Afada Ehoche V. Abu Ijegwa (2002)

LawGlobal-Hub Lead Judgment Report

OBADINA, J.C.A

This is an appeal against the ruling of the High Court of Benue State, sitting at Otukpo, delivered on the 21st of September, 2001. The respondent was the plaintiff, while the appellant was the defendant at the lower court.

Both the appellant and the respondent belong to Auke Clan of Ochekwu District in Apa Local Government Area of Benue State. Both of them contested for a minor chieftaincy title, called, “Amana-Abo” of Auke Clan, in Apa Local Government Area of Benue State. The respondent then dragged the appellant before the Apa Traditional Council of the Apa Local Government, in January, 1999 to decide which of them was entitled to the stool of the “Amana-Abo” of Auke Clan. The parties gave evidence and called their respective witnesses before the Traditional Council. After the parties and their witnesses gave evidence, the Apa Traditional Council decided the dispute in favour of the appellant. See exhibit “A” at pages 21-40 of the record of appeal.

Apparently, dissatisfied with the decision of the Apa Traditional Council, the respondent instituted this action at the court below, against the appellant claiming the following reliefs:-

“(a) A declaration that by the custom and tradition of Auke people, the plaintiff who hails from Ai-Olonta lineage in Ai-Omoka sub Clan/kindred of Auke Clan in Ochekwu District of Apa Local Government Council, is the rightful and legitimate “Amana-Abo” of Auke Clan, the current turn being that of his lineage in accordance with the seniority of lineages in accession to traditional offices amongst the sub-Clans/kindred in Auke Clan.

(b) A declaration that by the custom and tradition of the people relating to accession to traditional offices in Auke Clan of Ochekwu District of Apa Local Government Council, the 1st defendant is not eligible for consideration or qualified for appointment or contest or hold the office of the “Amana-Abo” of Auke Clan, the current turn not being that of his lineage within Ai-Omoka sub Clan/kindred of Auke Clan.

(c) A declaration that the resolution of the 2nd defendant making the 1st defendant eligible to hold the office of the “Amana-Abo” of Auke Clan in the present turn constitutes a gross violation of the custom and tradition of the people and thus null and void and of no consequence whatsoever.

(d) An order of perpetual injunction restraining the 1st defendant from parading himself or conducting himself in any manner howsoever as the “Amana-Abo” of Auke Clan in Ochekwu District of Apa Local Government Council or performing any of the functions and duties of the said office of “Amana-Abo” of Auke Clan.

(e) An order of perpetual injunction restraining the 2nd defendant from recognising or causing to be recognized the 1st defendant as the “Amana-Abo” of Auke Clan in Ochekwu District of Apa Local Government Council.”

Pleadings were filed and exchanged by the parties. After the exchange of pleadings, the appellant, as defendant, filed a motion on notice dated 23rd of May, 2001 praying the court to strike out the case on the ground that the issue of “Amana-Abo” of Auke Clan had already been decided by Apa Traditional Council, and that the respondent, as plaintiff, was estopped from raising the issue again.

The application was heard by the learned trial Judge who in his reserved ruling dismissed the application on the 21st of September, 200l.

Dissatisfied with the trial court decision contained in the said ruling of 21st of September, 2001, the appellant has appealed to this court on two (2) grounds of appeal. From the two (2) grounds of appeal, the appellant formulated two (2) issues for the determination of the court, namely:-

“(1) Was the learned trial Judge right to have held in his ruling that the decision of the Apa Traditional Council as per exhibit “A” was neither published to the parties nor was it accepted by the parties?

(2) Whether the learned trial Judge was bound to give effect to exhibit “A” as binding the parties in view of the Supreme Court decision (Per Nnaemeka-Agu, J.S.C.) in Igwego and others v. Ezeugo and others (1992) 6 NWLR (Pt. 249) 561; (1992) 7 SCNJ (Pt. 11) page 284 at 297-298.”

In arguing the appeal, the learned counsel for the appellant conceded that the two issues formulated by him are similar and interrelated. He therefore treated the two issues together. He referred to the decision of the Apa traditional council at pages 21-40 of the record of appeal. He argued that it was not in dispute that the Apa traditional council had statutory power to decide controversy according to the customary law of the parties. He said it was the respondent that took the dispute to the Apa traditional council for resolution. He referred to the evidence of the parties and their witnesses before the traditional council as contained in exhibit “A”, the decision of the council in favour of the appellant. He said the respondent did not do anything after the decision of the council until 15th May, 2001, a period of over 2 years, when he instituted this action. He submitted that the learned trial Judge having found as of fact that both parties willingly submitted their dispute to the traditional council ought to have given effect to the decision of the council in exhibit “A”. He referred to page 64, lines 36-39, where the leaned trial Judge found that the parties submitted themselves to arbitration by the council. He referred to the case of Igwego and others v. Ezeugo and others (1992) 6 NWLR (Pt. 249) 561; (1992) 7 SCNJ (Pt. 11)page 284 at 297-298; Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296; (1991) 6 SCNJ 156 at 169 and submitted that the parties are bound by the decision of the Apa Traditional Council and that, objection by the losing party to the decision would not prevent the court from giving effect to the decision. He argued that if the learned trial Judge was properly guided by the Supreme Court decisions mentioned above, he would have upheld the plea of estoppel raised by the appellant by way of preliminary objection in this case.

He further submitted that the decision of the learned trial Judge that the decision of the Apa Traditional Council contained in exhibit “A” was neither published nor accepted by the parties, was erroneous. He referred to paragraph 6(1) and (11) of the respondent’s counter-affidavit on pages 41 and 42 of the record of appeal and submitted that the parties knew the verdict of the Apa traditional council. He submitted that acceptance of the decision of the arbitral body by the parties could be implied from their conduct. He urged the court to allow the appeal and strike out the suit on the plea of estoppel by customary arbitration.

In the respondent’s brief, the learned counsel for the respondents adopted the two issues formulated by the appellant as the issues arising from the appeal. He referred to the decision of the Apa traditional council embodied in exhibit “A’ and submitted that the decision of the traditional council did not meet the requirements of a valid customary arbitration to constitute estoppel. He argued that the mere fact that the parties appeared before the traditional council and voluntarily submitted their dispute involving the traditional title of “Amana-Abo” of Auke Clan for resolution was not sufficient to make the decision arrived at by the council binding and to operate as estoppel between the parties. He said that other essential elements must co-exist before the decision of such a body could be held valid and binding as to constitute estoppel. He referred to the case of Duruaku Eke v. Udeozor Okwaranyia (2001) 12 NWLR (Pt. 726) 181; (2001) 86 LRCN 1403 at 1428-1429. He referred to the decision of the said Apa traditional council – exhibit “A” and submitted that the conditions for a valid customary arbitration as stated by the Supreme Court have not been satisfied. He argued that there was no where in exhibit “A” showing any acceptance of the award by the parties. He submitted that the learned trial Judge was right in dismissing the preliminary objection. He referred to paragraph 18(c) of the statement of claim, and argued that the respondent, as plaintiff, sought for “a declaration that the resolution of the 2nd defendant making the 1st defendant eligible to hold the office of “Amana-Abo” of Auke Clan in the present turn constitutes a gross violation of the custom and tradition of the people and thus null and void and of no consequence whatsoever.”

He argued that by the above relief, the respondent was seeking to invalidate the proceedings of the Apa Traditional Council exhibit “A” on the ground that it was a nullity. He urged the court to dismiss the appeal.

The case of the appellant as could be gathered from the two issues formulated for determination of this court, is that the decision of the Apa Local Government Traditional Council embodied in exhibit “A” – at pages 21-40 of the record of appeal, is a decision of a customary arbitration and it constitutes estoppel per rem judicata and thus operates as a bar to further action by the respondent. From the arguments contained in the briefs of the parties, it is not in dispute that the Apa Local Government Traditional Council had statutory power to decide the said chieftaincy controversy in accordance with the customary law of the parties. The issue for determination in the appeal is whether the decision of the Apa Local Government traditional council in this case, exhibit “A” really meets the requirements of a valid customary arbitration to constitute estoppel.

The learned counsel for the appellant referred to the finding of the learned trial Judge at page 64 lines 36-39, where the learned trial Judge stated as follows:-

“From this, it is evident that the parties appeared before the council, gave evidence and called witnesses. They therefore submitted themselves to arbitration by the council.”

The learned Counsel submitted that having regard to the circumstances of the case, the learned trial Judge ought to have given effect to the decision of the Traditional Council. He relied on the following cases: Igwego and others v. Ezeugo and others (1992) 6 NWLR (Pt. 249) 561; (1992) 7 SCNJ (Pt. 11) page 284 at 297-298; Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296; (1991) 6 SCNJ 156 at 169.

The issues as to the validity and bindingness of decision of customary arbitration has long been settled. In the first place, the general principle governing arbitration is well known, and it is set out, inter-alia, in the case of Omanhene Kobina Foli v. Ohene Obeng Akese (1930) 1 WACA 1 at page 2. In that case Deane, CJ. said:-

” … in submissions to arbitration, the general rule is that as the parties choose their own arbitrator to be the Judge in the disputes between them, they cannot when the award is good on its face, object to his decision, either upon the law or the facts.”

I might also refer to the case of EkuaAyafie v. Kwamina Banyea, 2nd Ed. page 8 Sarbatis Fanti, L. R., where it was held that where matters in difference between two parties are investigated at a meeting, and in accordance with customary law and general usage, a decision is given, it is binding on the parties and the Supreme Court will enforce such decision. In that case Bailey, C.J. said:-

” … after the arbitration was concluded, defendant objected to the award because it was against him. The

plaintiff, no doubt would have objected had the award been but this way … But notwithstanding that the object (sic) the court held the award was a good one. Mr. Akufo-Addo suggests that this case is distinguishable from the present one because the Fanti law does not exactly agree in detail with Akan law. That is no doubt true, but the general principles of native customary law are based on reason and good sense and it would take a lot to convince me that Akan customary law is so repugnant to good sense as to allow the losing party to reject the decision of arbitrators to whom he had previously agreed.”

The learned President then concluded:-

“In the result, it seems to me that as there was a proper and valid arbitrations, both the learned Judge and the Native Appeal Court, were wrong in ordering are-trial and the award of the arbitrators should stand.”

In a recent case of Emmanuel Okpala Igwego & others v. Fidelis Ojukwu Ezeugo & others (1992) 6 NWLR (Pt. 249) 561 at 576, the Supreme Court of Nigeria, stated what constitutes a customary arbitration and the bindingness of its decision. It said, Per Nnaemeka-Agu J.S.C., as follows:-

“Where parties to a dispute voluntarily submit their dispute to a customary body of persons such as the peace committee in this case for adjudication and agree to be bound by the decision of the body on the issues in controversy between them, if the body goes into the matter, hears both sides and reaches a decision, the law takes the view that the parties to the dispute had chosen their own forum rather than the courts. None of the parties will be allowed later to back out of the decision if it does not favour it. It will be bound thereby and the successful party can plead the decision as estoppel. This is the result of a long line of decided cases. Larbi v. Kwasi (1950) 13 WACA, 81 at 82; Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385.”

In a more recent case of Duruaku Eke & others v. Udeozor Okwaranyia & others (2001) 12NWLR (Pt. 726) 181 at 208; (2001) 86 LRCN 1403 at 1428-1429, the Supreme Court, per. Uwaifo, J.S.C., itemised the elements or ingredients of a valid customary arbitration.

He said:-

“that for there to be a valid customary arbitration, five ingredients must be pleaded and proved, namely:-

“(a) That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons.

(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrator(s) would be accepted as final and binding.

(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.

(f) That the arbitrator(s) reached a decision and published their award.

(g) That the decision or award was accepted at the time it was made.”

The learned Supreme Court Justice concluded by saying:-

“I think anything short of these conditions will make any customary arbitration award risky to enforce. In

fact, it is better to say that unless the conditions are fulfilled, the arbitration award is unenforceable.”

Commenting on the need for the court to ensure that parties had voluntarily submitted to the arbitration before applying the decision of a customary arbitration as an estoppel, the Supreme court, per Akpata J.S.C., stated as follows, in Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 24:-

“It is a common feature of customary arbitration in a closely knit community that some of the arbitrators if not all, not only have prior knowledge of the facts of the dispute, but also have their prejudices and varying interests in the matter, and are therefore sometimes Judge in their own cause and are likely to pre-judge the issue. Prior knowledge and pre-judging issues are more pronounced in land disputes having bearing with the founding of the village and how families migrated to the village and come to occupy parcels of land. The arbitrators are well informed on these matters. The position however is that traditional history is sometimes transmitted, received or construed with a slant by the person using it for a purpose. Hence it is essential before applying the decision of a customary arbitration as an estoppel for the court to ensure that parties had voluntarily submitted to the arbitration, consciously indicated their willingness to be bound by the decision and had immediately after the pronouncement of the decision unequivocally accepted the award.”

In the present case on appeal, the plaintiff, now the respondent in this appeal sued the appellant before Apa Local Government Traditional council seeking inter-alia, a declaration that by the custom and tradition of Auke people, the plaintiff who hailed from Ai-Olonta lineage in Ai-Omoka subclan/kindred of Auke Clan in Ochekwu District of Apa Local Government Traditional Council Area is the rightful and legitimate “Amana-Abo” of Auke Clan, the current turn being that of lineage in accordance with the seniority of lineages in accession to traditional offices amongst the subclan/kindreds in Auke Clan. The traditional council decided the dispute in favour of the appellant. The respondents again sued before the lower court seeking in effect the same relief in different words. After the exchanges of pleading, the 1st defendant, now the appellants filed a motion on notice praying that the suit be struck out on the ground that the issue of “Amana-Abo” of Auke Clan had already been decided by Apa Traditional Council, sued as the 2nd defendant.

In paragraphs 4 and 5 of the affidavit in support of the application to strike out the suit, it was deposed on behalf of the defendant/appellant as follows:-

“(4) That on 19th day of May, 2001 at about 11a.m. the appellant who came to our chambers at No. 30 Jericho Road Otukpo informed me of the following facts and I verily believe same to be true:-

(i) that he became the “Amana-Abo” of Auke to Chief Amonjenu Ododo the present Clan head of Auke Clan in1997.

(ii) that in 1999, the respondent reported him before the Apa Local Government Traditional Council contending inter-alia that he was the rightful person to be made the “Amana-Abo” of Auke Clan.

(iii) that both of them appeared before the traditional council with elders of their kindreds.

(iv) that after hearing both parties and their witnesses the council resolved the matter in favour of the applicant.

(v) that both parties and their people were happy with the decision of the traditional council and accepted same.

(vi) that since the decision of the traditional council on 11th January, 1999, the respondent did nothing to show that he did not accept the decision of the traditional council until 15th May, 2001, after a period of 2 years and four months when he filed this suit.

(5) The applicant’s counsel has also informed me and I verily believe him that the decision of Apa Traditional Council which is attached here as exhibit “A” is binding on both parties and the plaintiff is estopped from re-litigating the same matter before this court.”

The respondent who was the plaintiff in the case filed a counter-affidavit against the application to strike out the suit. From the counter-affidavit, the respondent did not deny that the parties had earlier taken their dispute before the Apa Traditional Council or that the Apa Traditional Council had decided the dispute in favour of the appellant. In paragraphs 3, 5 and 6 of the counter-affidavit, the respondent acknowledged that the parties had earlier referred their dispute on the Chieftaincy to the Apa Traditional Council and that the council has given a decision. He stated inter-alia as follows:-

“(3) that I know as of fact that in the substanti ve claim, the respondent herein is challenging the eligibility of the applicant to the office of the “Amana-Abo” of Auke Clan and an order setting aside the resolution of the 2nd defendant and other injunctive reliefs.

(5) That I am also informed by the said counsel and I verily believe him that since the resolution of the 2nd defendant is being challenged for being invalid and contrary to custom of the people same cannot constitute estoppel or remove the jurisdiction of the Honourable court to inquire into same.

(6) That I am informed by the respondent in the chambers of P. A. Omengala, Esq., at No.5 Asa Road, Otukpo, Benue State, on the 26th day of May, 2001, at about 4pm and I verily believe him as follows:-

(i) That immediately the decision of the 2nd defendant was given, he immediately rejected same and gave notice of his intention to challenge same which he has now done.

(ii) …

(iii) That his community has never accepts the decision of the 2nd defendant which is considered a violation of the custom and tradition of the people and hence the decision to challenge same.

(iv) That the current turn of “Amana-Abo” belongs to his community and not that of the applicant.”

When the affidavit and counter affidavit in respect of the application to strike out the suit are read together, it is clear from the averment by the appellant that he i.e. the appellant became the “Amana-Abo” of Auke Clan to Chief Amonjenu Ododo, the present Clan head of Auke Clan in 1997, is not denied; it is also not disputed that it was the respondent who reported the dispute before the Apa Traditional Council, contending that he i.e. the respondent was the rightful person to be made the Amana-Abo of Auke Clan. The respondent did not also controvert the evidence that both parties appeared before the Traditional Council with the elders, gave evidence and called their respective witnesses before the council, and that the council gave a decision on the dispute in favour of the appellant on the 11th of January, 1999.

Again, pages 21-40 of the record of appeal- exhibit “A”, are the minutes of Apa Local Government Traditional Council meeting on the 11th of January, 1999, to settle the said Chieftaincy title dispute. Exhibit “A” is specifically headed “Minutes of Apa Local Government Traditional Council meeting held on the 11th of January, 1999, to settle “Amana-Abo” Chieftaincy title dispute in Ai-Omoka sub Clan of Auke between Abu Ijegwa and Afada Ehoche.”

Exhibit “A” clearly shows that the respondent was the complainant, while the appellant was the defendant. This really means that the respondent in particular, voluntarily submitted the dispute to the Apa Local Government Traditional Council i.e. a customary arbitration.

Exhibit “A” also shows that the parties each testified before the Apa Local Government Traditional Council and called witnesses in their respective defences. At the end of the hearing the council stated inter-alia as follows:-

“On this date, all parties were present and members of the traditional council were present without any absence.

After necessary appeals for peace and due prayers by the chairman of the traditional council, the Secretary read out the whole statement made by the parties and their witnesses to the acceptance of the parties in the case.

Carefully reviewing the whole case, the council came out with the following that:-

(1) Ai-Omoka kindred of Auke Clan is made up of three sub-kindreds – Ai-Ogbeikwu, Ai-Olonta, and Ai-Oblete.

(2) The seniority order is as shown in No.1.9

(3) In Auke Clan, ascendancy into Chieftaincy title and subsequently throne is in the order of seniority.

(4) There had been a chieftaincy title in dispute between Ai-Olonta and Ai-Oblete which was determined in favour of Ai-Oblete due to circumstance of equitable distribution of power.

(5) Since the determination and settlement of the dispute, about fifty years ago there had not been any protest nor appeal from anybody.

(6) The recipient of the chieftaincy titles -Amana-Abo (Afada Ehoche) received the unanimous selection, blessing and presentation by the entire Ai-Omoka led by Onu Ijegwa the co-contendant to the title.

Resolution:

In view of the above, the council resolved that the present turn is for Afada Ehoche of Ai-Oblete. He is therefore the legitimate Amana-Abo of Auke.”- page 39 of the record of appeal.

As indicated earlier, for there to be a valid customary arbitration, five ingredients must be pleaded and proved, namely:-

(i) that there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons.

(ii) That it was agreed by the parties either expressly or by implication that the decision of the arbitrator(s) would be accepted as final and binding.

(iii) That the said arbitration was in accordance with the custom of the parties or of their trade or business.

(iv) That the arbitrator(s) reached a decision and published their award.

(v) That the decision or award was accepted at the time it was made.

In this case, exhibit “A” clearly shows that the respondent took the dispute before the traditional council and the appellant submitted to the jurisdiction of the council. Exhibit “A” also shows that the parties each gave evidence in their respective defences and called witnesses. This, to my mind is a clear evidence that the parties had agreed by implication that the decision of the arbitrators i.e. the traditional council, would be accepted as final and binding.

As to whether the arbitration was in accordance with the custom of the parties or their trade or business, section 5 of the Benue State Council of Chiefs and Traditional Council Edict, 1991 created four Area Traditional Councils; section 8 thereof, created the Local Government Traditional Councils; section 9(i) of the Edict empowers the Traditional Council to determine questions relating to chieftaincy matters and control of traditional titles. Further more, by virtue of the Benue State Council of Chiefs and Traditional Council (Amendment) Edict, 1991, Apa Local Government traditional council, among other councils, is empowered to determine the issue of chieftaincy in dispute between the parties.

As regards the issue of whether the arbitrators reached a decision and published their award, exhibit ‘A’ clearly shows that the council reached and published its award in the presence of all the members of the traditional council and the parties to the dispute when the council resolved as follows:-

“In view of the above, the Council resolved that the present turn is for Afada Ehoche of Ai-Oblete. He is

therefore the legitimate “Amana-Abo” of Auke.” See page 39 of the record of appeal.

As regards the condition that the decision or award must be accepted at the time it was made, in paragraph 4(vi) of the affidavit in support of the application to strike out suit, the appellant deposed that the decision of the traditional council was given on the 11th of January, 1999, and that the respondent did not do anything to show that he did not accept the decision. The law is that for there to be valid customary arbitration, the decision or award must have been accepted at the time it was made. See Eke v. Okwaranyia (2001) 12 NWLR (Pt. 726) 181; (2001) 86 LRCN 1403 at 1429. In this case, I cannot see any better evidence of acceptance of the decision and the award, than the respondent’s inaction against the decision/award for over two years.

The learned trial Judge in his ruling after holding that the patties submitted themselves to arbitration by Apa Traditional Council, went further to say that he could not find any evidence of acceptance of the decision and the award or any agreement that the parties have agreed to be bound by the decision of the council. I do not think the learned trial Judge is right. From the evidence before the trial court, especially exhibit “A”, the respondent was the complainant before the Traditional Council. On the date of the hearing, the respondent was present. He gave evidence and called witnesses in support of his claim. The appellant was also present, gave evidence and called witnesses in his own defence. The question arises; what could have been the intention of the parties, especially, the respondent at the time he took the dispute before the council, and stated their respective cases before the council? I would say their intention was that the council should look into the dispute and give a decision on the dispute and they (the parties) would be bound by the decision. The parties need not expressly agree to be bound. The agreement may be by implication. See Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296 at 314. Where the Supreme court. Per Nnaemeka-Agu, J.S.C. stated the law as follows:-

“As I indicated above, I do not think from the concurrent findings of the courts below on the point that the

appellant expressed any reservation during the submission of the dispute to the customary arbitration body. I should also accept the concurrent finding that he did not even resile from the decision against him soon after the arbitral body handed down their award but that he tried to do so afterwards. He could not do that. In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision, it is no longer open to either party to subsequently back out of such decision.” – see on this Ozo Ezejiofor Oline & others v. Jacob Obodo & Ors. (1958) 3 FSC 84 at 86; (1958) SCNLR 298; Opanin Asong Kwasi & Ors. v. Larbi 13 WACA 76; Philip Njoku v. Felix Ekeocha (1972) 2 ECSLR 199.”

In the present case, I think there is abundant evidence of the acceptance of the decision and the award.

As regard the issue of publication mention by the trial Judge, I think the award was well published as shown by exhibit “A”. It was read out in the presence of the respondent. In paragraph 6(1) of the counter-affidavit, the respondent admitted publication of the award and said that he rejected the decision of the traditional council immediately it was given. There is no evidence of the said rejection until after two years. Paragraph 6(iii) of the said counter-affidavit shows that it was the respondent’s community that rejected the decision after two years and not the respondent himself. The respondent is clearly estopped from going back to court.

In the final analysis, it is my view that there is merit in the appeal and should be allowed. I therefore allow the appeal, set aside the decision of the lower court contained in its ruling dated 21st of September, 2001, and strike out the suit No. OHC/65/2001 before the lower court on the ground that the issue of Amana-Abo of Auke Clan has already been decided by Apa Traditional Council.

The respondent shall pay costs assessed at (N10,000.00) Ten thousand naira only to the appellant.

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Other Citations: (2002)LCN/1290(CA)

J. Export & Chemical Company Limited V. Kaduna Refining & Petro-chemical Company Limited (2002)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A. This appeal is against the judgment of the High Court of Justice of Kaduna State delivered by Dogara Mallam J. at Kaduna on 14/5/96. The dispute between the parties arose out of an agreement entered between the parties in this appeal on 11/5/93 by which the appellant hired 4 ISO-Tanks from the respondent for shipment of petroleum products on a rental charge of N10,000.00 for each tank for a period of 8 weeks. The appellant took delivery of the tanks and used the same to ship petroleum products to Europe. At the expiry of the 8 weeks period of lease of the tanks, the appellant failed to return them to the respondent as agreed.

When the respondent requested the appellant to return the tanks, the appellant attributed its failure to return the tanks to the uncertainty in the political situation in Nigeria then brought about by the disputes over the June 12 election. The appellant however promised to deliver the tanks to the respondent on or before 10th August 1993 undertaking to pay any surcharge that may be due. On further demand for the return of the tanks by the respondent, the appellant this time attributed its failure to return the tanks to the alleged industrial action at the Lagos Port. After repeated demands, the appellant finally returned the tanks to the respondent in September 1993 in clean condition along with the payment in the sum of N80,000.00 rental charges for the tanks.

However, nearly 3 months after returning the tanks to the respondent and paying for the lease charges, the appellant raised problems encountered with the tanks in Europe by its agent who claimed the sum of $85,016 from the respondent being alleged expenses incurred by the foreign partner or agent on account of unsuitability of the tanks, lack of fitness certificate for them, rental of alternative tanks in Europe and fines paid for the tanks for breach of relevant regulations. When the appellant’s claim was resisted by the respondent, the appellant then proposed the appointment of an arbitrator to resolved the dispute between the parties and this was accepted by the respondent. When the parties appeared before the arbitrator jointly appointed by them, instead of the earlier sum of $85016.00 claimed by the appellant’s foreign agent, the respondent found a claim of $400,000.00 filed by the appellant awaiting adjudication by the arbitrator jointly appointed by the parties. Thus, the respondent instead of responding to the claim of the appellant before the arbitrator, headed to the Kaduna State High Court of Justice Kaduna and filed an action against the appellant by an originating summons dated 20/12/94 and claimed the following reliefs –

“1. A declaration that the defendant’s claim against the plaintiff upon which reference has been made to Martin M. Olisa (Arbitrator) is prima facie fraudulent and therefore not a proper subject of arbitration as contemplated by the parties in their agreement dated May 11, 1992.

