject to the University Senior Staff Regulations Exhibit 11. The senior staff Regulations is made subject to the University Act Cap 455. Whenever the phase “subject to” is used in a statute the intention, purpose and legal effect is to make the provisions of the section inferior, dependent on, or limited and restricted in application to the section to which they are made subject to. In other words the provision of the latter section shall govern, control and prevail over the provision of the section made subject to it. It renders the provision of the subject section subservient liable subordinate and inferior to the provisions of the other enactment.

Labiyi v Anretiola (1992) 8 NWLR pt 258 pg. 139.

Tukur v. Government of Gongola state (1989) 4 NWLR pt 117 pg. 517

FRN v. Osahon (2006) 5 NWLR pt 973 pg. 261

In effect the letters of appointment, the Memorandum of appointment, the senior staff regulations are made subject to the University of Ilorin Act Cap 455 in their implementation.

Regulation 1.1.3 at page 1 of the senior staff regulations reads as follows:-

“A member of staff shall hold office on such terms and conditions of service as may be set out in any contract in writing between him and the University, such contract being signed on behalf of the University, by the Registrar or by such other persons as may be authorised for that purpose by the University, and any such contract shall contain or be deemed to contain a provision that the terms and conditions therein specified are subject to the provisions of the Act, the statutes and regulations of the University”.

In my view all these documents, the letter of appointment, the memorandum of appointment, the senior staff Regulations, and the provisions of the University Act Cap 455 shall be construed conjunctively to determine the nature and the terms and conditions of service of the appellants and whether same have been breached by the respondents.

The letters of cessation employment exhibits 12 – 16 which I have re-stated earlier on in this judgment did not state the reason for terminating the appointments of the appellant by invoking clause 10 or 6 of Exhibits 28 or 29 or DW1, the Memorandum of Appointment. The claim of the respondents that the appellants have waived their rights under the University Act is of no moment as there is no basis for such connotation. The provisions of section 15(1) or 15(3) is applicable to all termination of employment of all senior staff of the Institution. The cessation letters issued to the appellants Exhibits 12-16 were silent on the reason for termination of their appointments. They gathered the reason through Exhibits 17 – 20 tendered in court.

Exhibit 17 is the University of Ilorin Bulletin where the Senate of the University disassociates itself from subversive advertisement and the official reaction to the disruption of Examination by ASUU officials.

Exhibit 18 is the security report on the activities of ASUU on the campus, and the visit of Dr. Awopetu from Obafemi Awolowo University, Ile-Ife disrupting examinations being held by the students.

Exhibit 19 is the letter emanating from the Pro-chancellor of the University of Ilorin to Obafemi Awolowo University complaining about disruption of examination by Dr. Awopetu of OAU with the connivance of other academic staff of the University of Ilorin.

Exhibit 20 is the minutes of the Governing Council of the University of Ilorin where the decision to terminate the appointments of the appellants was made for reason of disruption of examination on the campus. Exhibit 20 indicates that the governing council of the University which gave an order to terminate the appointments of the appellants had a reason for the cessation of their appointments which would fit into section 15(1) of the University Act Cap 455.

This brings into limelight the question of fair hearing in that if the appellants were deprived of their appointments for a cause, did the appellants follow due process as stipulated in the provisions of section 15(1) of the University of Ilorin Act and chapter 8 of Exhibit 11- the Senior Staff Regulations. The grouse of the appellants are that as senior academic staff of the University on pensionable appointments, the respondent cannot serve them with letters of cessation of appointment without giving them a hearing. The sole witness for the respondent during the trial of the case before the Federal High Court gave evidence that the appellants appointments were terminated based on their memorandum of appointments only and for no other reason. Further that they were not arraigned before the governing council neither were they taken through any disciplinary process. Exhibit 20, the minutes of the governing council of the University of Ilorin did not reveal that the appellants were made to comply with the provisions for the discipline of Senior Staff before a decision was made to relieve them of their posts. Section 15(1) of the University Act and regulation 3.4.0. of the senior staff Regulations contains the same provisions. Section 15(1) of Cap 455 provides as follows:-

“If it appears to the council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the University other than the Vice-Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the council shall:-

a. Give notice of those reasons to the person in question

b. Afford him an opportunity of making representations in person on the matter to the council and

c. If he or any three members of council so request within the period of one month beginning with the date of the notice to make arrangements:

i. For a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council and;

ii. For the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter.”

And if the council, after considering the report of the investigating committee is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the direction of the council.

The foregoing makes provision for fair hearing in the process of removing a member of the academic or administrative or professional staff of the University. I do not have evidence to substantiate that this process was adopted in relieving the appellants of their appointments. The pronouncements of our courts in their age long decisions down to the recent ones have advocated that

“When an office or employment has a statutory flavour in the sense that its conditions of service are provided for by the statute or regulations made there under any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void.

When a statute has conferred on anybody the power to make decisions affecting individual, the court will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provision.

There is a presumption that when the Legislature confers a power on an authority to make a determination it intends that the power shall be exercised judicially in accordance with the rules of natural justice”

Olaniyan v. University of Lagos (1985) pt 9 NWLR pg.599

Eperokun v. University of Lagos (1986) 4 NWLR pt 34 pg. 162

Bankole v. N.BC (1968) 2 All NLR, pg. 372

Shitta-Bey v. Federal Public Service Commission (1981) 1 SC pg. 40

Olatubosun v. NISER Council (1988) 3 NWLR pt 80 pg.25

Aiyetan v. N.I.F.O.R (1987) 3 NWLR Pt 59 pg. 48

Garba v. University of Maiduguri (1986) 1 NWLR pt 18 pg. 550

Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR (pt 300) 426

The nature of fair hearing to be observed in this con is as entrenched in section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as it encompasses the twin pillars of justice namely:-

(a) Audi alteram partem – (Hear the other party)

(b) Nemo judex in causa sua (no one should be a judge in his own cause).

It is equally a common law doctrine that in the determination of his civil rights and obligations a person is entitled to a fair hearing within reasonable time by a court or tribunal established by law.

Section 15(1) of the University of Ilorin Act guarantees to administrative, academic and professional staff fair hearing before their appointment is terminated thus giving the exercise of such disciplinary powers a statutory flavour. The learned senior counsel for respondents distinguished the case of Olaniyan from this instant case.

There is similarity in that case with the case in hand as to the cassus belli reasoning and decision particularly on the issue of fair hearing in the termination of appointment of employees whose contract of employment enjoys statutory flavour. There is no iota of evidence that the procedure for termination of employment of the appellants as to fair hearing was observed in this case. Issue three is resolved in favour of the appellants.

ISSUE FOUR

Whether the learned majority justices of the Court of Appeal were right in holding that the appellants were offered opportunity for fair hearing before their appointments were terminated by the respondents having regard to the general circumstances of the case. The learned senior counsel for the appellant submitted on this issue that the learned majority justices of the lower court agreed that by virtue of section 15(1) of the University of Ilorin Act the appellants appointments should not have been terminated without following the due process of fair hearing regardless of this observation they reversed the decision of the trial court. Their reversal of the decision of the trial court is therefore perverse and have occasioned a great miscarriage of justice. The conclusion that the appellants were given an opportunity to defend themselves but they turned it down cannot be substantiated from the evidence on record. The learned majority justices made a wrong use of Exhibit 20 to arrive at this conclusion. This court is urged to resolve this issue in favour of the appellants as the way and manner the respondents terminated the appellants appointment is unfair and violates the laws and regulations governing their appointment.

The learned senior counsel for the respondents replied that the ground on which this issue was formulated is incompetent, as it relates to an academic issue. The issue is predicated on the concurring judgment of Tijani Abdullahi JCA. A ground of appeal predicated on a concurring judgment is not a valid ground of appeal. Where an issue for determination is distilled from a valid and invalid ground of appeal both grounds will have to be dismissed or discountenanced on the ground of in competency.

I have earlier on given my ruling on the preliminary objection raised on competency of this appeal.

I agree with the submission of the learned senior counsel for the appellants quoting from the decision of this honourable court in the case of Nwana v. FCDA (2004) All NWLR pt 220 pg 1245 at pg 1245 paragraph B – C particularly that a concurring judgment forms part of the leading judgment and it is meant to complement same by way of addition or an improvement on the issues resolved in the leading judgment. Both leading and concurrent judgments crystallise into the judgment of an appellate court.

The judgment of the lower court was that appellants were given opportunities to defend themselves before their appointments were terminated but for reasons which were difficult to comprehend decided not to avail themselves with it. This conclusion was based on Exhibit 20, the minutes of the emergency meeting of Council of the University held on Tuesday 15th May, 2002 in the council’s chamber. The chairman and all members were in attendance. The purpose of the meeting was to consider the Administrative and ASUU face off on the campus. An administrative fact finding committee had already been constituted to investigate the activities of ASUU on the Campus. The committee submitted a report to council that members of ASUU involved in the disruption of second semester examination were invited and given opportunity of fair hearing which they turned down. After careful deliberation on the committees report and recommendations the council decided as follows:-

“that the appointments of the under listed erring lecturers be terminated with immediate effect in line with section 15(3) of the University of Ilorin Act, the provisions of 8.4.3 of the senior staff regulations and in tune with the memorandum of their respective appointments”

The decision affected the five appellants.

