Colonel David Gabriel Akono V. The Nigerian Army (2000) LLJR-CA

Colonel David Gabriel Akono V. The Nigerian Army (2000)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A.

This is a case tried by the General Court Martial. This appeal is against the judgment of a General Court Martial convened on 17th day of January, 1997 by a convening order.

The appellant was arraigned on a 3 count charge namely:-

“a. Charge 1: Conduct to the prejudice of service discipline contrary to s. 103(1) of the AFD 105 of 1993. The particulars of this charge are that he on or about October 1996 in a memo sent to the COA(A) dated 28 October, 1996 lied about the position of his transaction with Chief E. Igbokwe, a conduct prejudicial to service discipline.

b. Charge 2: Conduct to the prejudice of service discipline contrary to s. 103(1) of the AFD 105 of 1993. The particulars of the charge are that he on or about October 1996 wrote a letter to one Chief E. Igbokwe, contents of which portrayed the NA in bad light, a conduct prejudicial to service discipline.

c. Charge 3: Scandalous conduct of an officer contrary to s. 91 of the AFD 105 of 1993. The particulars of this offence are that he between 1992-1996 got involved in a monetary transaction with one Chief E. Igbokwe in a scandalous manner unbecoming of the character of an officer and a gentleman.”

The appellant pleaded not guilty to all the charges. The case proceeded to trial and the prosecutor did not call a single witness to give sworn evidence in the witness box. All they did was to summon one Mwo Musa Abiri, a chief clerk, to tender 1 Exhibit with 27 pages. The chief clerk had custody of the documents and tendered them under the provisions of section 193 of Evidence Act of 1990. The accused gave evidence and called no witnesses.

After listening to the addresses of the prosecutor and that of the accused’s counsel the Judge Advocate, Major S. M. Okeke of the Lagos Garrison Command summed up the case and the General Court Martial found the appellant guilty on 1st and 2nd charges and discharged and acquitted him on the 3rd charge. For the 1st charge accused got a reduction to Lt. Col. with 4 years seniority in rank and for the 2nd charge accused was sentenced to 2 years imprisonment.

The appellant was dissatisfied with this judgment and appealed to AFDAC known as the Armed Forces Disciplinary Appeal Committee. Before the appeal could be heard by AFDAC its functions and powers were transferred to the Court of Appeal by virtue of the Armed Forces (Amendment) Decree No. 15 of 1997.

The appellant in his amended notice of appeal has filed six grounds of appeal and has formulated 4 issues for determination. The 4 issues read thus I quote:-

“1. Whether the General Court Marital was right by admitting in evidence documents referred to as Exhibit 1 which said documents were tendered by a person who was only invited to produce the said documents pursuant to sections 192 and 193 of the Evidence Act, Cap. 112, LFN 1990 and who was never referred to and called as a witness and consequently not sworn.

Whether the General Court Martial was right in overruling the objection raised by the defence counsel as to the relevancy and admissibility of Exhibit 1 when in fact the proper foundation was not laid before same was wrongly admitted in evidence.
Whether from the general circumstances and facts of the entire case the General Court Martial (GCM) was not in error in violating the appellant’s constitutionally guaranteed right to fair hearing under section 33 of the amended 1979 Constitution and the principles of natural justice by failing to afford the appellant an opportunity to cross-examine the complainant and even the Chief of Administration (Army), COA (A) as to the authenticity of the facts contained in Exhibit 1, upon which facts the GCM solely relied in convicting the appellant.
Whether the General Court Martial (GCM) was validly constituted regarding the qualification of its members in the manner prescribed by section 133 of the Armed Forces Decree No. 105 of 1993 (as amended) so as to vest the said GCM with the requisite jurisdiction and competence to try the appellant.”

The respondent though served with a copy of appellant’s brief has filed no respondent’s brief. There is therefore no issues formulated by the respondent. This appeal will therefore be considered on the issues formulated by the appellant.

Now to the first issue. In view of the fact that Exhibit 1 is the main contention involved in both issues 1 & 2, I shall treat the two issues together. The appellant’s counsel submitted that the prosecutor did not call a single witness to prove the charges against the accused. All the prosecutor did was to summon a witness to produce some documents (Exhibit 1) in accordance with sections 192 and 193 of the Evidence Act, Cap. 112, of the 1990 Laws.

According to the appellant, the position of the law is stated in the case of Famakinwa v. Unibadan v.& anor. (1992) 7 NWLR (Pt.255) 608 where a subpoena ad testificandum is described as follows:-

“A subpoena ad testificandum is a technical and descriptive term for the ordinary subpoena. It simply means subpoena to testify. A person summoned under this subpoena is a witness in the true sense of the word. He must go into the witness box and testify upon oath or affirmation and is liable to be cross-examined.”

Let us see what the Evidence Act has to say about a witness called only to produce the documents in his custody. Sections 192 and 193 of the Evidence Act provide thus, I quote:

“192. Any person, whether a party or not, in a cause may be summoned to produce a document without being summoned to give evidence, and if he cause such document to be produced in court the court may dispense with his personal attendance.

A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.”

The chief clerk, Mwo Musa Abiri was merely called to produce the documents in Exhibit 1 and cannot be referred to as a witness for the prosecution. He was neither sworn nor allowed to be cross-examined by the accused or his counsel. Upon a careful perusal of the proceedings which transpired before the Court Martial on 27th January, 1997: pages 16-18 of the records show that it was a question and answer procedure between 63 NA Mwo Musa Abiri and the prosecutor. The prosecutor after a series of questions and answers sought to tender the documents, Exhibit 1. The defence objected to the tendering of the documents but he was over-ruled. The President gave the following rulings:-

“Gentlemen, I have listened to both parties. In my opening remark on Friday, I did say while abundant privilege will be given to ensure fairness and justice. We will not allow too much of technicalities to bug us down. In view of that, a certified copy of document titled Discipline officer COL DG Akono is accepted in evidence and accepted as exhibit 1.”

From this point, the President took over the job of the prosecutor after taking permission of the court by directing how Musa Abiri as to how he should read the contents of Exhibit 1 to enable the court to follow the trend. The prosecutor finally ended the prosecution’s case on page 18 thus:-

“With due respect Mr. President sir, that is the end of the prosecution case.”

There is no doubt whatsoever that the prosecution in this case relied heavily on Exhibit 1 to secure a conviction of the accused for the 3 Charges levied against him. What is to be considered under the first 2 issues is whether Exhibit 1 is an admissible document and whether Mwo Musa Abiri can be considered a witness for the prosecution in this case in view of the format of his evidence and the fact that he was never sworn on oath.

I have no reason to disagree with the view held by my learned brother Salami JCA, in the case of Famakinwa v. Unibadan & Anor. (1992) 7 NWLR (Pt.255) 608 at 624 when he opined thus re a witness served with a subpoena duces tecum. He stated thus:

“A person who brings forward a document cannot be said to have given it in evidence not to talk of his having capacity to give or tender it in evidence particularly when the person served with subpoena duces tecum has the option or liberty to cause it to be produced in court through any other person of his choice. It is therefore, my firm view that section 192 merely authorises a subpoena duces tecum to be issued to a person to deliver to the court a document either personally or through any other person he may consider suitable for the assignment.”

In the instant case, Mwo Musa Abiri 63 NA was called by the prosecution as a custodian of document to tender some documents in the case of NA against Col. DG Akono. The document brought to court was tendered as Exhibit 1 which consisted of several letters written by various people including AHQ, COAS and one Chief Osifa Igbokwe, Barrister Nwangwu and Akono himself among others. It is true that the witness Mwo Musa Abiri can produce the documents Exhibit 1 under section 192 of Evidence Act. But the prosecutor did not call him as a real witness to be sworn and cross-examined as provided for under section 193 of the same Evidence Act. It is my view that the witness was not only incompetent to tender the document, Exhibit 1 but the documents in Exhibit 1 were wrongly admitted by the General Court Martial. For Mwo Musa Abiri to be a competent witness to tender those documents he must be sworn by taking an oath or affirmation and he must be available for cross-examination by the accused.

This procedure was not followed in this case, hence Exhibit 1 should not have been received in evidence and made to form part of the records of proceedings. The General Court Martial was in great and grave error in admitting in evidence documents (Exhibit 1) tendered by a person who was not called as a witness neither was he sworn before the court as a witness. The entire documents consisting Exhibit 1 should therefore be expunged from the court record.

The Constitution of Nigeria 1999, section 33 provides for fair trial of anybody accused of a crime. This has been denied the accused person in this case hence there is a miscarriage of justice. Pages 16-18 of the records of proceedings are invalid and are therefore expunged from the records. See the case of Rtd Col. Umar Mohammed v. Nigerian Army (1998) 7 NWLR (Pt.557) 232. Another point that vitiates the proceedings in this case re Exhibit 1 was the interference of the President of the General Court Martial on page 17 of the proceedings. He decided to direct the witness (unsworn) as to how he should read Exhibit 1 to the court so that the court can follow the trend. This in my view shows the President descending into the arena to aid in prosecuting the accused. This is most unfair especially when the accused had no opportunity to cross-examine the witness.

The General Court Martial in convicting the accused on charges 1 & 2 has relied heavily on Exhibit 1 which document has been rendered inadmissible.

Another stigma attached to Exhibit 1 is that almost all the documents contained therein are photocopies and no proper foundation was laid as required by the Evidence Act before admitting them in evidence.

When Exhibit 1 is removed from the records the prosecution is left with no iota of evidence on record to sustain the charges against the accused. As a matter of fact the accused ought to have been discharged after the prosecution closed its case.

The prosecuting counsel delivered a powerful address to the Court and the learned Judge Advocate also did his best to make a good summary of the entire case in his address to the General Court Martial. I am afraid the purpose of an address is not to establish a case against an accused. Addresses of counsel in a case are designed to assist the court. Cases are usually decided on credible evidence, hence no amount of brilliance in a final address can make up for the lack of evidence to prove and establish a case. See the case of Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787. The most important thing in a case is for the court to evolve a resolution of the point in issue by the argument or submission not the mere appraisal of counsel’s argument.

In this case, the prosecution has failed to establish the case against the accused in charges 1 and 2 beyond all reasonable doubt, hence no address can bridge the gap. Issues 1 and 2 are hereby resolved in favour of the accused/appellant.

Now to issue 3. This deals with the question of whether the General Court Martial was not in error in violating the appellant’s constitutional right to fair hearing under section 33 of the 1979 Constitution and the principle of natural justice by failing to afford the appellant an opportunity to cross-examine the complainant and even the chief of administration Army COA as to the authenticity of the facts contained in Exhibit 1.

The right to fair hearing is entrenched in both the 1979 Constitution and the 1999 Constitution. Section 33(1),(4) and (5) of the 1979 Constitution are in pari materia with sections 36(1), (4), (5) and (6) of the 1999 Constitution. It provides thus:-

“36.(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.

(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

(6) Every person who is charged with a criminal offence shall be entitled to:-

(a) be informed promptly in the language that he understands and in detail of the nature of the offence;

(b) be given adequate time and facilities for the preparation of his defence;

(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and

(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”

The above quoted sections of the Constitution provide for the rights of a party or an accused to a fair hearing in both civil and criminal cases. The terms fair trial and fair hearing are one and the same thing. The expression fair hearing in section 36(1) of the 1999 Constitution means the trial of a case or conduct of proceedings according to all relevant rules for ensuring justice. In the instant case, no sworn witness was called by the prosecution to enable the accused or his counsel to cross-examine the said witness. Exhibit 1 has been ruled to be inadmissible, hence there is nothing on record in proof of the offences charged in charges 1 and 2. Assuming without conceding that Exhibit 1 was properly and validly admitted, the accused was not given an opportunity to cross-examine writers of the various letters contained in Exhibit 1. In the first case, the so called witness who tendered the Exhibit 1 is not the writer of the various letters written by the different people. For example, the chief complainant in the case Chief Igbokwe was never called as a witness by the prosecution. It was the loan granted by the chief to the accused that triggered off the offences alleged in charges 1 and 2. Charge 1 reads as follows:-

“a. Conduct to the prejudice of service discipline contrary to section 103(1) AFD 1993 in that he on or about October 1996 in a memo sent to the Chief of Administration (Army) dated 28th October, 1996 lied about the position of his transaction with Chief S. Igbokwe, a conduct prejudicial to service discipline;

b. Charge 2 – Conduct to the prejudice of service discipline contrary to section 103(1) AFD 1993 in that he on or about October 1996 wrote a letter to one Chief E. Igbokwe contents of which portrayed the Nigerian Army in a bad light; a conduct prejudicial to service discipline.”