2. Leave to revoke the arbitration agreement and the arbitrator’s authority upon the ground set out above.”

Although the appellant by a motion on notice had applied to the trial court for stay of proceedings in this action pending the determination of the arbitration proceedings between the parties, the application was refused by the trial court which proceeded to hear and determine the respondent’s action. In its judgment delivered on 14/5/96, the learned trial Judge granted the reliefs sought by the respondent in its Originating Summons in the following terms:-

“Judgment is hereby entered for the plaintiff as follows: –

The defendant’s claim against the plaintiff upon which reference has been made to Martin O. Olisa (Arbitrator) is prima facie fraudulent and therefore not a proper subject of arbitration as contemplated by the parties in their agreement dated 11th May, 1993. Leave is hereby granted the plaintiff to revoke the arbitration agreement and the arbitrator’s authority.”

Aggrieved by this judgment, the defendant in the trial court which is now the appellant in this Court had appealed against it upon 4 grounds of appeal contained in its Notice and grounds of appeal dated 30/7/96. In the appellant’s brief of argument deemed filed on 12/12/2000 in compliance with the rules of this Court, 2 Issues were formulated from the 4 grounds of appeal for the determination of the appeal. The Issues are:-

“(a) Whether the learned trial Judge was right in entertaining the respondent’s Originating Summons seeking to revoke the authority of the arbitrator on ground of fraud.

(b) If the answer to (sic) (1) is in the affirmative, whether the learned trial Judge was right in revoking the authority of the arbitrator on the ground that the claim of the appellant was prima facie fraudulent.”

The plaintiff now respondent also filed a respondent’s brief of argument within the time extended by this Court on 22/4/2002 also raising 2 Issues from only 3 of the 4 grounds of appeal filed by the appellant as learned senior counsel for the respondent had clearly stated at page 5 of the respondent’s brief that only 3 grounds of appeal were filed by the appellant. However, as far as the appellant’s Notice and Grounds of Appeal dated 30/7/96, contained at pages 75-76 of the record of this appeal is concerned, there are 4 distinct grounds of appeal filed by the appellant. As the issues identified in the respondent’s brief of argument were not related to the grounds of appeal, it is not quite clear which of the grounds of appeal the learned senior counsel to the respondent had decided to ignore in preparing the respondent’s brief of argument which raised the following issues for the determination of the appeal.

“1. Do the courts have the jurisdiction or power under Nigerian Law to intervene where claims before an arbitrator are prima facie fraudulent so that such claims are determined by a court of law?

2. If the answer to the above question is positive, was the learned trial Judge right in declaring the present claims prima facie fraudulent and consequently revoking the authority of the arbitrator to determine them?”

Having regard to the 4 grounds of appeal filed by the appellant in this appeal, it is quite clear that the 1st issue framed in the respondent’s brief of argument does not arise from any of the grounds of appeal filed by the appellant.

A brief of argument ought to be confined to matters which properly arise has consistently avoided going into purely academic question.”

Nnamani, JSC (of blessed memory) also underscored the same point in AKEREDOLU V AKINYEMI (1986) 2 NWLR (PT.25) 710 AT -725 where he said:-

“It has long been established that this court will not render an advisory opinion nor will it deal with a matter which is speculative and academic.

The court deals with life issues.”

Thus in the present case where the respondent in its issue NO.1 is asking this Court to determine whether courts in Nigeria have the jurisdiction or power under the law to intervene where claims before an arbitrator are prima facie fraudulent, even though such determination would no doubt be beneficial to the legal profession, to succumb to the demand would definitely lead to rendering an advisory opinion which is not the function of this Court. In the result, Issue NO.1 in the respondent’s brief of argument which does not arise from any of the grounds of appeal filed by the appellant, shall be ignored in the determination of this appeal.

For the foregoing reasons, I shall proceed to determine this appeal on the issues as framed by the appellant in the appellant’s brief of argument.

The first issue for determination therefore is whether the learned trial Judge was right in entertaining the respondent’s Originating Summons seeking to revoke the authority of the arbitrator on the ground of fraud.

In support of this issue, learned counsel to the appellant had argued that by the combined effect of sections 2, 12 and 27 of the Arbitration and Conciliation Act CAP 19 of the Laws of the Federation 1990 and the Arbitration rules made under it, the lower court had no power to intervene in the dispute between the parties after the commencement of the arbitral proceedings. That the Arbitration Act guards the jurisdiction and powers of the arbitrator very jealously and as such notwithstanding section 2 of the Act, a court cannot revoke the arbitral clause after arbitration proceedings have commenced but must direct all parties back to the arbitrator to raise their complaints before him. Learned counsel further argued that the learned trial Judge was in error to have tried an issue of fraud on the originating summons which is only suitable for cases of construction of contracts as specified by Order 37 Rules 1 & 2 of the Kaduna State High Court Civil Procedure Rules. That if the learned trial Judge had taken into consideration of the cases of N.B.N V ALAKIJA (1978) 9-10 SC 59; and DOHERTY V DOHERTY(1967) 1 ALL NLR 245, he ought to have converted the originating summons to pleadings to enable the parties lead evidence viva voce before arriving at a decision. On the reliance by the trial court on Section 24 of the 1950 Arbitration Act of England and the Common Law in arriving at its decision, the appellant’s counsel pointed out that the Arbitration and Conciliation Act of Nigeria having codified matters relating to arbitration in Nigeria, there was no room for falling back on the English Law or Common Law in the absence of similar provision to Section 24 of the 1950 English Arbitration Act in the Nigerian Arbitration Act.

That relying on the case of N.T.C. V AGUNANE (1995)5 NWLR(PT.397) 541, the lower court was wrong in relying on Section 24 of the 1950 Arbitration Act of England and the Common Law to arrive at its decision.

The argument of the learned senior counsel for the respondent on this issue dwelled mostly in support of his academic issue on the powers of English courts and Nigerian courts in general to intervene and stop arbitral proceedings. The arguments were not related specifically to the present case until at page 15 of the respondent’s brief where learned senior counsel cited Sections 2 and 35 of the Arbitration and Conciliation Act, CAP 19 of the Laws of the Federation 1990 as containing enough provisions empowering the lower court to act as it did even in the absence of similar provisions of section 24(2) of the 1950 Arbitration Act of England in the Nigerian Act. That on the provision of the law, the procedure adopted by the respondent in coming to the lower court was quite in order. That under the law, whenever an issue of fraud arises, even in the con of civil proceedings, the standard is that the allegation must be specifically pleaded and proved beyond reasonable doubt as required by section 138 of the Evidence Act and a long line of cases including UGO V OBIEKWE (1989) 1 NWLR (PT. 99)566 AT 592.

The issue now under consideration is whether the learned trial Judge was right in entertaining the respondent’s originating summons seeking to revoke the authority of the arbitrator on ground of fraud. The first complaint of the appellant in this issue is that by virtue of the provisions of sections 2, 12 and 27 of the Arbitration and Conciliation Act, CAP 19 of the Laws of the Federation 1990 which contain no provision for revocation of arbitration agreement, the learned trial Judge was wrong in entertaining the claims and granting the reliefs sought by the respondent.

Section 2 of the Arbitration and Conciliation Act CAP 19 of the Laws of the Federation 1990 which is relevant in this respect states:-

“2. Unless a contrary intention is expressed therein, an arbitration agreement shall be irrevocable except by agreement of the parties or by leave of the court or judge.”

In order to find out whether a contrary intention had been expressed by the parties in the agreement in relation to its revocation, it is necessary to refer to the agreement in the present case which was executed between the parties on 11/5/93 containing an arbitration clause iii worded as follows:-

“Should any dispute arise in connection with the terms of the contract or the performance thereof, such dispute shall be settled by an arbitrator to be agreed upon by the parties hereto or in default of such agreement by an arbitrator to be appointed in accordance with CAP 13 Laws of the Federation of Nigeria on the application of either party to the High Court of Justice in Nigeria.”

Therefore in the absence of a clear contrary intention of the parties in the above arbitration clause by section 2 of the Arbitration and Conciliation Act, the same can be revoked by the agreement of the parties who brought it into being by their own agreement. It is also clear from the same provision of section 2 of the Act that where the parties failed to agree to revoke the arbitration agreement, any of the parties to the agreement may seek the leave of the court or judge to revoke the agreement.

As to which court or judge the application for leave could be made, the answer is contained in section 57(1) of the Act which defines ‘court’ as the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court. In the same sub-section of the Act, ‘Judge’ means a judge of the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court. Thus, on the proper application of section 2 of the Act as earlier quoted in this judgment, the action filed by the respondent at Kaduna State High Court of Justice before Dogara Mallam J. seeking for a declaration and leave of that court to revoke the arbitration agreement was quite in order.

The appellant had also complained on the propriety of bringing such action by way of originating summons by which such controvertial issue of fraud was determined by the lower court.

As to which types of actions are suitable for being commenced by originating summons, Order 37 Rules 1 and 2 of the Kaduna State High Court Civil Procedure Rules 1987 give some guidance. These rules read as follows: –

“1. Any person claiming to be interested under a deed, Will, or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

2. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction, and for a declaration as to the right claimed”.

There is no doubt that the whole essence of the Kaduna State High Court (Civil Procedure) Rules in general is to provide for the determination of Civil Proceedings when the issues are clear on the pleadings and the parties are clearly seised of the issues in controversy between them. However, it is quite clear from rules 1 and 2 of Order 37 of the Kaduna State High Court Rules 1987 quoted above and the leading Supreme Court decision on the appropriateness or otherwise of using originating summons to commence an action in the case of NATIONAL BANK OF NIGERIA LTD V. LADY AYODELE ALKIJA & ANOR. (1978) 9 & 10 SC 59, that application by originating summons should never be a substitute for initiating contentious issues of fact. Kayode Eso JSC (as he then was) had this to say at page 71 of the report on the question as follows:-

“In other words it is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable.”

Even under the United Kingdom Rules where there is option to proceed either by writ or originating summons, and where the courts in England have developed a modern trend of extending the use of the procedure by originating summons to declaratory actions, the courts still take good care not to substitute the use of that procedure for contentious actions of disputed facts. Lord Denning, M.R. (as he then was) in PUTTON V MINISTRY OF PENSIONS 1963 1 ALL E. R 275 seemed to have had this in mind when he said at page 278 of the report as follows:-

“Before us, counsel on behalf of the plaintiffs did not rely on the affidavits which they had filed on the facts. Counsel did not even read them. He made it quite clear that he was no longer challenging the findings of fact by the Commissioner.

All counsel desired, he said was a determination of the point of law: what was the proper interpretation of the words in the statute ‘directly interested?

Were the plaintiffs on the facts found by the Commissioner ‘directly interested’ or not in the trade dispute which caused the stoppage of work? When the case is put that way, it seems to me to be a very proper matter for determination for originating summons for a declaration. Indeed it is a sensible and modern way of approach.”

In the present case, quite contrary to the contention of the appellant, the trial court did not try the contentious issue of fraud which requires proof beyond reasonable doubt on an originating summons. What the lower court simply determined on the facts which were not in dispute between the parties was that the claim of the appellant submitted for arbitration between the parties was prima facie fraudulent and therefore not a proper subject of arbitration which therefore required revocation under the law.

The facts which were not in dispute between the parties arose from an ISO tanks lease agreement for 8 weeks duration which was completed with the return of the tanks used by the appellant to their owners the respondent which was duly paid N80,000.00 for the hire. On the request of the appellant the respondent also waived the sum of N60, 000.00 paid by the appellant as surcharge for the late return of the tanks. However after the return of the tanks, paying for their hire or lease and enjoying the waiver of the surcharge for the late return of the tanks in clean conditional in accordance with the lease agreement containing an arbitration clause, the appellant’s foreign agent then submitted a claim of US$85016.00 for expenses incurred on the hiring of the tanks which were not in good condition. The parties then agreed to go to arbitration. When this claim rose to the tune of US$250,000.00and then to the tune of US$400,000.00 at the time the parties finally appeared before the arbitrator appointed by them, the respondent decided to abandon the arbitration proceedings and headed for the lower court for the reliefs contained in its originating summons.

Having regard to these facts which were not in dispute between the parties and the provision of section 2 of the Arbitration and Conciliation Act, CAP 19 of the Laws of the Federation 1990 under which the action was filed, I am of the view that the respondent’s claim for the declaratory reliefs were properly heard by the originating summons procedure. To this extent the learned trial Judge was right in entertaining the respondent’s case because the facts leading to the filing of the action which were based on documents exchanged between the parties were not in dispute or even likely to be in dispute.

The second issue for determination is whether the learned trial Judge was right in revoking the authority of the arbitrator on the ground that the claim of the appellant was prima facie fraudulent. Learned counsel to the appellant had argued that the lower court was in error when it relied on section 24 of the 1950 Arbitration Act of England in arriving at its decision when no similar provisions are contained in the Nigerian Arbitration Act CAP 19 of the Laws of the Federation 1990. Relying on the cases of CUNNINGHAM-REID V. BUCHANAN-JARDINE (1988) 2 ALL E. R. 438; and CAUNILLA COTTON OIL CO. V. GRANDEX SA (1976) 2 LLOYDS REP.10, learned counsel to the appellant observed that although the party alleging fraud actually commenced an action alleging fraud and claimed account and damages in the first case) while allegation of fraud was not made until at the Court of Appeal stage in the second case, there was no authority for permitting prima facie fraud to be first established by originating summons before an issue of fraud could be raised in a separate action. That the mere fact that the appellant claimed a sum higher than previously claimed does not make such action fraudulent as silence per se cannot amount to fraud taking into consideration the case of OLUFUNMISHE V. FALANA (1990)3 NWLR (PT.136) 1. Learned counsel to the appellant therefore concluded that fraud cannot be traced at all from the facts of this case and as such there was no basis for revoking the authority of the arbitrator.

In the respondent’s brief however, the learned senior counsel pointed out that the trial Judge was not invited to decide the issue of fraud and in fact he did not decide the issue of fraud. That what the Judge was invited to decide was merely the best forum to adjudicate on the appellant’s claims against the respondent and that was what the learned trial Judge did basing his findings on the affidavit evidence placed before him by the parties. Having found that the charge of fraud was not baseless, the learned trial Judge was right in granting the respondent’s reliefs in exercise of his discretion. That since there was no complaint by the appellant that the discretion was not properly exercised, the declaration that the appellant’s claims were prima facie fraudulent was quite in order, concluded the learned senior counsel.

The question of whether or not the lower court was right in revoking the authority of the arbitrator on the ground that the claim of the appellant was prima facie fraudulent can be easily determined from the judgment of the lower court itself and the applicable law on the subject of the revocation being attacked in this issue. The relevant part of the judgment of the lower court from which this issue arose is at page 74 of the record and it reads:-

“Judgment is hereby entered for the plaintiff as follows:-

The defendant’s claim against the plaintiff upon which reference has been made to Martin O. Olisa (Arbitrator) is prima facie fraudulent and therefore not a proper subject of arbitration as contemplated by the parties in their agreement dated 11th May. 1993. Leave is hereby granted the plaintiff to revoke the arbitration agreement and the arbitrator’s authority.”

It is significant to note that as far as the present issue is concerned, there is no complaint against the declaratory relief granted to the respondent by the lower court that the defendant now appellant’s claim upon which reference had been made to the arbitrator was prima facie fraudulent and therefore not a proper subject of arbitration. In other words the real complaint in the issue is the alleged revocation of the authority of the arbitrator by the lower court. The question however is did the lower court in fact revoke the authority of the arbitrator in its judgment as alleged in this issue as framed by the appellant? The answer is of course in the negative having regard to the plain relief sought by the respondent in its originating summons and the actual relief granted by the lower court. In this respect, the relief sought by the respondent reads:-

“Leave to revoke the arbitration agreement and the arbitrator’s authority upon grounds set up above.”

This was the relief that was granted by the learned trial Judge who granted leave to the respondent which was the plaintiff to go ahead and revoke the arbitration agreement and the arbitrator’s authority as sought in the reliefs contained in the originating summons. Therefore since the lower court did not itself revoke the authority of the arbitrator in its judgment, the question of whether that court was right in revoking the arbitrator’s authority on any grounds can not even arise from the judgment of the trial court.

It is important to emphasise that the formulation of the issues for determination should be based on the grounds of appeal filed and must also be related to the judgment being challenged in the appeal. See OKONKWO V OKOLO (1988) 2 NWLR (PT. 79) 632 at 649.

This issue therefore should have been properly framed by asking the correct question of whether the lower court was right in granting the respondent leave to revoke the arbitration agreement and the arbitrator’s authority.

Section 2 of the Arbitration and Conciliation Act, CAP 19 of the Laws of the Federation 1990 earlier quoted in this judgment provides that unless a contrary intent is expressed therein, an arbitration agreement shall be irrevocable except by agreement of the parties or by leave of court or of a Judge. By this provision on the surface, once parties enter into a valid arbitration agreement, as the parties did in the present case, one of them cannot unilaterally revoke that agreement. However, where a party has a good cause to want to revoke the agreement, that party must apply to the court or judge to be granted leave to do so as was correctly done by the respondent in this case. While it is true that the court has no power under the law to revoke such arbitration agreement between the parties who brought it into being, the court has the power to grant leave to any of the parties to such agreement to go ahead to revoke the same on satisfying the court of good reasons for the need to do so. This is because to my mind, an arbitration agreement like any other contract properly entered into between parties can also be lawfully repudiated before performance.

It is trite that the disputes which are the subject of an arbitration agreement must be arbitrable. In other words the agreement must not cover matters which by the law of the State are not allowed to be settled privately or by arbitration usually because this will be contrary to the public policy. Thus, a criminal matter, like the allegation of fraud raised by the respondent in this case, does not admit of settlement by arbitration as was clearly stated by the Supreme Court in the case of KANO STATE URBAN DEVELOPMENT BOARD V. FANZ CONSTRUCTION LTD. (1990) 4 NWLR (PT.142)1 at 32-33. This position of the law appears to have been further stated under the Arbitration and Conciliation Act, CAP 19 Laws of Federation. Our legal system draws much of its strength from being part of a Common Law system having its roots in the past while remaining organic. Our efforts should be directed to how best to build on the legacy of that great system of laws rather than to a denigration of the past we have built on and are building on.”

Therefore having regard to the history of this great nation Nigeria and its legal system, the Common Law principles of law are not only still applicable in the development and continued development of our legal system but will also continue to be so applicable.

It is perhaps necessary to point out at this stage that the learned trial Judge in the present case did not determine the issue of fraud which by law is required to be specifically pleaded and proved beyond reasonable doubt by credible evidence in line with section 138 of the Evidence Act – CAP 112 of the Laws of the Federation 1990, and the case of UGO V OBIEKWE (1989) 1 NWLR (PT.99)566 AT 592 on originating summons as alleged by the appellant in its argument. The decision of the trial court had merely declared that the claim of the appellant before the arbitrator appointed by the parties was prima facie-fraudulent and therefore not suitable or proper subject of arbitration as contemplated by the parties in their agreement executed on 11th May, 1993 and accordingly granted the respondent leave to revoke the same. This of course leaves the appellant with the option of filing the same claim before a court of law of competent jurisdiction where the claim for the damages incurred by the appellant’s agent abroad and the question of fraud raised by the respondent on the claim could be properly determined on pleadings.

However, on the undisputed facts of this case where a contract for the hire of 180 tanks for the rental charges in the sum of N80,000.00 which accrued to the respondent in the transaction gave rise to a claim of U8$400,000.00 damages to the appellant, I am of the firm view that I have no reason whatsoever to disagree with the learned trial Judge that the appellant’s claim is prima facie fraudulent and therefore not suitable for arbitration. It is for these reasons that I have decided that this appeal must fail. Accordingly, the appeal is hereby dismissed with N5, 000.00 costs to the respondent.

ISA AYO SALAMI, J.C.A.: I have read before now the judgment of my learned brother, Mahmud Mohammed, JCA, just delivered and I am in complete agreement with the reasoning contained therein and the conclusion arrived thereat. I propose to add one or two words of mine purely as a matter of emphasis.

The learned counsel for appellant, in the appellant’s brief, framed or identified the following two issues as calling for determination:-

“(a) Whether the learned trial judge was right in entertaining the Respondent’s originating summons seeking to revoke the authority of the arbitrator on ground of fraud.

(b) If the answer to (a) is on the affirmative, whether the learned trial judge was right in revoking the authority of the arbitrator on the ground that the claim of the Appellant was prima facie fraudulent.”

In canvassing issue (4) learned counsel sub-divided his arguments into the following categories:-

3.1 Propriety of claim;

3.2 Propriety of procedure; and

3.3 Nature of and interpretation of Cap.19.

Learned counsel for respondent did not complain either in the respondent’s brief or orally against the line of argument adopted by the learned counsel for the appellant. Although learned counsel for appellant failed to disclose from which of his four grounds of appeal issue (a) was framed, it is nevertheless clear that it is the rule of practice and procedure not to canvass or advance argument in respect of more than one issue which may embrace one or more grounds at a time. The question of procedure and claim are clearly incongruous and could not arise from the same ground of appeal. I do not propose to proceed further in my observation since parties failed to join issue thereon.

Learned counsel for appellant contended that learned trial judge relied on the provisions of Section 24 of the Arbitration Act, 1950 of England in arriving at his decision. I have scanned the judgment of the learned trial judge and cannot find a single reference to S. 24 of the English enactment. The learned trial judge, after ably reviewing the facts leading the respondent to suspect fraud, held as follows:-

“It is reasonable to my mind for the plaintiff to suspect foul play or fraud on the part of the defendant. Sir Michael J. Mustil and Stewart C.

Boyd the learned authors of Commercial Arbitration (Second Edition) on P.116 said as follows:-

“An issue of fraud is capable in principle of falling within the scope of an agreement to arbitrate whether or not it does so depends on the wording of the agreement. The court has however a jurisdiction to order that the arbitration agreement shall cease to have effect and may also give leave to revoke authority of the arbitrator, so far as may be necessary to enable an issue of fraud to be determined in the High Court.”

Learned trial judge further read from pages 282 – 283 of the Halbury’s Laws of England, Fourth Edition to buttress his point of view that where an agreement between parties provides that disputes which may arise in the future between the parties shall be referred to arbitration and the dispute which arises involves issue of fraud the high court has power to enable it determine the question if any of the parties is guilty of fraud. Learned trial judge therefore relied on the common law of England and not a statute of England. Section 28 of the Kaduna State High Court Law, Cap.67 of the Laws of Kaduna State of Nigeria, 1991 allows the trial court to do what it did. Section 28 of Cap.67 reads as follows:-

“28. Subject to the provisions of any written law and in particular of this section and of sections 26, 33 and 35 of this Law:-

(a) the common law

(b) the doctrines of equity shall, in so far as they relate to any matter in respect of which the state is for the time being competent to make laws, be in force within the jurisdiction of the court.”

(underlining mine)

See NTC v. Aguname (1995) 5 NWLR (Pt.397) 541 and Caribbean Trading and Fidelity Corporation v. Nigerian National Petroleum Corporation etc (2002) 14 NWLR (Pt.786) 133.

Section 2 of Arbitration and Conciliation Act Cap.19 of the Laws of the Federation of Nigeria, 1990 seem to vest power similar to those contained in S.24(2) of the Arbitration Act 1950 of England but for its economy of words. Section 24(2) of the English Act reads as follows:-

“(2) Where an agreement between any parties provides that disputes which may arise in the future between them shall be referred to arbitration, and a dispute which so arises involves the question whether any such party has been guilty of fraud, the High Court shall, so far as may be necessary to enable that question to be determined by the High Court, have power to order that the agreement shall cease to have effect and power to give leave to revoke the authority of any arbitrator or umpire appointed by or by virtue of the agreement.”

(underlining mine)

Section 2 of Arbitration Conciliation Act Cap.19 reads as follows:-

“2. Unless a contrary intention is expressed therein, an arbitration agreement shall be irrevocable except by agreement or by leave of the court of judge.”

These provisions clearly recognize that arbitration agreement at any stage may be revoked with leave of court. It is settled principle of interpretation of statute that where the words of a legislation is clear it should be given its clear, natural and grammatical meanings. Nablan v. ablan (1967) 1 All NLR 47 and Mobil Oil (Nigeria) Ltd v. Federal Board of Inland Revenue (1977) 3 SC 53. There is nothing in the statute impeding the power of the court under this section to grant leave or restricting the exercise of the powers to certain stages of arbitral proceeding or stipulating grounds upon which leave may be granted to revoke arbitration agreement. I agree with the learned counsel for respondent’s submission that the ground upon which leave might be considered and granted would be in accordance with the established principles of common law such as fraud or public policy.

The position of the law is that the principles of common law and equity are part of the Nigerian arbitration law so far as the principles are nowhere abolished by the Arbitration and Conciliation Act, Cap.19. I am encouraged in this proposition by the book of Olakunle Orojo and Ayodele Ajomo Law and Practice of Arbitration and Conciliation in Nigeria cited in the respondent’s brief. At page 12 thereof, learned authors states as follows:-

“There are two main sources of Nigerian Arbitration Law. The first is the common law and the doctrines of equity and the second is the statute. There has never been an Arbitration code in Nigeria. Rather, the statutes only deal with certain major issues, leaving all the lacunae and crivices to be filled by the common law and the doctrine of equity supplemented by trade usages and indeed, the agreement of the parties.”

(underlining mine)

See also section 22(4) and 47(4) of Cap.19 which equally provide for application of these bodies of law.

In the circumstance, I disagree with the proposition of law contained in the appellant’s brief to the effect that the Nigerian Arbitration and Conciliation Act (a) is a codifying statute and is exhaustive on the whole law of arbitration including statute as well as common law and (b) the omission of a section similar to the provision of section 24(2) of the English Arbitration Act 1950 was a deliberate and significant intention by the legislature to make all question upon arbitration agreement determinable only by the arbitrator. I do not think that this is a question of being influenced by a provision of the English Arbitration Act, 1950.

Section 24(2) thereof is a common law principle that has been enacted.

If we tear ourselves from the statute, can we easily divorce ourselves from the principles of common law to which we have been married by virtue of our colonial heritage and the legal system that has thereby evolved? Certainly not. I refused to be intimidated by the case Nigeria Tobacco Co. Ltd. v. Aguname (1995) 5 NWLR (pt.397) 541 cited in the appellant’s brief. I am rather fortified, in my view, that common law is enforceable or is applicable in Kaduna State of Nigeria by dint of section 28 of the Kaduna State High Court Law Cap. 67. See also Carribbean Trading Fidelity case (supra) and Aguname’s case (supra). Nowhere did Aguname case decide that common law is not applicable in Nigeria.

Finally, the issue of propriety of commencing the action by originating summons is respectfully premature or academic at this stage.

What the court was called upon was to adjudicate the appropriate forum to contest appellant’s claim arbitration or High Court. The nature of suit would only be relevant, after the High Court had ordered that the agreement shall cease to have effect, leave given to revoke the authority of the arbitrator or umpire and the appellant decides to approach the High Court for its remedy. In that circumstance, the appellant as the plaintiff would have to commence the action by taking out a writ of summons which will invariably necessitate ordering or filing of pleadings.