By virtue of section 15 of the University of Ilorin Act, the power to remove a member of the Academic or administrative or professional staff of the University other than the Vice Chancellor from his office on the ground of misconduct or inability to perform the functions of the office is vested only in the Council while section 15(1) guarantees foregoing staff fair hearing before their appointments are terminated. This gives the exercise of such disciplinary powers a statutory flavour.

By virtue of section 15(1) of the University act what compliance with rules of natural justice in terminating the appointment of a university employee entails are:-

(1) That the complaints must be brought to the notice of the person and;

(2) He must be given an opportunity of making representation in person to council on the matter.

In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the courts satisfaction.

(a) That the allegation was disclosed to the employee;

(b) That he was given a fair hearing;

Bamgboye v. University of Ilorin (1990) 10 NWLR pt 622 pg 290 SC.

I must remark that the learned majority justices of the lower court made a gross mistake in their conclusion that appellants were afforded the opportunity to defend themselves which they turned down. The learned justices failed to distinguish and draw a line between the report or recommendation of a panel and the decision of the Council on such recommendation. The act of the University of Ilorin is performed through its Council. Statutory provisions establishing a corporate body like the University of Ilorin always empower the body to employ staff and to discipline them. Once the statutory provisions are clear as to how to deal with an erring servant they must be adhered to strictly including a clear observation of the principles of fair hearing.

Shitta -Bey v. Federal Public Service (1981) SC 40

Olaniyan v. University of Lagos (1985) 2 NWLR pt 9 pg 5909.

U.N.T.H.B v. Nnoli (1994) 8 NWLR pt 363 pg 376 SC.

In the case of University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8NWLR pt 363 pg 376 at pg. 404 paras. F – G the Supreme Court said that:-

“In the observance of the principles of natural justice and the essential requirement of fair hearing there is a distinction between the recommendation of an investigating panel which has no statutory powers and the action on the recommendation by statutory body with requisite statutory powers, whereas the recommendation of the panel will not affect the civil rights and obligations of the person whose act or omission is being investigated like the appellants in this case, the acting upon such recommendation does. Hence the implementation of the recommendation by a statutory body must comply strictly with rules of natural justice.”

Olatubosun v. NISER (1988) 3 NWLR pt 80 pg. 25

Aiyetan v. NIFOR (1987) 3 NWLR, pt 59 pg 48.

The appellants were not afforded the opportunity of being heard by the University Council before their appointments were unilaterally and prematurely terminated on 15/5/2002 by the Council, after receiving the report and recommendation of the investigating panel.

Issue four is resolved in favour of the appellants.

In the final analysis the appeal is allowed.

The majority judgment of the lower court including the order for costs is set aside.

The judgment of the trial court is affirmed.

This court hereby grants all the reliefs of the plaintiffs/appellants as specified in paragraph 25, clauses A – J of their amended statement of claim before the trial court as follows:-

“(a) Declaration that the defendant’s letter dated 15th May, 2001 to the plaintiffs titled “Cessation of Appointment” purporting to terminate the plaintiffs appointment with 3rd defendant is ultra vires, null and void and of no effect whatsoever.

(b) Declaration that the plaintiffs are still in the service of the 3rd defendant.

(c) Declaration that the defendants are bound to comply with the directive of the Federal Government of Nigeria to reinstate the plaintiffs as contained in the letter of National Universities Commission dated 29th June, 2001 with reference NUC/EJ/261 to the Pro-chancellor of the 4th defendant, and the 1st defendant.

(d) Declaration that the defendants are not entitled to summarily terminate the plaintiff’s appointment without complying with the provisions of the University of Ilorin Act Cap 455 LFN 1990 and other relevant statutory (sic) as to discipline.

(e) Declaration that the purported termination of the plaintiffs by the defendants under the guise of “Cessation of appointment” or under any guise whatsoever is contrary to the provision of the Pension Act of Nigeria in that plaintiffs are permanent and pensionable staff of the University.

(f) Declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiffs cannot override the provisions of the University of Ilorin Act Cap 455 LFN 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other matters connected or pertaining thereto.

(g) Declaration that the purported termination of the plaintiffs appointments by the defendants negates the fundamental rights Provisions of the Constitution of the Federal Republic of Nigeria 1999.

(h) Order setting aside the purported termination of plaintiffs’ appointment and nullifying the defendants letter to the plaintiffs in that regard

(i) Order compelling the defendants to comply with directive of the Federal Government through the National Universities Commissions dated 29th June, 2001 with reference NO.NUC/ES/261 to the defendant to reinstate the plaintiffs.

(j) Order compelling the defendants to reinstate the plaintiffs to their posts as lecturers in University of Ilorin with all their rights, entitlement and other perquisites of their offices.

(k) Order compelling the defendants to pay to the plaintiffs all the salaries and allowances from February 2001 till the day of this judgment and henceforth.

The appellants are entitled to costs in both Lower Court and this Court which I assess at N50,000 and N10,000 to the appellants against the respondents.

SC.75/2007

Dim Chukwuemeka Odumegwu Ojukwu V. Alhaji Umaru Musa Yar’adua (2009) LLJR-SC

Dim Chukwuemeka Odumegwu Ojukwu V. Alhaji Umaru Musa Yar’adua (2009)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C

This is an appeal against the decision of the Court of Appeal dated 3rd September 2007 wherein the petition was struck out. The petition itself was dated and presented on the 22nd May 2007. The grounds of the petition without their particulars are:

GROUND 1

The election in which the 1st and 2nd Respondents were declared winners was not conducted in compliance with the 1999 Constitution and the Electoral Act 2006.

GROUND 2

The election did not meet the minimal requirement of Electoral democracy and the law and the Electoral Act 2006.

GROUND 3

Rudimentary requirements of fairness and equal treatment provided by the Constitution and the Electoral Act were not extended to the Petitioner and to potential voters in Anambra, Imo, Abia, Enngu and Ebonyi States.

GROUND 4

The 1st and 2nd Respondents are not qualified to contest for election to the office of President and Vice President respectively because having been employed by the people of Katsina and Bayelsa States as their Chief Public Servants or Chief Executives they did not contrary to Section 137(g) of the 1999 Constitution resign or withdraw from their offices as executive governors at all prior to the said Presidential Election.

In paragraph 10 of the petition, the Petitioner further averred that the 3rd, 4th and 5th Respondents jointly and wrongfully cleared the 1st and 2nd Respondents for the said election to the offices of President, Vice President in Nigeria.

And in paragraph 11 of the Petition, the petitioner seeks the following reliefs:

A DECLARATION that by reason of the arbitrary failure of the 3rd Respondent to display copies of Voters List, publish Supplementary Voters’ Register and in the manner and form commanded by the Electoral Act 2006 the said Presidential Election is null and void for non-compliance with the minimal requirements of due process sine qua non and condition precedent for the conduct of democratic election prescribed by law.
A DECLARATION that failure to conduct the said election at all in any place (no matter how remote or few the number of voters) is inimical to the concept and basis of equality under the law and violates the rights of the affected voters (guaranteed by the Constitution) that they be not discriminated against.
A DECLARATION that by the arbitrary manner the said election was conducted without regard to due process of the law in all or any part of the country, or at all, amounts to nullifying the franchise and sovereignty of the people of Nigeria as a whole.
A DECLARATION that the manner and form of the conduct of the said election was a usurpation of the franchise and sovereignty of the people.
A DECLARATION that the 1st and 2nd Respondents were not qualified for election to the office of President and Vice President respectively or at all.
AN ORDER nullifying and invalidating the return of Musa Yar’Adua and Goodluck Jonathan, the 1st and 2nd Respondents herein as President and Vice President elect respectively.
AN ORDER nullifying the said election and commanding the 3rd Defendant to conduct another election for the office of President of Nigeria in the manner and form prescribed by law but without the 4th Respondent as its Chairman.
AN ORDER of injunction commanding the 4th Respondent to cease and desist from running the affairs of the 3rd Respondent.
A DECLARATION that the declaration of the 1st and 2nd Respondents as winners of the said election is invalid, unconstitutional null and void.

In keeping with the requirements of the Practice Directions the petition was accompanied by a written Statement on Oath of one Dr. Paul Dike.

By a motion dated 1st August 2007 and filed on the 3rd of August 2007, the 1st and 2nd Respondents also prayed the Court below for an order dismissing and/or striking out the petition on the grounds inter alia:

(i) . That the petition is defective and in clear breach of the express provisions of the Electoral Act 2006.

(ii) That some of the petitioner’s prayers do not flow from the petition.

(iii) That the petition is not properly constituted as persons or institutions who are proper necessary or desirable parties and whose presence are required for a just determination of the petition have not been made parties.

Also by a Notice of Preliminary Objection dated and filed on the 3rd August 2007 the 3rd and 4th Respondents prayed the Court of an order dismissing the petition. The grounds for the objection are stated to be that:

(1) The Petitioner has not disclosed any reasonable cause of action against the Respondents, the petition having failed woefully to disclose any constitutional disqualification against the 1st and 2nd Respondents who have not been shown to be disqualified to contest election into the office of President and Vice President respectively.