The prosecution did not call Chief Igbokwe whose name rang the bell throughout the alleged charges against the accused. The prosecution did not call as a witness the Chief of Administration (Army) to whom the accused was alleged to have sent a memo dated 28th October, 1996.

It is trite law that to gain a conviction and sentence against the appellant, the prosecution must prove beyond all reasonable doubt the elements of the offence charged. In this case, to sustain a charge under section 103(1) of the AFD – Armed Forces Decree No. 105 of 1993 the prosecution must prove the following ingredients:-

That the appellant is subject to service law;
That the appellant was involved in a conduct;
That the conduct of the appellant was prejudicial to good order and service discipline.

The appellant has contended that the prosecution failed to call a very vital witness to prove the 2nd and 3rd ingredients of the offences in charges 1 and 2. I quite agree with the submission of the appellant’s counsel that failure to call the complainant in this case is bound to affect the case of the prosecution. It seems to me that Chief E. Igbokwe is a very vital and material witness in this case and his evidence would have helped to arrive at a just determination of the entire case.

In the case of The State v. Nnolim & Anor. (1994) 5 NWLR (Pt.345) 394 a vital witness has been described to be a witness whose evidence may determine a case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. In this case, failure of the prosecution to call Chief Igbokwe as a witness is fatal to the case of the prosecution against the accused/appellant in charges 1 and 2.

The General Court Martial has based its conviction of the appellant on charges 1and 2 primarily on the unsworn documentary evidence of the complainant. This is very wrong in law and has occasioned a substantial miscarriage of justice. The conviction should not be allowed to stand. The General Court Martial like any other court or tribunal established by law for the determination of civil rights and obligations has a duty of fairness in the proceedings before it.

I have noted earlier on in this judgment the attitude of the President of the Court Martial proceedings as recorded on page 17 where he descended into the arena by taking over the duty of the prosecutor in giving directions to the unsworn witness as to how to read a document. This is an evidence of likelihood of bias and is bound to affect the right of the accused to a fair hearing. An accused person is presumed innocent until the contrary is proved beyond reasonable doubt by the prosecution. I concede the right of a Judge to ask any question in the course of proceedings by virtue of section 222 of the Evidence Act, Cap. 62 1990 Laws of Nigeria. But this liberty is limited by the duty of fairness charged upon the Judge. Where the Judge or President as in this case manifests a bias by taking over the duty of the prosecutor, the accused cannot be said to have had a fair trial:- see the case of Obadara v. President Ibadan West District Grade B Customary Court (1965) NMLR 39; Omoniyi v. Central Schools Board (1988) 4 NWLR (pt.89) 448; and Okoduwa v. The State (1988) 2 NWLR (pt.76) 333.

In the light of the above, issue 3 is also decided in favour of the appellant.

With regard to issue 4 which queries the validity of the composition of the General Court Martial as prescribed under section 133 of AFD No. 105 of 1993 (as amended), I would have said the issue is a non sequitor in view of the fact that the appellant did not object to being tried by the President and other members of the tribunal- Court Martial. But since the composition of the Court Martial touches upon the issue of jurisdiction, the fourth issue becomes relevant and can be raised at any time.

It is a competent court that can have jurisdiction over the trial of a case before it. A court is competent, if it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other. The subject matter of the case must be within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. The case must come before the court initiated by due process of law and upon fulfillment of any condition precedent in the exercise of its jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. See Bairamian FJ, as he then was, in the case of Madukolu & Ors. v. Johnson Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt.4) 587.

For the purpose of this trial by the General Court Martial, section 133(3) of Decree No. 105 of 1993 (as amended) provides thus:-

“3. The President of a Court Martial shall be appointed by order of the convening officer and shall not be under the rank of Major or corresponding rank, unless in the opinion of the convening officer, a Major or an officer of corresponding rank, having suitable qualifications is not, with due regard to the public service, available, so however that:-

(a) the President of a Court Martial shall not be under the rank of a Captain or a corresponding rank; and

(b) where an officer is to be tried, the president shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused.”

Upon a careful perusal of each of the members of the Court Martial in this case both the Colonels and Lt. Colonels are junior in seniority and rank to the accused/appellant. Any member who is junior in rank to the accused stands disqualified to be a member of the Court Martial that tried the accused.

However, section 133(7) of the Decree provides as follows:-

“(7) If a Court Martial is to be convened at a place where, in the opinion of the convening officer, the necessary number of officers having suitable qualifications is not available to form the Court Martial and cannot be made available with due regard to the circumstances, the convening officer may, with the consent of the proper superior authority appoint any service officer as President of the Court Martial in lieu of, or as any other member of the court in lieu of, or in addition to any service officer or officers.”

In the instant case, the appellant was tried at the Lagos garrison where there are many officers of senior and corresponding ranks as the appellant, but the convening officer chose service officers of junior ranks to the appellant. This provision of the law is spelt out in mandatory terms in order to maintain strict discipline in the Armed Forces. The officer under trial must be tried by his own peers.

Failure to find suitable service officers to constitute the General Court Martial, section 133(7) empowers the convening officer to choose men of the required rank from the Air Force or Naval Commands in Lagos with the consent of the proper superior authority.

This was not done in this case by the convening officer, hence I hold that the Court Martial as composed in this case lacked jurisdiction to try the appellant. The trial is therefore a nullity.

It is my view that which ever angle one looks at this trial by the General Court Martial, this appeal must succeed. There has been a very serious miscarriage of justice which has vitiated the conviction of the appellant on the first and second charges. The verdicts of guilty on charges 1 and 2 are perverse and should be quashed.

On a final analysis, I would allow the appeal, quash the convictions and sentences passed on the appellant in charges 1 and 2. In substitute thereof is a verdict of not guilty on each of the 2 charge & upon which the appellant had been found guilty. I therefore discharge and acquit the appellant accordingly on charges 1 and 2.

The decision of the General Court Martial delivered on 17th January, 1997 is hereby set aside in its entirety. If the appellant is still in prison serving term he should be released from prison custody forthwith.

Other Citations: (2000)LCN/0878(CA)

Attorney-general and Commissioner for Justice, Ekiti State & Ors. V. Prince James Lagunju Osho (2000) LLJR-CA

Attorney-general and Commissioner for Justice, Ekiti State & Ors. V. Prince James Lagunju Osho (2000)

LawGlobal-Hub Lead Judgment Report

AMAIZU, J.C.A.

This is a motion on notice praying the court for the following reliefs –

“1. Extension of time within which to ask for leave of this court to appeal against the judgment of the lower court delivered by Honourable Justice J. O. Akinyede of the Ikole High Court on the 17th day of March, 1998, as an interested party to the subsisting appeal herein.

Leave to appeal against the judgment of the lower court as an interested party, that is, the 9th appellant.
Enlargement of time within which the applicant should file and serve his notice of appeal.
An order deeming the already filed and served notice of appeal herein attached as properly filed and served.
Leave for continuance of stay of execution granted in the lower court against the judgment delivered by Hon. Justice J. A. Akinyede (now rtd.) on 17th March, 1998, the subject matter of this appeal. And for such further order or other orders as this Honourable court may deem fit to make in the circumstances.”

The application was supported by an affidavit of twenty paragraphs, and also a further affidavit.

It is necessary, in my considered view to give a brief narrative of the facts which constitute the back drop to this application.

The stool of Atta of Aiye Ekiti Chieftaincy became vacant some time in 1991. There is only one ruling house qualified to contest for the stool. Initially, the plaintiff now the respondent and three other princes indicated their intention to contest for the stool. Later, the number increased to seven.

One Ezekiel Agbetayo, the Eleberi for the ruling house refused to forward the names of those who indicated their intention to contest to the kingmakers. The meeting of the ruling house scheduled to hold in connection with the selection at Atta Hall on 12/11/91 was aborted by the said Eleberi.

The Oye Local Government later wrote the Eleberi to forward all the names of those who were contesting to the kingmakers. The Eleberi refused. Eventually he forwarded the name of one of the contestants to the king makers. The Kingmakers refused to act on the name of the lone candidate and asked for names of other princes who were contesting for the stool. Several meetings were held to resolve the dispute. The Kingmakers insisted on the names of all the contestants being sent to them in accordance with the White paper on the Report of Morgan’s Commission of Enquiry. The ruling house warned the Oye Local Government against imposition of a particular candidate on the town.

When the government mooted the idea of appointing warrant chiefs, there were protests against the proposed appointments. The warrant chiefs were eventually appointed. They met and appointed the applicant as the Atta of Aiyede-Ekiti. It was in the process of appointing the applicant that the respondent brought an action against the Attorney-General & Commissioner for Justice, Ekiti State, the Secretary, Oye Local Government and the eight warrant chiefs appointed by the Government.

The further amended writ of summons dated 2nd day of October, 1997, filed by the respondent contained the endorsements of the respondent’s claims as follows:-

“The plaintiff’s claim is against the defendants jointly and severally for:-

(a) A declaration that the appointment of the third, fourth, fifth, sixth, seventh and eighth defendants as warrant chiefs in Aiyede-Ekiti on 30th December, 1992 by the first defendant is contrary to the provisions of the Chiefs Law and Declaration of Atta of Aiyede Chieftaincy and therefore, illegal, wrongful, unconstitutional, null and void and of no effect whatsoever.

(b) An injunction restraining the third, fourth, fifth, sixth, seventh and eight defendants from parading themselves or doing any act as warrant chiefs in Aiyede-Ekiti or taking any part or aiding any person in the process of selecting a new candidate for the Atta of Aiyede Chieftaincy.

(c) An order of this Honourable Court setting aside all the actions already taken by the third to eight defendants towards the selection and or appointment of a new candidate for the vacant stool of Atta of Aiyede.”

Pleadings were exchanged by the parties. Thereafter the trial commenced. During the trial, the respondent applied to withdraw relief (b). The defendants did not object to the application. Accordingly, relief (b) was struck out.

The trial Judge after hearing the evidence of the parties and their witnesses, and the addresses of counsel gave judgment in the following terms” Accordingly, I hereby declare the appointment of the third, fourth, sixth, seventh and eighth defendants as warrant Chiefs in Aiyede Ekiti on 30th December, 1992 by the first defendant is contrary to the provisions of the Chiefs Law of Ekiti State (Chiefs Law of Ondo State (as amended) and now applicable to Ekiti State) and therefore illegal, null and void, of no effect whatever. It is my order that all the actions already taken by the third to the eighth defendants towards the selection and appointment of a new candidate for the vacant stool of Alta of Aiyede-Ekiti shall be and are hereby set aside.”

The defendants were dissatisfied with the judgment. They appealed to this court. In addition, they filed a motion on notice in the court below praying for:-

“1. A stay of execution of the judgment of this Honorable Court delivered on the 17th March, 1998 pending the determination of the appeal filed in the case.

An order of injunction restraining the 1st and 2nd defendants/respondents either by themselves or their gents, privies or servants from taking any step towards the realization of the judgment delivered by this Honourable Court on the 17th day of March, 1998.”

The lower court after hearing arguments for and against the application ruled as follows:-

“Having regard to the nature of the substratum of this case, and all that I have said above, the reasons given and after a very careful and deep consideration of all the matters involved, I have come to the conclusion that this application be granted and it is hereby granted.

The 1st and 2nd defendants/respondents, either by themselves, their agents, privies and or servants are hereby restrained from taking any step towards the realization ofthe judgment delivered by His Lordship Hon. J. O. Akinyede on the 17th day of March, 1998 pending the determination of the appeal filed in this case by the 3rd – 8th defendants/applicants”.

The respondent was dissatisfied with the ruling. He has appealed against it to this court. I observe that the only part played by the applicant during the hearing of the motion on notice referred to above was that, he swore to an affidavit in support of the motion. The applicant brought the present application on 22nd day of October, 1999, that is:-

(1)A year and seven months after the delivery of the judgment in the substantive suit; and

(2) Two weeks after the ruling on the motion for a stay of execution was delivered.