The reason for trying the issue on the pleadings is that originating summons cannot be used to initiate a claim based on allegations of fraud. Originating summons is only suitable for cases of construction of statute or contract or where the facts are not in dispute as in the suit culminating into this appeal. See Order 37 rules 1 and 2 of the Kaduna State High Court (Civil Procedure) Rules Cap. 68 of the Laws of the Kaduna State of Nigeria, 1991, N.B.N. V B. Alakija (1978) 9-10 SC.59 and Doherty v. Doherty (1976) 1 All NLR 245 cited in the appellant’s brief. All that was required was for the trial judge to examine the material placed before him by the affidavit evidence of both parties and ascertain whether the charge of fraud was substantial. And clearly there is no dispute amongst the parties on the facts accepted by the learned trial judge in these proceedings. It is when the forum for the trial of the appellant’s claim against the respondent shifts from the arbitration to the High Court and issue or issues are joined on fraud that the charge of fraud must be pleaded with utmost particularity as has been aptly pointed out by Thesiger L.J. in Davy Bros v. Garret (1878) 7 Ch D 489 and United Africa Co. Ltd. V B. Taylor (1936) 2 WACA7. At that stage, the considerations would be different as that action and not the instant one will be tried on pleadings.

For this and the fuller reason contained in the lead judgment of my learned brother Mahmud Mohammed, JCA, 1 also dismiss the appeal. I abide by all the consequential order including the order as to costs contained in the lead judgment of my learned brother, Mahmud Mohammed.

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Other Citations: (2002)LCN/1289(CA)

Ken Mclaren & Ors V. James Lloyd Jennings (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The plaintiff, per a writ of summons dated 2nd August, 1996, taken out of Kano State High Court of Justice, is claiming against the defendants, jointly and severally, the sum of N5,000,000 damages for wrongful arrest and unlawful detention in Kano and Abuja.

Parties duly filed and exchanged pleadings. On 1st day of September, 1997, the defendants filed a motion on notice challenging the competence of the court below to hear the action on ground of territorial jurisdiction. Learned trial Judge, after hearing both parties, in a reserved and considered ruling refused the application and held that Kano State High Court was seised of the matter.

The defendants were unhappy with the decision and being aggrieved appealed to this court. Briefs of argument were filed and exchanged. In the respective briefs, only one issue was identified as calling for determination. The two formulations, in my respectful opinion are very similar, if not identical. In the appellant’s brief the issue reads as follows:-

Whether the High Court of Kano State has the jurisdiction to entertain and adjudicate over the plaintiff’s/respondent’s claim against the defendants/appellants who reside in Abuja outside the jurisdiction of the lower court and have objected to the lower court’s jurisdiction.”

On the other hand the respondent framed the issue as follows:

“Whether the plaintiff/respondent’s statement of claim in this suit dated the 2nd August, 1996 discloses a cause of action against the defendants/appellants for false detention or imprisonment in Kano and whether in the circumstances High Court of Justice, Kano State cannot assume or exercise jurisdiction over the same.

Since I am of the view that the issues framed in the respective briefs are identical, the interlocutory appeal can conveniently be argued, considered and determined on either formulations. But the respondent’s identification of issue is more to the point and is for that reason preferred.

At the hearing of the interlocutory appeal, learned counsel for both sides adopted and relied on their respective briefs. In addition oral submissions were made. All would be taken into consideration in the determination of the appeal.

I agree with learned counsel for appellants that the position of the law on the determination of jurisdiction of a court is fairly well settled. Learned counsel for appellants, in the appellant’s brief, submitted that the jurisdiction of a court is determined by recourse to the claim before the court. He however stated that a statement of claim supercedes the writ of summons with the result that if a relief is claimed on the writ but not claimed in the statement of claim, it shall be deemed to have been abandoned. He argued further that, a claim endorsed in a statement of claim which is not in the writ subsists. He in this regard cited the case of Eze v. George (1993) 2 NWLR (Pt. 273) 86, 97.

Learned counsel further argued that respondent in the writ of summons complained about detention in both Kano and Abuja and claimed damages for unlawful arrest and detention but in the statement of claim, which superceded the writ of summons, the respondent at paragraph 20 thereof claimed damages for detention simpliciter. Learned counsel contended that arrest was thus abandoned. Learned counsel therefore further contended that the claim before the court is determined with reference to the relief sought by the plaintiff as formulated in the statement of claim: Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723, 744; A.-G., Anambra State v. A.-G., Federation (1993) 6 NWLR (Pt. 302) 692, 742.

Learned counsel then submitted that the claim for wrongful arrest having been abandoned, the relief sought by the respondent was N5,000,000.00 damages for false and unlawful detention at the Nicon-Noga Hilton Hotel, Abuja. Learned counsel contended that the basis of the cause of action as pleaded in paragraphs 16, 17 and 18 of the statement of claim that the respondent was deprived of his libe11yand kept in custody in Abuja.

Learned counsel submitted that the arrest in Kano did not give the respondent a cause of action for which he could be compensated because second and third appellants did no more than report to the police and that it was in the exercise of the police duties under section 4 of the Police Act that he was arrested- Ezeadukwa v.Maduka (1997) 8 NWLR (Pt. 518) 635, 667.

Learned counsel finally submitted that the relief claimed by the respondent is not in respect of any detention in Kano but for damages suffered as a result of his having been detained in the Nicon-Noga Hilton Hotel, Abuja as his arrest in Kano did not give rise to any actionable wrong, as the second appellant did no more than lodge a report to the police who exercised their power of arrest.

He backed up his submission with the cases – Gbajor v. Ogunburegui (1961) 1 All NLR 853 and Adefunmilayo v. Oduntan (1958) WNLR 31.

On the other hand, learned counsel for respondent, in the respondent’s brief, after the respondent’s claim in the writ of summons as well as statement of claim had been read, contended that the position taken by the appellants with regard to the unlawful detention is opposed to the respondent’s claim in either his writ of summons or statement of claim.

I propose to deal with the issue of the arrest of the respondent in Kano. I have carefully examined the submissions of the learned counsel for appellants and respectfully do not think that their contention to the effect that the respondent’s arrest was not wrongful and unlawful does not avail them. It is fallacious to contend that the arrest is severable from the detention and did not give rise to an actionable wrong. The second defendant did not merely lodge a report to the police and the latter exercised its power of arrest. The defendants supplied the vehicle to take the police to Kano to demand and recover a debt and not for purpose of investigating an offence.

The police, to my mind, had no discretion in the matter.

This arrest, in the circumstance, was wrongful. It was wrongful on the appellants’ showing. It is apt to narrate relevant portion of the circumstances leading to this appeal. Nicon-Noga Hilton Hotels Limited awarded, on 11th April, 1995, a contract of supply of hotel equipment to a company, Sotra Nigeria Limited. Respondent is the managing director of the company which received an advanced payment of N1,628,428.27. Due to some reasons, the company could not supply those goods within the agreed time. The appellants demanded the refund of the deposit. It was pursuance of this demand that the respondent was arrested in Kano and brought for remand in Nicon-Noga Hilton Hotel, Abuja until the said sum of money was refunded.

Firstly, section 4 of the Police Act, Cap. 359 of the Laws of the Federation, 1990, upon which appellants predicated their case does not avail the appellants. Section 4 relied upon by the appellant’s deals with general duties of police and reads as follows:-

4. The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of, this or any other Act.

I have scrutinized the provisions of the section and am unable to see a provision providing for or empowering police to enforce contract or collect common debts. The appellants and the policemen they pressed into duty were not in Kano to prevent or detect a crime nor was the respondent an offender. It is equally not the case of the appellant that there was a break down of law and order, the preservation of which took them to Kano. The court has also not been told of the laws or regulations the group went to enforce in Kano. In short, the appellants and the policemen they took to Kano were there to collect debt which is not one of the several duties assigned to the Police under the provisions of the Police Act to which the court was directed and the court has not been able to find another provision of the Act empowering or constituting the Nigeria Police Force to one of a debt or rent collector. It follows that the policemen who accompanied the appellants to Kano and assisted them in the arrest of the respondent were on the frolics of their own. The arrest was not authorized by the Act and was consequently unlawful, wrongful and illegal and cannot afford the appellants a shield.

The cases of Gbajor v. Ogunburegui (supra) and Adefunmilayo v. Oduntan (supra) heavily relied upon in the appellants’ brief do not assist nor promote the appellants’ cause. In those cases, crime or felony were committed and when the victims or complainant reported to the police who in exercise of their power under the Police Act, apprehended the persons suspected. In the instant appeal, no felony had been alleged not to talk of being committed. It is purely a matter of a breach of a contract of supply by a limited liability company.

Our jurisprudence is replete with practice and procedure for enforcing contract or recovery of debt. In the circumstance of the instant appeal, there is no allegation or imputation of crime against the respondent nor the company of which he is a managing director. There is therefore no basis for his arrest which is not in dispute. The appellants cannot derive solace from the wrongful and unlawful act of the police officers with whom they were acting in complicity. Appellants, therefore, have no any lawful excuse for acting in the manner they did. See Adefunmilayo v. Oduntan (supra) where Ademola, C.J. Western Region of Nigeria quoted with approval the dictum of Campbell, L.J. in Chiver v. Savage (1855) L.J. QB 85 where it was stated that:-

“That if the evidence show no more than that the defendant, upon a suspicion of felony, made a complaint

and charge to the police upon which they themselves acted and took plaintiff into custody, an action for false imprisonment would not have been maintained, but where the defendant had expressly directed the police to take the plaintiff into custody, this is imprisonment by the plaintiff and an action for false imprisonment would lie.”

The appellants laid no charge of felony against the respondent but they expressly directed that the respondent be taken into custody for owing their principal a sum of money. The arrest of the respondent in Kano is inexcusable as the appellants are unable to bring themselves within the protection of the law which have just been enunciated.

The opinion that the exercise of the police power was not in furtherance of the provisions of the Police Act is further strengthened by the appellants’ admission that rather than detaining or placing the respondent in the police custody, he was placed in the hotel’s custody. If the police officers who arrested the respondent in Kano and apparently escorted him to Abuja were on a lawful exercise of police power he ought to have been taken to the police station where the fact of the arrest would have been registered along with the particular of the arrest before placing him in custody or granting him a police bail. Rather he was left with the management of the Nicon-Noga Hilton Hotels Limited. Learned counsel for appellants who insisted that the exercise was lawful is yet to direct the court to the enactment or legislation which sanctioned the course of action taken that day. I am not persuaded that the arrest of the respondent in Kano was lawful. I can only be persuaded if the law or regulation designating Nicon-Noga Hotel, Abuja as a police or prison cell is produced.

I agree with the learned counsel for the appellants that the position of the law on the determination of jurisdiction of a court is more than purely well settled. It is on the face of the plaintiff’s writ of summons or particular of claim, if any, or statement of claim that the plaintiff offers material to the court to decide whether the court has jurisdiction or not. It is upon the statement of claim or particulars of claim that dates of cause of action could be garnered to decide, for example, whether an action is time barred or not, or to determine whether due to one privilege or the other a party ought to stand a trial or not; whether a subject matter is within the competence of a court or determine whether jurisdiction has been ousted by statutes.

Yalaju-Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (Pt. 145) 422, 441; Amawo & Another v. A.-G., North Central State & Others (1973) NNLR 118, (1973) 6 S.C. 47.

In this connection, the writ of summons taken out on behalf of the plaintiff who is respondent herein has been superceded by the statement of claim and therefore no longer relevant. The relief sought by the respondent in the statement of claim reads as follows:-

20. WHEREOF the plaintiff claims against the defendants jointly and severally the sum of N5 million (five million Naira only) as damages for false detention and the loss he suffered as a result of his unlawful detention by the defendants.

At this juncture, it is apt and necessary to read the case presented by the respondent in his statement of claim particularly paragraphs 8 14 which read as follows:-

8. On or about the 1st day of April, 1996, the 2nd and 3rd defendants on the instructions and directives of the 1st defendant came to Kano accosted the plaintiff and asked for an immediate repayment of the sum of one million six hundred and twenty-eight thousand, four hundred and sixty-eight Naira twenty seven kobo only (N1,628,468.27k) which Sotra Nigeria Limited was owing Nicon-Noga Hilton Hotels Limited not by the plaintiff personally.
9. The plaintiff drew the attention of the 2nd and 3rd defendants to the fact that the said indebtedness was not one for which he was personally responsible but is one on the account of Sotra Nigeria Limited, the company of which he was managing director.
10. The 2nd and 3rd defendants refused this plea and informed the plaintiff that in the event he did not produce the said sum of money within one hour they would cause his arrest to be effected and he would have to be taken away to Abuja by the Police where he would be made to face criminal charges in respect of the said sum of money.
11. The 2nd and 3rd defendants maliciously and without reasonable and probable cause laid a false information against the plaintiff and caused the plaintiff to be arrested by a police officer in Kano, who then intimated the plaintiff that he had to be taken to Abuja immediately.
12. The plaintiff was immediately deprived of his liberty and was sandwiched between two hefty looking men in a station wagon car which the 2nd and 3rd defendants brought along with them in order to cause the plaintiff to be taken to Abuja in their custody.
13. The plaintiff avers that from the time of his arrest at about 4.45p.m. on the 1st day of April, 1996, the 2nd and 3rd defendants only allowed the plaintiff to call at his bank to see if the bank manager would loan the money demanded by the defendants and to hold discussions with his wife outside his premises at Bompai Quarters, Kano, as he was deprived of the opportunity of entering the premises.
14. The defendants took the plaintiff to Abuja by force and compelled him to be lodged in Nicon-Noga Hilton Hotels, Abuja that night, threatening that unless the payment of the said sum of money was effected by the plaintiff immediately he would be locked up along with hardened criminals in a police cell…”

(Italics mille)

The averments set out sustain the respondent’s claim, which is for wrongful arrest and unlawful detention, which commenced with the respondent’s arrest at 4.45p.m. on the 1st April, 1996 and terminated at his release on the 2nd April, 1996 at about 7.30p.m.

These averments in my respectful view if established clearly sustain a claim for detention from Kano through Kaduna and even Niger States to Abuja Capital Territory. It was a continuous act. There was no break in it. The appellants would, therefore, not be entitled to compartmentalize them into Kano and Abuja faces. The appellants are not denying the arrest of the respondent in Kano on 1st April, 1996 at about 4.45p.m. at their instance and forcing him into their own private car taken to Kano purposely to carry the respondent to Abuja, where he was placed in their hotel custody. The appellants are, however, denying responsibility for the initial arrest which is blamed or placed squarely at the doors of the police. The respondent demonstrated in his pleadings that he suffered deprivation of liberty from the point of the alleged arrest when he was sandwiched between two hefty men, forced to his bank and denied opportunity of consulting with his wife in the privacy of his home. The discussions he had with his bank and his wife were under the eagle or watchful eyes of the appellants.

The arrest of the respondent by the police officer would only avail the appellants if it were lawful or proper. If it were upon evidence of suspicion of felony, on information or charge laid before the police upon which he acted and took the respondent into custody on his own judgment. In the instant case, no charge nor complaint was made to the police and the purported arrest by the police officer was a mere ruse contrived by the appellants to give a toga of legality to their conduct. Since the respondent was unlawfully put into custody in Kano the appellants’ took a risk upon themselves now that the respondent has amply demonstrated his innocence. The appellant’s conduct in Kano is not excused. It follows, therefore, that there is restraint of liberty of the respondent right from the point of his arrest up to and including the time of his release on 2nd April, 1996.

I agree with the submission of the learned counsel for appellants that the territorial jurisdiction or area of authority of the Kano State High Court of Justice is restricted and confined to the area in the second column of part 1 of the first schedule to the Constitution of the Federal Republic of Nigeria 1979. Consequently, the competence of the court to adjudicate does not extend beyond the territorial boundaries of the State and, therefore, does not cover defendants residing outside the State in respect of causes of action arising outside the State. But the initial arrest and detention of respondent which are not only wrongful but also unlawful took place in Kano. All the denial or restraint of personal liberty of respondent in Kano, Kaduna and Niger States could be investigated by the various High Courts through which the respondent was taken notwithstanding that each State High Court including the High Court of Abuja Capital Territory is given exclusive jurisdiction over the area of the State. Since the cause of action was re-enacted in each of the States in the course of the journey from Kano to Abuja, each court is entitled to investigate the matter. The respondent is not expected to institute his claim against the appellants in each of the State or jurisdiction through which he was taken to reach Abuja.

For the view I have stated, I think, the answer to the only question asking for determination in this appeal is positive. All the grounds of appeal related to the issue fail and are dismissed. The appeal equally fails and it is dismissed. I affirm the decision of the learned trial Judge with costs assessed at N5,000.00 to the respondent.

In parenthesis, I hope the Inspector-General of Police is listening and would cause an investigation to be conducted into the brazen act of misconduct and gross indiscipline by his men in uniform. We thank God the matter did not go beyond this. One shudders to ponder the extent of embarrassment it would have earned the police and the hotel if something untowards had happened to the respondent while in the hotel’s custody. It is equally gradually becoming fashionable for counsel instructed to recover debts and rents to resort to use of members of the armed forces particularly the police. Resorting to force rather than rule of law is fastly gaining currency. This does not augur well for the profession. It is a wind of change that blows no one any good. If the members of the profession decide to throw to the winds the ideals of rule of law then, in no distant future, stand to reap whirlwind. The inevitable consequence is that the clients would directly deal with those who possess the means of coercion which invariably may be cheaper than going through a counsel whose ‘professional’ fees may jack up the cost of recovering the debt or rent.

---

Other Citations: (2002)LCN/1287(CA)

Ken Mclaren & Ors V. James Lloyd Jennings (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

The plaintiff, per a writ of summons dated 2nd August, 1996, taken out of Kano State High Court of Justice, is claiming against the defendants, jointly and severally, the sum of N5,000,000 damages for wrongful arrest and unlawful detention in Kano and Abuja.

Parties duly filed and exchanged pleadings. On 1st day of September, 1997, the defendants filed a motion on notice challenging the competence of the court below to hear the action on ground of territorial jurisdiction. Learned trial Judge, after hearing both parties, in a reserved and considered ruling refused the application and held that Kano State High Court was seised of the matter.

The defendants were unhappy with the decision and being aggrieved appealed to this court. Briefs of argument were filed and exchanged. In the respective briefs, only one issue was identified as calling for determination. The two formulations, in my respectful opinion are very similar, if not identical. In the appellant’s brief the issue reads as follows:-

Whether the High Court of Kano State has the jurisdiction to entertain and adjudicate over the plaintiff’s/respondent’s claim against the defendants/appellants who reside in Abuja outside the jurisdiction of the lower court and have objected to the lower court’s jurisdiction.”

On the other hand the respondent framed the issue as follows:

“Whether the plaintiff/respondent’s statement of claim in this suit dated the 2nd August, 1996 discloses a cause of action against the defendants/appellants for false detention or imprisonment in Kano and whether in the circumstances High Court of Justice, Kano State cannot assume or exercise jurisdiction over the same.

Since I am of the view that the issues framed in the respective briefs are identical, the interlocutory appeal can conveniently be argued, considered and determined on either formulations. But the respondent’s identification of issue is more to the point and is for that reason preferred.

At the hearing of the interlocutory appeal, learned counsel for both sides adopted and relied on their respective briefs. In addition oral submissions were made. All would be taken into consideration in the determination of the appeal.

I agree with learned counsel for appellants that the position of the law on the determination of jurisdiction of a court is fairly well settled. Learned counsel for appellants, in the appellant’s brief, submitted that the jurisdiction of a court is determined by recourse to the claim before the court. He however stated that a statement of claim supercedes the writ of summons with the result that if a relief is claimed on the writ but not claimed in the statement of claim, it shall be deemed to have been abandoned. He argued further that, a claim endorsed in a statement of claim which is not in the writ subsists. He in this regard cited the case of Eze v. George (1993) 2 NWLR (Pt. 273) 86, 97.

Learned counsel further argued that respondent in the writ of summons complained about detention in both Kano and Abuja and claimed damages for unlawful arrest and detention but in the statement of claim, which superceded the writ of summons, the respondent at paragraph 20 thereof claimed damages for detention simpliciter. Learned counsel contended that arrest was thus abandoned. Learned counsel therefore further contended that the claim before the court is determined with reference to the relief sought by the plaintiff as formulated in the statement of claim: Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723, 744; A.-G., Anambra State v. A.-G., Federation (1993) 6 NWLR (Pt. 302) 692, 742.

Learned counsel then submitted that the claim for wrongful arrest having been abandoned, the relief sought by the respondent was N5,000,000.00 damages for false and unlawful detention at the Nicon-Noga Hilton Hotel, Abuja. Learned counsel contended that the basis of the cause of action as pleaded in paragraphs 16, 17 and 18 of the statement of claim that the respondent was deprived of his libe11yand kept in custody in Abuja.

Learned counsel submitted that the arrest in Kano did not give the respondent a cause of action for which he could be compensated because second and third appellants did no more than report to the police and that it was in the exercise of the police duties under section 4 of the Police Act that he was arrested- Ezeadukwa v.Maduka (1997) 8 NWLR (Pt. 518) 635, 667.

Learned counsel finally submitted that the relief claimed by the respondent is not in respect of any detention in Kano but for damages suffered as a result of his having been detained in the Nicon-Noga Hilton Hotel, Abuja as his arrest in Kano did not give rise to any actionable wrong, as the second appellant did no more than lodge a report to the police who exercised their power of arrest.

He backed up his submission with the cases – Gbajor v. Ogunburegui (1961) 1 All NLR 853 and Adefunmilayo v. Oduntan (1958) WNLR 31.

On the other hand, learned counsel for respondent, in the respondent’s brief, after the respondent’s claim in the writ of summons as well as statement of claim had been read, contended that the position taken by the appellants with regard to the unlawful detention is opposed to the respondent’s claim in either his writ of summons or statement of claim.

I propose to deal with the issue of the arrest of the respondent in Kano. I have carefully examined the submissions of the learned counsel for appellants and respectfully do not think that their contention to the effect that the respondent’s arrest was not wrongful and unlawful does not avail them. It is fallacious to contend that the arrest is severable from the detention and did not give rise to an actionable wrong. The second defendant did not merely lodge a report to the police and the latter exercised its power of arrest. The defendants supplied the vehicle to take the police to Kano to demand and recover a debt and not for purpose of investigating an offence.

The police, to my mind, had no discretion in the matter.

This arrest, in the circumstance, was wrongful. It was wrongful on the appellants’ showing. It is apt to narrate relevant portion of the circumstances leading to this appeal. Nicon-Noga Hilton Hotels Limited awarded, on 11th April, 1995, a contract of supply of hotel equipment to a company, Sotra Nigeria Limited. Respondent is the managing director of the company which received an advanced payment of N1,628,428.27. Due to some reasons, the company could not supply those goods within the agreed time. The appellants demanded the refund of the deposit. It was pursuance of this demand that the respondent was arrested in Kano and brought for remand in Nicon-Noga Hilton Hotel, Abuja until the said sum of money was refunded.

Firstly, section 4 of the Police Act, Cap. 359 of the Laws of the Federation, 1990, upon which appellants predicated their case does not avail the appellants. Section 4 relied upon by the appellant’s deals with general duties of police and reads as follows:-

4. The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of, this or any other Act.

I have scrutinized the provisions of the section and am unable to see a provision providing for or empowering police to enforce contract or collect common debts. The appellants and the policemen they pressed into duty were not in Kano to prevent or detect a crime nor was the respondent an offender. It is equally not the case of the appellant that there was a break down of law and order, the preservation of which took them to Kano. The court has also not been told of the laws or regulations the group went to enforce in Kano. In short, the appellants and the policemen they took to Kano were there to collect debt which is not one of the several duties assigned to the Police under the provisions of the Police Act to which the court was directed and the court has not been able to find another provision of the Act empowering or constituting the Nigeria Police Force to one of a debt or rent collector. It follows that the policemen who accompanied the appellants to Kano and assisted them in the arrest of the respondent were on the frolics of their own. The arrest was not authorized by the Act and was consequently unlawful, wrongful and illegal and cannot afford the appellants a shield.

The cases of Gbajor v. Ogunburegui (supra) and Adefunmilayo v. Oduntan (supra) heavily relied upon in the appellants’ brief do not assist nor promote the appellants’ cause. In those cases, crime or felony were committed and when the victims or complainant reported to the police who in exercise of their power under the Police Act, apprehended the persons suspected. In the instant appeal, no felony had been alleged not to talk of being committed. It is purely a matter of a breach of a contract of supply by a limited liability company.

Our jurisprudence is replete with practice and procedure for enforcing contract or recovery of debt. In the circumstance of the instant appeal, there is no allegation or imputation of crime against the respondent nor the company of which he is a managing director. There is therefore no basis for his arrest which is not in dispute. The appellants cannot derive solace from the wrongful and unlawful act of the police officers with whom they were acting in complicity. Appellants, therefore, have no any lawful excuse for acting in the manner they did. See Adefunmilayo v. Oduntan (supra) where Ademola, C.J. Western Region of Nigeria quoted with approval the dictum of Campbell, L.J. in Chiver v. Savage (1855) L.J. QB 85 where it was stated that:-

“That if the evidence show no more than that the defendant, upon a suspicion of felony, made a complaint

and charge to the police upon which they themselves acted and took plaintiff into custody, an action for false imprisonment would not have been maintained, but where the defendant had expressly directed the police to take the plaintiff into custody, this is imprisonment by the plaintiff and an action for false imprisonment would lie.”

The appellants laid no charge of felony against the respondent but they expressly directed that the respondent be taken into custody for owing their principal a sum of money. The arrest of the respondent in Kano is inexcusable as the appellants are unable to bring themselves within the protection of the law which have just been enunciated.

The opinion that the exercise of the police power was not in furtherance of the provisions of the Police Act is further strengthened by the appellants’ admission that rather than detaining or placing the respondent in the police custody, he was placed in the hotel’s custody. If the police officers who arrested the respondent in Kano and apparently escorted him to Abuja were on a lawful exercise of police power he ought to have been taken to the police station where the fact of the arrest would have been registered along with the particular of the arrest before placing him in custody or granting him a police bail. Rather he was left with the management of the Nicon-Noga Hilton Hotels Limited. Learned counsel for appellants who insisted that the exercise was lawful is yet to direct the court to the enactment or legislation which sanctioned the course of action taken that day. I am not persuaded that the arrest of the respondent in Kano was lawful. I can only be persuaded if the law or regulation designating Nicon-Noga Hotel, Abuja as a police or prison cell is produced.