(2) The petition has not disclosed any reasonable cause of action against the Respondents as the grounds 1, 2 and 3 of the petition and the particulars there under as constituted have not shown that the election was not conducted substantially in accordance with the principles of this Act or that the noncompliance affected substantially the result of the election as envisaged under the provisions of Section 145(1) of the Electoral Act 2006.

(3) The petition is a gross abuse of the process of the Court.

(4) The Honourable Court lacks the jurisdiction and or vires to entertain the petition as constituted.

Written addresses were submitted for and against the two applications. And with the consent of the parties both applications were consolidated and heard together.

By its ruling on the 3rd September 2007 both applications were sustained and the petition struck out. As I said earlier, this appeal is against that ruling. The parties have through their counsel filed and exchanged their briefs of argument. The Appellant’s Brief of Argument was prepared by James C. Ezike and same was filed on the 5/11/07. He also prepared the Appellant’s Reply Brief to the 3rd and 4th Respondents’ Brief of Argument and it was dated and filed on the 18/12/07. Mr. James Ezike filed yet another Appellant’s Reply Brief to the 1st and 2nd Respondents’ Brief of Argument and it was filed on the 17/1/08. The 1st and 2nd Respondents’ Brief of Argument was settled by Chief Wole Olanipekun, SAN and same was filed on the 17/12/07. The joint brief of the 3rd and 4th Respondent was settled by Kanu G. Agabi, SAN and it was filed on the 28/11/07. J.K. Gadzama, SAN prepared the 5th Respondent’s Brief of Argument. This was filed on the 13/5/08.

In the Appellant’s Brief of Argument Mr. Ejike submitted four issues for determination. Chief Wole Olanipekun, SAN submitted three issues for determination in the 1st and 2nd Respondents Brief of Argument. On behalf of the 3rd and 4th Respondents Kanu G. Agabi, SAN proposed five issues for determination. While Chief Gadzama, SAN submitted only a single issue for determination in the 5th Respondent’s Brief.

After a careful examination of the issues for determination formulated by the parties, I am of the view that the four issues identified by the Appellant will very well and effectually determine the appeal. The Issues are:

Whether the Court of Appeal was right to hold that grounds 2 and 3 of the petition do not conform with or relate any of the 4 grounds set out in Section 145(1) of the Electoral Act 2006 2. Whether the Court of Appeal was right to rely on Section 146 of the Electoral Act 2006 to strike out ground 1 of the petition after it had earlier held the said ground to be competent And
Whether having held that ground 4 of the petition was competent, the Court of Appeal was right to consider its merit and struck it out
Whether the approach adopted by the Court of Appeal in reaching its decision to strike out the petition has occasioned a miscarriage of justice

On the 2nd of February 2009 when this appeal was heard learned counsel for the parties in addition to adopting the arguments in their briefs also made some oral submissions. The substance of the arguments for the parties is as follows.

On the 1st issue for determination Mr. Ezike referred to the averments in grounds 2 and 3 of the petition and their particulars, and the provisions of Section 145(1) of the Electoral Act 2006 and submitted that the two grounds embody sufficient averments complaining about the violation of provisions of the Constitution and Sections 47 and 48 of the Electoral Act 2006. It was his submission that a ground of a petition which alleges that there was a return of a candidate when there was no election in some regions or places is a ground within the meaning of Section 145(1) of the Electoral Act. Learned counsel further submitted that in view of the matters averred in the two grounds, they conform with Section 145(1)(b) of the Electoral Act.

With respect to the 2nd issue for determination, learned counsel referred to the finding by the lower Court at page 249 of the record to the effect that grounds 1 and 4 of the petition conform with Section 145(1)(b) and 145(1)(a) of the Electoral Act respectively it was wrong for it to strike out the petition at that stage for the Petitioner’s failure to plead and prove that the non-compliance affected the result of the election, pursuant to the provisions of Section 146 of the Act. Counsel argued that it was not yet ripe for the Appellant to prove or establish under Section 146 of the Electoral Act that the alleged non-compliance substantially affected the result, contending that it is at the trial of the petition brought pursuant to Section 145(1)(b) for non-compliance with the provisions of the Act, that the Court or Tribunal may under Section 146 decide not to invalidate the election if it finds that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not substantially affect the result of the election. On this issue the submission is that the Court of Appeal was clearly wrong to rely on Section 146 of the Act to strike out the petition. For the 3rd issue learned counsel for the Appellant submitted that the Court of Appeal having found that ground 4 of the petition was in conformity with Section 145(1)(a) of the Electoral Act coupled with the fact that none of the Respondents raised the issue of the distinction between public officers and elected officers, it was wrong for the Court to suo motu raise and determine the issue at that stage of the proceedings. Having raised the issue suo motu the Court had a duty to invite the views of the parties, especially the Appellant before its decision on it, counsel argued. He relied on NWOKORO v. ONUMA (1990) 3 NWLR (Part 136) 22 at 33; ADEGOKE v ADIBI (1992) 5 NWLR (Part 242) 410; JOWHOMU v EDOK-ETER MANDILAS LTD (1986) 5 NWLR (Part 39) 1; ALAO v ASHIRU (1973) 11 SC 23; KUTI v BALOGUN (1978) 1 SC 53 at 60.

On the 4th issue, counsel argued that it cannot be addressed at the preliminary stage. Learned counsel referred to the case of COOKEY v FOMBO (2005) 15 NWLR (Part 947) 182 which the 3rd and 4th Respondents cited at the Court below and submitted that the mere fact that the case is weak was no ground for striking it out. Learned counsel noted that the Court below merely adopted the two biased issues formulated by the 3rd and 4th Respondents without considering the petitioner’s submission and argued that the prejudice in the decision was a fiat accompli – thus terminating the petition without hearing the petitioner and in clear breach of the rules of natural justice. In support of his argument counsel cited BARCLAYS BANK v CENTRAL BANK OF NIGERIA (1976) 1 ALL NLR 409; NATIONAL BANK v SHOYOYE (1977) 5 SC 181 at 194; N.D.I.C. v C.B.N. (2002) NWLR (Part 766) 272 at 296; L.P.D.C. v CHIEF GANI FAWEHINMI (1985) 7 SC (Part 1) 178 at 262-263 and KOTOYE v C.B.N. (1989) 1 NWLR (Part 98) 419 at 448.

The substance of the address of Senior Counsel for the 1st and 2nd Respondents is as follows. With respect to the Appellants 4th issue, learned Senior Counsel argued that by virtue of the provisions of Sections 145(1) 9(a)-(d), 147(3) paragraphs 9(5) and 49 of the 1st Schedule to the Electoral Act, 2006 the 1st – 4th Respondents were at liberty to raise the preliminary objections as to the competence of the petition and the Court below was right to strike out or dismiss the petition in limine. Reliance was placed on FELIX NWABOCHA v WOKOCHA GIFT & ANOR (1998) 12 NWLR (Part 579) 522. It was submitted that when a statute prescribes a particular mode of bringing a process, that method and no other must be adopted, and the petition having been filed in complete disregard of the provisions of the Electoral Act, 2006 is fundamentally and incurably defective and therefore that the Lower Court was right in the manner it proceeded to determine it in limine. Counsel relied, for these submissions, on MADUKOLU v NKEMDILIM (1962) 2 SCNLR 341; MUDIAGA ERHUEH v. INEC (1999) 12 NWLR (Part 630) 288; RIMI v INEC (2002) 6 NWLR (Part 920) 59; NUHU SANI IBRAHIM v INEC & ORS (1999) 8 NWLR (Part 614) 352; MUHAMMADU BUHARI v ALHAJI MOHAMMED DIKKO YUSUF (2003) 4 NWLR (Part 842) 446.

On the 2nd issue formulated by the Appellant, learned Senior Counsel referred to grounds 2 and 3 of the petition and submitted that the said grounds do not conform or relate to any of the grounds set out in Section 145(1)(a)-(d) of the Electoral Act and are therefore incompetent and were liable to be struck out. Reliance was placed on A.N.P.P. v INEC (2004) 7 N.W.L.R. (Part 871) 31. It was argued that both grounds 2 and 3 without their particulars are alien and totally strange to the 4 grounds in Section 145(1) (a)-(d) of the Electoral Act 2006. It was contended that the two grounds were therefore incompetent and rightly struck out. Breach of Constitution, the law or unstated part of the Electoral Act 2006 per se is not a competent ground for an election petition, learned Senior Counsel submitted. In support of this submission OBASANJO v YUSUF (2004) 9 N.W.L.R. (part 877) 144 and BUHARI v OBASANJO (supra) were cited.

With respect to the issue of whether the Court of Appeal was right to rely on Section 146(1) of the Electoral Act 2006, to strike out the petition learned Senior Counsel submitted that by virtue of the provisions of Section 146(1) of the Electoral Act and Section 137(g) of the Constitution the court below was right to strike out grounds 1 and 4 of the Petition. It was submitted that even if grounds 1 and 4 fall within the grounds under section 145(1) of the Electoral Act, they do not disclose any reasonable cause of action and were therefore liable to be struck out and were rightly struck out. By virtue of the provisions of Sections 145(1) and 146(1) and paragraph 4(1)(d) of the First Schedule to the Act, the petitioner had a duty to plead facts that the alleged corrupt practices and non-compliances, if proved, substantially affected the result of the election, learned senior counsel argued. It was argued that the petition was bereft of facts which the petitioner was enjoined by paragraph 4(1)( d) of the 1st was made out therein.