When the application came up for hearing before this court on 10th February, 2000, the court advised the parties to file briefs of arguments. The parties have exchanged their briefs of argument. The applicant, in addition, filed a reply brief. The learned counsel for the parties adopted their briefs of argument during the hearing of the application. Gbadeyan Esq., of counsel, formulated one issue. It is:-

Whether this court, going by the totality of the affidavit evidence before it, should grant the applicant herein leave to appeal as an interested person against the judgment of the trial court. On his own part, Akanle, Esq., of counsel, formulated one issue. It does appear to me that this lone issue is adequately covered by the above issue formulated by the applicant. I consider it therefore not necessary to reproduce the issue here. Arguing the only issue, Gbadeyan Esq., of counsel, referred to section 243 of the 1999 Constitution of the Federal Republic of Nigeria. The section provides “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 etc.”

The learned counsel also referred to the case of Harry Akande v. General Electrical Co. Ltd. (1979) 3-4 SC 115 and submitted that a party or person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. It is further his submission that the combined effect of paragraphs 4-9,11, 14-16 of the affidavit in support, and, paragraphs 5-9 of the further affidavit shows clearly that the applicant is a desirable party, though not a necessary party. He referred to the decision of the Supreme Court in Green v. Green (1987) 3 NWLR (Pt.61) 480 that where the determination of an action between two parties would directly affect a third party’s legal rights or his pecuniary interest, the court has a discretion to order the third person to be added as a party.

The learned counsel observed that the applicant was appointed and installed as the Atta of Aiyede-Ekiti to the knowledge of every body. He submitted that it is necessary that a person interested who wishes to question a judgment affecting his interest, as the applicant now wishes to do, should be allowed to lodge an appeal without going through the elaborate course of starting new proceedings. He cited the case of Akintolen Maja & Ors. v. Harriet Johnson 13 WACA 194.

The learned counsel then raised objections to some paragraphs of the counter-affidavit. It is his view that the averments in the counter-affidavit are in many respects defective. He referred in particular to:-

(1) Paragraphs 3 and 4, 11 and 12 thereof. It is his view that the averments therein are legal conclusions.

(2) Paragraphs 7 and 13. He contended that the source of information to the deponent should have been disclosed, and

(3) Paragraph 6. It is his view that the averment is a prayer.

He submitted that the averments offended the provisions of sections 86-90 of the Evidence Act, 1990. He cited cases of:-

Governor of Lagos State v. Odumegu Ojukwu (1986) 1 NWLR (Pt.18) 621 and Nahman v. Wolowicz (1993) 3 NWLR (Pt.282) 443.

He urged the Court to grant the application.

In his reply, Akanle Esq., of counsel, referred to the history of the present suit. It is his view that the applicant was non-challant about the case. He reminded the court that when the defendants in the lower court applied for a stay of execution, the applicant swore to an affidavit in support of the application. It is after the respondent had appealed against the order for a stay, that the applicant belatedly brought the present application to join as a person interested. He contended that the application is late in the day and the court should not allow him to be joined. He relied on Ademola v. Sodipo (1992) 7 NWLR (pt.253) 251 at 261 and Owena Bank Nig. Plc. v. Nigerian Stock Exchange Ltd. (1997) 8 NWLR (Pt.515) 1 at 19. He also raised objections to certain paragraphs of the affidavit in support. He urged the court to strike out the application…

It is trite that all rights of appeal are statutory. In order to exercise a right of appeal therefore an appellant must show that such a right has been or is conferred on him by some statute. See Godfrey Ugwuh v. A.-G., E.C.S. and Ors. (1975) 6 SC 13 at 16.

The provisions of section 243 of the Constitution of the Federal Republic of Nigeria, 1999 (supra) are clear and unambiguous. Under the section, in the case of civil proceedings a person having an interest in a matter may with the leave of the Federal High Court or the High Court or the Court of Appeal, appeal to the Court of Appeal. The question however is, when is a person said to have an interest in a matter?

In the case of Harry Akande v. General Electric Co. & Ors. (1979) 3-4 SC 115, Aniagolu JSC (as he then was) held that a party or person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. Also, in the case of Funduk Engineering Ltd. v. James Mcarthur & Ors. (1990) 4 NWLR (Pt.143) 266 it was held that “a person having an interest in the matter” is synonymous with a person aggrieved meaning a person who has suffered a legal grievance etc. With the above definitions in mind, I now look at the affidavit in support of the motion to be joined as an interested party.

The relevant averments are as follows:-

“6. That he was appointed and installed in 1994 by the then enlarged Ondo State Government and all his rights, emoluments and even salaries, since then, as the incumbent Atta of Aiyede, were promptly paid or offered to him.

It was his appointment and installation thereafter that the plaintiff/respondent said annoyed him, and necessitated the filing of an action at the lower court which is now the subject-matter of an appeal before this court.
That the claims of the plaintiff/respondent attacked mainly the 3rd – 8th defendants/appellants as to:-

a) The validity of their appointments as warrant chiefs.

(b) Setting aside what they might have done in respect of the selection and appointment of a new candidate to the vacant stool.

That the applicant wants to be a party now so as to protect himself, his office as the Atta of Aiyede and his interest from any unjustifiable and unwarranted abuse either in fact or in law.”

Akanle Esq., of counsel, referred the court to two cases where the apex court refused applications similar to the present one. The cases are-

(a) Hon. Justice Adenekan Ademola v. Akanni Osho Sodipo (1992) 7 NWLR (pt.253) 251, and

(b) Owena Bank (Nig.) Pic. v. Nigerian Stock Exchange Ltd. (1979) 8 NWLR (pt.515) 1 at 19.

In Ademola’s case (supra), the applicant had given evidence in the lower court, during the trial of the suit. The evidence runs thus:-

“I was not affected in any way by the repairs being carried out by the defendant. I have no property in the house.”

It is to be noted that the property in question was the subject matter of the suit. The Supreme Court in the light of the above held that the applicant should not have been joined as a party.

In Owena Bank’s case (supra) the facts of the case showed that the applicant had no legal function to perform in the subject matter of the suit at the time the suit was heard. The Supreme Court held that the applicant could not be a person aggrieved because its interest, if it had any, had lapsed by the time it made the application.

These cases are therefore not on all fours with the present suit. Consequently, they are not helpful to the respondent’s case.

I have no doubt that from the above facts that the applicant is a person “having an interest in the matter.”

The point was made that the applicant had delayed in bringing the application. That may well be true. It is trite however that a court must balance the application of its discretionary power to grant or refuse an application for an extension of time with its duty of giving the applicant the opportunity of obtaining substantial justice by allowing him to be joined in a matter in which he has an interest. In that light, I grant the application. Consequently, the applicant is granted:-

An extension of time within which to ask for leave of this Court of Appeal against the judgment of the lower court delivered by Honourable Justice J. O. Akinyede of lkole High Court on 17th day of March, 1998.
Leave to appeal against the judgment of the lower court.
Enlargement of time within which the applicant should file and serve his notice of appeal.

Finally, the notice of appeal attached to this application is deemed properly filed and served subject to the payment of the prescribed fees.

As the applicant abandoned in his brief of argument the fifth relief for leave for continuance of stay of execution granted in the lower court against the judgment delivered by Hon. Justice J. A. Akinyede on 17th March, 1998, the relief is hereby struck out. There is no order as to cost.

Other Citations: (2000)LCN/0877(CA)

Abraham Sakari V. Bako Kunini & Anor (2000) LLJR-CA

Abraham Sakari V. Bako Kunini & Anor (2000)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A

This is an appeal against a judgment of the High Court of Justice, Taraba State, holden at Jalingo in its appellate jurisdiction in Suit No. CGSJ/25A/90 wherein it unanimously dismissed with N100.00 costs the appeal of the appellant, which had gone to them on appeal against the concurrent findings of both the Area Court No.2, Jalingo, and the Upper Area Court, Jalingo, which had held that the fishing pond called “NYAWAU” belonged to the plaintiffs/respondents and not the defendant/appellant.

At the Area Court No. 2 Taraba State, sitting at Jalingo the plaintiffs (who are now the respondents) sued the defendant (who is now the appellant) claiming as follows:

“I am complaining against Abraham, claiming my fishing pond. The fishing pond we were using it together but there is a demarcation between us. There was a time when the deposed Emir of Muri Umaru Tukur told us he has transferred the pond to the Emirate Council for the purpose of fishing festival, so the defendant told me that he was going to Yola to employ a lawyer who will stand in for us to take back our pond, but later the defendant went and sold the pond to other people. From there, we came to Jalingo and told the Emir’s Secretary, Hamman Joda who told us to go and wait when the Jenjo people are already fishing in the pond. From there we went to Kunini and complained to Fafida who also told us to be patient until when the Emir come. Later the defendant sold it again the next season to the same people he sold to, during the last season, this time we went to Wakili Malle who was then in charge of all the affairs of Muri Emirate Council and complained to him but he told us that he has nothing to do with the problem. From there we went to court at Kunini and reported the matter. Already the defendant has taken away money from the people N1,000.00k so the court directed that we be given our share too, so, the people brought N800.00k to the court which was given to us, from there the court told us to manage our portion of the pond and the defendant also to take charge of his portion, but when we put our people to manage our portion the defendant went and drove them away, because of this, I went to court and complained and the court asked the defendant to withdraw his people. That is all my complaint.”

I must state right from the word go, that this case has been rather difficult to understand as there has been much incoherence, not only in the particulars of claim, but also the evidence of both the plaintiffs and the defendant. However, being a case that started from the Area Court, one has to give a lot of latitude, which one would not have given in a case that was tried in the High Court with pleadings. For a start, there was no Survey Plan filed in this case, as the fishing pond in dispute was not a private or man-made pond. Rather it was a natural pond that flowed not only through the village of the plaintiffs known as Kunini, but also to other villages, including that of the defendant known as the “Jenjos”. The fishing pond in dispute is therefore the area that passes through the territorial jurisdiction of the plaintiffs’ land that is now in dispute. According to the 1st plaintiff in one of his interlocutory remarks to the court “we sold the fishing rights for that year and not the water”. According to the evidence of the plaintiffs, when they first came to Kunini, they first met Munga people who migrated to the other side a long time ago. When these Munga people were leaving they requested a horse from our people in place of the pond, we came from Kwararafa.

Another aspect of the story as to how the plaintiffs came to be in possession of the fishing pond in dispute was given to the court by PW1 (Wakili Umar) as follows:

“We migrated to Numan because all we have had finished and later we decided to go to the Emir of Muri Mafindi. The Emir told us not to go back to Numan that he would give us a letter to Kunini to see Galadima who would give us a fishing pond, and to farm. We gave the letter to Galadims who called Dan-Iya and informed him of our arrival, then Dan-Iya and Haram went and showed us the farmland and fishing pond respectively then Haram showed us another pond again making two ponds. The Haram took us to the second pond and showed us a certain place where we can fish and not to fish in the other area because it belonged to the Jenjo people. That is all my statement.”

Cross-examined by the defendant as to the means by which they could identify the demarcation, the same PW1 answered as follows:

“There is an ant hill and from the South there is a small flow in of water into the pond.”

There was also the evidence that the boundary marks between the pond of the Kuninis (plaintiffs) and that of the Jenjos (defendant) was a palm tree on one side and an Anthill on the other. Three other witnesses also testified for the plaintiffs, (i.e PW1, 3 and 4) confirming that the fishing pond in dispute belonged to plaintiffs, and that they have never seen the defendant (the Jenjos) fishing in that area of the pond. There was also evidence by PW2 (Moh’d Jauro) to the effect that part of the fishes caught were usually sent to the Emir of Muri Mafindi.

On the other hand, the defendant opened his case with the evidence of one Jinna (DW1) whose evidence was a complete negation of all that the defendant stood for. According to the evidence of DW1 at p. 10 of the records.

“All I know is that it was the father of the defendant who gave the fishing pond to my grandfather who is also dead, so now I am the owner of the pond in dispute. I have never known any other person to own the pond apart from us …”

The defendant called a total of seven witnesses including himself and the sum total of their evidence was that they were the first settlers on the land in dispute. According to defendant himself, who testified as DW 7:

“All I know is that our parents told us that the first time they came to the area, there was nobody and they took possession of the water in dispute and shared it among the wards and they have a certain ritual called Danban and Zaitai and we were told that they started living there since 1900…” At the end of the evidence the trial court members went on inspection of the locus in quo on 4/9/89 to see things for themselves, in the presence of the parties and the defence counsel.