I agree with the learned counsel for the appellants that the position of the law on the determination of jurisdiction of a court is more than purely well settled. It is on the face of the plaintiff’s writ of summons or particular of claim, if any, or statement of claim that the plaintiff offers material to the court to decide whether the court has jurisdiction or not. It is upon the statement of claim or particulars of claim that dates of cause of action could be garnered to decide, for example, whether an action is time barred or not, or to determine whether due to one privilege or the other a party ought to stand a trial or not; whether a subject matter is within the competence of a court or determine whether jurisdiction has been ousted by statutes.

Yalaju-Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (Pt. 145) 422, 441; Amawo & Another v. A.-G., North Central State & Others (1973) NNLR 118, (1973) 6 S.C. 47.

In this connection, the writ of summons taken out on behalf of the plaintiff who is respondent herein has been superceded by the statement of claim and therefore no longer relevant. The relief sought by the respondent in the statement of claim reads as follows:-

20. WHEREOF the plaintiff claims against the defendants jointly and severally the sum of N5 million (five million Naira only) as damages for false detention and the loss he suffered as a result of his unlawful detention by the defendants.

At this juncture, it is apt and necessary to read the case presented by the respondent in his statement of claim particularly paragraphs 8 14 which read as follows:-

8. On or about the 1st day of April, 1996, the 2nd and 3rd defendants on the instructions and directives of the 1st defendant came to Kano accosted the plaintiff and asked for an immediate repayment of the sum of one million six hundred and twenty-eight thousand, four hundred and sixty-eight Naira twenty seven kobo only (N1,628,468.27k) which Sotra Nigeria Limited was owing Nicon-Noga Hilton Hotels Limited not by the plaintiff personally.
9. The plaintiff drew the attention of the 2nd and 3rd defendants to the fact that the said indebtedness was not one for which he was personally responsible but is one on the account of Sotra Nigeria Limited, the company of which he was managing director.
10. The 2nd and 3rd defendants refused this plea and informed the plaintiff that in the event he did not produce the said sum of money within one hour they would cause his arrest to be effected and he would have to be taken away to Abuja by the Police where he would be made to face criminal charges in respect of the said sum of money.
11. The 2nd and 3rd defendants maliciously and without reasonable and probable cause laid a false information against the plaintiff and caused the plaintiff to be arrested by a police officer in Kano, who then intimated the plaintiff that he had to be taken to Abuja immediately.
12. The plaintiff was immediately deprived of his liberty and was sandwiched between two hefty looking men in a station wagon car which the 2nd and 3rd defendants brought along with them in order to cause the plaintiff to be taken to Abuja in their custody.
13. The plaintiff avers that from the time of his arrest at about 4.45p.m. on the 1st day of April, 1996, the 2nd and 3rd defendants only allowed the plaintiff to call at his bank to see if the bank manager would loan the money demanded by the defendants and to hold discussions with his wife outside his premises at Bompai Quarters, Kano, as he was deprived of the opportunity of entering the premises.
14. The defendants took the plaintiff to Abuja by force and compelled him to be lodged in Nicon-Noga Hilton Hotels, Abuja that night, threatening that unless the payment of the said sum of money was effected by the plaintiff immediately he would be locked up along with hardened criminals in a police cell…”

(Italics mille)

The averments set out sustain the respondent’s claim, which is for wrongful arrest and unlawful detention, which commenced with the respondent’s arrest at 4.45p.m. on the 1st April, 1996 and terminated at his release on the 2nd April, 1996 at about 7.30p.m.

These averments in my respectful view if established clearly sustain a claim for detention from Kano through Kaduna and even Niger States to Abuja Capital Territory. It was a continuous act. There was no break in it. The appellants would, therefore, not be entitled to compartmentalize them into Kano and Abuja faces. The appellants are not denying the arrest of the respondent in Kano on 1st April, 1996 at about 4.45p.m. at their instance and forcing him into their own private car taken to Kano purposely to carry the respondent to Abuja, where he was placed in their hotel custody. The appellants are, however, denying responsibility for the initial arrest which is blamed or placed squarely at the doors of the police. The respondent demonstrated in his pleadings that he suffered deprivation of liberty from the point of the alleged arrest when he was sandwiched between two hefty men, forced to his bank and denied opportunity of consulting with his wife in the privacy of his home. The discussions he had with his bank and his wife were under the eagle or watchful eyes of the appellants.

The arrest of the respondent by the police officer would only avail the appellants if it were lawful or proper. If it were upon evidence of suspicion of felony, on information or charge laid before the police upon which he acted and took the respondent into custody on his own judgment. In the instant case, no charge nor complaint was made to the police and the purported arrest by the police officer was a mere ruse contrived by the appellants to give a toga of legality to their conduct. Since the respondent was unlawfully put into custody in Kano the appellants’ took a risk upon themselves now that the respondent has amply demonstrated his innocence. The appellant’s conduct in Kano is not excused. It follows, therefore, that there is restraint of liberty of the respondent right from the point of his arrest up to and including the time of his release on 2nd April, 1996.

I agree with the submission of the learned counsel for appellants that the territorial jurisdiction or area of authority of the Kano State High Court of Justice is restricted and confined to the area in the second column of part 1 of the first schedule to the Constitution of the Federal Republic of Nigeria 1979. Consequently, the competence of the court to adjudicate does not extend beyond the territorial boundaries of the State and, therefore, does not cover defendants residing outside the State in respect of causes of action arising outside the State. But the initial arrest and detention of respondent which are not only wrongful but also unlawful took place in Kano. All the denial or restraint of personal liberty of respondent in Kano, Kaduna and Niger States could be investigated by the various High Courts through which the respondent was taken notwithstanding that each State High Court including the High Court of Abuja Capital Territory is given exclusive jurisdiction over the area of the State. Since the cause of action was re-enacted in each of the States in the course of the journey from Kano to Abuja, each court is entitled to investigate the matter. The respondent is not expected to institute his claim against the appellants in each of the State or jurisdiction through which he was taken to reach Abuja.

For the view I have stated, I think, the answer to the only question asking for determination in this appeal is positive. All the grounds of appeal related to the issue fail and are dismissed. The appeal equally fails and it is dismissed. I affirm the decision of the learned trial Judge with costs assessed at N5,000.00 to the respondent.

In parenthesis, I hope the Inspector-General of Police is listening and would cause an investigation to be conducted into the brazen act of misconduct and gross indiscipline by his men in uniform. We thank God the matter did not go beyond this. One shudders to ponder the extent of embarrassment it would have earned the police and the hotel if something untowards had happened to the respondent while in the hotel’s custody. It is equally gradually becoming fashionable for counsel instructed to recover debts and rents to resort to use of members of the armed forces particularly the police. Resorting to force rather than rule of law is fastly gaining currency. This does not augur well for the profession. It is a wind of change that blows no one any good. If the members of the profession decide to throw to the winds the ideals of rule of law then, in no distant future, stand to reap whirlwind. The inevitable consequence is that the clients would directly deal with those who possess the means of coercion which invariably may be cheaper than going through a counsel whose ‘professional’ fees may jack up the cost of recovering the debt or rent.

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Other Citations: (2002)LCN/1287(CA)

Julius Berger Nigeria. Ltd. & Anor V. O. O. Ede (2002)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

The respondent, who was the plaintiff in the court below, claimed against the appellants, who were the defendants in the court below, the sum of N100,000.00(One hundred thousand Naira) as special and general damages occasioned by the negligence of the defendants (now appellants) when, on the 30th of June, 1979, they piled up and left unlighted and unprotected heaps of soil across 2 (two) out of the 3 (three) lanes of the major lanes on the Isolo/Apapa Express Way in Lagos and thereby caused the plaintiff/respondent who was driving his saloon car No. LAC6080A to collide with one of the said heaps of soil whereby he (plaintiff/respondent) suffered severe injuries, loss, agony and inconvenience. The final pleadings filed and exchanged between the parties, with the leave of court, are the further amended statement of claim, amended statement of defence. The case proceeded to trial at the end of which, in a reserved judgment delivered on the 4th of December, 1987, the court found for the plaintiff/respondent and awarded him N30,910.00 (Thirty thousand nine hundred and ten Naira) as special and general damages.

Dissatisfied with the said judgment, the defendants appealed to this court upon three grounds. The issues distilled for determination as set out in their brief of argument are:

1. Whether upon a proper appraisal of the evidence on behalf of both parties to this action, the findings of fact, to wit, that:

(a) there was a gallant saloon car with Registration No. LAC 6080A can be sustained?.

(b) if the answer to (a) is affirmative, whether the plaintiff was the owner of the car?.

(c) whether there was a heap of soil five feet high that submerged the said car.

(d) whether there was, indeed, an accident, in the circumstances pleaded by the plaintiff?.

(e) assuming that all the answers to (a) to (d), supra, are in the affirmative, who was negligent?

(f) whether in the absence of admissible evidence as to ownership, possession of a car that the plaintiff admits is not registered in his name raises a presumption of ownership in that possessor so as to shift evidential burden on a defendant or disputing that ownership?

(g) whether the plaintiff discharged the burden of proving his items of special damages and whether in that absence the learned trial Judge could substitute his own estimate?

(h) whether the award on general damages was not excessive given yardstick of our judiciary coupled with the testimony of PW5, Dr. Godwin C. known on behalf of the plaintiff.

The plaintiff/respondent, however, contended through his brief of argument, that issues 1(a) to (h) identified by the appellants in their brief for determination. —are not relevant to this appeal as well as, — according to them, they are not related —to the grounds of appeal formulated by them — (appellants).

He, however, raised four issues for determination, and as couched in his brief of argument, they are as follows:-

(1) whether the plaintiff/respondent proved his case and as such was entitled to judgment?.

(2) whether the learned trial Judge misdirected himself in any way as to the standard of proof?.

(3) whether the learned trial Judge correctly directed himself in any way as to the onus of proof having regard to the pleadings and evidence led before the court?.

(4) whether the learned Judge made a correct approach to the evidence tendered by both parties to the case?.

I hasten to say that the issues identified for determination by the two parties are verbose and more than the grounds of appeal raised. This undoubtedly violates the well established principles of law which say that issues formulated should not be more than the grounds of appeal see Oyekan & Ors. V. Akinrinwa (1996) 7 NWLR (Pt.459) 128. After a careful reading of the two sets of issues raised by the parties and relating same to their final pleadings, the evidence adduced and the judgment of the court below, it is my view that the issues that arise for determination in this appeal are:-

(1) whether the plaintiff/respondent established his ownership of the vehicle No LAC 6080A as at 30th June, 1979, the time material to this case?.

(2) whether the plaintiff/respondent established that the defendants/appellants owed him a duty of care and that they breached that duty of care?.

(3) whether the plaintiff/respondent proved the special damages strictly as required by the law?.

I now pause to examine the case of the plaintiff/respondent as gleaned from his pleadings and the defence of the defendants/appellants as put up in their joint pleadings. The facts not in dispute between the parties, as gleaned from their pleadings, are that the 1st defendant/appellant is a limited liability company carrying on the business of construction of roads, bridges, buildings and other construction projects at all times material to this case: and that the 2nd defendant/appellant was an employee and/or agent of the 1st defendant/appellant at the time material to this case.

The case of the plaintiff/respondent is that at the time material to this case, he was a legal practitioner and the owner of vehicle No. LAC 6080A, the letter of transfer of ownership of which was executed in his favour on 1st June, 1979. The defendants/appellants, he further averred, as at 30th June, 1979, along Isolo/ Apapa Express Road in the course of the construction they were carrying on there, piled up and left several unlighted, unguarded and unprotected heaps of soil. At about 10.30 p.m. on the said 30th June, 1979, in the course of skilful and careful driving of his said vehicle No. LAC 6080A along his own proper side of Isolo/ Apapa Express Road, suddenly he ran into and/or collided with some of the heaps of soil about 5 feet or 1.5 metres high negligently piled up there.

The collision resulted in the damage to his said vehicle beyond repairs.

The plaintiff/respondent also claimed that as a result of the said collision he also suffered serious bodily injuries and was hospitalised at the Lagos University Teaching Hospital, Lagos and some various clinics of traditional masseurs at Benin-City and Lagos.

Consequent upon the damage to his aforesaid vehicle and the injuries he personally sustained, he claimed damages.

The defendants/appellants denied that the ownership of the said vehicle was that of the plaintiff/respondent at the time material to this case; contending that the document of transfer of ownership pleaded by the plaintiff/respondent was executed after the institution of this case. While denying that they were negligent averred that the escavation required for the laying of the crash barrier was not up to one feet deep and certainly not more than two feet wide and could not have resulted in a 5 feet heap of sand; that pre-cautionary measures were taken to avoid danger to users of the road. It was their further contention that when they resumed work on 2nd July, 1979 they did not see evidence of any accident adding that the precautionary steps taken by them were still intact.

The above, in a nutshell, is the resume of the case presented by each of the parties. As I have earlier said, the learned trial Judge found for the plaintiff/respondent. On the issue of the ownership of the said vehicle, the learned trial Judge held:

“The plaintiff through exhibits J and JI has established that the vehicle was bought at Phoenix Motors Limited on 13th December, 1976 in the name of F.E. Okunbor that a letter was written to the Licensing Authority for change of ownership and a receipt was issued these were exhibits J and JI respectively. The presumption of ownership of this vehicle by the plaintiff had been aptly borne out by the testimonies of the 1st and 6th plaintiff witnesses. The defendants did not bring any evidence to the contrary the fact that F.E. Okunbor was not called as a witness notwithstanding. For in a case of negligence, once ownership of the motor vehicle involved has been established, the presumption albeit rebuttable, is that the vehicle was being driven at the material time either by the owner himself or by his servant or agent …therefore hold that the plaintiff is the owner of the said vehicle Registration No. LAC 6080A.”

On this issue, the appellants have argued in their brief that the said vehicle, by the evidence before the court, was registered in the name of F.E. Okunbor, the wife of the plaintiff/respondent who by marriage later became Mrs F.E. Ede. There was no legal proof that the ownership of the said vehicle was transferred to the plaintiff/respondent before the accident. Exhibits J and JI therefore have no legal efficacy; indeed exhibit J was not in existence when he (plaintiff/respondent) gave evidence in the case in 1982. The plaintiff/respondent on the other hand has argued in his brief that the authenticity of exhibits J and JI are not in doubt. Ex JI he further argued, was a certified true copy of the original and was rightly admitted in evidence; reliance was placed on the case of Onuigbo v. Nwekeson (1993) 3 NWLR (Pt.283) 533.

I shall start the consideration of this issue by examining the law relating to the ownership of a vehicle. Where there is a registration of a motor vehicle in the Register, kept at the Motor Licensing Office, in the name of a person it is, prima facie, evidence of ownership by that person. It is however, a rebuttable evidence. This accord with common sense, because the owner, without any further information, if an action in negligence arising from the driving of that vehicle was brought against him, is prima facie liable because the court will be entitled, in law, to draw the inference that the vehicle was been driven by the owner or his agent or servant see (1) Kuti v. Balogun(1956) SCNLR 143, (1978) 1 SC 53 or (1978) 1 LRN 353 (2) Ogunmuyiwa v. Solanke (1956) 1. F.S.C. 53 and Okeowo v. Sanyaolu (1986) 2 NWLR (Pt.23) 471. A fortiori, where there is an authentic document identifying the names of the owner and the contents of that document remain uncontradicted, there is that irresistible presumption that the named person is the legal owner of the vehicle and he can properly bring an action in court against whoever has negligently caused damage to it or to the person of the owner in the course of driving that vehicle; by the action or inaction of that person see (1) Odebunmi v. Abdullahi (1997) 2 NWLR (Pt.489) 526 and (2) Onuigbo v. Nwekeson & Ors. (1993) 3 NWLR (Pt.283) 533. Then, what is the evidence of ownership of the vehicle led by the plaintiff/respondent? The 1st P/W called by the plaintiff/respondent, one Ebigbeyi said:

“I know the plaintiff when he came to buy a Gallant Car. The plaintiff advised that the car should be in- voiced in the plaintiff’s wife’s name and that was done. A receipt was issued in the name of the plaintiff’s wife.”

The plaintiff/respondent, himself testifying under examination-in-chief, said:

“The said vehicle which is a Gallant Saloon Car Registration No LAC6080A white in colour was transferred to me on 1/6/79 by my wife Mrs. F.E. Ede nee F E. Okunbor. A letter of Transfer was written to that effect and a change was effected at the City Hall, Lagos.”

Ex J was tendered as the letter to the Licensing Authority requesting for a certified true copy of the Transfer of Vehicle to the plaintiff, while the Certified True Copy of the transfer of Ownership of vehicle No. LAC 6080A to the plaintiff/respondent was tendered as exhibit J1 under cross-examination he said:

“At the time of the accident the car was not insured in my name. The car is (sic) not in the name of Miss

Ogunbo at the date of the accident exhibit J was not in existence when I testified in 1982. I testified in 1982 that the car was owned by my wife. I was using the car then the car was not sold to me by my wife I did not apply for change of ownership. Exhibit J1 was not witnessed by anybody… I now change to say that I am not in a position to say that my wife’s name is on the records as the owner of the car.”

I have had a close study of exhibit J1 it does not bear any official stamp of the Licensing Authority authenticating transfer of the vehicle to the plaintiff/respondent. It was not witnessed by anybody.

The plaintiff/respondent admitted testifying in 1982 during the aborted trial of this case that the ownership of the said vehicle resided in his wife, Mrs. F.E. Ede (nee Okunbor). P/W1 – Ebigbeyi did not mince words when he said the vehicle was invoiced in the name of Mrs. F.E. Ede. Yet the learned trial Judge found that the plaintiff/respondent established his ownership of the vehicle in accordance with laid down principles of law. More importantly is the fact that the plaintiff/respondent claimed the sum of N7,320.00 for loss of use of the vehicle from 1st July, 1979 to 30th June, 1980 at the rate of N20.00 per day, in addition to the value of the car, said to have been damaged beyond repairs, at N6,500.00. The two items are devoid of legal proof. The conclusion reached on this point will be given anon. I do realise that factual findings once made by a trial court are very hard to dislodge on appeal. But where, as in the instant case it has been shown beyond any doubt that the trial Judge has failed to draw a proper inference from uncontroversial or indisputable facts and has drawn inferences which are wrong and not supportable by the evidence before him, the Court of Appeal, must, in the interest of justice exercise its own powers of reviewing those facts and draw appropriate inferences there from see Lawal v. Dawodu & Anor. (1972) 8/9 SC 83 and Fashanu v. Adekoya (1974) 6 SC 83, (1974) 1 All NLR (Pt.1) 35. In the exercise of that power, I do not quibble in saying that the finding of the trial Judge is not supported in law. I therefore answer Issue No.1 identified by me in the negative. Flowing from what I have just said, the award made in respect of the damaged vehicle is hereby set aside as the proper owner of the said vehicle (Mrs. F.E. Ede) is not a party to this case.

I shall now proceed on to the issue of negligence. From the pleadings, it is obvious that the 1st defendant/appellant, a contractor was commissioned by a party other than the plaintiff/respondent to carry out the construction works ordinarily, one may say that the allegiance and responsibility of the 1st defendant/appellant go to that body that awarded the contract to it. But on the general law of negligence which was first coherently expounded in Donoghue v. Stevenson (1932) AC. 562 by Lord Atkin, a person or a body who has been contracted to carry out a transaction or a duty that will confer a benefit on or affect an identifiable third party owes a duty of care towards that third party in carrying out that transaction or duty, in that the third party, is a person within his direct contemplation as someone who is likely to be so closely and directly affected by his acts or omission that he can reasonably foresee that he (the third party) is likely to be injured by these omissions. This, in a nutshell, is what the concept of law on who “IS MY NEIGHBOUR” or the familiar reference by Lord Atkin to the “GOOD SAMARITAN” in the DONOGHUE case is all about. In this respect, the contractor will not only be liable to his client in contract, he could as well be liable to his client and others for the tort of negligence. I do acknowledge that, in the circumstances of this case, no fiduciary duty is owed by the contractor building or repairing the road to road users the category of which includes the plaintiff/respondent but the basis of its liability is analogous to the existing categories of special relationship which give rise to a duty of care to prevent economic loss the likes of damage to property or injury to the person brought about by act of negligent omission or commission by the contractor.

It must always be remembered that any breach of duty of care whether grave or venial, which causes a loss constitutes negligence. And since negligence is a question of fact not of law, to succeed in an action for negligence, the plaintiff must show that the defendant owes him a duty of care and that he has suffered damages in consequence of the defendant’s breach of that duty of care towards him see (1) Kalla v. Jarmakani Transport Ltd. (1961) All NLR 747 (2) Agbonmagbe Bank Ltd. v. C.F.A.O. Ltd. (1967) NMLR 173 and (3) Ololo v. (Nig.) Agip Oil Co. Ltd. (2001) 13 NWLR (Pt.729) 88. What is the evidence led in support of the case of the plaintiff? The 1st P/W – Ogwu said and I quote:

“While going back home around 10 p.m. the plaintiff, driving in front of me, and around Ilasamaja Bus Stop along the Express Way, the plaintiff ran into a heap of sand which was heaped in the centre of the road. The plaintiff was driving a Gallant Car and he ran into this heap of sand …. The vehicle was sub-merged inside the heap of sand and that is why it was impossible to drag him out through the front door. There was no light no protection to warn motorists of that danger and it was right in the centre of the road. … We were driving slowly in the centre of the lane” Under cross-examination, he said:

“I have passed through this road before that day. It was the first time I saw the heap of sand on that road.”

Testifying, the plaintiff/respondent said:-

“On 30/6/79, after closing from my Chambers at 21, Moor Road, Yaba I went home through Herbert Macaulay Road, Anthony Village into Isolo-Apapa Expressway. The 2nd plaintiff witness who had an audience with me followed me in his car behind. I was driving very carefully and diligently along the middle lane of the 3 major lanes. It was drizzling that day and the road was not lighted… I had a bang and my vehicle ran into a heap of sand piled up by the 1st defendant. The said heap of sand was about 1.5 metres high. … The said heap of sand was spread on two lanes out of the 3 lanes. It was unlighted, unprotected and unguarded……The accident happened at about 10.30 p.m.”

When cross-examined, he said:-

“I was in front and Ugwu was driving behind me; the heap of sand was about 5 feet. The sand was spread across two major lanes. I was driving carefully and diligently; it was drizzling. I did not see the heap of sand until I collided with it”

The 8th P/W Sgt Asubanwa attached to the Festac Police Station as at the time of the accident said under-examination-in- chief:-

“On 30/6/79, I was on duty with Cpl. Gabriel Olakunmi. A case of serious motor accident was reported around 11.15 p.m … I went to the scene with the Corporal. I saw blood gushing out of his body and a vehicle with Registration No. LAC 6080A white Gallant on a heap of sand piled on the Oshodi-Apapa Express Road. I took the rough sketch. The heap of the sand was piled in the middle of the Express Road.

The only witness called by the defendants/appellants was one Jeremiah Igwealer, the 1st defendant’s supervisor who supervised the construction of crash barrier along Oshodi/ Apapa Express way said:

“I worked on 30/6/77 on the site… The excavation is about 20 by 16 cm. It is not correct to say that the heap of soil was about 5 feet high and spread over two lanes of the road… There was no other soil around the escavation area ; We do not always leave the heap of soil on the road… On 1/7/79, there was no news of anything strange. I went away to work at Warri and came back 3 months later before I heard anything. I got to know about the accident in April, 1978. I went to Warri in 1978.”

Under cross-examination he said:-

“We put the road signs because the blanding were still fresh.”

The learned trial Judge, on the issue of negligence held:

“It follows from the above that the defendant could have avoided the collision by the exercise of reasonable care in this instant by providing warning lights around the heap of sand. This, the defendant did not do and I hold them liable.”

I cannot but agree with the learned trial Judge on the finding on negligence. P/W1 said both the plaintiff/respondent were driving their respective vehicles on that day slowly and diligently, that the heap of sand was at the centre of the road; there was no light and no protection to warn motorist of the danger. He was not cross-examined on those vital points. In the same vein, the plaintiff/respondent had told the court that he was driving his vehicle carefully and diligently on that day, that the road was not lighted on that day; that the said heap of sand was spread on two lanes out of the three lanes; it was unlighted, unprotected and unguarded even the 8th P/W – Sgt. Asubanwa said, in his testimony, that the heap of sand was piled in the middle of the Express Road. Neither the plaintiff/respondent nor 8th P/W was shaken on their vital testimonies. Evidence on how the accident occurred is very clear from the testimonies of the plaintiff and his aforementioned two witnesses; it points clearly to the negligence of the 1st defendant. And since that evidence remains unchallenged or uncontradicted the learned trial Judge was right in accepting it and acting on it. His findings which I have set out supra cannot be faulted. Issue No.2, as I have identified it, is thus answered in the affirmative.

I shall now proceed on the issue of damages. The trial Judge awarded the plaintiff/respondent a total sum of N10,910.000 special damages. This sum includes the sum of N3,500.00 for the damage done to the vehicle. Having held that the legal owner of the vehicle was not made a party to the suit and in the absence of power of attorney enabling the plaintiff/respondent to sue claiming damages in respect of the said vehicle, the award of N3,500.00 must be set aside. I so do. That the plaintiff/respondent sustained injuries from the said accident is clear from the evidence before the court.

Evidence of 5th P/W-Dr. Kalu on the issues of injuries and pains suffered by the plaintiff/respondent was not challenged. The medical report, exhibit C put the permanent residual disability at 20%.

In law, the measure of damages in an action for negligence is founded on the principle of Restitutio In Intergrum – which means that a successful plaintiff in an action in negligence must be made by the court to recover such a sum as will replace him, so far as can be made by compensation in money in the same position as if the loss has not been inflicted on him, subject of course, to the rule of law as to remoteness of damage. The sum of N20,000.00 (Twenty sand Naira) was, awarded as general damages to the plaintiff/respondent. It is my view that there is no basis to disturb that award. I affirm it. If the sum of N3,500.00 is discounted from the sum of N10,910.00 awarded as special damages, the plaintiff/respondent is left with the sum of N7,410.00 for this head of damages. The law remains unchanged that special damages must be pleaded in detail and strictly proved see Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt.636) 626. I have examined the evidence led very carefully and I am satisfied that the learned trial Judge was right, in law, in awarding to the plaintiff/respondent the sums of money in items 1, 2, 3, 4, 5, 6, 7 and 9. Items Nos. 1, 2 and 3 were supported with receipts.

The oral testimonies of the plaintiff/respondent on items 4, 5, 6 and 7 not having been challenged or contradicted, the learned trial Judge was right in awarding same. On item No 9 which is for N2,400.00- loss of earnings by the plaintiff/respondent is rich in value. I cannot fault it. The result is that the sum of N7,410.00 awarded for items 1,2,3,4,5,6, 7 and 9 must stand.