On the question of whether the Court of Appeal was right to strike out ground 4 of the Petition by placing reliance on Section 137(g) of the Constitution, it was the submission of the 1st and 2nd Respondents that the petition disclosed no reasonable cause of action against them, contending that the word “Election” is not synonymous with “Appointment” and/or “Employment”. It was further submitted that by the provisions of Sections 137(g) and 318 of the Constitution the 1st and 2nd Respondents were not persons in the public service of a State. Learned counsel referred to the definition of “employees in the public service of a State and the category of persons falling within the definition and submitted that by operation of the latin maxim “expression unius est exclusion alterius” the exclusion of elected officers like governors of a state show that they are not “employees in the public service of a State within the provision to make them liable to be disqualified under Section 137(g) of the Constitution. For this submission reliance was placed on P.D.P. v INEC (1999) 11 N.W.L.R. (Part 626) 200; BUHARI v DIKKO YUSUF (2003) 14 NWLR (Part 841) 446; OBUNYIYA v OKUDU (1979) 6-9 SC. 32; HALIBURY’S LAWS OF ENGLAND 4TH EDITION paragraph 876. In conclusion it was argued that the Court of Appeal rightly struck out ground 4 for disclosing no reasonable cause of action.

The submission of Kanu G. Agabi, (CON) SAN in the 3rd and 4th Respondents’ Brief is substantially to the same effect as the submissions for the 1st and 2nd Respondent. It was his contention that the petition did not disclose a reasonable cause of action and was therefore incompetent and which issue of incompetence was rightly and timeously raised by the Respondents and determined by the Court of Appeal. He relied on YUSUF v AKINDIPE (2000) 8 N.W.L.R. (Part 669) 376 at 387. With respect to the latin maxim ‘expression unius est exclusion alterius” counsel cited ELUWA v O.S.IE.C. (2006) 18 N.W.L.R. (Part 1012) 544 at 568 – 569. For the meaning of a reasonable cause of action counsel relied on LASISI FADARE & ORS v ATTORNEY-GENERAL OF OYO STATE (1982) 4 SC 1 at 7; ADIMORA v AJUFO (1988) 3 N.W.L.R. (Part 80) 1 at 17; OSHOBOJA v AMUDA (1992) 6 N.W.L.R. (Part 250) 690 at 702; DANTATA v MOHAMMED (2000) 5 SC 1 at 16- 17. He urged in conclusion that the appeal be dismissed.

The address of Chief Gadzama, S.A.N. is substantially to the same affect as those of the 1st – 4th Respondents. In addition he referred to provisions of the Election Tribunal and Court Practice Directions 2007, and paragraphs of the accompanying written statement on oath of the only witness and submitted that there cannot be a convincing evidence to sustain the petition. It was his further submission that the evidence was essentially hearsay and thus inadmissible evidence. He too urged that the appeal be dismissed.

In the Appellant’s Reply Brief to the Brief of the 1st and 2nd Respondents, the Appellant maintained that the petition contained the requisite allegations of fact which constituted the Respondents’ breaches of the Constitution and the Electoral Act 2006 and that same was therefore competent. It was wrong, he argued, for the Court of Appeal to invoked Section 146(1) of the Act to terminate the petition at the preliminary stage. It was his submission that Section l46(1) of the Act deals with weight of evidence and could only have been invoked after evidence at the trial. In support of this submission, the Appellant cited BUHARI v OBASANJO (2005) 13 N.W.L.R. (Part 941) 1 at 182 and AJUMALE v YADUAT (No.2) (1991) 5 SCNJ 178 at 187. It was his further submission that it is only after evidence has been taken that the Court can consider the applicability of Section 146 of the Electoral Act. Secondly, he submitted, the alleged insufficiency of facts is not a ground for striking out a petition. With respect to the 4th issue the Appellant reiterated his earlier argument that Governors and Deputy Governors though elected are persons employed in the “public service” of their states within the meaning of the 1999 Constitution.

In his Reply Brief to the brief of the 3rd and 4th Respondents the Appellant referred to the 2nd and 3rd grounds of the petition and argued that the said grounds read together with their particulars adequately complain about non-compliance with the provisions of the Electoral Act. It was his contention that reading the said two grounds without their particulars was mischievous and diversionary. With respect to the 4th Issue the Appellant referred to NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 4 SCNJ 97 at 119 and NWAOGUGU v THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ORS. All F.W.L.R. 115 at 116 to contend that the 1st and 2nd Respondents were “Public Servants” within the meaning of the Constitution.

Let me now deliberate on the various issues raised in this appeal starting with the Appellant’s 4th issue. The issue is whether the 1st – 4th Respondents were right to challenge the competence of the petition by way of the Preliminary objections before actual trial of the petition took place Afore tiori whether the Court below had the jurisdiction to entertain the applications at the stage it did to terminate the petition I am inclined to answer the above questions in the affirmative. First of all Section 147(3) of the Electoral Act 2006 provides:

Subject to the provision of subsection (2) of Section 149 of this Act, on the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this Part of this Act or the provisions of the first Schedule of this Act. ”

If a respondent in an election petition feels strongly that, on the face of it, the petition is patently unsustainable in the sense that it does not meet the requirements of the Electoral Act or the First Schedule to the Act or that it is lacking in materials to sustain it and therefore incompetent, he is at liberty to raise it and timeously too. And because it is an issue of jurisdiction which determination can be decisive of the whole litigation, the Election Tribunal or Court has the jurisdiction to entertain it. In this case the issue was raised by reference only to the petition and the documents filed along with it and without any reference to evidence. All the arguments were premised on the contents of the petition and the accompanying witness statement on oath.

I am further more persuaded by the contention of the 1st and 2nd Respondents that paragraph 49 of the First Schedule to the Electoral Act 2006 is another authority for the preliminary objections raised and determined at the Lower Court. Section 49 provides:

49(1) Non-compliance with any of the provisions of this Schedule or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such a manner and on such terms as the Tribunal or Court may deem fit and just.

(2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect.

(3) An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.

(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court.

(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defeat on the face of the election petition is noticed.

It is clear from the above that the enabling authority for the two consolidated applications is the combined provisions of Section 147(3) of the Electoral Act and paragraph 49 of the first Schedule to the Electoral Act. The two applications were filed timeously, they having been filed on the 3rd of August 2007 before the Respondents/Applicants took the further steps of filing their Replies to the Petition on the same day. And each application or preliminary objection clearly stated the legal grounds on which it was based. And in keeping with the settled principle of law and the specific provisions of paragraph 49(5) of the First Schedule the Electoral Act the lower court had a duty to hear and determine the two applications before any further steps in the proceedings. For the various principles on preliminary objections and the court’s jurisdiction to entertain same. See JANG v INEC (2004) 12 N.W.L.R. (Part 886) 46 at 83; AKINBIU v MILITARY GOVERNOR, ONDO STATE (1990) 3 N.W.L.R. (Part 140) 525 at 531. In SHELL-BP PETROLEUM DEVELOPMENT CO. OF NIGERIA LTD & ORS v M.S. ONA SANYA (1976) 6SC 57 at 60 the Supreme Court stated:

“It is not disputed that this action is founded on contract. The Plaintiff must therefore give sufficient particulars in his pleading to enable the contract to be identified. This he has failed to do. On a proper construction of Order 32 Rule 19, in considering whether to strike out a pleading, the court must restrict itself to the facts in the particular pleading without having recourse to the facts in the opponent’s pleading. In our view, there can be no question that as the statement of claim in this case now stands, its discloses no cause of action and ought to have been struck out under Order 32 Rule 19 by the learned trial judge. ”

In this case the preliminary objections and their determination at the court below were restricted to the petition and the documents filed along with it. I hold in conclusion of this issue that the preliminary objections were properly raised and determined at the Court below.

This issue is therefore resolved against the Appellant.

The next issue is whether the Court of Appeal was right to hold that grounds 2 and 3 of the petition do not conform with or relate to any of the four grounds of the petition For a proper appreciation of the issue raised here, it is necessary to reproduce the said two grounds with their particulars.

GROUND 2

The said election did not meet the minimal requirement of Electoral democracy and the law and the Electoral Act. 2006.

PARTICULARS

(a) Voting was not done in secret. For the first time in the history of elections in Nigeria no pooling booths were provided by the 3rd Respondent and the voters voted in public and also cast their votes in public.

(b) Military men were used by the Commander-in-Chief who like the 1st Respondent, belong to the 4th and who was the campaigner-in-Chief of the 1st Respondent to intimidate the electorate throughout Nigeria.

(c) The agents of the petitioner and other agents of other opposing Presidential Candidates were not allowed to witness the collation or counting of votes or the compilation of results.

GROUND 3

PARTICULARS

(a) Voting did not take place in more than 98% of the polling stations in the said States at all and the right to vote, the initial allocation of franchise to the potential voters in those states was lost as a result of the arbitrary and discriminatory conduct of the 3rd Respondent.

(b) Presidential Election has nationwide constituency and failure to give voters their right of franchise nullifies the entire election because there is no divided sovereignty for the election of a President or at all.