The plaintiffs had no counsel. At the locus, the plaintiffs showed the court the palm tree and the anthill which they said were the boundary marks that demarcated plaintiffs’ fishing pond from that of the defendant. The defendant on the other hand showed no boundary marks, but contended that the anthill shown by the plaintiffs was a mere heap of sand placed there by human beings, while the palm tree shown was a wild palm tree that grew there normally like others that grew near the place.

At the end of the inspection, the court members came back and ultimately made the following findings and gave judgment in favour of the plaintiffs as follows:

“That the Muri Emirate is the controller of the whole area within the Emirate and as such we are aware of the owner of the water (at Kunini) in dispute. The fact that the Emir of Muri from Mafindi up to Umar used to send people to Kunini for the use of the water in dispute through Galadima to Ardido Haram and Sarkin Ruwa confirms that the subject matter in question, the Nyawwal belongs to the plaintiffs. If this water had been the property of the defendant, the Emir would have been directing the fisherman to Ubandoma at Jen and not through Galadima to Ardido Haram at Kunini. That the body of the water, Nyawal, is situated entirely within the jurisdiction of the Kunini district.

That the body of the water, Nyawal, is laying from Numan through Kunini to Lau and to our understaning at any point the water reaches a village, historically, it belongs to the people within the location. Hence, at Kunini Benbal, Nyawwal, where the subject matter is located and that historical back-ground has also revealed that the people at Kunini were the people who used to fish at the water and that the present dispute arises as the result of the defendant selling the water to some other people without the consent of the Kuninis, the plaintiffs. We therefore agree with the statement of the plaintiffs that they purchased this water, the Nyawwal, from the Munga people because from the evidence before us the Jenjo claimed to come in company of the Munga people who sold the water to the plaintiffs and specifically told the plaintiffs not to interfere with the water belonging to the defendant and also show the demarcation between the two waters, we are satisfied with the explanation of the demarcation given to us in court by the plaintiffs and their witnesses because we found the description to be correct as told to us in court. When we visited the locus in quo, the palm tree and the anthill at the other side of the water are there exactly as described. The claim of the defendant that the palm tree was not planted is therefore unacceptable to us and also that that the anthill is a pack of sand is also not acceptable to us because up to the time we visited the site the hill is still there without grasses and does not look like man made something.”

“Judgment

In view of the above, we are satisfied that the water in dispute (Nyawwal) is the property of the plaintiffs Bako and Bawuro all of Kunini because they have established their title of the water before this court because of this, therefore, we order the defendant to leave the water for the plaintiffs immediately and in addition he will refund to the plaintiffs all their process fees in court.”

The defendant being dissatisfied with above judgment first appealed to the Upper Area Court at Jalingo, and lost. From there he appealed again to the High Court of Taraba State of Nigeria, holden at Jalingo in its appellate jurisdiction and lost again. He has now appealed further to this court on four original grounds which without their particulars read as follows:

“Grounds of Appeal

The High Court of Justice erred in law and fact, when it changed the cause of action.
The High Court of Justice Jalingo misdirected itself in law and fact, when it held that the respondents are members of Kunini community and can sue as individuals of that community.
The High Court of Justice Jalingo erred in law and facts when it held the pond to be under the control of Muri Emirate Council.
The High court of Justice Jalingo erred in law and fact when it held that there is nothing wrong with the decision of the Upper Area Court.

Briefs of argument were later filed and exchanged, and issues for determination formulated. The defendant who will hereinafter be referred to as the appellant formulated as many as seven issues for determination from only four grounds. The said issues read as follows:

“Issues for Determination

2.1 Whether the High Court was right when it held that the issue involved is not that of title to the fishing pond but that the respondents were merely asserting their right of fishing in the disputed pond, and then affirming the decision of the Upper Area Court Jalingo which affirmed the decision of the Trial Area Court that, held that, the respondents established their title of water in dispute-as shown on page 31, lines 17-20 of the compiled records?

2.2 Whether the lower court was right to suo motu change the cause of action of the respondents on appeal and then proceeded to enter judgment for the respondents?

2.3 Whether the respondents are competent to initiate the proceeding culminating to this appeal claiming ownership of the fishing pond in view of the finding of the lower court that from the provisions of the Legal Notice No.3 of 1989 applicable in Taraba State, the only competent authority to bring an action against someone who is already in possession of a pond or who has a right of interference in such ponds is the State Government?

2.4 Whether the lower court was right in law when it affirmed the decision of the Upper Area Court Jalingo in view of the fact that the respondents are not competent to initiate the proceedings by virtue of the provision of Legal Notice No. 3 of 1989 applicable in Taraba State?

2.5 Whether the lower court was right in law when it affirmed the decision of the Upper Area Court on the ground that the fact that the Emirs of Muri from Mafindi up to Umar used to send people to Kunini for use of the water in dispute confirmed that the subject matter in question, the ‘Nyawwal’ belongs to the plaintiffs? See page 65 lines (6) – (10) of the compiled records,

2.6 Whether the lower court was right when it held that the fishing pond in dispute was under the control of the Muri Emirate Council? See pages (64) -(65) line (34) and (10 -(6) respectively of the compiled records,

2.7 Whether the respondents (as plaintiffs) had established their title as claimed in accordance with the provision of our laws to warrant the confirmation or affirmation of the decision of the Trial Area Court and the Upper Area Court Jalingo by the lower court?”

In response to the above, the plaintiffs who will hereinafter be referred to as respondents formulated four issues as follows:

“3.01 whether the High Court sitting on appeal on the judgment of the Upper Area Court, Jalingo changed the cause of action or nature of the claim and assuming without conceding that they did, whether the appellant suffered any damage and, or a miscarriage of justice by such alleged change.

3.02 Whether the respondents as plaintiff and member of the Kunini Community has locus standi to institute the action.

3.03 Whether the respondents had established their ownership of the disputed pond,

3.04 Whether the pond in dispute is under the control of the Muri Emirate Council.”

Having set out all the issues formulated as above, I must now observe that it is our first law on brief writing that an issue formulated for determination must arise and be founded on one of the grounds of appeal filed. If it does not so arise it becomes irrelevant and must be struck out. If it was only one issue that was formulated, and that issue did not arise from any of the grounds of appeal filed, then the entire appeal becomes incompetent and must be struck out. See Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157 and Momodu v. Momoh (1991) NWLR (Pt. 169) 608 at 620-621; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514, and Labiyi v. Anretiola Ors, (1992) 8 NWLR (Pt.258) 139.

As already set out above, there are four grounds of appeal and seven issues for determination formulated by the appellant. Under our law, the number of issues should either be the same as the number of grounds of appeal or fewer, in that one issue can be formulated from one, two or more grounds. It is undesirable that, issues should be more than grounds, which would mean that a ground of appeal was being split into two or more. With these rules in mind, I have looked again at the grounds of appeal, and find that the first ground dealt with issue of change of cause of action by the High Court; Ground 2, dealt with the issue of locus standi, Ground 3 dealt with representative capacity of the respondents; and Ground 4 was the omnibus ground complaining of whether the High Court rightly upheld the decision of the Upper Area Court. How come then that there are seven issues instead of four in appellant’s brief? A critical study of the issues in appellant’s brief reveals the following anomalies:

Two issues (i.e. 1 & 2 are formulated from ground 1, on whether the High Court rightly changed the cause of action of respondents. Issue No. 2 is therefore hereby struck out leaving issue 1. Also three issues (i.e. 3, 4 and 6) are formulated on locus standi instead of one. Issues 3 & 6 are therefore hereby struck out leaving issue No. 4. Also, two issues are formulated from the omnibus ground (i.e issues 5 & 7.) Issue No. 5 is therefore hereby struck out leaving Issue 7 as the only omnibus issue from Ground 4.

Having finished with the question whether an issue for determination arose from a ground of appeal filed or not, I now go to another legal objection, namely whether a point of law or an issue raised on appeal was canvassed at the court below or not. The law is that an appellant will not be allowed to raise for the first time in an appellate court, a point of law or issue which was not canvassed at the trial court for the trial Judge to rule on, or pronounce upon; unless with leave of the appellate court. In the instant case there was no question of whether the respondents had “locus standi” or not. It was only just being raised in this court for the first time. The same goes for the question whether Mari Emirate Council controlled the pond in question. At the trial court the question before the court was simply which of the two parties gave a better and more credible traditional evidence, as there were no documents or questions of law involved. The question of who had more acts of ownership or possession was also involved. These were all questions raised in the 1st ground of appeal as to whether the trial Judge of the appellate High Court changed respondents’ cause of action or not. This strictly is a new matter, which I will however consider as issue of jurisdiction seems to be involved, albeit obliquely.

On the whole therefore, grounds 2 and 3 of this appeal are hereby struck out as they raise new issues that were not canvassed at the trial court and or which no leave was obtained form this court. That leaves us with only two issues to consider in this appeal as follows: namely issue No. 1 and 7 in appellants’ brief:

“Issues for Determination

2.1 Whether the High Court was right when it held that the issue involved is not that of title to the fishing pond but that the respondents were merely asserting their right of fishing in the disputed pond, and then affirming the decision of the Upper Area Court Jalingo which affirmed the decision of the trial court that held that the respondents established their title of the water in dispute as shown on page 31 lines 17-20 of the compiled recorder?

2.7 whether the respondents (as plaintiffs) had established their title as claimed in accordance with the provisions of our laws to warrant the confirmation or affirmation of the decision of the Trial Area Court and the Upper Area Court Jalingo by the lower court?”

The main complaint of the appellant was against a passage of the High Court’s Judgment which appeared at p. 71 of the records as follows:

“We wish to point out clearly here that the issue involved is not that of title. We have already pointed this elsewhere in this judgment. The respondents are merely asserting their right of fishing in the disputed pond the right which the appellant attempted to usurp by unilaterally selling out fishing rights in the pond…”

Appellant then pointed out that such a holding by the appellate High Court, Jalingo was in conflict with the claim of the respondent’s which was clearly for ownership or title to the fishing pond. He then submitted that such holding by the learned justices of the appellate High Court gave rise to a gross miscarriage of justice.

In reply to the above, the respondents’ counsel first reproduced the claim of the respondents as they appear at p.1 of the records and then submitted that the said holding of the High Court merely summarised the basis of the complaint of the respondents and did not change any cause of action. It was also argued that it was not possible to resolve respondents’ issue without going into the question of title. Finally on this issue, it was submitted that “whether the claim was for title or for violation of possessory right there was no judgment in favour of the appellant in respect of either by the Area Court 2 or the Upper Area Court which was reversed by the High Court sitting on appeal to necessitate the ground and or the issue arising for determination. This court was therefore urged to dismiss this ground of appeal.

I have carefully considered the two arguments canvassed above, and quite clearly cannot see in what way or ways the learned Justice of the appellate High Court changed Respondents’ “Cause of Action”. The cause of action which the respondents brought to court remained the same from start of the action to the end. In my view, the High Court Judges were merely interpreting or construing the claim of the respondents, which was formulated in a rather unusual way. I must say that the particulars of claim in this case which was also reproduced in the introductory paragraph of this judgment was an essay, rather than a brief statement of one’s complaints. According to the decided cases cause of action simply means; “The factual situation which if substantiated entitles the plaintiff to a remedy against the defendant.”

Sanda v. Kukawa Local Govt. (1991) 2 NWLR (pt. 174) 379 SC.; B. R. T.C. v. Egbuonu (1991) 2 NWLR (Pt.171) 81 at 84: Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669 at 682.

On the whole therefore, since the verdict of the court was not altered in any respect against the appellant, I cannot see how the appellant suffered any miscarriage of justice or prejudice. It is my view that the expression “possessory right to the fishing” asserting right of fishing in the disputed pond meant the same thing as “title to fishing pond”.

In effect therefore, Issue No.1 must be resolved in favour of respondents, namely that the appellant High Court Judges did not change any cause of action, and no miscarriage of justice was occasioned by the construction or meaning of respondents’ claim given by the appellate High Court Judges.

Re Issue No.7

“Whether the respondents as (plaintiffs) had established their title as claimed in accordance with provision of our laws to warrant the confirmation of affirmation of the decision of the trial court and the Upper Area Court Jalingo by the lower court.”

Under this issue, it was contended on behalf of the appellant that the evidence of respondents’ case were contradictory. Also the evidence of respondents witnesses showed that title to the disputed fish ponds belonged to the Kuninis as a Community and not to the two respondents as individuals. He therefore urged us to allow the appeal of the appellant.