Before I end up this judgment, I wish to allude to a small point which manifests itself on the records. It is the issue of the joinder of the 2nd defendant/appellant as a party to the suit. On the state of the pleadings, it is mutually agreed by both parties that the 2nd defendant/appellant was, at the time material to this case, the employee and/or servant of the 1st defendant/appellant-a legal fiction. The law is sacrosanct that an employee is not personally liable for the acts he performed on behalf of his employer within the scope of his authority. Even if he is regarded as an agent whatever he does on behalf of his identifiable principal, within the scope of his authority, he cannot be held liable.

In conclusion, this appeal, subject to what I have said as to the award of N3,500.00 as cost of the damaged vehicle has no basis, is dismissed. For the avoidance of doubt, the special and general damages to which the plaintiff/respondent is entitled based on the admissible evidence is hereunder stated:

Special damages : (1) Hospital and Clinical Fees- N175,00 (2) Drugs at LUTH-61.90 (3) Drugs at Quality Drugs Store- 633.10, (4) Gold Wrist Watch – 170.00 (5) 2 French Suits- 200.00 (7) 1 Gold Ring- 170.00 (8) Loss of Earnings -N2,00.00, 7,410.00 GENERAL DAMAGES – N20,000.00. TOTAL- N27,410.00

The plaintiff/respondent is entitled to the cost of this appeal which I assess and award in his favour at N5,000.00.

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Other Citations: (2002)LCN/1285(CA)

Alhaji Lawal Darma V. Alhaji Maiwada Batagarawa (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In the High Court of Justice of Katsina State of Nigeria, the plaintiff claimed as follows:
a. A declaration of title over a parcel of land lying and situate at or near Flour Mills Katsina, which he bought from one Alhaji Halidu Rafindadi.
b. An injunction restraining the appellant, his agents, servants and privies from raising any claim or trespassing over the piece of land.
c. General damages for trespass in the sum of N5,000.00.

The plaintiff with leave of the trial court filed his statement of claim. The defendant on entering his appearance filed his statement of defence whereby he denied the plaintiff’s claim. The parties having joined issues, the plaintiff called two witnesses and tendered a photographic copy of a sale agreement in support of his claim, while the defendant called four witnesses including himself in support of his defence. Learned trial Judge, Sanusi, J. (as he then was) in a reserved and considered judgment entered judgment in favour of the plaintiff.

The defendant being unhappy with the decision appealed to this Court on two original and four additional grounds of appeal which were filed with the leave of the Court on 22nd May, 2002.

The defendant in prosecution of his appeal formulated four issues from his 4 additional grounds of appeal. The issues which the defendant (hereinafter referred to as the appellant) framed from the 4 additional grounds of appeal read as follows:
1. Whether the respondent proved title or is entitled to declaration of title over the disputed land? Ground 2 of the additional appeal.
2. Whether there is onus of proof on the appellant who did not counter-claim for title to the disputed land?
Ground 3 of the additional grounds of appeal.
3. Whether the learned trial Judge properly acted on exhibit 1 written in Hausa language? Ground 1 of the additional grounds of appeal.
4. Whether the judgment is supported by credible admissible evidence proffered at the trial? Ground 4 of the grounds of appeal.”

Learned counsel for the appellant abandons the 2 original grounds of appeal and urges the court to strike them out. The appellant having failed to submit an issue or issues in support of the original grounds of appeal the same are hereby struck out.

On the other hand, the plaintiff framed only one issue to meet the challenges foisted on him in the appellant’s four issues which issue respectfully is academic and reads as follows:
“Whether having regards to the respondent’s statement of claim and the evidence adduced before the trial court, the court was right in coming to the conclusion that the respondent has proved his claim on the balance of probability.”

It seems to me respectfully that the respondent is only contesting appellant’s issue 4 and has no answer to appellant’s remaining three other issues, 1, 2 and 3. It appears, however, that the questions asked by the appellant in his four formulations can be accommodated under one issue as they deal essentially with evaluation of evidence and appreciation of the party on whom onus of proof laid. As a matter of convenience, I propose to take the issues seriatim, in the pigeon hole into which the appellant had slotted them, if for no other reason than convenience.

Appellant’s issue 1 is framed from his ground 2 which I reproduce immediately hereunder:
“2. The learned trial Judge erred in law when he held that the plaintiff/respondent has proved title over the land in dispute when the plaintiff/respondent’s vendor (DW1) testified that the entire parcel of land he DW1 sold to the plaintiff/respondent was acquired by the Katsina State Government for building of Katsina Flour Mill and access road to the said Mill.

PARTICULARS OF ERROR:
(a) The plaintiff/respondent in his statement of claim and evidence traced his root of title over the land in dispute to Alhaji Halidu Rafindadi.
(b) Alhaji Halidu Rafindadi who testified as DW1 at the trial stated that:
“The plaintiff’s large portion of the land he bought from me fell in the area the government wanted to revoke for the purpose of establishing Katsina Flour Mill and the only portion left also fell on the access road to the proposed Flour Mill extending also up to Alhaji Biliya’s portion of the land he bought from me.”
(c) The plaintiff/respondent admitted under cross-examination that he was paid compensation of N1 ,510.00 for the acquisition of the land in dispute by Katsina State Government.”

The totality of this ground of appeal, in my respectful view, is that the respondent had no title to the land which was declared for him by the learned trial Judge. The question, therefore is, on the respondent’s showing, is the land in dispute, the property respondent purchased from his vendors Alhaji Halidu Rafindadi, the common vendor of the respondent, the DW1 and one Alhaji Biliya Ahmed who eventually sold a portion of his own acquisition to the respondent still respondent’s property? I do not think, therefore, that this issue does permit of argument on joinder and non joinder of party or parties nor failure to call a particular witness or witnesses. The simple dispute here is whether, contrary to the finding of the learned trial Judge, respondent’s property in that location had not been acquired for overriding public purpose? Any argument canvassed outside this perimeter is outside the compass of this issue and therefore irrelevant thereto.

In this connection, the appellant contended in the appellant’s brief that in paragraphs 3 and 9 of his statement of defence he averred that respondent sold 2 plots to him for N12,000.00 and thereafter one Alhaji Biliya Ahmed claimed ownership of the plot now in dispute and traced his root of title to respondent’s vendor. Learned counsel for appellant further contended that in spite of this respondent failed to join issue with him on this point. Learned counsel, in this connection, referred to the testimony of DW1 and the respondent on the said averments. Learned counsel then submitted that the finding of the learned trial Judge and the inference drawn from the evidence adduced by first defence witness did not flow from the evidence of that witness.

It is apt, at this stage to read the pleadings and evidence referred to in the submission of the learned counsel for the appellant which averments and evidence he alleged were neither denied nor controverted. Paragraphs 3 and 9 of the statement of defence aver as follows:
“3. The defendant denies paragraph 3 of the plaintiff’s statement of claim and further avers that the plaintiff has sold to him two plots of land situate near Darma Farm along Dutsinma Road, in Katsina township, at the sum of N12,000.00 and those 2 plots were later proved not to belong to the plaintiff was convicted of cheating by Area Court No. 11, Katsina. A copy of judgment is hereby pleaded and shall be relied upon by the defendant at the hearing of the suit.
4……………….
5……………….
6……………….
7……………….
8……………….
9. In further answer to paragraph 9 of the plaintiff’s statement of claim the defendant avers that after the transaction referred to in paragraph 7 above, he was approached by one Biliya Ahmed with a threat of court action over the plots he bought from the plaintiff because the plaintiff was not the owner, as his own portion, which both the said Biliya Ahmed and the plaintiff bought from the same vendor has been submerged by the Katsina Flour Mills Ltd. This prompted the defendant to lodge a direct complaint against the plaintiff before the Area Court No. 11 , Katsina and the plaintiff was convicted and fined …”

The respondent was required, in the circumstance, under Order 24 rule 3(1) of Katsina State High Court (Civil Procedure) Rules, Cap. 60, of the Laws of Katsina State of Nigeria, 1991, to have filed a reply to the statement of defence to enable him join issue with the appellant in respect of the fresh issue canvassed in the statement of defence. The evidence the respondent led challenging the appellant’s averment that the respondent’s land had been acquired goes to no issue. See Mba v Agu (1999) 3 NWLR (Pt.595) 400, (1999) 9 SCNJ 84, 102 and Tende & Ors. v. A.-G. of the Federation & Ors. (1988) 1 NWLR (pt. 71) 506 at 517 where this Court held per Kolawole, J.C.A that:
“The plaintiffs/appellants did not file a reply to this important averment which, in my opinion, was a policy decision. If they did not agree with the assertion they were in duty bound to file further pleadings to deny the averment by virtue of Order XXXIII rule 16 of the High Court Rules of Eastern Nigeria Cap. 61 applicable to Rivers State.”
His failure to join issue with the appellant on those 2 paragraphs amounts to admission.

Every allegation of fact, if not denied specifically or by necessary implication, or stated to be not admitted shall be taken as established at the hearing: Pioneer Plastic Containers Ltd. v. Commissioners of Customs & Excise (1967) Ch. D 597.

Apart from the implication of respondent’s neglect to join issue with the appellant on the issue of the respondent’s interest in the area having been extinguished or acquired for overriding public interest, there is evidence on the record supporting the appellant’s averment. The respondent himself under cross-examination stated as follows:
“It is true I had a dealing with the department of land and survey Katsina State in relation to this parcel of land. The dealing was regarding claim compensation on the acquisition of the said land by the State Government because all the owners of land in the area were paid compensation except myself. I petitioned to the Commissioner for Land who ordered for the matter to be investigated. During the investigation, part of my land fell on the space demarcated for road and they promised to pay me compensation on it and on the remaining part I was advised to apply for allocation of same by the State Government. I was paid N1500 as compensation on the space of my land falling on the road. The other part I applied but failed to get tax clearance. Later I discovered that the defendant was working in the said portion which I applied for allocation earlier”.
(Underlining mine)

Notwithstanding respondent’s denial that his interest in the area fell completely within the land acquired, it is clear from his own personal showing that his land there was wholly consumed by the acquisition of the Katsina State for the construction of Katsina Flour Mills otherwise he would not be required to apply to the Government for allocation. It is unreasonable for a body which does not own a property to require its owner to apply to it for allocation. I am strengthened in this view by the evidence of the first defence witness, the vendor of both respondent and the appellant’s predecessor in title, Alhaji Rafindadi. Alhaji Halidu Rafindadi, contrary to the respondent’s testimony that only a portion of his land was affected by the acquisition, testified as first defence witness that the entire land which the witness sold to the respondent was acquired for the flour mill. The relevant portion of the evidence adduced by the witness is recited hereunder as follows:

“After the assessment and measurements by the Land Department official, the plaintiff’s large portion of the land he bought from me fell in the area the government wanted 10 revoke for purpose of establishing Katsina Flour Mill and the only portion left also fell on the access road to the proposed flour mill. … ” (Underlining mine)

Nevertheless, learned trial Judge held that the respondent’s case found solace in the evidence of that appellant’s witness when he said in his reserved judgment that:
“The plaintiff did not call Alhaji Halidu Rafindadi the person he allegedly bought the land from to testify, but the defendant called him to testify as his first witness his testimony, however, supports the plaintiff’s case in that he admitted selling his land near flour mills to the plaintiff and another portion to one Alhaji Biliya.”
(underlining mine)

It is true that first defence witness admitted selling his land in the vicinity of the flour mill to the respondent. It is equally true that the same witness testified that the parcel of land he sold to the respondent was acquired by the State and the parcel of land either form the premises of the Katsina Flour Mill or access road to the mill. Although the learned trial Judge was entitled to accept the testimony of a witness in part and reject the other part: Aremu v. Board of Customs & Excise (1965) NMLR 258. Learned trial Judge was entitled to believe a witness in part and disbelieve him in part but learned trial Judge, in the circumstance of this appeal, has not exercised such option. It is therefore presumed that he accepted the evidence of first defence witness in toto. It necessarily follows that the land sold by the first defence witness to the respondent near the flour mill on the strength of the first defence witness evidence no longer belongs to the respondent the same having been acquired by the Katsina State Government for overriding public purpose and vested in Katsina Flour Mill Limited.

The respondent’s case is only entitled to derive support from the appellant’s case if such appellant’s case supports respondent’s claim see Akinola & Anor. v. Oluwu & Ors. (1962) 1 SCNLR 352, (1962) 1 All NLR 224; Ibeziako v. Nwagbogu & Ors. (1972) 1 NLR (Pt.2) 200, (1973) 1 All NLR 113 and Lawson v. Afani Continental Co. (Nig.) Ltd. & Anor. (2002) 2 NWLR (Pt. 752) 585, 622. The evidence of first defence witness supports appellant’s averment in paragraph 9 of the statement of defence to the effect that respondent’s land which he acquired from first defence witness had been acquired and given to Katsina Flour Mills Limited. I respectfully agree with the submission of the learned counsel for appellant that the evidence of first defence witness that respondent’s interest in the land which first defence witness sold to the respondent had been extinguished and can therefore not ground a claim for declaration of title in favour of the respondent.

I answer issue 1 in the negative and ground 2 of the grounds of appeal from which it is framed succeeds, and it is allowed.

On issue 2, learned counsel for appellant submitted that a plaintiff, in an action for a declaration of title, must succeed on the strength of his own case and not on the weakness of the defendant’s case. He relied on Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 and Amadi v. Orisakwe (1997) 7 NWLR (Pt. 511) 161, 173. Learned counsel further submitted that the appellant who did not counter-claim for title has no burden to prove purchase of the land as required or demanded of him by the learned trial Judge.
I agree with the learned counsel for appellant that a plaintiff in an action for a declaration of title must succeed on the strength of his own case and not on the weakness of the defence. The respondent’s case must succeed on its own strength and not on the failure of the defendant to tender judgments of various courts which he pleaded to support or strengthen his case. Neither is it his duty to tender a sale agreement since he did not counter-claim for title to the same parcel of land. The question is, therefore, whether respondent’s case preponderates. But this rule does not apply where the defendant’s case lends support to the plaintiff’s case. See Kodilinye v. Odu (1935) 2 WACA 331 which is as valid today as it was when it was first pronounced upon by the erstwhile West African Court of Appeal. The decision was cited and followed in the case of Aiyedun T. Jules v. R. Ajani (1980) 5-7 SC 96,106. See also Akinola v. Oluwu (supra), Ibeziako v. Nwagbogu (supra), (1972) 2 ECSLR (Pt. 1) 335 and Atuanya v. Onyejekwe & Anor. (1975) 3 SC 101.
The learned trial Judge did not point to any material in the appellant’s case which gave succour to the respondent. He merely enumerated weaknesses in the appellant’s case which do not enure to the respondent. The failure to lead such evidence in support of his defence or pleadings merely shows that the defence is not proven or abandoned. See Balogun v. Amubikanhun (1985) 3 NWLR (Pt.11) 27. I do not appreciate how an abandoned fact energises the respondent’s case. The respondent should not be entitled to judgment simply because the defendant abandoned his defence or part thereof. Judgment should not be handed down to the plaintiff merely because the defendant abandoned his defence by defaulting to lead evidence in support therefor. The case ought to be determined on the cogent and credible evidence of the plaintiff, respondent herein and not on the failure of the defendant to lead evidence. The appellant qua defendant had no burden of proof the burden is on the respondent who sought a declaration of title to an interest in land which right had been extinguished.

The correct position in proving title to land places onus of proof on the plaintiff to satisfy the court that he is entitled to the declaration he is seeking.

The standard of proof in such cases is not different from that required in civil proceedings which is no more than proof on preponderance of evidence. Kaiyaoja v. Egunla (1974) 12 SC 55, 61. The learned trial Judge wrongly placing burden of proof on the appellant to establish a claim which he did not seek resulted in a miscarriage of justice.

This issue is answered in the negative, ground 3 of the grounds of appeal succeeds and it is allowed.

Learned counsel for appellant on issue 3 submitted that it is settled that a Judge cannot use his personal knowledge of a language to act on a document, written in a language other than English, to engage himself in its translation. He relied on the case Ojengbede v. Esan (2001) 18 NWLR (Pt. 746) 771 and Lawson v. Afani Continental Co. Nigeria Ltd. & Anor. (2002) 2 NWLR (Pt. 752) 585, 612.
I agree with the learned counsel for appellant that a court cannot admit and rely on a document written in a language other than the official language of the court which, in the instant case is English. The language of all courts of record in this country is English. The court cannot use its own knowledge of the language to engage in the translation of the document without compromising its own position as an arbiter by playing the dual role of a Judge and a witness whose evidence or view of the content of the document had not been brought out and subjected to forensic test of cross-examination in open court.

It is the duty of a party who intends to rely on a document which is not rendered in English to tender its translation in English along with it or call a witness to translate it from the witness box. In this connection, I said, in the case of Lawson v. Afani Continental Co. Nigeria Ltd. (supra) at p. 612 that:
“The use the trial court put exhibit 1 respectfully is improper because he has thereby combined his role as adjudicator with that of a translator who ordinarily ought to be called to testify in-chief, cross-examined and, if need be, re-examined. If the appellant left the document untranslated until he closed his case the only course left to the court is to discountenance it. By charting the course it did, it abandoned its toga of impartiality and descended into the arena on the side of the party who produced the document that requires translation and did not translate it into the language of the court, English.”
The Supreme Court in the case of Ojengbede v. Esan (Supra) page 790 said:
“There is no doubt that the official language of superior courts of record in Nigeria is English and that if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English either by a competent witness called by the party to the proceedings who needs them to prove his case or by official interpreter of the court. A Judge cannot on his own engage in the translation or interpretation of a document written in a language other than English since he is precluded from performing the role of a witness and an arbiter at the same time in the same proceedings. See Damina v. The State (1995) 8 NWLR Pt.415) 513 at 539 – 540. “

Exhibit 1, written in Hausa, is described by the learned trial Judge as a sale agreement receipt. There is no doubt that the learned trial Judge must have relied on his personal knowledge of the language in which the receipt was written but he is not entitled to act as a Judge and a witness at the same time and in the same case. The defendant was denied, more importantly, the opportunity to test the competence and the understanding of the learned trial Judge of the language he professes and probably the accuracy or correctness of the translation he undertook in the comfort or recess of His Lordship’s chambers. It follows, contrary to the finding of the learned trial Judge, the respondent failed to justify and confirm the root of his title.

The answer to this question is also negative. Ground 1 of the grounds of appeal from which it derives succeeds and it is allowed.

On the last issue, the case of the respondent did not preponderate. There was no credible evidence supporting the finding of the learned trial Judge that the respondent proved his case against the defendant and is entitled to the reliefs or orders sought. He admitted both expressly and by reasonable inference that the land in respect of which, the plaintiff went to court to seek declaration of title had been acquired by the State for purposes of building a flour mill. The evidence of both the plaintiff, the respondent in this appeal, and the first defence witness did not support his claim. The evidence of first defence witness was erroneously found to be in support of the respondent’s claim. There is therefore no substance in the submission of the learned counsel for the respondent, in the respondent’s brief that the evidence of PW1, PW2 and even DW1 and DW4 established respondent’s claim. If anything the evidence of the plaintiff himself and those of the second defence witness dealt a coup degrace to the respondent’s case.

The four grounds of appeal having succeeded and allowed, the appeal succeeds and it is allowed. The decision of the learned trial Judge is set aside. The plaintiff’s claim fails and is dismissed. There is order as to costs which is assessed at N5,000.00 to the appellant.

---

Other Citations: (2002)LCN/1284(CA)

Ambassador Yusuf Hamman & Ors V. His Excellency Otunba Adeniyi Adebayo & Ors (2002)

LawGlobal-Hub Lead Judgment Report

ZAINAB A. BULKACHUWA, J.C.A.

In the Federal High Court Abuja coram Edet ‘J’ the 1st – 16th Respondents as Plaintiffs initiated an action against the appellants as defendants in Writ of Summons filed on the 30th of May 2000. Their claim against the defendants is as per paragraph 13 of the Statement of Claim whereby they claim as follows;

(i) An order of this Honoruable Court restraining the Defendants, their servants, agents and privies from conducting any congress starting from ward scheduled for the 3rd of June, 2000, Local Government 14th of June 2000, State scheduled for 24th of June, 2000 and National Convention Scheduled for 1st July, 2000 as published in the Newspapers, or indeed on any other date thereafter.

(ii) An order of this court restraining the 1st to 4th Defendants, their agents, servants and privies from obstructing tampering or in any way interfering with the 1st to 16th Plaintiffs in the execution of their functions as members of the National Convention Committee democratically selected by the National Executive Committee of the 17th Plaintiff.

(iii) A declaration that the 1st to 16th Plaintiffs were properly and democratically selected by the National Convention Committee of the 17th Plaintiff and by virtue of that the only legal authority to conduct the National Convention of the 17th Plaintiff.

Pleadings were filed by the parties, before trial could commence however, the defendant as applicants filed a Motion on Notice on the 8th of June, 2000 in which they sought the following reliefs;

An order setting down the point of law raised.

In paragraph 17(1) to 17(v) of the Statement of Defence for determination by this Honourable Court, as shown hereunder before the hearing of evidence in this case:-

(i) That the National Convention Committee comprising the 1st to the 16th Plaintiffs being a mere ad – hoc committee which is unknown to the Constitution of the 17th Plaintiff, the committee has no power to dissolve the Protem National Executive Committee of the 17th Plaintiff.

(ii) That the Plaintiffs National Convention Committee not being a creature of the Constitution of the 17th Plaintiff, the committee is not a juristic person. Consequently, this action is incompetent having been constituted by the 1st – 16th Plaintiffs as ‘ALL MEMBERS OF THE NATIONAL CONVENTION COMMITTEE OF THE ALLIANCE FOR DEMOCRACY’ and the Court has no jurisdiction to hear and determine the action.

(iii) The 1st to 16th Plaintiffs have no locus standi in law to institute this action as they have not shown any loss or injury or damage suffered either individually or collectively them as a result of the Defendant’s action.

(iv) That under the constitution of the 17th Plaintiff, the 1st Defendant as Protem National Chairman of the 17th Plaintiff, he is empowered to Summon the First National Convention of the Alliance for Democracy and not the 1st to 16th Plaintiffs.

(v) That this present action by the 1st – 16th Plaintiffs is a duplication of a similar suit instituted by the Alliance for Democracy (AD) against the 1st – 16th Plaintiffs now pending in Suit No FCT/HC/CV/359/2000 and therefore in abuse of Court process.

And take further notice that the 1st – 4th Defendants/Applicants will at the hearing of this application rely on the Statement of claim and statement of defence already filed in this case.

And for such further Order or Order as this Honourable Court may deem fit to make in the circumstances of this Suit.

The defendant applicant before the lower court filed an affidavit in support while the respondent in objecting the application filed a Counter affidavit and sole annexed documents. The application was moved and argued on the 27th, June, 2000 and 10th July, 2001.

In a ruling delivered on the 24th July, 2000, the lower court dismissed the motion on Notice “for want of merit and grant the plaintiff’s claims as per their Statement of Claim which is voluntarily admitted by the defendant.”

The defendant now appellant aggrieved with decision of the trial court have now appealed to this court.

With leave of court the appellant’s amended their grounds of appeal which shorn of their particulars are produced hereunder.

GROUNDS OF APPEAL

1. The learned trial judge erred in law when he said as follows;

“It is trite law what is admitted needs no further proof. Accordingly I dismiss the Motion on Notice for want of merit and grant the plaintiffs claim as per their Statement of claim which is voluntarily admitted by the defendants.”

2. The learned trial judge erred in granting the plaintiffs claim as contained in the statement of claim filed on their behalf when;

(a) The Plaintiffs had made an application for judgment.

(b) The 1st – 4th Defendants had filed a Statement of defence in which they were clearly challenging the averments of fact contained in the statement of claim.

(c) The learned trial judge had taken no evidence nor in any way resolved the issues of fact between the parties before giving judgment in favour of the plaintiffs.

3. The learned trial judge misdirected himself in law when he stated as follows;

“I rule that my work is very simple following the unreserved admission of the statement of claim by the Learned Counsel for the defendant/applicants. Chief Solomon Asemota (SAN). It makes no difference that he said that his admission of the statement of claim is limited to this motion only because the motion is total in that it seek to admits the suit and have it struck out for want of jurisdiction, locus standi – cause of action and non juristic personality in the 1st – 16th plaintiffs”.

4. The learned trial judge erred in law when he held that the case for the defendants was unintelligible or equivocal simply because the motion paper referred to Order 24 Rules 2, 3 and 4 dealing with the undefended list, while the argument was maintained under Order 25 which dealt with Proceedings in lieu of demurrer without leave of court.
5. The learned trial judge erred in law in determining the issues which the Defendants had sought to have set down for determination before the taking of evidence upon the motion for such setting down.
6. The learned trial judge erred in law in entertaining the action herein when, the lacked jurisdiction to do so.

Parties to this appeal filed and exchanged briefs. In the appellants amended brief the appellant’s Counsel identified the following issues for the determination of the appeal.

(a) Whether the learned trial judge had jurisdiction to entertain the plaintiff’s action therein.

(h) Whether the learned trial judge correctly identified the nature of the application then before him and the prayers therein sought.

(c) Whether the learned trial judge was entitled to disregard the appellant’s specific limitation of the admission of the facts contained in the statement of claim to the application then being argued.

(d) Whether the learned trial judge was entitled to make an order for judgment on the plaintiffs (hereinunder called the respondent) claims in the course of a ruling on the appellant application to set certain issues down for determination on points of law when no application for judgment was before him.

(e) What order the learned trial judge should have made in the event that he rejected the appellants application to set certain issues down for determination on points of law.

(f) The effect of the appellants having cited a wrong order on their motion paper.

The respondents in their brief which was filed after this court extended the time within which to file their brief on the 18/4/02 adopted all the issues as identified by the appellant in their brief and replied to same. This appeal will therefore be determined on these issues.

ISSUE ONE:

Whether the learned trial judge had jurisdiction to entertain the plaintiff’s action therein.

It is the contention of the appellant that ‘the trial court lacked jurisdiction to entertain the matter the action before it being one concerning intra – party dispute between two groups of the Alliance for, Democracy on the way and manner the National Convention of the Party should be conducted. That the joinder of INEC in the suit was unnecessary, submitting that INEC is not one of the agencies of the Federal Government envisaged by the Provisions of Section 251 (1) (P) – (S) of the 1999 constitution. but rather a body established by Section 153 (1) (F) of the Constitution that INEC is established for the Federation and is therefore not an agency of the Federal Government and by implication the Federal High Court lacks jurisdiction to determine the matter and urges us to so hold and strike out the matter.