(c) The 4th Respondent announced on air that elections for the office of President would in compliance with Sections 47 and 48 of the Act take place between 10 a.m. and 3 p.m. throughout Nigeria, but no voting took place in the said zone on the said date and zone except at night in less than 2% of the polling stations in the zone where the 5th Respondent’s governorship candidates voted at the night in their homes.

The Court below held that grounds 2 and 3 do not conform with or relate to any of the four grounds set out in Section 145(1) of the Electoral Act and were struck out. No reasons were given for this conclusion. The Appellant proffered sustained arguments to fault the finding of the court below. There is force in the arguments of Mr. Ezike of counsel for the Appellant particularly having regard to the particulars of the said grounds 2 and 3. Looking at the two grounds in the abstract and without reference to their particulars one is tempted to conclude that they do not convey any complaint which falls within the grounds in Section 145(a)-(b) of the Electoral Act. They are vague. But a careful reading of the two grounds together with their particulars clearly shows that the Petitioner alleges a number of non-compliances and/or corrupt practices. No doubt the two grounds contain some assertions of non-compliances.

That however is not the end of the matter. The crucial question is whether the alleged non-compliances are of such a degree capable of sustaining the petition particularly in view of the -written statement on oath of the sole witness in support of the petition. This question should, of necessity, be considered under the next issue of whether the Court of Appeal was right to rely on Section 146(1) of the Electoral Act 2006 to strike out ground 1 of the petition. And corollarily, whether the Court of Appeal could very well have struck out grounds 2 and 3 of the petition by recourse to Section 146(1) of the Electoral Act 2006

For a comprehensible discourse of this issue it is pertinent to set out some relevant provisions of the Electoral Act, the First Schedule to the Act and the Election Tribunal and Court Practice Directions 2007. These are Sections 145(1) and 146(1) of the Electoral Act 2006. Paragraph 4(1)(a)-(d) of the First Schedule to the Electoral act and paragraph 4(1) (2) and (3) of the Election Tribunal and Court Practice Directions 2007 which are set out hereunder as follows:-

Section 145(1) of the Electoral Act says:

“An election may be questioned on any of the following grounds:

(a) that the person whose election in questioned was, at the time of the election, not qualified to contest the election;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provision of this Act.

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. ”

Section 146(d) of the Act provides:

“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”

Paragraph 4(1) of the First Schedule to the Electoral Act 2006 comes within the Rules and Procedure for Election Petitions.

The said Paragraph 4 states:

“4(1) An election petition under this Act shall:

(a) specify the parties interested in the election petition;

(b) specify the right of the petitioner to present the election petition;

(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election; and

(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner. ”

And paragraph 4 of the Election Tribunal and Court Practice Directions 2007 pertains to evidence at the hearing of a petition.

Paragraph 4 says:

“4.(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court.

(2) Documents which parties consented to at the pre-hearing session or other exhibits shall be tendered from the Bar or by the party where is he not represented by a legal practitioner.

There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the depositions.

It is clear from the above that the present petition questions the election of the 1st and 2nd Respondents on the grounds stipulated in Section 145(1)(a) and (b) of the Electoral Act 2006 that is,

(a) that the 1st and 2nd Respondents whose election is being questioned were at the time of the election on the 21/4/07 not qualified to contest the election; and/or

(b) that their election was invalid by reason of corrupt practices or non-compliances with the provisions of the Electoral Act 2006.

The present issue pertains to the second ground of non-compliance with the provisions of the Electoral Act. I wish to reiterate that the pertinent question is whether on the face of it, the petition contains such degree of non-compliances capable of sustaining the petition, particularly having regard to the written statement on oath of the sole witness in support of the petition.

In its ruling at page 249 of the record of Court of Appeal per Raphael Chikwe Agbo, (JCA) said: .

“A party who founds his petition on the grounds of substantial non-compliance with the provisions of the Electoral Act must not only plead and prove substantial non-compliance but must also pursuant to the provisions of Section 146 of the Electoral Act plead and prove that the non-compliance substantially affected the result of the election. Non-compliance with the provisions of the Act without more is not sufficient to invalidate an election. See BUHARI v OBASANJO (2005) 2 NWLR (Part 910) 241, YUSUF v OBASANJO (2005) 18 N.W.L.R. (Part 956). It follows that where insufficient facts or none at all are pleaded to establish substantial effect of the noncompliance on the result of the election, no reasonable cause of action has been made out. I have carefully perused the petition and no where have I seen pleaded facts establishing the substantiality of the effect of the alleged non-compliance with the provisions of the Electoral Act on the result of the election. Ground I therefore cannot be sustained and it is hereby struck out.”

The Appellant was at great pains to assert that the Court of Appeal erred when it struck out the petition at that preliminary stage and without taking evidence to determine it on the merit.

In the first place it is conceded that the Court of Appeal slightly over-stepped its bounds when it spoke of the Petitioner’s duty to plead and prove substantial non-compliance. The question of proof of substantial non-compliance that affected the result of the election did not arise for determination in the preliminary objections; that question being one that can only arise after evidence at the trial. For the purpose of the two preliminary objections, the materials for consideration are only those contained in the petition and the accompanying written statement on oath. Barring the above remarks, I am inclined to agree with the Court below about the duty of the Petitioner/Appellant to plead not only noncompliance but also that the non-compliance substantially affected the result of the election. That, in my view, is the logical construction of Section 145(1)(b) and Section 146(1) of the Electoral Act. Section 145(1)(b) speaks simply of non-compliance without any qualification. But Section 146(1) of the Act provides specifically for the degree of noncompliance by reason of which an election can be invalidated. The provision is an amplification of the otherwise unspecified noncompliance in Section 145(1)(b) of the Act. It follows that the relevant portion of Section 146(1) must, of necessity, be read in conjunction with

Section 145(1)(b) of the Act. For the purpose of meeting the requirements of the combined provisions of Sections 145(1)(b) and 146(1) of the Electoral Act therefore, a petitioner who challenges the election of a respondent on the ground of non-compliance with the provisions of the Electoral Act must plead not just the fact of the alleged non-compliance, but must go a step further to plead that the noncompliance substantially affected the result of the election.

This is my view accords with common sense. It is inconceivable to suggest that the bare assertion of non-compliance in an election petition without more is sufficient pleading to sustain the petition. If that were so then practically every election petition would succeed, in that, there is, in practical terms, no election without one form of non-compliance or the other. That obviously cannot be the purpose of the provisions of Section 145(1)(b) and 146(1) of the Electoral Act. I am firmly of the view that for the purpose of sustaining a petition on the allegation of non-compliance with the provisions of the Electoral Act there must be the assertion in the petition that the non-compliance substantially affected the result. This was the view of the Court of Appeal in BUHARI v OBASANJO (2005) 2 N.W.L.R. (Part 910) 241 at 453 where the court per Mohammed J.C.A., as he then was, said:

“In the determination of the complaints of the petitions in their petition of general non-compliance with the provisions of the Electoral Act 2002 in the conduct of the election by the 3rd respondent, it is necessary to determine if the noncompliance was substantial and also whether the noncompliance had also substantially affected the result of the election……”

In YUSUF v OBASANJO (2005) 18 N.W.L.R. (Part 756) the Court of Appeal per Salami JC.A, at page 181 restated the principle when he declared:

“Further on this ground of the petition, an election shall not be invalidated merely for the reason that it was not conducted substantially in accordance with the provisions of the Electoral Act. It must be shown that the non-compliance had affected the result of the election. The petitioner must not only show non-compliance but must also demonstrate that the votes attracted or scored through the non-compliance affected the result of the election…. ”

Furthermore there is the innovation brought in by the Election Tribunal and Court Practice Directions 2007. Paragraphs 1(a)(b) and (c) thereof provides that an election petition shall be accompanied by (i) a list of witnesses intended to be called in proof of the petition (ii) written statements on oath of the witnesses and (iii) copies or list of every document to be relied on at the hearing. The manifest intention of the totality of the provisions of Section 145(1)( d) and 146(1) of the Electoral Act and Paragraph l(a)(b) and (e) of the Election Tribunal and Court Practice Directions is to ensure that only a petition which on its face and in the face of the accompanying written statement on oath discloses a reasonable cause of action that can go for trial. A petition which on the face of it is defective or which in the face of the written statements on oath discloses no reasonable cause of action should be struck out on the application of the Respondent.

Now on the contents of the petition, I have carefully examined the grounds of the petition and the 28 paragraph written statement on oath of the sole witness, Dr. Paul Dike. The statement is, as it were, and by the provisions of paragraph 4(1) (2) and (3) of the Election Tribunal and Court Practice Directions 2007, the front loaded evidence-in-chief by which the petition is to be proved. In paragraphs 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17 and 18 of the said statement a number of allegations of non-compliance are made. These include non publication and display of voters register in Anambra, Abia, Ebonyi, Enugu and Imo States, non voting in the same states in the South East Zone of the country, non provision of polling booths, the petitioners inability to see the Resident Electoral Commissioner and the intimidating presence of soldiers in the streets. In paragraph 10 thereof the witness stated that he personally monitored the election by four named Local Government Areas of Anambra State and observed that no voting took place in any of them. This cannot be proof that there was no election in over 700 Local Governments of the country. There was no assertion in the said paragraphs that the alleged non-compliances substantially affected the result of the election. On the face of it, the petition is completely lacking

in materials by which its ground of non-compliance with the provisions of Section 145(1)(b) of the Electoral Act can be proved. In so far as the allegation of non-compliances is concerned the petition is patently devoid of any substance and thus discloses no reasonable cause of action.