In reply to the above, it was submitted that the respondents adduced evidence which was accepted not only by the trial Area Court but also by both the Upper Area Court and Appellate High Court all at Jalingo. This was even conceded by the appellant that the concurrent findings of facts should, not ordinarily be disturbed except where exceptional circumstances are shown. The cases of Layinka v. Gegele (1993) 3 NWLR (pt. 283) 518 SC at 522 and NIDB v. De Easy Life Electronics (1999) 4 NWLR (Pt. 597) 8 CA, were cited and relied on.

I have carefully considered the two arguments canvassed above, and find that the case at the Trial Area Court II, Jalingo was fought mainly on facts, with little or no law on either side. Only traditional evidence or history was relied upon. The court later visited the disputed fishing pond in question and saw the boundary marks exactly as they were indicated in evidence of respondents in court. The appellant on the other hand neither described the boundaries of the pond, nor gave any marks or demarcation. The court also virtually took judicial notice of the fact that the Emir always sent people who wanted fish to the respondents. In the court’s view the Emir would not have been doing that if the respondents were not the people in lawful control of the fishing pond in dispute. They therefore gave judgment in favour of the respondents, it is our law that an appellate court which did not have the advantage of seeing and hearing the parties and their witnesses in the witness box should be reluctant to interfere with a decision of a trial court founded on fact, unless such was perverse, unreasonable and not supported by evidence. After going through the entire record of proceedings I cannot see any holding of the Trial Area Court II, Jalingo that could be said to have been perverse, unreasonable or not supported by evidence. Also the court visited the locus in quo and saw what they were talking about. It is my view therefore that, the decision of the trial Court was rightly upheld by both Upper Area Court and the appellate High Court both of Jalingo. (see the cases of Kodilinye v. Odu, (1935) 2 WACA 336; Kuma v. Kuma (1938) 5 WACA 4; Ebba v Ogodo (1984) 1 SCNLR 372. It is also now well established as a principle of our law, that the Supreme Court will not disturb a concurrent finding of two lower courts, unless a substantial error apparent on the face of the record is shown. See Sobakin v. State (1981) 5 SC 75; Okonwo v. Okagbue (1994) 9 NWLR (Pt. 368) 301 at 322 B-C). In the instant case what we have is the concurrent finding of three lower court.

In view of the foregoing, I have no hesitation in holding that the traditional evidence of the respondents at the Trial Court completely overwhelmed those of the appellant, and were rightly accepted. This appeal therefore fails and is hereby dismissed with costs of N4,000.00 (four thousand naira) in favour of respondents.

Other Citations: (2000)LCN/0876(CA)

Abraham Sakari V. Bako Kunini & Anor (2000) LLJR-CA

Abraham Sakari V. Bako Kunini & Anor (2000)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

At the Area Court No. 2 Taraba State, sitting at Jalingo the plaintiffs (who are now the respondents) sued the defendant (who is now the appellant) claiming as follows:

Another aspect of the story as to how the plaintiffs came to be in possession of the fishing pond in dispute was given to the court by PW1 (Wakili Umar) as follows:

Cross-examined by the defendant as to the means by which they could identify the demarcation, the same PW1 answered as follows:

“There is an ant hill and from the South there is a small flow in of water into the pond.”

At the end of the inspection, the court members came back and ultimately made the following findings and gave judgment in favour of the plaintiffs as follows:

“Judgment

“Grounds of Appeal

The High Court of Justice erred in law and fact, when it changed the cause of action.
The High Court of Justice Jalingo misdirected itself in law and fact, when it held that the respondents are members of Kunini community and can sue as individuals of that community.
The High Court of Justice Jalingo erred in law and facts when it held the pond to be under the control of Muri Emirate Council.
The High court of Justice Jalingo erred in law and fact when it held that there is nothing wrong with the decision of the Upper Area Court.

“Issues for Determination

2.2 Whether the lower court was right to suo motu change the cause of action of the respondents on appeal and then proceeded to enter judgment for the respondents?

In response to the above, the plaintiffs who will hereinafter be referred to as respondents formulated four issues as follows:

3.02 Whether the respondents as plaintiff and member of the Kunini Community has locus standi to institute the action.

3.03 Whether the respondents had established their ownership of the disputed pond,

3.04 Whether the pond in dispute is under the control of the Muri Emirate Council.”

“Issues for Determination

2.1 Whether the High Court was right when it held that the issue involved is not that of title to the fishing pond but that the respondents were merely asserting their right of fishing in the disputed pond, and then affirming the decision of the Upper Area Court Jalingo which affirmed the decision of the trial court that held that the respondents established their title of the water in dispute as shown on page 31 lines 17-20 of the compiled recorder?

The main complaint of the appellant was against a passage of the High Court’s Judgment which appeared at p. 71 of the records as follows:

Sanda v. Kukawa Local Govt. (1991) 2 NWLR (pt. 174) 379 SC.; B. R. T.C. v. Egbuonu (1991) 2 NWLR (Pt.171) 81 at 84: Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669 at 682.

Re Issue No.7

Other Citations: (2000)LCN/0875(CA)

Vincent Ogueri V. The State (2000) LLJR-CA

Vincent Ogueri V. The State (2000)

LawGlobal-Hub Lead Judgment Report

IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.

The cornerstone of this case is Whether the Appellant who was charged with the offence of murder and whose application for bail was rejected by Metu J (now retired) who was then seized of the matter and which case is now transferred to Ogugua J and who similarly rejected his application for bail ought on the affidavit evidence to be granted bail. This appeal arises from the refusal of the learned trial Judge, Ogugua J, to grant the application for bail.

In the application of this nature the requirement for granting of bail is very stringent and facts attendant thereto must be strong and persuasive enough to make the court accede to the application for bail. The learned trial Judge in dismissing the application said that the learned defence counsel kept on referring her to the proceedings at the earlier trial of the case before the matter was assigned to her and then said that of the 3 premises on which the application was based, she would consider only one issue and that is the one of hearth of the applicant. She said in refusing the application:

“In so many cases health has been held to constitute one of those compelling reasons. In the application before me is a letter Exhibit ‘A’ to this counsel complaining of his health. There is no medical report confirming the complaint … in the justice of the instant situation is allowing Appellant access to a medical doctor for consultation.”

The Applicant appealed and one issue was framed by the Appellant which is:

“Whether there are coercive and compelling reasons why the Appellant ought to have been admitted to bail.”

The Respondent framed 2 issues but I am of the view that strictly speaking the issues formulated by the Appellant covers all that is in this matter.

The peculiarity of this case lies in the fact that though the Appellnt was arraigned as far back as October, 1992, the appeal on the issue of bail is coming up for consideration in the year 2000 about 8 years afterwards.

This means he has been incarcerated for nearly a decade and the time for the final determination of a case is not in sight.

An accused person is not in jurisprudence a person presumed guilty but is given the benefit being innocent until the contrary is proved. This pre-supposes that he is not to be bounded or be punished or remanded in custody for an unnecessarily long time without a reasonable cause to defeat the course of justice. In other words, he has to be treated humanely and given all the constitutional rights that are allowed to a citizen.

The Applicant through his solicitor Ahamba, SAN in his application for the bail (which is refused) stated:

“That the Applicant has been in the custody since 2nd day of September.
That the Applicant was arraigned before the High Court sitting at Owerri on 28/10/92 on a one count charge of murder and plea was taken on that date wherein the applicant pleaded not guilty.
That on 16/4/91, prior to the applicant being arraigned as stated in paragraph- 4, an application for his bail filed on 14/11/90 was refused and the Applicant was remanded in prison custody at Owerri.
That the position in paragraph 5 is so despite the fact that the police have concluded their investigations and have not found any evidence whatsoever against the applicant to show that he was involved in the alleged crime and to support his continued incarceration.
That the prosecution opened its case on 11/11/92 with PW1 who was cross examined.
That none of the 5 prosecution witnesses who testified gave testimony directly or indirectly incriminating the applicant of complicity the death of the deceased.
That since the said 27/1/99, this matter has suffered 4 adjournments all not connected with applicant’s or his counsel’s inability to go on with the case but due to delays either from the prosecution or the Honourable court not sitting because of the other pressing businesses of the Court.
That the matter is now adjourned to the 7/10/99.
That it is now nearly 9 years since the applicant has been remanded in prison custody.
That this matter is to be heard de novo and that the Applicant is languishing in prison custody for an offence he did not commit.
That the Applicant has been ill on several occasions and has not the benefit of adequate medical attention.
That I was informed by the applicant and I verily believe him that he G now afflicted with serious illness which requires specialist attention.
That I was informed by the applicant and I verily, believe him that the illness was diagnosed on 3/6/99 by the prison doctor and further recommenced that the applicant be sent to a specialist to attend to the illness. That attached as Exhibit ‘A’ letter through which the Applicant information.”

The question is did the court below carefully consider and weigh the affidavit evidence of the Appellant before him. Exhibit B attached to the application for bail is the Record of proceedings before Metu J, and this was made use of by learned counsel for the Appellant Ahamba SAN. In the other Exhibit, i.e. Exhibit ‘A’, the Appellant said in his reference to the state of his health which the Court alluded to in its Ruling that he was in a terribly bad shape as found out by the prison Doctor who referred him to a Consultant for Medical Care, and he added thus:

“But the A.C.P. (Head of Prisons Department) bluntly refused to allow me to go to the Federal Medical Centre for Medical treatment. May be he felt I have some scores to settle with him … My health has so much deteriorated since then.”

The prosecutor which is the Respondent in this case did not file any counter-affidavit to challenge the statement contained in Exhibit A or the contents of the affidavit.

The inference or presumption is that the State accepts all the stories of the Appellant with the necessary implication.

See the case of MODUPE v THE STATE (1988) 4 NWLR (Pt. 87) 132 and NWUGUNU v THE STATE (1991) 1 NWLR (Pt.265) 41 at 48.

What is the principle governing the grant of bail. What it might be asked is the accused right of bail. It is to be stated that in virtually all civilized countries where the rule of law reigns supreme, the procedural law does not rest upon any priori sentimentality about the criminal act.

Indeed the great Jurists and law makers and the framers of the Constitution who in their different activities fashioned our laws were not and are not motivated or animated by any particular softness towards the law breakers. The bases behind all the procedures which ensure adequate reasonable safeguards is not rooted in coddling the criminal or any miscreant or indeed treat his alleged nefarious act with kid gloves.

It is not equally to ensure that there are large and enough veritable loopholes by which he can effect his escape from the consequences of. The result of his evil act. Rather it is to preserve our heritage for freedom; that a person accused is not detained for the purpose of making him suffer indignity, and that it is effectively to make certain as nearly as the complexity and perplexity of our world will permit that the truth will be discovered and that- justice will be done.

It therefore does not rest on a misguided and naive unrequited emotionalism.

From the affidavit of the Appellant in his motion for bail in the Court below, he has been in detention for upwards of nine years. His trial before Hon. Justice Metu protracted as it was, terminated after that Judge retired and he was arraigned again before Ogugua, J. It cannot be argued that from the time the Appellant was detained i.e. when his freedom was cut short he has not been suffering.

In his short ruling the learned Judge said there ought to be a Medical Report. Admittedly there was none but the Appellant in his letter which is Exhibit A showed that the A.C.P, in charge of Owerri Prisons flatly refused to make the Appellant accessible to a Consultant. It is to be noted that there was no Counter Affidavit debunking the allegation of facts contained in Exhibit A and the affidavit. It must not be easily forgotten that in a country that prides itself of democratic tenets, liberty and law are twin concepts and are therefore inseparable. It is said that bail for anyone accused of murder is impossible. We must avoid being intellectually captured by the shrine of formalism. We should not therefore follow false gods who are satisfied with primitive oblations, rites and ceremonies. It is our duty as guardians of justice to rise when occasions call for it and allow the goddess of justice to rule our heads and actions. In that, case the authority of the law would have been preserved and law will be used as instrument of abiding justice. Where an accused is charged of murder, he may be granted bail where an accused is charge of murder, he may be granted bail where:

(a) “That facts of deposition shows that at the time of the commission of the crime he is so far away from the scene of the crime unless it is proved or shown that he can be in more than one Place at the same time.