The respondent in reply contends that the controversy that took the parties to court was on the holding of a National convention of the party where the authentic National officers of the Alliance for Democracy will be elected and forwarded to INEC as required by law. That the reliefs of the respondent in the lower court rest on that, so had the issues as joined by the parties in their pleadings. Submitting further that the statutory administrative responsibilities and control of the political parties by INEC will vest on the Federal High Court the jurisdiction to determine the matter. That INEC is an agency of the Federal Government and therefore a necessary party to the suit.

In as much as an issue of jurisdiction is considered very fundamental that it can be raised at any stage of Proceedings, for where it is absent the whole case collapses no matter how well it is tried – PETRO JESSICA ENTERPRISES LTD VS LEVENTIS TECHNICAL CO LTD 1992 5 NWLR Part 244 675; OSHATOBA VS OLUJITAN 2000 5 NWLR Part 655.

To be relevant however the issue must be related and confined to the complaint on the decision appealed against, and becomes irrelevant and incompetent when it is not related to the decision appealed against – MRS. R. SHUAIBA VS UNION BANK OF NIGERIA PLC 2001 1 SCNJ 1.

The appeal in this case is against the decision of the trial court, whereby the court entered judgment for the respondent while ruling on an application on the presumption that the appellant’s counsel had admitted to the averment in the statement of claim while arguing the motion before it.

The issue as determined in the trial court in its ruling pertain to the incompetency of the court in determining the matter for want of locus standi, cause of action, abuse of process, and non juristic personality of the 1st to the 16th Plaintiffs. There was no complaint on the 18th respondent being a party. Nor was there an application complaining that the court being a Federal High Court lacks competence to try the matter in that INEC the 18th respondent is not an agent of the Federal Government.

The issue raised in this appeal however is as to whether INEC being one of the parties in the Suit is an agent of the Federal Government or not and the effect of the Provisions of Section 251 (1) (P) (5) and 153 (1) (F) of the 1999 Constitution on the matter.

INEC was a party before the lower court the above issue was neither raised, canvassed, considered nor determined before the lower court. The Appellant were well aware of their participation when they brought up the application the subject of this appeal.-

My Lord Musdapher JCA had occasion to state, in the case of NDIC & ANOR VS SAVANNAH BANK OF NIGERIA PLC in Appeals No. CA/A/23/2002, CA/A/30/2002, as follows:

“In my view an appeal is a complaint against a decision, therefore the issue of jurisdiction and competence raised by the 1st appellant cannot be relevant to the decision on appeal but on the substantive matter which is not on appeal before this court. For a fresh point to be taken on appeal the point must be relevant to the due determination of the matter. See EZE VS A.G. RIVERS STATE (Supra) (2001 18 NWLR Part 746 524)

An appellate court in dealing with matters that come before it is generally bound to limit its consideration to the case on appeal and which was decided by the trial court. See ANLA VS AYANBOLA 1977 4 SC 63. The matter now in controversy between the parties is the issue of the grant of mandatory injunction and not the whole suit. It should be plain to an appellate court that when an issue is not properly placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all about the place, See AGBA VS AGODO 1984 1 SCNL 327. An appellant’s right of appeal as of right does not confer on him an unlimited right to argue any ground of appeal filed in exercise of that right. The exercise of a right to argue a ground of appeal is subject to the rule of relevancy and the discretion of the appellate court. See EJIOFOUMI VS OKONKWO 1982 11 SC 74. It must be emphasized that an appeal is not a new action but a continuation of the matter of the appeal, in the instance case the subject of the appeal before us is limited to the question of mandatory injunction granted by the trial court and not any other complaint dealing for example with the competence of the substantive matter before the trial court. See OGUNDANI VS ARABA 1978 6 – 7 SC 55. So, though in a proper case, an appellant may file grounds of appeal complaining on fresh legal points even without leave where for example the fresh issues border on jurisdiction, however, the complaint must be relevant to the decision appealed against and not to any matter which is not the subject of the appeal.”

As it was in that case, so it is in this case the issue of jurisdiction with regards 11th respondent was not raised in the statement of defence, it was not raised in the application nor was it pronounced upon by the trial court. So even though it was one of the grounds of appeal, it borders on the competency of the trial court to determine the case, the 18th respondent INEC being or not being an agent of the Federal Government.

For “where a party intends to contends the issue of jurisdiction in a case it must be done at the earliest opportunity especially where such an issue relates only to the application of statutes without any reliance on evidence”

– JADESIMI VS OKOTIE – EBOH 1 NWLR Part 16 264.

It is the prerogative of the court of first instance that the issue be raised at the earliest opportunity, for where a court has no jurisdiction to hear a case everything it does after becoming aware of the fact that it has no jurisdiction will be a nullity. See ITAYE & ORS VS EKAIDERE & ORS 1978 9 10 SC 35; UWAIFO VS A.G. BENDEL STATE 1982 7 SC 124; ISADAEHOMEN & ANOR VS THE GOVERNOR OF BENDEL STATE 1986 5 NWLR Part 39 58; JADESIMI VS EKOTIE-EBOH (Supra).

This court can therefore not be asked to consider the competency of the trial court to hear the case by the joinder of the 18th respondent as a party to the Suit as it was not raised before the trial court neither was there a finding, consideration or decision of the trial court based on it.

ISSUE NO 2

Whether the learned trial judge correctly identified the nature of the application then before him and the prayers therein sought.

Appellants on this issue contended that the application brought by the appellant before the trial court was to have the five points raised in their statement of defence set down for determination before the commencement of the trial. That this is a procedure which is well established and sanctioned by the rules of court and relied heavily on Order 25 of the Federal High Court (Civil Procedure) Rules 2000 and Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria.

The appellant submits that the learned trial judge failed to follow the procedure, wrongly stating that the application before him was one to dismiss the respondents action, while the application at that stage only showed that the appellants wanted the trial court to agree that those five points should be set down for determination and his duty at that stage was to decide whether the five points so raised were capable of being determined without adducing evidence, and whether the points raised were of such a nature that a determination of them would substantially dispose of the case before him. That the trial court having failed to do so it has fundamentally affected its consideration and treatment of the submissions made before him in the argument of the application.

The respondent contend in their brief that the appellant in putting up the application was asking the trial court to set down and determine the issues of law raised in the application before taking evidence. And also prayed the court, in addition to the relief of setting down some points of law for determination, the relief of any further or other orders the court may deem fit to make in the circumstances of this Suit. They submit that the learned trial judge perfectly understand the actual application before him and ruled on the reliefs contained therein accordingly and that the learned trial judge did follow the structures of law when he gave this ruling.

The application before the lower court the subject of this appeal had earlier been reproduced in this judgment. The trial court in deciding the issues raised therein found as follows:

“I have dissected and analyzed the statement of claim vis-a-vis the Statement of Defence, the motion papers, the affidavits and affidavit evidence, I rule that my work is very simple following the unreserved admission of the statement of claim by the learned Counsel for the defendant/applicants, Chief Solomon Asemota, (SAN). It makes no difference that he said that his admission of the statement of claim is limited to this motion only because the motion itself is total in that it seek to dismiss the suit and have it strict out for want of jurisdiction locus standi cause of action and non – juristic personality of the 1st to 16th plaintiffs.”

It appears therefore that the learned trial judge did understand the application that was brought before him. Did he however understand the procedure he should have followed while considering the application and the decision he should have arrived at on consideration of the application.

The appellant while moving the application at Pg 110 of the records said the application was brought pursuant to Order 25 Rules 2, 3 & 4 of the Federal High Court Civil Procedure Rules. And it seeks for an order setting down the point of law raised in paragraphs 17(i) – (v) of the statement of defence and as listed in the motion paper for the determination of the court.

While replying to the application learned counsel to the respondent at page 113 of the records pointed out that the application was brought under the wrong law and that the applicant did not obtain the leave of the court to amend the law under which the application was Originally brought from Order 24 to move it under Order 25 and urged that the application be stuck out.

Order 24 of the High Court Civil Procedure Rules provides for the determining of an action under the undefended list clearly the wrong law under which to bring the application.

It is however evident from the application itself and the submissions of learned counsel for the defendant/applicant/appellant that the law under which the application should have been brought was under Order 25 of the Federal High court Civil Procedure Rules 2000 which provides as follow;

“2 (1) A party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the judge at or after the trial.

(2) A point of law so raised may, by consent of the parties or by order of the court or a judge in chambers on the application of either party, be set down for hearing and disposed of at any time.

(3) If in the opinion of the court or a Judge in Chambers the decision of the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or Judge in chambers may thereupon dismiss the action or make such other order therein as may be just.

(4) The court or a Judge in Chambers may order any pleading to be stuck out on the ground that it discloses no reasonable cause of action or defence being shown by the pleadings to be frivolous or vexatious, the court or a Judge in Chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.

(5) No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby the court may make binding declarations of right whether any consequential relief is or could be claimed or not.”

This is a procedure whereby a party to an action is allowed to raise any point of law by his pleadings and upon application a court will consider the point of law so raised before the trial and may strike out a statement of claim on the ground that it discloses no cause of action or order the action to be stayed or dismissed. And where a statement of defence is shown to be frivolous or vexatious enter judgment accordingly.

An application of this nature borders on ‘demurrer’ which was allowable on the Federal High Court Civil Procedure Rules 1976 Order 27 thereof.

Demurrer is a proceeding long known to common law for the determination of matters on points of law only. See CONCISE HISTORY OF THE COMMON LAW 4TH EDITION by plunked at pages 389 – 390 where he said;

“The object of pleadings is to explore the law and the facts of a case by means of the assertions and denials of the parties until an issue has been reached. If it is an issue of fact then the parties would have ascertained a material fact which one asserts and the other denies in terms so precise that a jury will have no difficulty in hearing evidence on the matter and finding the truth of it. If it is an issue of law, the parties will have admitted the relevant facts, leaving it to the court to decide whether the law applicable to them is as the plaintiff or as the defendant maintained. This is called a ‘demurrer’ because one of the parties has pleaded that he is entitled to succeed on the facts admitted by the other, and is willing to rest (demurrer) at that point. If his opponent does the same, then demurrer is joined, the pleadings are at an end, and the court hears the argument on the point of law and decides it”.

It follows therefore that where a defendant is served with a statement of claim and is of the view that he has a legal or equitable defence even if the facts are admitted, he can bring an application by way of Motion on Notice whereby he raises the defence and ask the court to dismiss the matter. Upon examining the application the court may either dismiss the suit or call on the defendant to enter his defence by replying to the facts raised in the statement of claim, in effect ask the defendant to file his pleadings, ‘Demurrer’ can therefore only be raised before the filing of the statement of defence. Or where a statement of claim is amended after the filing of a statement of defence before the filing of an amended statement of defence – See ASHANTI ELECTRIC POWER DEVELOPMENT CORPORATION VS THE ATTORNEY-GENERAL OF THE GOLD COAST 1937 3 WACA 215; EGE SHIPPING AND TRADING INDUSTRIES VS TIGVIS INTERNATIONAL CORPORATION 1999 14 NWLR Part 637 70; MOBIL OIL VS IAL 36 INC 2000 4 SCNJ 124; CLEMCO VS MB’ RAB’ 2002 VOL 37 NRN 140

For the purposes of the application the defendant will be deemed to have admitted the statement of facts as contained in the plaintiffs statement of claim and any argument or evidence contradicting them will be untenable in the application – BOTHIA MARITINE INCOPORATED & ORS VS FAREAST MERCHANTILE CO. LTD 2001 4 SCNJ 178.

Order 25 R1 of the Federal High Court Civil Procedure Rules provides; ‘No demurrer shall be allowed. A demurrer proceeding as shown above is therefore different from the procedure as envisaged in the present rules which is termed “proceedings in lieu of demurrer.”

In this instance pleadings must have been filed by the parties before the application setting down the points of law by the parties can be brought. Either party may bring the application. Where the application is brought by the plaintiff and upon consideration the court finds that the statement of defence is frivolous or vexatious it may enter judgment accordingly and where the application is brought by the defendant the court upon finding that the statement of claim discloses no reasonable cause of action strike it out or order the action to be stayed or dismissed. The application in the instant case was brought by the defendant.

The Procedure also calls for the determination of issues of law. The court having taken the application ought to have considered the five points so raised and determined whether they were capable of being determined without the taking of evidence and disposing of the case or otherwise, considered the objection of the respondent that the application was brought under the wrong law and no leave sought to amend it and thus to strike it out.

Of course before the application can be successfully moved the statement of facts as contained in the statement of claim have to be admitted by the defendant. It does not however mean that he is admitting to the plaintiff’s pleadings, having joined issues with the plaintiffs in the statement of defence. The learned trial judge was thus wrong to have entered judgment for the respondents on this admission.

The trial court having considered and dismissed the application for want of merit what it ought to have done was to have proceeded to the substantive issue for the determination of the issues as joined by the parties in their pleadings not to have entered judgment for the respondent.

Having come to the above conclusion I am of the view that the remaining issues on the limitation of admission by the defendant counsel the order of judgment made by the trial judge, the bringing of application under the wrong law have more or less been looked into in my consideration of issue two. It however suffices to restate that even thought the application was brought under the wrong law, the court ought to have struck it out for being incompetent, but having considered it ought to have confined itself to the application and not grant to a party what it has not asked for. Issues having been joined and the application having been dismissed the matter should have proceeded to trial.

For the above reasons this appeal must succeed and I so hold. The order dismissing the motion on notice is hereby upheld, the order of judgment made by the trial court on 24/7/2000 is hereby set aside. The case is remitted to the Federal High Court Abuja for the determination of the matter on the merits before another judge other than Edet ‘J’.

I award costs of N10, 000.00 to the Appellants.

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Other Citations: (2002)LCN/1283(CA)

In Re: Application of Chief a. C. B. Agbazuere, J. P. In Dr. Orji Uzor Kalu V. U. C. C. Elekwe & Anor. (2002)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A. 

The applicant brought a motion before this court on the 1st March, 2002 seeking the following reliefs:

“(i) Leave for the applicant (as a person having an interest in the matter) to appeal to the Court of appeal from the decision of the Umuahia High Court in Suit No. HU/23/2001 – Dr. Orji Uzor Kalu (MON) V. U.C.C. Elekwa & Anor delivered on 27/3/2001.

(ii) An extension of time to seek leave to appeal against the said judgment.

(iii) Leave to appeal the said judgment and

(iv) An order for extension of time within which to appeal against the said judgment.”

When the motion first came up for hearing, the arguments between the parties were heated and as this court was about to commence vacation it ordered the parties to exchange briefs of argument in order to make the proceedings before the court easier.

On the 19th of September, 2002 the parties argued their briefs. The learned counsel for the applicant relied on his brief and the supporting affidavit. He directed the attention of the court to paragraphs 14 – 16 of the applicant’s affidavit to show his interest in the matter subject to the application. These paragraphs are reproduced hereunder:

“14. That the said action was a mere hoax to fool the electoral authorities to vet him as qualified to contest the 2003 governorship election which he is not entitled to contest as he does not possess West African School Certificate of his own having undergone the previous screening with another person’s certificate.

15. That I am a person interested in this case in which I am aspiring for the same governorship position of Abia State as a citizen of Abia State, on the platform of the Peoples’ Democratic Party (PDP) like the plaintiff and in which my interest will nearly be suffocated by the plaintiff using his force of incumbency and the educational qualification based on another man’s result to seriously jeopardize my chances hence my need to prevent him from qualifying to contest against me by masquerading and pretending to be the owner of West African School Certificate No. SC 124685, the subject matter of this suit. Copy of the WAEC African School Certificate is exhibited and marked Exhibit B2.
16. That in confirmation of my candidature, I exhibit an acknowledgement letter from the Chairman of PDP Abia State over my intention to run for the governorship position in Abia State under the PDP ticket marked Exhibit ‘C’

The learned counsel for the applicant submitted that the applicant has shown from his affidavit and the various exhibits attached thereto that he is a person having interest in the matter because the respondent is striving to use another person’s certificate to qualify for the 2003 governorship election in which he also wants to contest for nomination in the same party. He submitted that the interest of the applicant is not that of a person who has a general interest in seeing that justice is done to a party but a legally recognizable interest by a person directly affected by an adverse decision. He relied heavily on the case of Kalu v. Odili (1992) 5 NWLR (Pt 240) 130. He also relied on the case of Busari v. Oseni (1992) 4 NWLR (Pt 237) 557 where the Court of Appeal held that the test of interest to determine a party interested in the matter is whether that person should have been joined as a party to the suit. A person interested includes a person affected or legally to be affected or aggrieved or legally to be aggrieved by the proceedings. The learned counsel submitted that the interest in the con of a person should be given a narrow construction and the court should take a bold view of the law in this regard and strive not shut out an applicant from appealing in such a situation as this case where he is a contestant for party nomination for governorship under the platform of the Peoples’ Democratic Party (PDP).

In reply to this, the learned counsel, the learned Attorney-General of Abia State, Mr. Kalu (SAN) for the respondent, submitted that only one issue calls for determination in this application, namely, whether or not the applicant has established that he is an interested person to be granted leave to appeal within the con of Section 243(a) of the constitution of the Federal Republic of Nigeria 1999. He submitted that the superior courts of record have repeatedly defined any person having an interest in the matter to mean, a person whose interest has been directly and not obliquely affected by the decision and not a person whose only interest is to see that justice is done. He relied on the case of Kalu. v. Odili (supra) and Owena Bank Nigeria Plc v. Nigerian Stock Exchange Ltd (1997) 8 NWLR (Pt. 515) 1.

Section 243 (a) of the 1999 Constitution reads:

“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:-

(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”

The first part of the sub-section makes it clear that a right of appeal can be exercised by-

(a) party to civil proceedings from which an appeal is desired and

(b) at the instance of arty other person having an interest in the matter.

In the case of Kalu v. Odili (1992) 5 NWLR (Pt 240) 130 at page 194, Karibi-Whyte, JSC had this to say on the definition of person having an interest:

“The expression “any other person having interest in the matter” was construed by me in Re: Ugadu, Christopher Ede (Representing Amaofia Village, Eha-Amufia) v. Ogenyi Nwidenji & Ors. (representing Amagu Village, Nkaliha) (1988) 5 NWLR (Pt 93) 189. In that case S.213 (5) of the Constitution which is in pari material with section 222 (a) of the Constitution in this case was the subject matter for constitution. I said at p. 199;

“the exercise of the right of appeal under section 213(5) of the 1979 Constitution, the interest contemplated can only be that of those directly and not obliquely affected by the adverse decision. It cannot be a general interest which every person has in seeing that justice is done to a party”

It is not disputed that the applicant was not a party to the proceedings in suit No.HU.23/2001 from which he seeks to appeal. He alleges that the respondent is using another person’s certificate to contest for the 2003 governorship election in Abia State.

He too wants to contest in an election and the respondent’s use of another person’s certificate may be prejudicial to his own interest.

With the greatest respect to the learned counsel for the applicant he has not been able to show that the applicant has been directly and not obliquely affected by the decision from which he seeks to appeal. I therefore hold that the applicant is not a person having an interest in the matter to be entitled to the grant of this application. In my humble view the application is entirely speculative and should not have been brought.

Accordingly, I hereby dismiss the application with costs of N5, 000.00 in favour of the respondent.

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Other Citations: (2002)LCN/1282(CA)

Alhaji Ibrahim Coomassie V. Tell Communications Ltd & Ors (2002)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

In the High Court of Justice of the Federal Capital Territory, Abuja, and in suit No. FCT/HC/CV/33/99, Alhaji Ibrahim Coomassie, the erstwhile Inspector General of Police, as the plaintiff claimed against the defendants, damages for libel. The offending statement was said to have been published in Tell Magazine issue of No. 52 dated December 28th, 1998. The first defendant is the publisher of the Magazine, the 2nd defendant and the third defendant are the reporter and the Editor-in-Chief of the said Magazine, while the 4th defendant was the person, who made the alleged offending statement in an interview which was published as aforesaid. The defendants were all said to be resident at Lagos outside the jurisdiction of the court.

The action was said to be instituted against the defendants on the 5th day of February, 1999 and by an ex-parte application of that date, the plaintiff obtained leave to issue and serve the writ outside the jurisdiction of the court. The ex-parte order was made on the 10th day of February, 1999. Another ex-parte order was made to serve the 4th defendant by substituted means on the 25th February, 1999.

On the 3rd day of May, 1999, the 1st, 2nd and 3rd defendants filed an application praying the court for an order to dismiss the suit for want of jurisdiction in the alternative to set aside the issuance and service of the writ of summons. The reasons given by the applicants, among other reasons, were that the writ of summons was purportedly issued on the 5th of February, before the leave to issue and serve the writ outside the jurisdiction of the court was given. Similarly, the 4th defendant also filed an application praying the court to inter-alia, strike out, the suit on the grounds of jurisdiction. In the counter affidavit the plaintiff caused to be filed, it was stated that the then Registrar of the court, one Mrs. Zainab Aliyu, admitted that she made a mistake in that, though she issued the Writ of Summons on the 11/2/99, after the necessary leave was obtained, she dated some copies of the writ of summons on 5th of February, 1999, because the writ of summons was earlier assessed for payment on the 5th of February.

When the matter came up on the 24th of May, 1999, Mr. Adegboruwa of counsel for the 1st, 2nd and 3rd defendants argued the motion aforesaid. The motion filed by the 4th defendant was also argued by Mr. Tokumbo Onagoruwa of counsel. The learned Counsel for the plaintiff in his arguments against the motions, it is recorded at page 43 of the record of proceedings thus, “plaintiff counsel applies that the writ and services of the writ and or any other writ in this matter should be set aside as prayed by counsel for the defendants”. When counsel for the plaintiff, requested the court to rule on his application to set aside the writ of summons, the court without making a Ruling on the issue recorded at page 43 B “case is adjourned to the 7/7/99 for continuation”. That was on the 24/5/99.

At the resumed hearing on the 7/7/99, the learned Counsel for the plaintiff informed the court that he had filed a notice of discontinuance under the provisions of Order 29 rule 2(1) of the (Civil Procedure) Rules of the court. Learned Counsel for the defendants objected to the competency of the notice to discontinue and urged the court to make a ruling on their arguments in respect of the motions filed by them. The learned trial Judge adjourned the matter to 12/10/99 for ruling. The court delivered its ruling on the 12/10/99 by holding that the plaintiff was entitled to discontinue and held that it was unnecessary to rule on the motions filed by the two set of defendants. Perhaps to understand the reasons for the appeal, it is convenient to record in full what transpired in the court as recorded on page 47 of the record of proceedings after the delivery of the ruling aforesaid:

“The ruling is read. The court grants the plaintiff/applicant’s prayer to discontinue. The case is struck out.

“Counsel to the 4th defendant”

The defendant has been made to come to defend case that is incurably defective. The plaintiff did not withdraw at the earliest possible time, that is 3rd of May, 1999. He made both the court and the learned Counsel for the (sic) onerous rigors and cumbersome hard-work of arguing and recording motions. The counsel for the 4th defendant has been coming from Lagos as senior member of the bar. Documents were filed. The counsel for the 4th defendant asks for N250,000.00 for our appearances” Ebun-Olu Adegboruwa appears late apologises for coming late for the 1st to 3rd defendants, apologies for coming late and requests for N500,000 costs.

Court – Costs usually are not awarded punitively, but in the circumstances that the defendants are based in Lagos and so also is their counsel. The plaintiff had the earliest opportunity to withdraw but he failed to do so.

Costs to the four defendants is assessed at N100,000.00 per defendant. The cost to be paid before any similar suit can be brought against them again; plaintiff counsel is asking for leave to appeal against the issue of costs.

Leave is granted accordingly.”

The plaintiff hereinafter called the appellant has appealed to this court against the order for costs. The amended notice of appeal contains five grounds of appeal. Distilled from the grounds of appeal, the learned Counsel has submitted three issues for the determination of the appeal. The issues are:

1. Was there breach of the appellant’s fundamental right to fair hearing on the issue of costs?
2. Assuming, but not conceding that, there was no breach of the appellant’s right to fair hearing on the issue of costs, did the learned trial Judge exercise his discretion to award the costs judicially and judiciously before awarding the total costs of N400,000.00 (that is N100,00.00 per respondent) to all the respondents.

The learned Counsel for the 1st to 3rd respondents adopted the same issues for determination. The learned Counsel for the 4th respondent did not file any brief and indeed did not appear at the hearing of the appeal even though it was evident that he had been served with all the appeal processes.

Now, in his brief for the 1st to the 3rd respondents, the learned Counsel raised preliminary objection to hearing of the appeal. It is argued that grounds 2 and 3 in the appellant’s amended notice of appeal are incompetent in that the said grounds offend the provisions of Order 3 rules (2) & (3) of the rules of this court 1989 as amended.

The grounds are said to be argumentative and or narrative in nature. It is submitted that the grounds of appeal should be struck out, vide GVDA v. Kitta (1999) 12 NWLR (Pt. 692) 21 at 39. At the healing of the appeal, Mr. Amaechina of counsel for the 1st to 3rd respondents, abandoned the preliminary objection and this was accordingly struck out.

I shall now consider Issue No. 1. It is argued that for the appellant, that the learned trial Judge had not afforded the appellant any hearing on the question of costs contrary to the provisions of S. 36(1) of the 1999 Constitution. It is submitted that the courts are bound to apply and enforce the principles of fair hearing in any dispute placed before the court for resolution. Vide UBN Plc. v. C.F.A.O. (Nig.) Ltd. (1997) 11 NWLR (Pt. 527) 118. It is again submitted, that the result of any decision made prejudicial to a party in any legal dispute in which no fair hearing was accorded to the party, the decision is null and void and of no effect. Learned Counsel referred to the following cases, Osazuwa v. Edo State Civil Service Commission and 1 Other (1999) 4 NWLR (Pt. 597) 155; Gen Oil Ltd. v. Ogunyade (1997) 4 NWLR (Pt. 501) 613 at 633. It is submitted that an examination of the printed record will show that the learned trial Judge made the order for the payment of costs after hearing the counsel for the respondents without hearing counsel for the appellants.

It is again argued that although counsel appeared for the appellant and made submissions on the issue of costs, the submissions of counsel were not recorded and were not taken into account, when the decision on the costs was made. Learned Counsel further referred to the cases of Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170 at 184; Okonedo Egharegbemi v. Julius Berger (1995) 5 NWLR (Pt. 398) 679 at 695, Otapo & Others v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 at 605; Iwouha v. Okoroike (1996) 2 NWLR (Pt. 429) 231 at 250.

It is again submitted, that the fact that counsel had admitted making submissions on the issue of costs, is not important, in that the submissions were not recorded nor had any bearing on the mind of the Judge when he decided the matter prejudicially against the appellant. Learned Counsel referred to the case of Fawehimni Construction v. O.A.U. (1998) 6 NWLR (Pt. 553) 171 at 347. Daramola v.A.-G., Ondo State (2000) 7 NWLR (Pt. 665) 440 (2000) FWLR (Pt. 6) 997.