In the face of this manifest lack of substance with respect to the allegations of non-compliances, could the Court of Appeal have gone on to trial of that issue I shall answer this question in the negative. The court below was perfectly in order to strike out ground 1 of the petition for non disclosure of any reasonable cause of action. And by extension the court below could, very well, have struck out grounds 2 and 3 of the provisions of the Act.

With respect to ground 4 of the petition the Court of Appeal reasoned and concluded as follows:

“State Governors are by the provision of Section 176 to 180 of the Constitution of the Federal Republic of Nigeria 1999 elected by the people of their states. Blacks Law Dictionary 5th Edition defines “elected” in ordinary signification carries with it the idea of a vote, generally popular, sometimes more restricted and cannot be held the synonym of any other mode of filling a position.” The word “employment” is not a synonym for the word “elected”. There is no iota of law supporting that ground. It is premised on frivolity and discloses no reasonable cause of action and it is hereby struck out”

I agree with the above reasoning and conclusion. The resolution of this issue can be found in the provisions of Section 137(1)(g) itself and the interpretation Section 318 of the Constitution. Section 137(1)(g) of the Constitution provides:

“A person shall not be qualified for election to the office of President if being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.”

In Section 318 of the Constitution “civil service of the Federation is defined to mean service of the Federation in a civil capacity as staff of the office of the President, the Vice President, a ministry or department of the Government of the Federation assigned with the responsibility for any business of the Government of the Federation. And the civil service of the State is defined to mean service of the Governor of a State on a civil capacity as staff of the Office of the Governor, Deputy Governor or a ministry or department of Government of the State assigned with the responsibility for any business of the Government of the State. There are similar definitions of public service of a State.

In all these definitions while persons employed in the civil or public service of the Federation or of a State include staff of the President, Vice President, Governors an Deputy Governors, they do not however include the President, Vice President, Governors and Deputy Governors. Learned counsel for the 1st – 4th Respondents referred to these definitions in Section 318 of the Constitution and submitted that by excluding elected officers, like Governors and Deputy Governors from the list of persons “employed” in the civil or public service of a State, Governors and Deputy Governors are not civil or public servants within the provision of Section 137(1)(g) of the Constitution. I agree entirely with this submission, and to which the Appellant has no answer. I agree that the latin maxim “expressio unius est exclusion alterius applies to exclude Governors and Deputy Governors. In like manner while persons employed in the civil or public service of the Federation and of a state includes Clerk or other staff of the National Assembly, and State Assemblies, they do not include elected members of the National and State Assemblies.

In view of the foregoing considerations it is my view that ground 4 of the petition disclosed no reasonable cause of action and same was rightly struck out for incompetence.

In conclusion, I hold that the petition as was constituted was incompetent and was rightly struck out in the wake of the two preliminary objections. This appeal therefore fails and same is accordingly dismissed.

I make no orders as to costs.

SC.270/2007

Chief Thomas Ekpemupolo & Ors. V. Godwin Edremoda Ors (2009) LLJR-SC

Chief Thomas Ekpemupolo & Ors. V. Godwin Edremoda Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C

The two suits culminating in this appeal were commenced at the Warri Judicial Division of the High Court of the then Mid-West State of Nigeria. The first Suit No. W/132/70 was filed on the 2nd of December, 1970. The Plaintiffs are the Respondents before this Court. The sole Defendant, Shell B.P. Petroleum Development Company of Nigeria is the 6th Respondent herein. By an application dated 17/12170 and an order of court pursuant thereto dated 12/1/71, the Appellants were joined as Co Defendants.

The 2nd Suit No.W/62/71 was filed on the 6/5/71. The Plaintiffs therein are the Appellants and the Defendants therein, the 1st-5th Respondents herein. The two suits were by an order of Court on the 11/6/73 consolidated and tried. By its judgment on the 4/12/1980, the trial Court allowed the claim in Suit No.W/132/70 and dismissed the claim in Suit No.W/62/71. In allowing the claim the learned trial judge E.E. Akpata J (as he then was) stated at page 149 of the record:

“In sum, therefore in respect of Suit No. W/132/70, the Plaintiffs are hereby granted a declaration of title to all the piece of land verged RED in survey Plan No. M/GA. 71/72, Exhibit ‘A’ in these proceedings. They are also entitled to the total sum of N9,500.00 which the company has deposited in the Government Treasury in Benin City. The company is to pay this amount or see to it that the amount is paid by the Treasury to the Plaintiffs. The company, Shell B.P. Development Company of Nigeria Limited is hereby restrained from paying any money in respect of all the land verged RED in Exhibit ‘A’ to any person or persons other than the Plaintiff.”

The Defendants/Appellants were aggrieved by the said judgment and proceeded on appeal to the Court below. By its judgment dated the 7th January 1994, the Court below dismissed the appeal. And still dissatisfied with the said judgment, the Defendants/Appellants have come on further appeal to this Court. The original Notice of Appeal dated and filed on the 23/2/1994 raised two grounds of appeal. The Amended Notice of Appeal was dated the 28/6/2006 and same was filed on the 29/6/2006. The Notice raised three grounds of appeal. The grounds without their particulars were:

GROUND 1

The Court of Appeal Benin erred in law when it dismissed the Appellant’s appeal on the ground that the appeal has not been argued according to the rules of court.

GROUND 2

The learned Justices of the Court of Appeal erred in law when they affirmed the judgment of the High Court having regard to the fact that they did not evaluate exhibit “A” (i.e. Plan No. M/GA71/72 to which the declaration was tied thereby occasioning miscarriage of justice.

GROUND 3

The Court of Appeal erred in law when it affirmed the judgment of the trial Court which entered judgment in favour of the Plaintiffs/Respondents and granted reliefs not contained in their amended Statement of Claim.

Briefs were duly filed and exchanged. The Appellant’s Amended Brief was prepared by Larry S and same was filed on the 13/10/07. He also prepared the Appellant’s Reply Brief which was filed on the 5/11/08. The 1st-5th. Respondent’s Brief was prepared by John Alele and it was filed on the 8/7/08. In the Appellant’s Brief learned counsel, Larry S. formulated three issues for determination.

In the 1st-5th Respondent’s Brief, learned counsel John Alele seems to have adopted the issues formulated by the Appellants without expressly saying so. In sum,therefore the parties are in agreement as to the issues for determination in this appeal. The issues are:

“1. Whether or not dismissing an appeal on account of an inelegantly or defectively written brief amounts to the court abdicating its duty of doing substantial justice.

Whether the Court of Appeal, Benin Division was right in affirming the declaratory reliefs granted in favour of the 1st-5th Respondents (i.e. the Plaintiffs in Suit No.W/132170) in spite of the fact that Exhibit “A” (i.e. Plan No. M/GA/71172) to which the High Court tied the relief was not placed before it for evaluation.
Whether or not the Plaintiffs/Respondents pleaded any relief in or by their Amended Statement of Claim dated 2nd February 1973 to warrant the Court of Appeal affirming the reliefs granted by the trial court.

In the Appellant’s Amended Brief and the Appellant’s Reply Brief, Barrister Larry made the following submissions. On the first issue, learned counsel conceded that the Appellant’s Brief before the court below was bad, defective, faulty and inelegant. It was his submission however that the inelegance or defect of a brief notwithstanding the court still had a duty to do substantial justice by considering same in its determination of the appeal. He relied on a number of authorities amongst them are OBIORA v OSELE (1989) 1 NWLR (Part 97) 279 GBAFE v GBAFE (1996) 6 NWLR (Part 455) 417, AKPAN v THE STATE (1992) 6 NWLR (part 248) 439; ORJI v ZARlA INDUSTRIES NWLR (1992) 1 NWLR (Part 216) 124, WEIDE & CO NIG. LTD v WEIDE CO. HAMBURG (1992) 6 NWLR (Part 249) 627; ECHO ENTERPRISES LTD v STANDARD BANK OF NIGERIA LTD (1989) 4 NWLR (part 116) 509 and IN RE OLAFISOYE (2004) ALL FWLR (Part 198) 1106. Counsel submitted that it was therefore wrong for the Court of Appeal to dismiss the appeal in the manner it did.

With respect to the second issue of whether it was right for the Court of Appeal to affirm the judgment of the trial court when it did not see Exhibit “A” to which the declaration sought and granted was tied, learned counsel referred copiously to the reliefs claimed, various s of the judgment of the trial court, the crucial nature of Exhibit “A” and the undisputed fact that the said Exhibit “A” did not form part of the record before the Court and submitted that it was wrong in the circumstance for the Court of Appeal to assert that the trial court properly evaluated all the evidence presented to it before its decision. Learned counsel referred to the fact identified by the trial court at page 143-144 of the record that ‘in the previous cases the Plaintiffs did not specifically assert that the place called Egwa was founded by their adventurous ancestors’, the fact that the plan used in Exhibit “C” was not tendered along with it and the copious references made to Exhibit “A” by the trial court and submitted that the Court of Appeal had a duty to examine Exhibit’ “A” in its assessment of the printed evidence. For the submission that consideration of Exhibit “A” along with other evidence on record was sine qua non of a valid judgment of the court below, counsel relied on the following: MOBIL PRODUCING NIGERIA UNLIMITED v MONOKPO (2004) ALL FWLR (Part 1975) 575; EDJEKPO v OSIA (2007) ALL FWLR (Part 361) 1617.