(b) Where it is shown that the accused is suffering from such a debilitating decease or infirmity that he needs very urgent medical attention without which he will be in danger or losing his life particularly where it is shown that confinement would generally aggravate his condition.

(c) where there has been inordinate delay in bringing the accused to trial – a state of affair which will either result in the accused staying longer in prison than the conviction and sentence and make reasonable people conclude that there has been a violation of the accuser’s constitutional rights by a subtle manipulation by use of courts sometimes incomprehensible Procedures.

I have in this judgment refused to look at the proceedings before the 1st trial Court but not the proofs of evidence. I have enough material to show that the accused has suffered considerably for an allegation which is lasting more than a decade to Prove. Shall this Court support his continued confinement? I think not. In the circumstances the appeal succeeds and the Ruling of the learned Judge is set aside.

I hereby order as follows; that accused is granted bail in the sure of N250, 000.00 with one Surety in same amount.

The Surety shall be a person of means and be owner of build-up property in Owerri or any urban area in Imo state and he shall swear to an affidavit of means

Other Citations: (2000)LCN/0874(CA)

Union Bank of Nigeria Plc V. Integrated Timber & Plywood Produces Limited (2000) LLJR-CA

Union Bank of Nigeria Plc V. Integrated Timber & Plywood Produces Limited (2000)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is an appeal against the decision of Abutu, J. of the Federal High Court, sitting at Benin delivered on the 7th day of July, 1997, refusing or dismissing the application brought by the appellant to strike out the respondent’s suit on the ground that the Honourable Court lacked jurisdiction.

The respondent’s claims in the statement of claim dated 17/2/97, filed on 18/2/97 at page 15 of the record reads;

“Wherefore the plaintiff claim against the defendant are as follows:

a) Special damages of DM 28,572.70 being the value of the Iroko furniture component exported to Belgium under LC No. K16167/65626 or the Naira equivalent of N1,478,279.80.
b) Loss of earnings on investment of DM 28,527.70 at the rate of 15% per annum at the commercial bank savings rate interest of 15% per annum for the period 1st January, 1991 to the day of judgment.
c) N60,000.00 as general damage for negligence”.

In the statement of claim the respondent in paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 averred as follows:-

“1. The plaintiff is a company registered under the laws of the Federal Republic of Nigeria which carries on the business of processing Timber and Plywood of various kinds for export and local use. The plaintiff has its registered office in Warri, Delta State of Nigeria.

The defendant is a Public Limited Liability Company incorporated under the laws of the Federal Republic of Nigeria to carry on banking business and in furtherance of its business operations opened and runs various branches in different parts of Nigeria, including Warri.
As part of defendant’s business structure, defendant has International Banking Department, Export Unit, which renders professional banking advice and export banking services to members of the business public on letters of credit, Export on foreign trade and allied matters on commission basis.
Sometime in 1990, the plaintiff received through its bankers, the New Nigeria Bank Plc, a telex of an Irrevocable Documentary Letter of Credit No. 16167/65626 from the defendant which said letter of credit has as its applicant, C.I.E Dubois-Stockmanns of Belgium, the plaintiff as the beneficiary and Krediet Bank N. V. of Belgium as the foreign bank which purportedly issued same. The plaintiff shall found on a copy of the said telex letter for its full terms and effects.
By a letter Reference IDC0090/90 dated 12/10/90 addressed to the plaintiff’s said bankers, and a copy to the plaintiff, the defendant advised on and confirmed the authenticity of the telex establishing the letter of credit and requested for the sum of N25.00 as advising commission. The plaintiff upon receipt of a copy of defendant’s letter paid the commission of N25.00 to the defendant with a NNB Limited draft No. 602092 of 19/11/90 and acted on the defendant’s advice and confirmation by exporting Iroko furniture components to C.I.E. Dubois Stockmanns in Belgium between the 30th November, 1990 and 30th December, 1990 (both days inclusive). The plaintiff shall found on NNB letter of 14/11/90, plaintiff’s letter of 21/11/90 addressed to the NNB Limited, Warri, plaintiff’s invoices No. 007, 008 and 009 for the export in the value of DM 28,527.70 delivered to the defendant.
By the terms of the letter of credit, the plaintiff’s drafts for the value of the goods were to be paid on presentation of the relevant shipping documents to the defendant which the plaintiff duly submitted to the defendant and up till now the plaintiff has received no draft or payment for the value of the goods exported under the said letter of credit.
At the time the defendant forwarded to the plaintiff the said letter of credit and the letter of confirmation dated 12/10/90, the defendant intended and it well knew or ought to have known that the plaintiff would rely on them and would be induced thereby to export its goods upon the terms contained therein. In the premises, the defendant was under a duty to take care in the making of the said representation to the plaintiff so as not to cause plaintiff any financial loss or damage.
Acting on the faith of the defendant’s representations and induced thereby, the plaintiff exported Iroko furniture components in the value of DM 28,527.70 to C.I.E. Dubious Stockmanns in Belgium and for which no payment has been received.
In breach of the said duty, the defendant was guilty of negligence in making the said representations”.

By a motion dated 24/3/97, filed on 24/3/97, the appellant as the defendant sought for an order of the Honourable Court, dismissing and or striking out the suit on the grounds that it lacks jurisdiction to entertain the suit. The motion was supported by a seven paragraphs affidavit, deposed to by one J. O. Muwhen, a legal practitioner of No. 78, Warri/Sapele Road, Warri. Paragraphs 1-6 of the supporting affidavit reads as follows:

“1. That I am a legal practitioner in the firm of E.L. Akpofure & Co. Counsel to the defendant/applicant by virtue of which I am conversant with the facts of this case.

That the plaintiff/respondent filed this suit on the 9th day of October, 1996. Herein attached and marked Exhibit “A” is the plaintiff/respondent’s claim.
That I know as a fact that by virtue of Exhibit “A” i.e. plaintiff/respondent’s statement of claim, this Honourable Court lacks jurisdiction to entertain this suit.
That such claim as per Exhibit “A” does not fall within the purview of this Honourable Court’s power to determine.
That this Honourable Court should dismiss and or strike out this suit.
That the plaintiff/respondent will not be prejudiced”.

No counter-affidavit was filed in opposition to the motion. After argument by both Counsel, the learned trial Judge in his ruling on 7th July, 1997 held,

“In the result, I hold that the suit is one within the admiralty jurisdiction of this Court. The Court therefore has jurisdiction to entertain the suit. The objection is overruled and the motion is hereby dismissed”.

Being dissatisfied with the ruling the appellant filed his notice and grounds of appeal on 11/7/97 containing one ground of appeal and with the leave of this Honourable Court, filed one additional ground of appeal incorporated in his brief of argument. From his two grounds of appeal, the appellant formulated two issues for the determination of this Court as follows:

“1. Whether the learned trial Judge was right in law when he held that he had jurisdiction to entertain this suit by virtue of section 1(1)(h) of the Admirably Jurisdiction Decree No. 59 of 1991.

Whether the learned trial Judge was right in law when he held that S.230(1)(d) of the 1979 Constitution as amended by Decree 107 of 1993 does not apply to the suit because the transaction is not one between a bank and its customer”.

The respondent in the respondent’s brief formulated one issue for the determination of this Honourable Court which reads,

“1. Whether the learned trial Judge was wrong in holding that he had jurisdiction to entertain the claim of the plaintiff?”.

When the appeal came up before this Honourable Court on 6/6/2000 for hearing, both counsel adopted and relied on their respective briefs.

Chief E. L. Akpofure, the learned Senior Advocate of Nigeria, for the appellant submitted in the appellant’s brief of argument that this transaction that gave rise to this appeal is between a bank and customer. He stated that the complaint of the respondent can be found at page 7 lines 25-40 and page 8 lines 1 – 28 and pointed out that a close look at the complaint would reveal that the dispute has arisen out of bank/customer relationship. The learned Senior Advocate of Nigeria further submitted that by the proviso of Section 230(1)(d) of the 1979 Constitution as modified by Decree 107 of 1993, the jurisdiction of the Federal High Court was ousted. He stressed that the issue involved in this appeal can better be appreciated when one takes a close look at the proviso of Section 230(1) of the 1979 Constitution. Learned Counsel referred to Section 230(1) of the 1979 Constitution as well as the proviso of Section 230(1)(d) of the 1979 Constitution as modified by Decree 107 of 1993 and contended that it is immaterial whether the transaction arose from letter of credit or any other form of banking or duty as the main issue for consideration is whether the dispute is between an individual customer and a bank. It is the submission of the learned Senior Advocate of Nigeria that Decree 107 of 1993 being later in time takes precedence over and above the provisions of Section 1(1)(h) of the Admiralty Jurisdiction Decree 1991 consequently the provision of Section 1(1)(h) of the Admiralty Decree ceases to have effect as a result of the amendment to Section 230(1) of the 1979 Constitution by Decree 107 of 1993. Relying on the authority of Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668, 690, learned Counsel for the appellant concluded his argument on his issue No. 1 by submitting that the learned trial Judge was wrong in relying on Section 1(1)(h) of Admiralty Jurisdiction Decree 59 of 1991 in conferring jurisdiction on the trial court.

On his issue No. 2, learned Senior Advocate of Nigeria for the appellant submitted that the learned trial Judge erred in law when he held that Section 230 (1)(h) of the 1979 Constitution as modified by Decree 107 of 1993 does not apply to this suit on the ground that the transaction is not one between a bank and its customer when the averments in paragraphs 4-9 of the statement of claim show beyond question that the dispute between the parties is in connection with a letter of credit transaction for exportation of goods out of Nigeria, citing NNB v. Odiase (1993) 8 NWLR (Pt. 310) 235. 243, in support of his submission. In conclusion, the learned Senior Advocate of Nigeria for the appellant urged us to allow the appeal.

In reply, Mr. C. A. Ajuyah, the learned counsel for the respondent in the respondent’s brief, commenced his submission by referring to the writ of summons which set out the respondent’s claim which was amplified in paragraphs 4, 5, 6, 7 and 8 of the statement of claim endorsed on the writ of summons and submitted that the learned trial Judge was perfectly right in his finding. Relying on the authorities of Egonu v. Egonu (1978) 11/12 SC 111; Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668, 685, learned counsel for the respondent submitted that, this Honourable Court should not disturb the finding of the learned trial Judge. He further submitted that the Admiralty Jurisdiction Decree No. 59 of 1991 has vested on the Federal High Court exclusive jurisdiction to hear and determine any banking or letter of credit transaction involving importation or exportation of goods to and from Nigeria in ship, notwithstanding that the transaction is between a bank and its customer and referred to Sections (1)(h) and 19 of the Decree. He emphasized that the learned trial Judge was not wrong in assuming jurisdiction by virtue of Decree No. 59 of 1991. It is the submission of the learned Counsel for the respondent that Section 230(1)(d) and its proviso are not applicable to this case consequently the learned trial Judge was right in dismissing the appellant’s application. He contended that assuming but without conceding that the Federal High Court does not have jurisdiction, the proper order to be made is of transfer of the suit to the appropriated State High Court by virtue of the provisions of Section 22 of the Federal High Court Act and not striking out or dismissing the action. Learned Counsel for the respondent finally submitted that the appeal lacks merit and ought to be dismissed.

In my humble opinion, the main issue in controversy in this appeal is the issue of jurisdiction of the trial court, the Federal High Court, having regards to the respondent’s claim and the provisions of the Admiralty Decree No. 59 and the 1979 Constitution particularly Section 230(1)(d) as modified by Decree 107 of 1993. It is for this reason that I have opted to determine this appeal on the sole issue, formulated for determination in this appeal by the respondent. It is therefore necessary for a better understanding of the matter to reproduce the provisions of the law relied upon by the parties and the learned trial Judge in reaching his decision.