The learned Counsel for the 1st to the 3rd respondents on the other hand, argued that though the cases referred to by the appellant’s counsel deal with the issue of fair hearing in general terms, the facts of this case are different and the cases are not accordingly applicable. What the appellant admitted was that his submissions on the question of costs were merely not recorded, what is important in realm of fair hearing is that each party must be heard before a decision is arrived at, the appellant clearly submitted that his counsel was in court and had made submissions on the issue of costs. The learned Counsel further submitted that the facts of this case are distinguishable from the decision in Fawehinmi Construction Co. Ltd. case because in that case nothing was recorded while in this case, the submissions for the appellant’s counsel were not properly recorded. It was accordingly, submitted that the issue should be resolved against the appellant.

Now, I have above reproduced the relevant portion of the proceedings in relation to the issue of costs. It is manifest from the said proceedings that the learned trial Judge did not invite or give the opportunity to the appellant’s counsel to react to the issue of costs. He merely went into the matter after only hearing the learned Counsel for the respondents. It is trite law and settled which now does not require any citation of any authority or decided cases, that in our Jurisprudential system, the role of a Judex is very clear, the Judge is an umpire, though a Judex cannot compel a party or counsel to argue to an issue before it, yet the Judex must afford reasonable opportunity to the party or counsel to ventilate views on any issue deserving a decision or consideration by the Judge. The court has a duty to be an impartial arbiter and not to descend on the arena.

The court is duty bound to be dispassionate while deciding matters before it, nor resort to whims, not to speculate, but to do substantial justice and decide matters on the merits of all the issues placed before it, after affording each of the contesting parties reasonable opportunity of being heard. In the instant case, though it appears that the appellant’s counsel was in court, and he reacted to the issues of costs, the reaction was not recorded and from the decision of the trial court, it is clear that whatever submissions were made by counsel for the appellant, did not appear to have been considered one way or the other in the decision made by the court.

Record of proceedings of the court is the only indication of what took place in court. It is not like minutes of a meeting which can be corrected at a later meeting. It is always the final reference of the events that took place in a court. The failure of the learned trial Judge to record what has happened has affected the decision he has reached. In the Fawehinmi Construction case supra, Belgore, J.S.C., said at page 182- thus:

“The record of the superior courts must be full especially at first instance as to leave no important matter out or to conjecture.

In the trial court, where parties appear and more especially with their counsel present, their views must be recorded at every stage on the relevant matters like issue of adjournment or costs or non suit. Where a trial Judge, without anything on the record supporting it, makes an order and that order is challenged as incompetent because the parties never addressed on it, in my view that order must be set aside;”.

Even if, I accept that the appellant’s counsel made submission on the invitation of the Judge on this important issue, and the learned trial Judge merely did not record it, the court still has the duty to show that it had taken the views expressed by the appellant’s counsel on the issue. The court has the duty to show that before its reaching its decision, it has considered all the views expressed on the issue by the competing parties. In my view, the learned trial Judge was in error, in not recording the views of the appellant’s counsel and in not taking it into consideration, when he made the order that prejudicially affected the appellant. The order was accordingly, in breach of the fundamental right of the appellant, which had rendered the decision unconstitutional. I accordingly, resolve issue No.1 in favour of the appellant.

Issue No. 2 is concerned with whether in the circumstances of this case and notwithstanding that the appellant was given a fair hearing, the learned trial Judge in the award of costs had exercised the discretion judicially and judiciously.

It is submitted that though the award of costs is within the discretionary power of the courts that exercise is not absolute, and the exercise does not depend on the whims and caprices of the court.

It must be exercised judicially and judiciously and according to laid down rules. See Idi Wurno v. UAC Ltd. (1956) 1 FSC 33 at 34 G (1956) SCNLR 99, HACO Ltd. v. S.M. Daps Brown (1973) 1 NMLR 158.

In the instant case, the appellant was not to blame, the mistake on the date the writ was issued was not his fault. The registrar of the court explained she made the mistake. The appellant clearly stated that the writ was defective even though the mistake was not his own but that of the registrar who had the statutory duty to issue and date the writ. It is submitted that because the learned trial Judge refused to act on the 24th of May, 1999, when the appellant’s counsel applied for the writ to be struck out, the appellant was forced to file the notice of discontinuance. It is further submitted that the error committed by the registry should not be visited on the appellant, vide CCB v. A.-G., Anambra State (1992) 8 NWLR (Pt. 261) 529 at 561.

It is further submitted that there were no materials placed before the learned trial Judge to enable him exercise his discretion reasonably. See Rewane v. Okotie Eboh (1960) 5 FSC 200. In Okpara v. Umeh (1997) 7 NWLR (Pt. 511) 95 at 106, this court held that the costs of N5,000.00 awarded were on the high side. The learned Counsel also referred to the case of UBN v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127 at 152.

The learned Counsel for the respondents on the other hand submits, that the award of the costs in this case was justified because the court had followed the said laid down principles before it made the award. It is submitted that the costs awarded in this matter, were not meant to punish the appellant, but to compensate the respondents for their expenses. It is submitted that as successful parties, the respondents were entitled to costs having not misconducted themselves, vide HACO v. Brown supra. The costs were awarded because the respondents were based at Lagos and had of necessity come from Lagos, to defend the action which clearly involved great expenses. It is further submitted that the appellant did not clearly concede early enough when he knew that the writ was defective.

Costs incurred by a party on the expenses of his counsel are recoverable vide Ojiegbe v. Ubani (1961) 1 SC.

Now, the law is also settled that costs usually follow events and are at the discretion of the court. An appeal court may not interfere with the discretion of the trial court unless it is shown that the discretion was not properly exercised or as it is normally put; the discretion was not exercised judiciously and judicially. Costs should not also be awarded as a means of punishing the loosing party. The learned trial Judge on this matter said:

“Costs usually are not awarded punitively but in the circumstances that the defendants are based in Lagos and so also is their counsel. The plaintiff had the earliest opportunity to withdraw, but he failed to do so.”

And thereafter, proceeded to award the costs. In my mind, the learned trial Judge decided to make the costs punitive on this matter at least by the reference that the appellant had failed to withdraw at the earliest time. The failure to withdraw also cannot be correct, since the appellant had on the 24/5/99 applied for the writ and the service on the respondents to be set aside, the learned trial Judge refused to end the matter there and then. Contrary to this, as he found in his ruling that ” All the parties in this suit has ‘(have)’ agreed that the writ was defective. All the parties have conceded that the court lacks the jurisdiction as the writ is defective, I cannot fathom why the trial Judge could not have terminated the trial there and then but adjourned the matter to 7/7/99 and thence to 12/10/99 for ruling. It was also clear that on the 7/7/99, when the parties appeared before the court, the respondents’ counsel opposed the motion for discontinuance and demanded a ruling on the matter for which the appellant conceded and all the parties agreed that the writ was defective.”

In my view, it is manifestly unfair to hold that the appellant ‘did not withdraw at the earliest time’, he discovered the error. The issue of the delay in terminating the matter early enough squarely fell on the shoulders of the respondents and the trial Judge. Since the writ was defective and the appellant applied for it to be set aside, it was not necessary for the appellant to file the notice of discontinuance.

A party can only discontinue a valid action filed with due process and in this matter as at the 24/5/99, the appellant not only conceded, but applied for the writ to be set aside, but as mentioned above, it was refused, and he was compelled to file the notice of discontinuance, which was also opposed and the respondents demanded a ruling on their motions. It seems to me, that it was the appellant, who ‘won’ on his notice of discontinuance at the end of the day, since the learned trial Judge refused to rule on the respondents application, since as held by the Judge that under “Order 29 rule 2, I believe that the plaintiff is still within his legal limit to discontinue his suit without seeking the leave of court”. Since, costs follow events, I do not think that the learned trial Judge had exercised his discretion judicially and judiciously in awarding such high costs against the appellant. I accordingly, resolve the second issue in favour of the appellant.

I now come to the third and last issue. This is concerned with the order that the costs, must be paid before the appellant filed any similar suit against the respondents. It is submitted, that as in the second issue, the learned trial Judge had not acted within the laid down rules and had not acted fairly in making the order. It is further claimed that the order is unconstitutional in that it inhibited the appellant from exercising his rights for the determination of his civil rights as guaranteed by S. 36(1) of the Constitution. It is further argued, that the respondents never claimed the order and there was nothing in the record to justify the order made. Learned Counsel referred to Ekpenyong v. Enyong (1975) NSCC Vol. 928.

The respondents’ counsel submits that the court has the power to make the order in appropriate cases even suo motu learned Counsel referred to Ode v. Trustees of Ibadan Diocese (1966) 1 ALL NLR 287.

Now, the object of awarding cost is not to punish the unsuccessful litigant, but to compensate the successful litigant for his expenses. The court will not allow costs which are unreasonable in the sense that they are incurred as a result of the self-aggrandisement of the litigant. It is also the law that costs should not be inflicted on a loosing party, who is not to blame. See Atanda v. Lakanmi (1974) 3 SC 109.

But, the court may order that costs be paid before such party institutes further proceedings. That order is also discretionary, it should not be given without regard to certain parameters such as where the defendant is known to be a vexatious litigant, or where without any reason files a matter and when he discovers a brick wall discontinues in order to file another one, in such a case, as a matter of practice, and sometimes the rules of court provide for such a procedure. In the instant case, as mentioned above, although the court has the discretion to award costs and make the aforesaid order, the discretion must be exercised in accordance with fairness and justice. The order to pay the costs before any further suit is instituted is not even tied to the notice of discontinuance. The record is silent on the reason for it and indeed it has not been claimed and most importantly there are no facts or premises upon which the learned trial Judge relied to make the order. Considering all the circumstances of the case, the order for the payment of the costs before the appellant resumes litigation is an exercise in futility.

In the end, I allow the appeal and set aside the award of the costs against the appellant, who in my view was successful in arguing his notice of discontinuance, which was opposed by the respondents.

Accordingly, the orders for costs and the condition imposed is set aside by me.

The appellant is entitled to the costs of this appeal, which is fixed at N5000 against each of the respondents.

---

Other Citations: (2002)LCN/1281(CA)

Alhaji Abdulkadir Balarabe Musa & Ors. V. Independent National Electoral Commission & Anor. (2002)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A. 

The appellants herein were some of the plaintiffs in the lower court and were 1st, 5th, 7th, 9th and 27th plaintiffs. The appellants are political associations as defined in section 229 of the Constitution and they sought to be recognised or registered as political parties as defined in the said section of the Constitution. On the 17th day of May, the first respondent herein, the Independent National Electoral Commission (hereinafter simply referred to as INEC) issued guidelines for any political association wishing to be transformed into a political party, so as to enable it to sponsor candidates to vie for political offices in the country. Along with the guidelines, INEC also published time-table for the registration or the recognition of political associations as political parties aforesaid. Each of the appellants herein and others applied to INEC and collected application forms for registration as political parties. The forms were duly completed. The appellants along with the other plaintiffs by originating summons challenged the constitutionality of some of the guidelines issued by INEC and also challenged the constitutionality of some sections of the Electoral Act, 2001. The ORIGINATING SUMMONS is in these terms:-

ORIGINATING SUMMONS

“LET the 1st defendant, Independent National Electoral Commission of Plot 436, Zambezi Crescent, Maitama District AS, Garki, FCT, Abuja and the 2nd defendant, the Attorney-General of the Federation, c/o Attorney-General’s Chambers, Federal Ministry of Justice, Garki, Abuja, within eight days after service of this summons on it inclusive of the day of such service, cause an appearance to be entered for them to this summons which is issued upon the application of the plaintiffs c/o Nigerian Law Publications Ltd., Bobsar Building (1st Floor), 1035, Minchika Street, Near Assemblies of God Church, off Ahmadu Bello Way, Garki, Abuja, within the jurisdiction of this Honourable Court who claim for the determination of the following questions:

QUESTIONS

a. Whether the 1st defendant, Independent National Electoral Commission (INEC) established under section 153 of the Constitution of the Federal Republic of Nigeria, 1999, is bound to observe the conditions stipulated under sections 222 – 229 of the 1999 Constitution relating to registration of political parties?

b. Whether the 1st defendant, Independent National Electoral Commission (INEC) can by its guidelines enlarge, curtail or amend the provisions stipulated in the Constitution of the Federal Republic of Nigeria, 1999 for the registration of political parties?

c. Whether the guidelines released by the 1st defendant, Independent National Electoral Commission (INEC) on 17th May, 2002, wholly or partly conflict with or violate the provisions of the Constitution of the Federal Republic of Nigeria, 1999, relating to the registration of political parties?

d. Whether the National Assembly is competent to enact sections 74(2)(g) & (h), 74(6), 77(b), 78(2)(b) and 79(2)(c) of the Electoral Act, 2001, in relation to the registration of political parties when the Constitution of the Federal Republic of Nigeria, 1999, has made provisions covering the field in those areas?

CLAIMS

AND the plaintiffs claim the following reliefs:

1. A DECLARATION that the registration of political parties in Nigeria is governed by the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
2. A DECLARATION that the 1st defendant, Independent National Electoral Commission (INEC) cannot prescribe guidelines for the registration of political parties outside the conditions stipulated by the Constitution of the Federal Republic of Nigeria, 1999.
3. A DECLARATION that guideline No. 3(a) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must submit “the names, residential addresses and States of origin respectively of the members of its National and State Executive Committees and the records of proceedings of the meeting where these officers were elected” is unconstitutional, and therefore null and void, in so far as it enjoins such association to submit the names, residential addresses and States of origin respectively of the members of its State Executive committees, and the records of proceedings of the meetings where both members of its National and State Executive Committees were elected.
4. A DECLARATION that guideline No. 3(c) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must present “a register showing that its membership is open to every citizen of Nigeria” is unconstitutional and therefore null and void.
5. A DECLARATION that guideline No. 3(d)(iv) contained In the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must show “a provision that its Constitution and Manifesto conform with the provisions of the 1999 Constitution, the Electoral Act of 2001 and these guidelines” is unconstitutional and therefore, null and void in so far as the guideline relates to “the Electoral Act, 2001 and these guidelines.
6. A DECLARATION that guideline No. 3(e) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must have “a register showing the names, residential addresses of persons in at least 24 States of the Federation and FCT, who are members of the association” is unconstitutional and therefore, null and void.
7. A DECLARATION that guideline No. 3(f) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must present “an affidavit sworn to by the Chairman and Secretary of the association to the effect that no member of the National Executive of the association is a member of any other existing party or existing political association” is unconstitutional and therefore null and void.
8. A DECLARATION that guideline No. 3(g) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must present “a bank statement indicating the bank account into which all income of the proposed political association has been paid and shall continue to be paid and from which all expenses are paid and shall be paid’ is unconstitutional and therefore null and void.
9. A DECLARATION that guideline No. 3(h) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must submit “the addresses of its offices, list of its staff, list of its operational equipment and furniture in at least 24 States of the Federation” is unconstitutional and therefore null and void.
10. A DECLARATION that guideline No. 3(h) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, in so far as it prescribes “that a party seeking registration must submit a list of its staff, list of its operational equipment and furniture in its headquarters office at Abuja” is unconstitutional and therefore null and void.
11. A DECLARATION that guideline No. 5(b) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, which prescribes that “a person shall not be eligible to be registered as a member of political association seeking to be registered as a political party if he/she is in the civil service of the Federation or of a State” is unconstitutional and therefore null and void.
12. A DECLARATION that guideline No. 2(d) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, which prescribes that each association seeking registration as a political party “must accompany its application with twenty (20) copies of the association’s Constitution is unconstitutional and therefore null and void.”
13. A DECLARATION that guideline No. 2(c) contained in the 1st defendant’s “Guidelines for the registration of Political Parties, dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes “payment of N100,000.00 (One hundred thousand Naira) by an association, that applies for registration” is unconstitutional and therefore null and void.
14. A DECLARATION that sections 74(2)(g) and (h), 74(6), 77(b) and 78(2)(b) of the said Electoral Act, 2001, which enlarge and 79(2)(c) of the said Act, which curtails the provisions of the 1999 Constitution on the registration of political parties are unconstitutional and therefore, null and void and of no effect whatsoever.
15. A PERPETUAL INJUNCTION restraining the 1st defendant, Independent National Electoral Commission (INEC), its agents, officers, privies from basing the registration of political parties either in whole or in part on guidelines nos. 3(a), 3(c), 3(d)(iv), 3(e), 3(f), 3(g), 3(h), 5(b), 2(c) and 2(d) or from acting on the said guidelines in the consideration or process of the registration of political parties.
16. AN ORDER compelling the 1st defendant, Independent National Electoral Commission (INEC) to refund the sum of N100,000.00 (One hundred thousand Naira) paid by each of the associations that applied for the registration as political parties.
17. AN ORDER compelling the 1st defendant, Independent National Electoral Commission (INEC) to return 19 of the 20 copies of the association’s Constitution submitted to the Independent National Electoral Commission (INEC) by the political associations that have applied for the registration as political parties.

In support of the originating summons, an affidavit was filed and attached to it are (1) the guidelines issued by INEC, (2) the timetable issued by INEC for the registration of political associations as political parties.

Shortly after filing the originating summons, the plaintiffs filed a motion on notice praying for an order of interlocutory injunction to restrain INEC, “its agents, servants, officers or privies howsoever called from conducting any verification exercise on the claims contained in the forms filled and submitted by the plaintiffs/applicants which touch or relate to the guidelines being the subject matter of the claims in the originating summons pending the hearing and determination of the originating summons.” Attached to the affidavit in support of the interlocutory application for injunction are the application forms duly filled by three of the plaintiffs. On the same day, the 30th day of May, 2002, an ex-parte motion for an order of interim injunction on the same terms was also filed by the plaintiffs together with an affidavit of urgency. An order of interim injunction was made by the trial Judge on the same date that is the 30th May, 2002, pending the hearing and the determination of the motion on notice filed on the 3rd June, 2002. In the meantime and on the 31st May, 2002, the 1st respondent herein INEC filed a notice of preliminary objection to the competency of the suit. The grounds of objection are:-

“1. The plaintiffs failed to comply with the conditions precedent to the institution of this action in that they failed to comply with Order 12 rule 8 of the Federal High Court Civil Procedure Rules 2000.

2. The originating summons discloses no reasonable cause of action and the same is frivolous, vexatious and an abuse of the process of this Honourable Court.
3. The plaintiffs/respondents have no locus standi to institute this action.”

The 1st respondent INEC also caused to be filed two counter-affidavits in opposition to the application on notice for an order of interlocutory injunction.

When the matter resumed on the 4/6/2002, the learned Counsel for the plaintiffs abandoned the motion for interlocutory injunction and proceeded to argue the originating summons and the learned trial Judge permitted both the originating summons and the preliminary objection to be taken together. After the address of counsel, the matter was adjourned for judgment or ruling on both the originating summons and the preliminary objection.

In his ruling delivered on the 11/6/2002, the learned trial Judge partially allowed the objection on issue of locus standi of some of the plaintiffs who did not fill the form or submit them after filling. He however, rejected the objection on the other plaintiffs including the appellants herein. In his consideration of the originating summons, he granted reliefs 1, 2, 13; under relief 14, he granted the prayer in respect of section 74 (2)(g) of the Electoral Act 2001, the rest were not granted. Under relief No. 15 granted Nos. 2(c) and 3(g). Relief No. 16 granted. He refused to grant the other reliefs not mentioned. He also vacated the interim order of injunction he had earlier granted.

It is against the decision that both the appellants herein and the 1st respondent felt unhappy and have both now appealed to this court. For the appellants 13 grounds of appeal were filed while the 1st respondent filed 3 grounds of appeal in the notice of the cross-appeal. In view of the nature and the public importance of the matter this court with the consent of the parties agreed to make an order of departure from the rules of court in relation to the preparation of the record of proceedings and the period of filing briefs of arguments. The time within which to file briefs was abridged. And both the appellants and the 1st respondent filed documents which are deemed to be the records for the purposes of the appeal. The second respondent, the Hon., Attorney-General of the Federation did not appear nor file any brief. It is a pity, that in an important matter like this and of such high public interest, morale and order, the Attorney-General has refused to appear and assist the court in the determination of this matter. I leave this issue at this.

In his brief for the appellants, that is, 1st to 4th, Chief Gani Fawehinmi, SAN of counsel, has identified, formulated and submitted three issues for the determination of the appeal. The issues are:

“1. Whether the Independent National Electoral Commission (INEC) in the exercise of its constitutional power to register political parties is competent to prescribe or issue conditions in whatever manner on the formation or registration of political parties, which are inconsistent with the conditions stipulated by the Constitution of the Federal Republic of Nigeria, 1999.

2. Whether guidelines Nos. 3(g), 3(c), 3(d)(iv), 3(e), 3(f), 3(g), 3(h), 5(b) and 2(d) of the guidelines issued by the INEC for the registration of political parties are within the provisions of the Constitution of the Federal Republic of Nigeria, 1999, with regards to the registration of political associations as political parties.
3. Whether the provisions of sections 74(2) (h), 74(6), 772(c) of the Electoral Act, 2001, are within the contemplation of the powers of the National Assembly under section 228(d) of the Constitution of the Federal Republic of Nigeria, 1999.”

A common brief was filed by all the appellants, including the 5th appellant, who is represented by Mr. Aliyu Umar of counsel. The 1st respondent cross-appellant filed the respondent’s brief and the cross-appellant’s brief, while the appellants filed common respondents’ brief to the cross-appeal and have also filed a reply brief. Due to time factor, since there was not enough time for the cross-appellant to file his reply brief, with the consent of the parties, the respondent/cross-appellant was allowed to make oral submission in place of a cross-appellant’s reply brief. In the brief for the cross-appellant, the learned Counsel has submitted the following issues for the determination of the cross-appeal:-

“1. Whether the appellants have locus standi in the matter before the court.

2. Whether the appellants’ initiation of the action by originating summons was proper.
3. Whether the failure of the trial Judge to make reference to a letter written by Okeaya-Inneh, Esq., referring to additional authorities on the interpretation of S.75 of the Electoral Act, 2001, has any effect on the judgment.”

Before dealing with the oral and written submissions of counsel for all the parties, it shall be convenient at this stage to put briefly, the background facts which are undisputed and they are:- INEC is a Federal Executive Body established for the Federation of Nigeria under S.153 of the Constitution. Its composition and powers are as contained in PART 1 of the Third Schedule to the Constitution.

The relevant portion of the Part 1 Third Schedule provides:-

“15(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;

15(i) carry out such other functions as may be conferred upon it by an Act of the National Assembly.”

Under sections 221 to 229 of the Constitution inclusive, provisions have been made for political parties and how an association may transform to a political party. In particular, section 228 of the Constitution confers on the National Assembly powers to make laws for the purposes of enabling INEC more effectively, to ensure that political parties observe the provisions of the Constitution. In consonance with the above, the National Assembly enacted the Electoral Act, 2001. Under Part III of the Electoral Act, 2001, provisions have been made for political parties. In particular sections 74, 75 provide the manner in which political associations wishing to be registered as political parties to follow.

In apparent compliance with the provisions of the Constitution and the Electoral Act, INEC issued the aforesaid guidelines and the time-table for the registration of political parties. The appellants herein and others objected to the constitutionality of the guidelines issued and some of the provisions of the Electoral Act and challenged them by filing the suit the subject matter of the appeal before this court.

In order to appreciate the arguments of counsel, it shall be necessary to set out the relevant constitutional provisions, the relevant portions of the Electoral Act and the guidelines issued by INEC.

The Constitutional provisions are:

“S.221. No Association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.

222. No association by whatever name called shall function as a political party, unless –

(a) the names and addresses of its national officers are registered with Independent National Electoral Commission;

(b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstances of birth, sex, religion or ethnic grouping;

(c) a copy of its constitution is registered in the principal office of Independent National Electoral Commission in such a form as may be prescribed by the Independent National Electoral Commission.

(d) any alteration in its registered constitution is also registered in the principal office of the Independent National Electoral Commission within Thirty days after making such alteration;

(e) the name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria; and

(f) the headquarters of the association is situated in the Federal Capital Territory, Abuja.”

The other provisions in the part relate only to a registered political party, though reference has been made to them in the arguments of counsel.

Now paragraphs 14 and 15 of PART I of the Third Schedule provides

“15. The Commission shall have power to-

a. xxxxxx

(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;

(i) carry out such other functions as may be conferred upon it by an Act of the National Assembly.

Now, S.74(2) of the Electoral Act, 2001, reproduced the provisions of S. 222 (a) -(f) but added –

“(g) it produces evidence of payment of registration fee of N100,000 or as may be fixed from time to time by an Act of the National Assembly;

(h) it provides the addresses of the offices of the Political Association in at least two thirds of the total number of the States of the Federation spread among the six geo-political zones.

S.74(6) Any Political Association that meets the conditions stipulated in subsections 1 and 2 of this section shall be registered by the Commission as a political party within 30 days upon payment of the sum of N100,000 administrative and processing fees and if after the 30 days the association is not registered by the Commission it shall be deemed to be so registered.

S.77(b) a copy of the party’s Constitution drawn up in compliance with Chapter 11 of the Constitution of the Federal Republic of Nigeria and with the requirements of the relevant guidelines issued by the Commission.

S.78(2)(b) at all times be in compliance with the provisions of the Constitution, the electoral laws and guidelines made by the Commission.

S.79(2)(c) is a member of the Public Service or Civil Service of the Federation, a State or Local Government or Area Council as defined by the Constitution.

The relevant paragraphs of the guidelines, the appellants objected to are: –

3(a) The names, residential addresses and States of origin respectively of the members of its National and State Executive Committees and the records of proceedings of the meeting where these officers were elected.

3(c) A register showing that its membership is open to every citizen of Nigeria.

3(d)(iv) A provision showing that its Constitution and manifesto conform with the provisions of the 1999 Constitution, the Electoral Act 2001 and these guidelines.

3(e) A register showing the names, residential addresses of persons in at least 24 States of the Federation and FCT, who are members of the Association.

3(f) An affidavit sworn to by the Chairman and Secretary of the Association to the effect that no member of the National Executive of the Association is a member of any existing Political Association.

3(g) A bank statement indicating the bank account into which all income of the proposed Political Association has been paid and shall continue to be paid and from which all expenses are paid and shall be paid.

3(h) The address of its headquarters office at Abuja and the addresses of its officers, list of its staff, list of its operational equipment and furniture in at least 24 States of the Federation.

5(b) A person shall not be eligible to be registered as a member of Political Association seeking to be registered as a Political Party if he/she:-

(b) is in the Civil Service of the Federation or State.