In the 3rd issue for determination, learned counsel submitted that a relief not claimed in the Statement of Claim is deemed abandoned and that where no relief is claimed in the Statement of Claim, there is no issue joined. He relied on ATANIOKU v MUSTAFA (1977) 11-12 SC 9; STOWE V STOWE (2000) FWLR (Part 24) 1425; ENIGBOKAN v AMERICAN INTERNATIONAL INSURANCE CO. NIG. LTD. (1994) 6 NWLR (part 348) 15-16; LAHAN v LAJOYETAN (1972) 6 SC 190 at 192; A.C.B. v EAGLE SUPER PARK (NIG) LTD (1995) 2 NWLR (part 379) 590 at 600; FATUNMI v ONILUDE (2004) ALL FWLR (P.219) 1053; PRACTICE AND PROCEDURE OF SUPREME COURT, COURT OF APPEAL AND HIGH COURT. By T.A. Aguda 2nd Edition.

In the Appellant’s Reply Brief, learned counsel was at great pains to further demonstrate that the two previous cases of SILLO v ADURUMOKUMOR and ULUBA v SILLO (1973) 8 N.S.C.C. 47 which is Exhibit “C” on which the trial court relied had no relationship whatsoever with the Egwa land in dispute in this case and that no reference whatsoever was indeed made in the previous cases to the land in dispute in this case. In conclusion, learned counsel for the Appellants urged that the decisions of the two courts below be set aside, and in their place-dismiss Suit No. W/132/70 and enter judgment for the Appellants in Suit No. W/62/71 or in the alternative order a retrial of both suits.

In the 1st-5th Respondent’s Brief, John Alele proffered the following arguments. With respect to the first issue, learned counsel referred to the order of this Court on the 26th day of March 2007 and the resultant hearing of this appeal on the merits and submitted that the complaint about the non-hearing of the appeal no longer remains an issue. Learned counsel made some references to parts of the judgment of the lower court and submitted that the appeal was in fact considered and decided on the merits.

On the second issue, learned counsel argued firstly that in view of the trial court’s preference of the traditional evidence of the 1st-5th Respondents to that of the Appellants and the host of Exhibits put together, the lower court rightly affirmed the decision of the trial court. With respect to the identity of the land, counsel referred to Exhibit “B” by which the Appellants claimed compensation from the 6th Respondent over the land in dispute and submitted that there was therefore no dispute as to the identity of the land. He referred further to Exhibits L8 – L15 by which the 6th Respondent negotiated with and paid compensation in respect of Egwa 2 to the 1st to 5th Respondents and the contiguity of Egwa 1 and Egwa 2, their separation being only a creek and submitted that the identity of the land was not in issue and that Exhibit ‘A’ was therefore not necessary. Apart from Exhibit “A”, counsel argued, Chief Sillo’s evidence before Obaseki J (as he then was) in Exhibit “C” had paved the way for dismantling the Appellant’s claim to the ownership of Egwa.

As respects the third issue, learned counsel agreed that Order 13 Rule 7 of the 1976 Bendel State High Court Rules applicable in Delta State insists on due compliance. It was his contention however that since clients do not prepare court processes and having regard to the principle of not punishing a client for the mistake of his counsel the court should lean towards the doctrine of incorporation as was applied in OKOMU OIL PALM CO. LTD v ISERHIENHEN (2001) 6 NWLR (part 710) 660 at 681. It was counsel’s submission that since in the Statement of Claim the Respondents claim as per writ of summons, the Statement of Claim is complete as it has incorporated the writ of summons. In support of this contention, learned counsel relied on UDECHUKWU v ONWUKA (1956) SC NLR 189; OWENA BANK (NIG) LTD v N.S.C.C. LTD (1993 4 N.W.L.R. (Part 290) 698 at 714-715 and KESHINRO v BAKARE (1967) 1 All N.L.R. 280. Learned counsel urged in conclusion that in view of the traditional evidence and other oral evidence accepted by the trial court who heard and watched the demeanour of witnesses who testified together with the operation of Section 46 of the Evidence Act, the concurrent judgments of the two courts below be affirmed.

I have taken a careful look at the record of proceedings and the submissions of counsel for the parties in their respective briefs. With respect to the 1st issue, it is clear from the judgment of the court below that the appeal was dismissed for two reasons. The first was that the appeal was argued in breach of the Rules of Court and principles governing the writing of briefs. The court Per Ogebe, JCA (as he then was) at page 344 of the record highlighted some flaws in the Appellant’s brief and the 1st – 5th Respondent’s brief and concluded in the following terms:

“From all I have said above, based on the principles governing the writing of briefs, it is clear that this appeal has not been argued according to the rules of court. Consequently the appeal must be dismissed and it is hereby dismissed.”

Mr. Larry for the Appellants referred to the above conclusion of the court below and submitted that dismissing the appeal as it did on the ground that the Appellant’s brief was not written in strict compliance with rules and principles governing brief writing amounted to the Court’s abdication of its duty to do substantial justice. Mr. John Alele for the 1st-5th Respondents appeared to have conceded this argument of the Appellants. There is substance in the complaints of the Appellants. Admittedly, there were substantial flaws in the Appellant’s brief before the court below and the Court highlighted them. But was the Court right to dismiss the appeal because of those flaws It is my firm view, with respect, that the Court of Appeal erred. There are numerous authorities on the principle that the inelegance or flaws in a party’s brief of argument notwithstanding, an appellate court has a duty to examine the arguments contained therein and decide the case on its merits. OBIORA v OSELE (1989) 1 NWLR (Part 97) 279 cited in the Appellant’s Amended Brief of Argument is very apposite on the point. The dismissal of the appeal on the ground that it was not argued in the Appellant’s Brief in accordance with the rules and principles governing the writing of briefs as stated in the judgment is tantamount to the determination of the appeal without giving the Appellant a fair hearing. Therefore if this were the only ground for the dismissal of the appeal at the court below, this appeal would have been allowed on that ground alone.

But that was not so. After dismissing the appeal on the ground of the inelegantly drafted brief, the Court below also proceeded on to dismiss the appeal on the merits. In this regard the court below in its concluding paragraph of the judgment had this to say:

“I have carefully read the judgment of the trial court and I am satisfied that it properly appraised all the evidence placed before it meticulously before arriving at its decision. I see no cause whatsoever to interfere with the judgment. Accordingly, even on the merit, the appeal lacks substance and it is hereby dismissed. I affirm the decision of the trial court…”

The above shows that in addition to dismissing the appeal for the Appellant’s non compliance with the rules and principles of brief writing, it also dismissed it on the merits. I do not think we are in a position to impugn that assertion of having also dismissed the appeal on the merits. It is an assertion of what the court said it did. Whether or not the assertion is right in the light of the materials before the Court is completely another thing. The Court of Appeal should be taken to mean what it said. Thus, while there is substance in the Appellant’s complaint about the dismissal of the appeal on the grounds of the inelegant Appellant’s Brief, there is no substance in their complaint about the Court’s assertion of having also dismissed the appeal on the merits.

For conveniences, I take the 3rd issue before the 2nd. The question posed there is whether the Plaintiffs/Respondents pleaded any relief in their Statement of Claim. The writ of summons issued on the 2nd December 1970 contained four reliefs. In paragraph 19 of the Statement of Claim dated 2/2/1973 and filed on the 3/2/1993 the Respondents claimed as follows:

“19 whereof the Plaintiffs claim as per their writ of summons”

I have considered the arguments very ably agitated by counsel for the parties with the authorities cited. On this issue OKOMU OIL PALM CO. LTD v ISERHIENHEN (2001) 6 NWLR (part 710) 660 at 681 is quite apposite. There this Court, Per Uwaifo J.S.C. while restating the principle had this to say:

“…I think reference in a statement of claim to the writ for the reliefs claimed in the writ of summons makes the statement of claim complete as it incorporates the writ. It is accepted that the synonym of the word ‘incorporate’ includes roll into one, merge, link with, join together, fuse, assimilate: see Barlett’s Rogef’s Thesaurus 1st Edition paragraph 753.15 at page 663 and paragraph 757.9 at page 668. I am satisfied that Ubaezonu, JCA was right in his observation in OWENA BANK case (supra) at pp. 714-715 that “where the Statement of claim states that the Plaintiff claims ‘as per writ of summons’, the claim in the writ of summons is incorporated in the statement of claim and becomes part of it. Once there is such incorporation, the statement of claim is taken to contain the relief stated in the writ which statement of claim would otherwise have been defective and contrary to the requirements of Ord. 13 Rule 7….”

I adopt the above opinion in its entirety. The invitation to dismiss the claim on the ground that in the Statement of claim the Plaintiffs/Respondent merely claimed ‘as per their writ of summons’ is an invitation to give credence to technical justice. The Courts have been advised to avoid technicalities in the administration of justice. See BELLO v A.G. OYO STATE (1986) 5 NWLR (Part 45) 828 at 885-886; NNEJI v CHUKWU (1988) 3 NWLR (Part 81) 186 at 188.