The learned trial Judge relied on Section 1(1)(h) of the Admiralty Decree No. 59 of 1991, in his decision that, the Federal High Court has jurisdiction to entertain the suit in refusing the order sought for striking out the suit by the appellant and in dismissing the motion. Section 1(1)(h) of the Decree reads:

“1.(1) The admiralty jurisdiction of the Federal High Court (in this Decree referred to as “the Court”) includes the following, that is:- (a) jurisdiction to hear and determine any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in Section 2 of this Decree;

(b) any other admiralty jurisdiction being exercised by any other court in Nigeria immediately before the commencement of this Decree;

(c) any jurisdiction connected with any ship or aircraft which is vested in any other court in Nigeria immediately before the commencement of this Decree:

(d) any action or application relating to any cause or matter by any ship owner or aircraft operator or any other person under the Merchant Shipping Act or any other enactment relating to a ship or an aircraft for the limitation of the amount of his liability in connection with shipping or operation of aircraft or other property;

(e) any claim for liability incurred for oil pollution damage;

(f) any matter arising from shipping and navigation on any inland waters declared as national waterways;

(g) any matter arising within a Federal port or national airport and its precincts, including claims for loss of or damage to goods occurring between the off-loading of goods across space from a ship or an aircraft and their delivery at the consignee’s premises or during storage or transportation before delivery to the consignee;

(h) any banking or letter of credit transaction involving the importation or exportation of goods to and from Nigeria in a ship or aircraft, whether the importation is carried out or not and notwithstanding that the transaction is between a bank and its customer;

(i) any cause or matter arising from the constitution and powers of all ports authorities, airport authority and National Maritime Authority;

(j) any criminal cause and matter arising out of or concerned with any of the matters in respect of which jurisdiction is conferred by paragraphs (a) to (i) of this subsection”.

Section 230(1) of the 1979 Constitution which spelt out the jurisdiction of the Federal High Court, reads as follows:

“230(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction

(a) in such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly; and

(b) in such other matters as may be prescribed as respects which the National Assembly has power to make laws.

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

The relevant provision of Decree 107 of 1993, referred to and considered in the ruling is section 230(1)(d) of the 1979 Constitution as amended by Decree 107 of 1993 which reads

“230-(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by any Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:-

a) the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;

(c) Customs and excise duties and export duties, including any claim by or against the Department of Customs and Excise or any member or officers thereof, arising from the performance or purported performance of any duty imposed under any regulation relating to customs and excise duties and export duties;

(d) banking, banks, other financial institutions including any action between one bank and other, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory note and other fiscal measures; Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank”.

The position on the question of the criterium to be followed in determining jurisdiction has long been settled. The position is that it is the plaintiff’s demand or claim that determines the jurisdiction of a court. Therefore, in order to ascertain whether or not a court has jurisdiction to try a case, one only needs to look at the plaintiff’s claim: See Izenkwe v. Nnadozie (1953) 14 WACA 361: Adeyemi & Others v. Opeyori (1976) 9 – 10 SC 31 at 51; Egbuziem v. N.R.C (1994) 3 NWLR (Pt. 330) 23; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 549 and Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284.

In New Nigeria Bank Limited v. Boardman Odiase (1993) 8 NWLR (Pt. 310) 235 at 243, a bank customer had been defined as follows:

“….Generally, a customer is someone who has an account with a bank, or without having an account the relationship of banker and customer exists. In the latter case, some money transaction must connect banker and customer, but must arise from the nature of a contract” .

The definition of a customer also at page 386 of Black’s Law Dictionary 6th Edition in relation to a bank is as follows:

“In banking, any person having an account with a bank or for whom a bank has agreed to collect items and includes a bank carrying an account with another bank. As to letter of credit, a buyer or other person who causes an issuer to issue credit or a bank which procures issuance or confirmation on behalf of that bank’s customer”.

In my view from a careful examination of the respondent’s claims contained in the respondent’s statement of claim, herein reproduced and taking into consideration the two definitions above, it cannot be disputed that the dispute that gave rise to this action falls within the confines of the relationship between a bank and customer in which case, the jurisdiction of the Federal High Court, has been ousted by the proviso to paragraph (d) of section 230(1) of the 1979 Constitution as amended by Decree 107 of 1993.

With the greatest respects to the learned trial Judge, I disagree with him, that Section 1(1)(h) of the Admiralty Jurisdiction Decree No. 59 of 1991 has conferred jurisdiction on the trial court when the said section ceases to have effect by virtue of the modification of the Constitution by Decree 107 of 1993. See Bi zee Bee Ltd. v. Allied Bank (Nig.) (1996) 8 NWLR (Pt. 465) 176, 181.

The case of Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668, called in aid by the respondent, is rather in support of the appellant’s case and against the respondent in that in Lipede (supra) the Supreme Court gave effect to an amendment to the law pertaining to Chieftaincy matters. Issue (c) formulated for determination in the appeal before the Supreme Court in Lipede (supra) was Whether Exhibit “18” (the registered registration) had been revoked by the Western State Legal Notice No 6 of 1976 as to render it inapplicable to Ashipa Egba Chieftaincy. The Supreme Court resolved issue (c) as follows:

“To hold that Exhibit’ 18′ applies to the minor chieftaincy of Ashipa Egba, therefore, is to make a pronouncement that Part 2 of the Chiefs Law applies to minor chieftaincy and thus a negation of the provisions of W.S.L.N. No.6 of 1976 as well as sections 4 and 22(2) of the Chiefs Law, Cap 20 of Ogun State. While Part 2 of the Chiefs law is not a repealed Ordinance, it only became inapplicable to the Ashipa Egba Chieftaincy by operation of law”.

It is trite law that courts guard their jurisdiction zealously and jealously but where in a given case that jurisdiction is expressly ousted by the provisions of the Constitution, Act, Law, Decree and Edict once it is couched in clear and unequivocal terms there must be compliance with such an ouster clause. Agwuna v. A.G. Fed. (1995) 5 NWLR (Pt. 396) 418; A.G. of the Federation v. Sode (1990) 1 NWLR (Pt.128) 500.

My answer to the sole issue is therefore in the affirmative in that the learned trial Judge, in my opinion was wrong to have held that he had jurisdiction to entertain the claim of the plaintiff/respondent.

In the result, in view of the foregoing, the appeal succeeds and is hereby allowed. I hold that the learned trial Judge lacks the jurisdiction to entertain the action having regards to the proviso to paragraph (d) of Section 230(1) of the 1979 Constitution (as amended).

Having held that the Federal High Court lacks Jurisdiction to entertain the matter, I order that Suit No. FHC/B/134/96, pending before the Federal High Court, Benin be transferred to the Delta State High Court, the appropriate court, for hearing and determination, in accordance with Section 22(2) of the Federal High Court Act Cap 134 Laws of the Federation, 1990 and Order 8 of the Federal High Court (Civil Procedure) Rules, 1976

The appellant is entitled to costs assessed at N3,000.00 against the respondent.

Other Citations:(2000)LCN/0873(CA)

Nireko Enterprises Limited V. First Bank of Nigeria Plc (2000) LLJR-CA

Nireko Enterprises Limited V. First Bank of Nigeria Plc (2000)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

In an action commenced by the plaintiff/applicant at the High Court Awka, Anambra State, it claimed against defendant/respondent the following reliefs:

“(a) N3.8 million (Three million eight hundred thousand naira) being loss of profit suffered by the plaintiff in consequence of the wrongful dishonour by the defendant of cheque No.HV00662438 of 14/9/95 issued to the plaintiff by the Anambra State Local Government Joint Service Committee.

(b) Interest at 10% on the judgment award until payment.

(c) N380,000.00 (three hundred and eighty thousand Naira) being fair and reasonable fees agreed to be paid as solicitor’s fees.”

Pleadings were duly filed and exchanged, PW1 testified. Following a motion by the defendant/respondent to dismiss the suit for lack of capacity and locus in the plaintiff to bring action, the court on 24th July, 1997, in a considered ruling, dismissed the motion and adjourned the case for continuation of hearing. Against this ruling, the defendant has appealed to this court by a notice of appeal dated 7th day of August, 1997. The defendant also by a motion dated 20th day of October, 1997, prayed the lower court for a stay of further proceedings in the suit pending a determination of the appeal filed by the defendant to this court. The plaintiff/applicant has now filed a motion in this court dated 28th day of March, 2000 praying this court for an “order striking out the notice of appeal dated 7/8/97 being against an interlocutory decision of the Awka High Court without leave. This ruling is in respect of this motion.

The plaintiff/applicant’s motion is supported by a 4 paragraph affidavit and a further affidavit of eleven paragraphs to which is attached the ruling of 24th July, 1997, as well as a copy of the notice of appeal. The defendant/respondent in the motion also filed a counter-affidavit of 5 paragraphs.

Arguing his motion to strike out the appeal, learned counsel for the applicant submits that the decision appealed against is interlocutory. He refers to section 220 of the 1979 Constitution of Nigeria and submits that the decision dismissing the motion was interlocutory not final and therefore leave is required to appeal. Learned counsel refers to Coker v. Coker (1963) 2 SCNLR 220, (1963) 1 All NLR 297. Counsel further submits that the grounds of appeal are not on law but on mixed law and fact. He refers to Akinsanya v. U.B.A (1986) 4 NWLR (Pt.35) 273. (1985) 7 S.C (pt.1) 223 at 275 -6. This case does not exist in (1985) 7 SC (Pt.1) of the law report.

Onyejiaka, Esq. learned counsel for the respondent in the motion refers to his counter-affidavit and says that the decision he appealed against is final and therefore required no leave. He refers to FMB Ltd v. NDIC (1995) 6 NWLR (Pt. 400) 226 at 244; Western Steel Works Ltd & Anor v. Iron and Steel Workers Union of Nigeria (1986) 6 S.C 35 at 44, (1986) 3 NWLR (Pt.30) 617. On the grounds of appeal, he submits that they are no law alone and therefore no leave is required, Counsel however says that if grounds 2 and 3 are found to be mixed law and fact, he applies to withdraw them.

Two questions call for determination in this application. Firstly, was the ruling of the lower court on the 24th July, 1997 a final or an interlocutory decision? Secondly, are the grounds of appeal on law alone or mixed law and facts? I shall answer the first question first.

The importance of the question as to whether the decision of the 24th July, 1997 is final or interlocutory stems from the provisions of the 1979 Constitution of the Federal Republic of Nigeria. For, if it is a final decision, the applicant needs no leave of the court to appeal whereas if it is an interlocutory decision other considerations will come into play. Section 220(1) and (b) of the 1979 Constitution (S. 241) (1)(a) and (b) of the 1999 Constitution) provides as follows:

“220 – (1) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases:-

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

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

The question now is, does the decision of the 24th July, 1997 come under S. 220(1)(a) of the said Constitution? In other words, is the decision final or interlocutory? Although S. 220 (1 )(b) of the aforementioned Constitution does not use the word “Interlocutory” it is however clear that if a decision of the Court is not final it must necessarily be interlocutory.

As Obaseki J.S.C. observed in Western Steel Works Ltd & Anor v. Iron and Steel Workers Union of Nigeria (supra) at page 42.

“The classification of decisions into interlocutory and final has not over the years been an easy one.”

I will add that difficulty continues up to the present time despite efforts by Nigerian and British Judges to find a solution. Although the word decision is defined in S.277(1) of the 1979 Constitution of Nigeria neither the word “interlocutory” decision nor “final” decision is in anywhere in the Constitution defined. Various tests have been preferred by different Judges in an attempt to ascertain the nature of either of the decisions. Some Judges have based their decisions on the nature of the application before the court leading to the decision or the order that is made. Others have based the classification on the nature of the order made. In Salter Rex & C. v. Hosh (1971) 2 All E.R. 865 at 866 Lord Denning M. R. said;

“The question of interlocutory” is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point.

See also Technistudy Ltd v. Kelland (1976) 1 WLR 1042 or (1976) 3 All ER 632. In Omonuwa v.Oshodin & Anor.(1985) 2 NWLR (Pt.10) 924 at 932, (1985) 2. SC 1 at 19 Karibi-Whyte J.C.A. said that;

“This difficulty stems from the lack of precision or certainty in the definition of the words or the uncertainty of judicial decisions on this issue.”

At page 31 (P. 938 NWLR) of Omomwa v. Oshodin (supra) the learned Justice observed as follows:

“All the cases cited agree on the proposition that a decision between the parties can only be regarded as final when the determination of the court disposes of the rights of the parties (and not merely an issue) in the case. Where only an issue is the subject-matter of an order or appeal the determination of that court which is a final decision on the issue or issues before it which does not finally determine the rights of the parties is in my respectful opinion interlocutory.”

Let me now examine some of the attempts made at defining ‘final’ and ‘interlocutory’ decisions. In Gilbert v. Endean (1878) 9 Ch D. 259, Cotton L.J. at pages 268 – 269 said as follows of interlocutory applications:

“Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties.”