2(a) Twenty copies of the Association’s Constitution and Manifesto.”

The learned Counsel also referred to S.40 of the Constitution which reads: –

“S.40 Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union or any other association for the protection of his interests:

Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

These are under the provisions which in this judgment, I will consider.

I shall in this judgment, first deal with the appellant’s appeal and afterwards the cross-appeal.

THE APPEAL

I shall deal with all the three issues submitted by the appellant together. It is common ground and there is no dispute about it and all counsel agreed to it that the prayers contained in the declarations 1 and 2 sought by the appellants were granted by the learned trial Judge. The learned trial judge held in his judgment.

“The answer to the first question is therefore very simple and straight forward. INEC, a body established under S.153 of the Constitution of the Federal Republic of Nigeria, 1999, is bound to observe the conditions stipulated under Ss. 222-229 of the Constitution relating to the registration of Political Parties. I therefore, answer question (a) in the affirmative.”

With reference to the second declaration sought, the learned trial judge held:-

“Since I have earlier found that INEC has no legislative competence to legislate on any matter, the guidelines released by it, are not laws and cannot be given the status of a legislation. They are only to serve as guides to the Political Associations seeking registration on how to comply with the conditions and requirements of the law relating to their registration as political parties x x x x

The guidelines therefore cannot in my view enlarge, curtail or amend the provisions stipulated in the Constitution for the registration of political parties.”

Clearly, there is no appeal on this point by the learned Counsel for the respondent and as such I treat the view expressed by the Judge as correct. See Odiase v. Agho (1972) 3 SC 73.

It is submitted by the learned Counsel for the 1st to 4th appellants that in order to transform from a political association into a Political Party, defined under S.229 of the Constitution, certain conditions as stipulated under S. 222 of the Constitution must be complied with by any association seeking to function as a political patty. It is also submitted that the Constitution of an association seeking to be registered as a political party must take congnisance of the provisions of S. 223 of the Constitution. Thus, the only requirements are those spelt out under S.222 and S. 223 of the Constitution. It is submitted, that any other condition stipulated by INEC would appear to be contrary or in addition to the constitutional requirement.

It is submitted that the guidelines Nos. 3(a), 3(e), 3(d)(iv), 3(e), 3(f), (g), 3(h), 5(b) and 2(a) issued by INEC are inconsistent with the conditions already laid down by the Constitution on the formation of political parties. In the alternative, it is submitted that in making these conditions INEC has enlarged, curtailed or amended the constitutional provisions referred to above. It is submitted that S. 222 expressly and clearly in unequivocal terms lays down only six conditions that must be met before an association can function as a political party and once the conditions are fulfilled INEC has no option other than to recognise the association as a political party. Learned Counsel referred to the case of Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 191, where the Supreme Court per Onu, JSC said;

“Where a right has been conferred by the Constitution, it cannot be taken away by any other statutory provision except the Constitution itself and any law so made is void to the extent of its inconsistency.”

It is again stressed that outside the provisions of S. 222 and perhaps section 223, there are no other provisions made as regards restrictions or conditions that must be met before an association functions as a political party. It is further submitted that all guidelines referred to above are not, within the contemplation of the provisions of S. 222 and or S. 223 of the Constitution and are to that extent unconstitutional and INEC has no competence to put conditions outside the constitutional provisions. It is again stressed that the conditions stipulated in the guidelines have the effect of enlarging, curtailing or altering the provisions of the Constitution. Learned Counsel referred to the case of A.-G., Bendel State v. A.G. Federation (1982) 3 NCLR 1 at 77 – 78, where the Supreme Court laid down twelve basic principles of interpretation and construction of statutes.

It is again submitted that once the Constitution has made provisions with regard to the registration of political parties, the National Assembly lacks the legislative competence and vires to either enlarge, alter and or curtail the clear provisions of the Constitution. Learned Counsel cited and referred to the Supreme Court decision in Attorney-General of Abia State And 35 Others v. Attorney-General of The Federation (2002) 6 NWLR (Pt. 763) 264, 369, 391. It is accordingly argued, that guidelines issued by INEC on a matter properly covered by the Constitution is an exercise in breach of the Constitution.

In the case of the Electoral Act, the provisions of sections 74 (2)(h), 74(6) and 79(2)(c), it is argued, could not have been validly made by the National Assembly within the contemplation of S. 228(a) of the Constitution. It is again submitted that the National Assembly cannot rely on the provisions of paragraph 15(b) of Part 1 of Third Schedule to Constitution to make laws for the registration of political parties either by repeating what the Constitution has already covered or by altering, enlarging or curtailing the constitutional provisions vide the A. -G. of Abia State case supra. It is further submitted that, if the National Assembly relied on the provisions of S. 228(d) of the Constitution, that section only relates to political parties and not to associations applying to become political parties and further that the enactment of sections 14 (2)(h), 74(b) and 79(2)(c) are not within the powers of the National Assembly under the provisions of S. 228(d) of the Constitution. It is further submitted that sections 15, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 110 – 122, were before the Supreme Court for the determination of their constitutionality and that court declared the sections unconstitutional. See the case of A.-G., Abia State supra. The principles stated in that case are germane to the consideration of the sections now being challenged by the appellants.

It is submitted that employing the same principles this court should declare sections 74(2)(h), 74(6), 77(b) and 79(2)(c) as unconstitutional and the guidelines made by INEC under them untenable.

The learned Counsel for the 5th appellant, Mr. Aliyu Umar of counsel associated himself with the submissions of the learned Counsel for the 1st to 4th appellants.

The learned Counsel for the respondent on the other hand, argued that since by paragraph 15(b) of Part 1 of Third Schedule to the Constitution, INEC was given the responsibility to register political parties in accordance with the constitutional provisions and the provisions of an Act of the National Assembly and that by the provision of S.162 of the Electoral Act, 2001, specifically permitted INEC to issue guidelines in order to give effect to the provisions of the Act, INEC has the undoubted right to issue the guidelines. Since INEC is given the power to register political parties, by implication, INEC has the power to issue the guidelines in order to achieve the statutory responsibility placed upon it. See S.10(2) of the Interpretation Act, Cap. 112 of LFN, A.-G. of Ondo State v. A.-G. of The Federation (2002) 9 NWLR (Pt. 772) 222 at 335. It is further submitted that there is no relief claimed by the appellants that paragraph 15(b) of Part I of Third Schedule and S. 162 of the Electoral Act 2001, be set aside. It is argued that the guidelines were issued in compliance with the provisions of paragraph 15(b) aforesaid and S.162 of the Electoral Act and the action of INEC, in issuing the guidelines cannot be said to have expanded or contracted the constitutional provisions. It is further submitted that the Constitution has envisaged and made clear provisions to enable the National Assembly to enact the law to deal specifically with the transformation of political associations into political parties. The Constitution itself has provided for the National Assembly and INEC to make certain rules. It is submitted that statutes should not be construed so as to defeat the very object of the Constitution spelt out in clear provisions. See Mabury v. Madison 1 Granch 137; Rabiu v. The State (1981) 2 NCLR 293; Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606 at 678.

It is further submitted that, the first issue as contained in the appellants’ brief cannot be a proper issue for determination because there was no decision by the trial Judge which opposes the views expressed by the appellants. It is further submitted that the issue is not covered by any of the grounds and it ought to be discountenanced. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 568.

It is finally submitted that if the framers of the Constitution felt the provisions of S. 222 and S. 223 are exhaustive and comprehensive and would meet all eventualities, it would not have given INEC through an act of National Assembly the power to make regulations.

Now, the learned Counsel for the respondent did not in his brief, refer or make submissions in respect of the appellants’ issue No.3. This issue as shown above is an attack on the constitutionality of some of the provisions of the Electoral Act 2001. I shall however, deal with the issue on the basis of the appellants’ brief alone.

I agree with the submissions of the learned Counsel for the respondent, that broadly speaking, issue No.1 does not arise. But there is no way issues 2 and 3 can be properly dealt with without recourse to the general principles of the law that no enactment, bye-law or guideline can exists which is directly or indirectly in conflict with the provisions of the Constitution. The learned Counsel for the appellant’s infact started his submissions by showing his agreement with the findings of the learned trial Judge on these points. It may be recalled that the learned trial Judge had held in the early part of his judgment that “INEC as a body established under S. 153 of the Constitution x x x x is bound to observe the conditions stipulated under S. 222 of the Constitution relating to the registration of political parties” and had therefore, granted the prayer in the first declaration. He also held with reference to the second declaration claimed that” x x x x x the guidelines therefore cannot in my view enlarge, curtail or amend the provisions stipulated in the Constitution for the registration of political parties.”

The respondent has not appealed against these declarations by the trial Judge and as mentioned above, this appeal will be considered on the basis that the view of the learned trial Judge is correct that INEC is bound by the provisions contained under Ss. 222-229 of the Constitution and that the guidelines issued by INEC “cannot ENLARGE, CURTAIL OR AMEND” the constitutional provisions aforesaid. Now, the appellants had argued that the effect of the guidelines issued by INEC is to place more burden on any Political Association wishing to become a political party than the constitutional provisions as contained under SS. 222 and 223. Now, the starting point is to restate the general principles of the law, governing the interpretation of the Constitution. The interpretation that would serve the interest of the Constitution and best carry out its object and purpose should be preferred. Its relevant provisions must be read together and not disjointedly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with the other provisions of the Constitution. See Ifezue v. Mbadugba (1984) 1 SCNLR 427; (1984) 5 SC 79. In the case Tinubu v. I.M.B. Securities Plc (2001) 16 NWLR (Pt.740) 670 at 708 Karibi- Whyte JSC said:-

“It has never been allowable and the sacred obligation of the courts is not to construe any of the provisions of the Constitution to defeat the obvious ends the Constitution was designed to serve. To construe the provisions of section 308 in the manner suggested and thereby, enable the persons named in section 308(3) to exercise the right to sue in addition to the absolute immunity conferred on them, whilst in office by section 308(1)(a) will defeat the immunity designed by the Constitution and lead to manifest injustice.”

In that case, the appeal of the Governor of Lagos State, was held not to be justiciable even though he was the appellant and apparently the provisions of S.308 did not prevent him from instituting an action against anybody. Thus, to allow the appeal to continue will among other things lead to manifest injustice – what is good for the goose is also good for the gander. It is absurd and ridiculous to allow the Governor to take an action in his personal capacity, while he enjoys absolute immunity in actions against him in his personal capacity.

Now, it is trite that the Constitution of Nigeria is the basic law of the land. It is the supreme law and its provisions have binding force on all authorities, institutions and persons throughout Nigeria. See Adediran v. Interland Transport Limited (1991) 9 NWLR (Pt. 214) 155, Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130. The Constitution must therefore, be interpreted liberally. Thus, it is not the duty of the court to construe any of the provisions of the Constitution so as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. State (supra) Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506. Thus, the whole provisions of the Constitution must be looked at to see that the very ends the Constitution is designed to achieve is not defeated. See Adesanya v. The President, Federal Republic of Nigeria (1981) 2 NCLR 358. The supremacy of the Constitution over any other law, regulation, manual or guideline is obvious. Any legislation or statutory instrument that negates the provisions contained in the Constitution is null and void and is of no effect. Section 1(1)(3) reads:-

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

In the case of Akintola v. Oyelade (1993) 3 NWLR (Pt. 282) 379, it was held that the jurisdiction of a High Court of a State under S.236(1) of the 1979 Constitution is unlimited and only subject to the provisions contained in the aforesaid Constitution and as such the unlimited jurisdiction of the High Court cannot be curtailed by the provisions of any statute. See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, where it was held that S.41 of the Land Use Act did not oust the unlimited jurisdiction of the State High Court. ONU, JSC at page 193 of the report said:-

“The Constitution being the supreme law of the land, stands above other enactments, statutes or laws and its provisions cannot be made subject to any other Act or enactment except by direct and clear (other constitutional) provisions to that effect. It necessarily follows, therefore, that even if section 41 of the Act were to be read as ousting the jurisdiction of the High Court, (which is not conceded) and despite the Act (by virtue of section 274(5) of the 1979 Constitution) being incorporated or entrenched therein, it is not an integral part of the said Constitution, and therefore, any of its provisions which is inconsistent with the Constitution, is to that extent null and void.”

The learned Justice had earlier stated at page 191:-

“In addition, a right conferred by the Constitution cannot be taken away by any other statutory provision except the Constitution itself and any law so made will be void to the extent of its inconsistency.”

In the case of Adesanya v. The President supra Fatayi Williams CJN said at 359:-

“When interpreting the provisions of our 1979 Constitution not only should the courts look at the Constitution as a whole, they should also construe its provisions in such a way as to justify the hopes and aspirations of those who have made the strenuous effort to provide us with ‘a Constitution’ for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the unity of our people.”

I respectfully share the view expressed by the learned Justice of blessed memory, that the fundamental right and obligation should not be restricted in any way where none is clearly provided for in the Constitution.

Now, S.40 of the Constitution provides:-

“Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union or any other association for the protection of his interests: Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

It is significant to note that, S.39 providing for freedom to disseminate information is subject to a law to be enacted by the National Assembly giving restrictions “reasonably justifiable in the democratic society”. Similarly S.41 guaranteeing the right to freedom of movement is also limited to the provisions of a law reasonably justifiable in a democratic society. The restriction placed under S.40 in the proviso is the recognition by INEC of an association on the POWERS conferred upon INEC by the Constitution. Now, Section 222 of the Constitution provides:-

“No association by whatever name called shall function as a political party, unless –

(a) the names and addresses of its national officers are registered with the Independent National Electoral Commission;

(b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstances of birth, sex, religion or ethnic grouping;

(c) a copy of its Constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission;

d) any alteration in its registered Constitution is also registered in the principal office of the Independent National Electoral Commission within thirty days of making such alteration;

(e) the name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria; and

(f) the headquarters of the association is situated in the Federal Capital Territory, Abuja.”

Section 223 has made provision for the Constitution and rules of political parties, which in my view should not be different from those of an association seeking to be recognised as a political party. In my view, there are no other conditions for an association seeking to be registered as a political party to comply with other than those spelt out in S.222 and S.223 with reference to the contents of the Constitution and the rules.

S. 228 of the Constitution merely provides for the powers of the National Assembly with respect to the registered Political Parties.

“(a) for the punishment of any person involved in the management or control of any political party found after due inquiry to have contravened any of the provisions of sections 221, 225(3) and 227 of this Constitution.”

(b) for disqualification of any person, etc.

(c) for annual grant etc.

(d) for the conferment on the Commission of other powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively, to ensure that political parties observe the provisions of this Part of the Chapter.”

In my view, the powers conferred by S.228 of the Constitution on INEC are to do with registered political parties. In all the subsections of this section, the words used are political parties and not political associations.

It is settled law that in the interpretation of the Constitution, the Supreme Court in the case of AG., Bendel State v. A.-G. of The Federation (1982) 3 NCLR 1, laid down some guidelines thus:

(a) effect should be given to every word;

(b) the language of the Constitution, where clear and unambiguous must be given its plain evident meaning;

(c) a constitutional provision should not be construed so as to defeat its evident purpose”.

It, accordingly does not appear to me, that the National Assembly has the powers under S. 228 to make any law in relation to an association wishing to be registered as a political party outside the provisions contained under S. 222 and perhaps S. 223 of the Constitution.

Now, there is no doubt that item No. 15(b) of the Part 1 of the Third Schedule to Constitution provides:-

“The Commission shall have power to-

(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly.”

In my view and in accordance with the principles cited above, the National Assembly cannot make any laws pursuant to Item 15(b) either repeating what the Constitution has already provided or by altering, enlarging or curtailing the provisions already contained in the Constitution. In the case of Abia State and 35 Others v. A.G. of The Federation (2002) 6 NWLR (Pt.763) 264 at 391. UWAIS, CJN, said:

“I agree that the doctrine of covering the field can conveniently be extended to apply to a situation, where the Constitution has covered the field vis-a-vis a Federal or State legislation, such a legislation is not void simpliciter, but will not be operative in view of the provisions of the Constitution.”

KUTIGI, JSC at 369 of the report stated:-

“Where the provision in the Act is within the legislative powers of the National Assembly, but the Constitution is found to have already made the same or similar provisions, then the new provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative. The same fate will befall any provision of the Act, which seeks to enlarge, curtail or alter any existing provisions of the Constitution. The provision will be treated as unconstitutional and therefore null and void.”

It is also settled by the Supreme Court in the case of Attorney-General of Anambra State And 13 Others v. The Attorney-General of the Federation And 16 Others (1993) 6 NWLR (Pt. 302) 692 at 720 where UWAIS, CJN, stated:

“Although section 1 subsection (2) of Decree No.1 of 1984 provides that S. 212 of the 1979 Constitution is modified, Schedule 2 to the Decree talks of substituting a new section. The question that follows is whether there is a difference between the words “modification” and “substitution”, as employed by the section and the Schedule respectively. If there is, the issue that would arise would be: what interpretation is to be given to the substitution in the schedule vis-a-vis the modification “envisaged under subsection (2) of section 1 of Decree No. 1 of 1984? The general principle is that if an enactment in a Schedule contradicts an earlier clause, the clause prevails against the Schedule. See Dean v. Green (1882) 8 P.D. 79, per Lord Penzance.”

In this connection, see also Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 423.

It is now trite law that the provisions contained in an enactment, including the Constitution are accorded more prominence than the contents of a Schedule especially, when there is conflict or contradiction between the Schedule and a section in the enactment. Thus, item No. 15 (b) does not empower the National Assembly to make legislation falling foul of the express provisions of S.222 read together with section 40 of the Constitution. I accordingly, do not accept the arguments of the learned Counsel for the respondent, that Item 15(b) and (i) and section 228 of the Constitution or S.162 of the Electoral Act, do not permit the National Assembly or INEC to legislate or make guidelines which appear to subvert the clear provisions of S.222 of the Constitution.

The learned Counsel also made reference to S.75 of the Electoral Act. In my view S.75 of the Electoral Act is not relevant to the proceedings presently before this court. The provisions of S.75 can only be invoked, when the complaints of the applicants are concerned with the refusal of the INEC to register political parties. This matter is only concerned with the constitutionality of the guidelines and the provisions of the Electoral Act, which appear to be an enlargement of the constitutional provisions contained under S. 222 and or S. 223 of the Constitution.

Applying all the principles mentioned above once an association meets the conditions spelt out under S. 222 and S. 223, such an association automatically transforms and becomes a political party capable of sponsoring candidates and canvassing for votes in any constitutionally recognised elective office throughout Nigeria.

In summary (a) guideline 3(a), 3(c), 3d(iv), 3(e), 3(f), 3(g), 3(h) 2(d) and 5(b) issued by INEC requesting associations to comply when seeking to become political parties are not within the contemplation of the Constitution and are therefore null and void. (b) The provisions of sections 74(2)(h), 74(6) and 79(2)(c) of the Electoral Act, 2001 are not within the contemplation of S. 228(d) of the Constitution. (c) Item 15(b) of Part 1 of Third Schedule does not authorize the National Assembly or INEC to enact any law or issue any guideline outside the provisions of S. 222 and S. 223 read along with S. 40 of the Constitution. All the issues having been resolved in favour of the appellants, this appeal succeeds.

The respondent filed a cross appeal. I have at the beginning of this judgment reproduced the issues for the determination of the cross-appeal. The notice of preliminary objection filed by Mr. Eghobamien, SAN for the 1st defendant, the 1st respondent had three grounds of objection:-

“1. The plaintiffs, the appellants herein, failed to comply with the conditions precedent to the institution of this action in that they failed to comply with Order 12 rule 8 of the Federal High Court (Civil Procedure) Rules, 2000.

2. The originating summons discloses no reasonable cause of action, and the same is frivolous, vexatious and an abuse of the process of the Honourable Court.
3. The plaintiffs/appellants have no locus standi to institute this action.”

In his judgment, the learned trial Judge held that the failure to obtain leave to sue in a representative capacity did not vitiate the proceedings. The learned trial Judge also rejected the second ground of objection and held that the originating summons disclosed a reasonable cause of action. With reference to ground 3 of the objection, the learned trial Judge found that some of the plaintiffs including all the appellants herein have locus standi to institute the action. The 11 plaintiffs who the learned trial Judge found had no locus standi because the identity of the plaintiffs, who applied for the forms and those who filled the forms was in question. In any event, the cross-appeal is against the finding by the trial court that the appellants herein had the locus standi to initiate these proceedings.

Issue 1 of the Cross-appeal

This is concerned with the question of the locus standi of the appellants to initiate the proceedings. It is submitted that the appellants did not disclose or establish their rights and obligations to institute the action in the affidavits filed in support of the originating summons. Learned Counsel referred to the case of Egolum v. Obasanjo supra. The appellants have not shown their interests that have been violated. See Ubulu-Uku v. Edumodu (1999) 11 NWLR (Pt. 627) 369. Locus standing has been held to be a condition precedent to the initiation of any judicial process Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 at 338. It is further submitted that the appellants have no justiciable interest to challenge the legislative or executive action of the State in a court of law. Learned Counsel referred to Adesanya v. The President (supra).

The learned Counsel for the 1st – to the 4th cross-respondents, Chief Gani Fawehinmi, SAN on the other hand, argued that the appellants are Political Associations defined under S. 229 of the Constitution. The facts are obvious that they wanted to be registered as Political Parties as defined under the same section. Their claims before the court relate to the matters affecting the processes of their becoming Political Parties. These processes include the provisions of the Electoral Act, 2001, and the guidelines issued by INEC. It is submitted that the appellants have sufficient and special interest to complain on the constitutionality of both the guidelines and the Electoral Act. Learned Counsel referred to Adesanya v. the President (supra); Odeneye v. Efunnuga (1990) 7 NWLR (Pt.164) 618; Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189; Gani Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) 797; Fawehinmi v. IGP (2002) 7 NWLR (Pt.767) 606.

It is finally submitted that from all the surrounding circumstances, the appellants have sufficient legal interest to challenge the legislation and the guidelines in a court of law.

Now, it is settled law that, if a party to a dispute has no interest in the matter, he is said to have no standing to institute the action. The term “locus standi” was exhaustively discussed in the Adesanya case supra. It cannot stand independently from the provision of S.6(6)(b) of the Constitution and the consequence of a failure to disclose a plaintiff’s locus standi has been settled by the pronouncement of the Supreme Court long since 1961, in the case of Gamioba v. Esezi II (1961) 2 SCNLR 237; (1961) All NLR 584.

In the instant case, the appellants are undoubtedly associations as defined under the provisions of S. 229 of the Constitution and were in the process of applying to be Political parties to sponsor candidates and to canvass for votes in all the elective offices mentioned in the Constitution. The cross-appellant has the constitutional power to register the cross-respondents as political parties. In the process of such registration, INEC published guidelines detailing the conditions to be met before registration. Similarly, the National Assembly under the powers conferred upon it by the Constitution enacted a law, which included conditions to be met by any association wishing to be registered as a political party. The cross-respondents did not like some of the provisions contained in the guidelines and in the enactment. They feel those conditions imposed by both INEC and the National Assembly are not within the contemplation of the Constitution. Under this scenario, I am of the view that, the cross-respondents have sufficient interest to invoke the jurisdiction of the courts to challenge those conditions. I agree, from the undisputed facts of this case, that the issue of locus standi should not have been raised at all. It is obvious that the appellants have the locus standi to institute this action. I resolve issue I against the cross-appellant.

Issue No.2

Now, under this issue, the learned senior counsel for the cross-appellants is complaining about the mode of the initiation of the process in the lower court. That is to say, the originating summons procedure is not the proper method of challenging the legislation or the guidelines. I have in this judgment, reproduced the ground of objection of the learned Counsel in the lower court. It was to do with cause of action. It was claimed that the originating summons did not disclose any reasonable cause of action. The argument of counsel in lower court was only on this basis and the learned trial judge as pointed out above, found that there was reasonable cause of action. The cross-appellant is now quarelling with the appropriateness of the originating summons procedure for this kind of action. This is a new issue which was not argued and canvassed and which the learned trial judge was not given the opportunity to decide on. It is settled law that for fresh issues to be raised on appeal, leave of either the trial court or this Court must be obtained. No leave has been obtained. The issue as argued by counsel is incompetent and I need not say anything on it. Suffice it to state that where a party in any proceedings agrees to an irregular procedure he cannot on appeal complain. I accordingly, discountenance the second issue.

Issue No.3

The complaint under this issue is that the learned trial Judge had failed to pronounce on all the points raised by the cross-appellant in its notice of preliminary objection. It is submitted that the cross-appellants addressed the court on the effect of S.75 of the Electoral Act, which made it a condition precedent that the cross-respondents were required to give pre-action notice. The submissions of counsel in relation to the S.75 is reproduced on page 10 of the records of proceedings of the lower court brought by the cross-appellant. What was said by Mr. Eghobamien of counsel was:-

“Section 75 of Electoral Act allows them to sue after a failure of registration. They are not blocked out from contesting in the court of law. That is all.”

This appears to be the only reference, I can find from the records. It seems to me that the cross-appellant is making a storm in a tea cup. The action of the cross-respondent is not concerned with the refusal to register them as Political Parties within the provisions of S.75 of the Electoral Act which provides-

“The decision of the Commission to refuse to register any association as a Political Party may be challenged in a court of law: provided that any legal action challenging the decision of the Commission shall be commenced within 14 days from the date of receipt of the letter of notification of non-registration from the Commission or the expiration of the 30 days referred to in section 74 sub-section (6) of this Act.”

The case of the cross-respondents was concerned only with the constitutionality of the guidelines and of some of the provisions of the Electoral Act. In my view the provisions of S.75 of the Act have no relevance whatever to the decision made by the learned trial Judge. If he had not referred to it in his ruling on the preliminary objection, I believe he was right, because it ought to be ignored for irrelevancy. That is why I have decided not to delve into Issue No.3 as it is clearly, irrelevant and has no bearing on the matter at hand.

At the end of the day, I dismiss the cross-appeal as it is devoid of any merit. I allow the appellants’ appeal and I set aside the part of the judgment refusing the declarations sought by the appellants. I accordingly, declare guidelines 3(a), 3(c), 3d(iv), 3(e), 3(f), 3(g), 3(h), 2(d) and 5(g), 3(h), 2(d) and 5(b) unconstitutional, therefore, null and void. Similarly, I declare sections 74(2)(g) and (h), 74(6), 77(b), 78(2)(b) and S. 79(2)(c) of the Electoral Act 2001, as unconstitutional, therefore, null and void. I also restrain INEC, its agents, officers, privies from basing the registration of Political Associations as Political Parties on the aforesaid offending provisions of the guidelines and the Electoral Act, 2001.

I make no order as to costs.

Other Citations: (2002)LCN/1280(CA)

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