The skill of formulating pleadings is a highly technical one that can only be properly handled by lawyers with the appropriate skills. If we accede to the request of learned counsel for the appellants to dismiss the claim, then the Plaintiffs/Respondents would be punished for the mistakes or inadvertence of their counsel and inflict injustice. This we should avoid. See IBODO v ENEROFIA (1980) 5 SC 42; NNEJI v CHUKWU (supra). ADEPOJU v ADEPOJU (1968) 2 ALL NLR 141. For the foregoing considerations, this issue is resolved against the Appellants.

I now come to the 2nd issue. The uncontroverted fact is that Exhibit “A” was not before the court below as it is not before us. The crucial question is whether the Court below was right to dismiss the appeal without the benefit of also examining Exhibit “A”. In the first place how crucial was this Exhibit In the 1st relief the Respondents claimed:

“A declaration of title to all that piece or parcel of land known as “Egwa-tie” which piece or parcel of land is lying and situate within the jurisdiction of this Honourable Court the boundaries of which piece or parcel of land will be shown in plan to be filed in this Honourable Court.”

The settled principle of law is that a declaration of title to a piece or parcel of land can only be granted if the definite precise and accurate boundaries of it are established. And the onus of proof lies on the Plaintiff who seeks a declaration of title to land and for an injunction to establish with certainty and precision, the area of land to which the claim relates. See OKEDARE v ADEBARA (1994) 6 NWLR (Part 349) 157; AGBONIFO v AIWERIOBA (1988) 1 NWLR (Part 70) 325; ONWUKA v EDIALA (1989) 1 NWLR (Part 96) 182; KWADZO v ADJEI (1944) WACA 274; ARABA v ASANLU (1980) 5-7 SC 78. And there is no gainsaying the fact that it was for the purpose of establishing the precise boundaries of the Egwa-tie claimed that Exhibit “A” was filed. And in granting the relief claimed the trial court stated at page 149 of the record thus:

“In sum therefore, in respect of Suit No. W/132/70, the Plaintiffs are hereby granted a declaration of title to all the piece of land verged red in survey plan No.M/GA.71/72. Exhibit “A” in these proceedings.”

Right from the trial Court and up to the Court of Appeal, the Defendants/Appellants were at pains to demonstrate that the Plaintiffs/Respondents failed to establish the precise boundaries of the land in respect of which the declaration was sought and granted and urged that the claim ought to have been or should be dismissed.

What are the circumstances surrounding the Exhibit “A” On the 22/3/1979 learned counsel for the Plaintiffs/Respondents John Alele informed the court at the very opening of their case that the surveyor who prepared it was late. Counsel for the three sets of defendants i.e. Siakpere, Dr. Odje and Dr. Mowoe each expressed no objection to its admission in evidence and so it was admitted and marked Exhibit “A”. The DW1 was one Josiphus Theophilus John, a licensed surveyor who prepared the Appellant’s Plan Exhibit ‘F’. In the course of his evidence, he tried to discredit Exhibit “A” when at pages 89-90 of the record of proceedings he said:

“I see Exhibit A. Exhibit “A” and “F” are incomparable because the scales are different. Scale A is 1250 to an inch. The scale of Exhibit “F” is 2083.6ft to an inch. I cannot follow Exhibit A. The pipe of Exhibit “F” is running North-North-West. It forms the western boundary of the land claimed by the defendant. In Exhibit A it runs North-West and lies in the middle of the land claimed by the Plaintiffs. The positions of the wells and the shapes of the rivers differ greatly…. Egwu-tie creek in Exhibit A is not of the same shape with Egwa creek in Exhibit “F”.

It is clear from the above that the parties plan description of the land in dispute is greatly at variance. Part of the address of counsel for the Defendants/Appellants O. V. Siakpere before the trial Court is at pages 118-119 of the record. At page 118 lines 22-24 he pointed out what he considered to be flaws in Exhibit “A” when he submitted:

“Their plan Exhibit “A” is barren. Nothing to show they owned it. There is not a single juju shrine planted. They have only Enyeogbe camp. This is far from Egwa and it is not in dispute.”

There are other attacks on the Plaintiffs/Respondent’s proof of the boundaries at page 119 lines 4-11 of the record.

The address of learned counsel for the Plaintiffs/Respondents John Alele is at pages 123-126 of the record. At page 125 lines 20-22, he seemed to have conceded some deficiencies in their plan Exhibit “A” when he said:

“The Plaintiff’s plan shows no features because the first defendant had acquired the land. Hence the failure to show features in Exhibit “A” cannot be held against us…”

Despite the foregoing, the trial court in its judgment tried to trivialise the alleged failure of the Plaintiffs/Respondents to establish the precise boundaries of the land claimed holding, as he did, that whatever description of the land by them accorded with their earlier description of same in previous cases. See page 144 of the record.

The Appellants herein were the Appellants at the Court below. Their brief of argument is at pages 245-270. Therein, their counsel O.V. Siakpere submitted again and again, that in view of the facts disclosed in Exhibit “A” the Respondents claim ought to have been dismissed. It was further contended that Exhibit “A” apart from failing to help the case of the Respondents, established the Appellant’s possession over the Egwa land in dispute. At page 257, learned counsel for the Appellants submitted as follows:

“In Exhibits “A” (Respondent’s Plan), the situations and positions of Okenrenghigho and Omadinor villages are clearly shown. On the opposite side at the Escravos Rivers are shown two Egwa camps. There are no suit numbers to show that there had been litigations over them and that such litigations ended in favour of the Respondents.”

Again at page 260 learned counsel made the following submission:-

“The Plaintiffs/Respondents have not established at all any sufficient numerous, positive and/or convincing acts of possession and enjoyment over Egwa land which is in dispute.

(a) In Exhibit “A” (Respondent’s Survey Plan), there is nothing to show the presence of the Respondents, or that they have ever been there.

(b) There is abundant evidence that the Appellant has his permanent home at Egwa. This is accepted by the Respondents and his two camps are clearly shown on Exhibit “A”.

There were still other references to Exhibit “A” in the Appellant’s brief. And from the totality of the submissions therein, Exhibit “A” was crucial and the Court below was called upon and indeed had a duty to examine Exhibit “A” to see how and the extent to which it affected the respective cases of the parties. It cannot just be wished away.

Surprisingly, the said Exhibit “A” disappeared and so was not placed before the Court below. The Court never bothered to see this Exhibit A which was capable of turning the scale of justice one way or the other. And it nevertheless went ahead to dismiss the appeal and affirm the decision of the trial court without seeing Exhibit “A”. The question is was the Court of Appeal right when it stated that it had carefully read the judgment of the trial court and was satisfied that it properly appraised all the evidence placed before it meticulously before arriving at its decision It is my firm view that the finding or assertion was rather presumptuous and I have no doubt that it was wrong. Given the crucial nature of Exhibit “A” and the heavy reliance placed on it by the Appellants, the court below could not have been in any position to know whether or not the trial court properly and meticulously evaluated the totality of the evidence before it in arriving at its decision.

In MOBIL PRODUCING (NIG) UNLIMITED v MONOKPO (2003) 18 NWLR (part 852) 346 at 437-438 this Court was confronted with circumstances similar to those in this case, and this Court Per Tobi, JSC reacted as follows:

An appellate Court must and I repeat must come to the conclusion such as above if that court has seen the exhibits. What an appellate court cannot see is the evidence given by the witnesses and so he goes by the record to see whether the evaluation and conclusion reached by the trial judge are vindicated on the record. Even here, if the conclusions are not borne out from the record, an appellate court can reject them on grounds of perversity.

There is no procedural law known to me which allows an appellate court to accept the evaluation of exhibits by the trial court which are not before that court. A court trial or appellate must see the exhibits before taking any decision on them. A court trial or appellate must see the exhibits before probing into their veracity or authenticity. A court trial or appellate cannot and must come to the conclusion one way or the other, on exhibits which it did not see. Where a court does that there is a clear miscarriage of justice and the judgment must be declared a nullity…”

EDJEKPO v OSIA (2007) 8 NWLR (part 1037) 635 is another strong authority that an appellate court has a duty to examine the totality of the evidence presented at the court below in order to ascertain whether the decision is supported by the evidence placed before it.

As I stated earlier, without seeing Exhibit “A” which vitality or materiality is not contested, the Court below could not have been in any position to assert, as it did, that the trial court properly and meticulously evaluated all the evidence before it before it arrived at its decision. The assertion or finding was merely presumptuous and cannot stand.

It is a judgment without a consideration of the crucial issue two wherein the question of Exhibit “A” was raised. There was therefore a clear miscarriage of justice which renders the judgment of the court below a nullity. The result is that this issue is resolved in favour of the Appellants.

The 2nd issue having been resolved in favour of the Appellants, this appeal succeeds on this ground alone. The appeal is accordingly allowed. The judgment of the court below be and is hereby set aside being a nullity. The appeal be and is hereby remitted back to the Benin Division of the Court of Appeal for rehearing by another panel of that court.

I assess the costs of this appeal at N50, 000.00 favour of the Appellants.

SC.35/2000