In Blakey v. Latham (1890) 43 Ch. D. 23 at page 25, Cotton L.J. once again observed:

“Any order, in my opinion, which does not deal with the final rights of the parties, but merely directs how the declarations of right already given in the final judgment are to be worked out is interlocutory, just as an order made before judgment is interlocutory where it gives no final decision on the matters in dispute, but merely directs how the parties are to proceed in order to obtain that final decision.”

On final judgment he said:

“I cannot help thinking that no order in an action will be final unless a decision upon the application out of which it arises, but given in favour of the other party to the action would have determined the matter in dispute.”

In Re Faithful Ex parte Moore (1885) 14 QBD 627 at 629, the Lord Justice once again said;

“I think we ought to give to the words ‘final judgment’ in this subsection, their strict and proper meaning, i.e. a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established unless there is something to show the use of the words in an extended sense.”

In Salaman v. Warner (1891) 1 QBD 734 at 734 Lopes L.J. gave a more precise characterisation of what a final judgment or order is. Said the learned Lord Justice:

“I think that a judgment or order would be final within the meaning of the rules when, which ever way it went, it would finally determine the rights of the parties.”

In Bozson v. Altrincham Urban District Council (1903) 1 K.B. 547 at 549550, Lord Alverstone L.C. had this to say on the distinction between final and interlocutory orders:

“it seems to me that the real test for determining this question ought to be this: Does the judgment or order as made finally dispose of the rights of the parties? If it does, then, I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”

In Standard Discount Co. v. La Grange (1677) 3 CPD 67 at 71 Brett L.J opined as follows:

“No order, judgment or other proceedings, can be final which does not at once affect the status of the parties for whichever side the decision may be given, so that if it is given in favour of the plaintiff, it is conclusive against the defendant, whereas if the application for leave to enter final judgment had failed, the matter in dispute would not have been determined.”

After a calm consideration of all the decided cases which I have set out above I have come to the inescapable conclusion as did Lord Alverstone C.J in concurrence with Earl Halsbury LC that the real test is whether the judgment or order as made finally disposes of the rights of the parties. If it does, the judgment or order ought to be treated as a final as a final judgment or order. If on the other hand it does not, then the order is interlocutory.

Applying the above proposition of the law to the facts of this case, the position is that an application was made to strike out the case on the ground of alleged lack of capacity or locus on the part of the plaintiff. The lower court after considering the application, dismissed it. Said the learned trial Judge in the last paragraph of his ruling:

‘The application is devoid of merit. It is accordingly dismissed with N1,500 costs to plaintiff. Further hearing of the substantive case is adjourned to 20th October, 1997.”

How can the above determination be taken to have decided the rights of the parties in the suit? It has not. I have no doubt in my mind that the decision or determination was not final. It was interlocutory. In fact, counsel for the defendant concedes that his appeal against the ruling of the lower court was an interlocutory appeal for in his motion for stay of further proceedings dated 20th October, 1997, he described his appeal as an “interlocutory appeal.” He would seem to have somersaulted in this motion by arguing that the decision was a final one.

I now return to section 220 and 221 of the 1979 Constitution of Nigeria. Having held that the decision appealed against is not final but interlocutory, the defendant/appellant requires leave to appeal to this court under S.221 of the aforementioned Constitution of Nigeria unless it can bring itself under S. 220 (1)(b) of the Constitution i.e. if it can show that its “ground of appeal involves question of law alone.” It now becomes necessary to set out the grounds of appeal with their particulars and to consider them to see whether they involve questions of law alone or of mixed law and facts as contended by the respondent in this motion.

The grounds of appeal are as follows:

“Ground I

The learned trial Judge erred in law when he held that the plaintiff/respondent had locus standi to institute this action.

Particulars

(a) The plaintiff/respondent’s claim is founded on contract.

(b) There is no privity of contract between the plaintiff respondent and the defendant/appellant.

Ground II

The learned trial Judge erred in law when he held that the defendant/appellant owed a duty of care to the plaintiff/respondent.

Particulars:

(a) the plaintiff/respondent did not sue for negligence.

Ground III

The learned trial Judge erred in law when he held that the defendant/appellant was a collecting banker to the plaintiff/respondent.

Particulars

(a) That the defendant/appellant was a collecting banker is not part of the plaintiff/respondent’s pleading.

(b) On the plaintiff/respondent’s pleading, the defendant/appellant was a paying banker to the plaintiff/respondent.”

It is my view that ground 1 of the grounds of appeal involves questions of law alone. The same may not be said of grounds II and III. The respondent’s counsel in the motion would seem to appreciate this when in the course of his argument he submitted that if grounds 1 and 2 are found to be of mixed law and fact he applied to withdraw them. In the circumstance, grounds 2 and 3 of the grounds of appeal are hereby struck out. Ground 1 of the grounds of appeal being purely on law alone is enough to sustain the appeal. The motion fails and is hereby accordingly dismissed.

I award N2000 to the respondent in the motion.

Other Citations: (2000)LCN/0872(CA)

Chief C. O. Odumegwu Ojukwu V. Hon. Justice Kaine (Rtd) & Ors. (2000) LLJR-CA

Chief C. O. Odumegwu Ojukwu V. Hon. Justice Kaine (Rtd) & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

Before his death on 13th September 1966, Sir Philip Odumegwu Ojukwu was the Chairman/Managing Director of Ojukwu Transport Company Limited. He left a will. He was equally survived by, amongst others, his children. The appellant before us, Chief C. O. Odumegwu Ojukwu is one of them. Others are Dr. J.O. Ojukwu and L. P. Ojukwu.

The trio were defendants in the suit which brought about the instant appeal.

The plaintiffs in the court below and now respondents, were appointed Executors/Trustees of the will of the late Sir Philip Ojukwu. It appears that the will, at the expiry of the civil war, was either lost or had become unavailable. All efforts to secure the will was to no avail. It also appears that there was agreement to reconstruct the will and have it admitted to probate. However, before the attainment of this agreed position, the appellant and 1st respondent applied for and obtained Letters of Administration to the estate of the late Sir Ojukwu. The action commenced by the plaintiffs/respondents claimed against the defendants/respondents and defendant/appellant as follows:-

(i) A revocation of the grant of Letters of Administration granted to the 1st and 2nd defendants and the same delivered up to probate registry for cancellation.

(ii) An order that the last will of Sir Odumegwu Ojukwu which was lost be reconstructed and admitted to probate.

(iii) An order that the plaintiffs/respondents with the 1st defendant/respondent be granted probate of the reconstructed will.

Trial into the suit was commenced by the then Chief Judge of the old Anambra State and subsequently continued by Justice A.O. Ezeani. Hearing into the case started on 3/3/94 after the new Anambra State had been created and the suit was assigned to the same Justice A.O. Ezeani. On that occasion only the 1st plaintiff was present in court. Other parties to the suit were absent. The first plaintiff testified and tendered exhibits E and F before the case was adjourned to 29/3/94, and 26/5/94. Subsequently, the case suffered six further adjournments before it was adjourned to 14/7/95 for judgment.

By a motion dated 21/6/95 but filed on 23/6/95, the appellant prayed the court for the following reliefs:-

(a) that it sets aside the proceedings of the court of 3/3/94 up to and including 2/6/95;

(b) to re-open the said proceedings, which judgment was adjourned to 14/7/95; to allow the 2nd defendant or his counsel cross-examine P.W.1 and D.W.1;

(d) “arrest” the judgment of Honourable Justice A.O. Ezeani adjourned for delivery on 14/7/95.

It is pertinent to note that only the plaintiffs/respondents filed counter-affidavits to the 2nd defendant/appellant’s motion.

Arguments were taken by the court, which in a considered ruling thereafter granted 2nd defendant/appellant’s prayer C only Prayers A, B and D were refused. The appellant is dissatisfied with the ruling of the lower court. He appeals to this court.

By his initial notice of appeal purportedly filed in this court pursuant to Order 3 rule 2 of the rules of this court, the appellant had a single ground of appeal.

This original ground of appeal is hereunder reproduced with its particulars.

Ground of Appeal:

(i) The learned trial Judge erred in law by refusing the prayer to recall P.W.1 and D.W.1, citing the case of H.A. Willoughby v. International Merchant Bank (Nig) Ltd. (1987) 1 NWLR (Pt.48) 105, a decision not relevant or apposite to relief: No (ii) in the appellant’s motion dated 21/6/95, a refusal that has denied the appellant his fundamental rights, and occasioned a miscarriage of justice.

Particulars of Errors:

(i) Willoughby’s case (supra) does not apply because 2nd appellant’s counsel who was absent in court on the dates P.W.1 and D.W.1 testified, and for reasons stated in the affidavit, did not refuse to cross-examine P.W.1 and D.W.1;

(ii) The 2nd appellant’s prayer is to cross-examine P.W.1 and D.W.1 who had testified in the absence of 2nd appellant; there was no application to recall these witnesses to proffer additional evidence, or to repair the damaged case of 2nd appellant, which he has not opened nor closed;

(iii) To recall P.W.1 and D.W.1 for cross-examination will not cause any injustice to the parties which cannot be compensated in costs; it will not be a breach of Order 24 rule 17 of Anambra State High Court Rules, 1988;

(iv) If P.W.1 and D.W.1 are not cross-examined, the legal consequence is admission by 2nd appellant of all facts stated in their evidence;

(v) In the absence of the said cross-examination and evidence of 2nd appellant, the court will have no material on which to weigh the case of the parties on that imaginary scale explicit in Mogaji v. Odofin (1978) 1 SC. 91.

(vi) Non-cross examination of P.W.1 and D.W.1 breached the fundamental right of the 2nd appellant.

(vii) Further ground of appeal will be filed upon receipt of the record.

Subsequently, five additional grounds of appeal were filed by the appellant with leave of this court. These additional grounds with their particulars are as contained at pp. 42 – 45 of the Record of Appeal.

In keeping with rules of this court, parties to this appeal had filed and exchanged briefs. There is also the appellant’s reply brief. All the counsel to the respondents are at one as to the competence of the appeal. The three learned counsel advanced arguments in these briefs as to the legality of the appeal itself.

These arguments can briefly be summarised as follows:-

(i) That the appeal is an interlocutory appeal. Whether or not the court of appeal upholds the appeal, the learned counsel argue, the substantive case would still have to go back for same to be finally determined by the trial court. The counsel variously rely on the following cases; Ocean Steamship (Nig) Ltd v. Olumutiwa Sotuminu (1987) 4 NWLR (Pt.67) P. 996 at 1002; Nwokedi v. UBN Plc (1997) 8 NWLR (Pt.517) 407 at 421.

(ii) Flowing from the interlocutory nature of the appeal itself, and the original notice and ground of appeal giving rise to the appeal, it was incumbent on the appellant to seek and obtain leave of court before such appeal could be entertained. By virtue of S.221 (1) of the 1979 Constitution, interlocutory appeal on ground of mixed law and fact is incompetent where leave of court had not been obtained. Counsel referred to amongst others, the following authorities: Ifediorah & Ors v. Ume (1988) 2 NWLR (Pt.74) 5; Oluwole v. LSDPC (1983) 5 SC. 1; Nwadike v. Ibekwe(1987) 4 NWLR (Pt. 67) 718; Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410 at 446. The three counsels submitted that the instant appeal being an interlocutory one is thus incompetent. Leave of this court or even the lower court had not been obtained.

(iii) That the leave subsequently granted appellant to file and argue additional ground of appeal by this court cannot avail the appellant to make an otherwise illegal appeal competent. The fact is that the original ground of appeal filed without leave of the court was never a ground known to law. There could only be additions to a ground that the law recognised and as such existed.

Learned respondents’ counsel accordingly ask that the appeal be discountenanced. Appellant’s counsel addressed the issue of the appeal’s competence in their reply brief. Appellant’s counsel submits that distinguishing a ground of law from one of fact is not as easy as learned respondents’ counsel made it to look. Counsel submits that the lone original ground of appeal deals with wrong application of the case of H. A. Willoughby v. International Merchant Bank (Nig) Ltd. (1987) 1 NWLR (Pt. 48) 105. Counsel also contends that particulars of error of the lone ground of appeal further reveal the concept of breach of fundamental right by refusal of the trial court to allow appellant to cross-examine witnesses that had testified in appellant’s absence. Since the original ground of appeal is competent, the additional grounds further filed would thus be valid. Appellant’s counsel submits that the appeal is competent and the preliminary objection should be struck out.

Now, let us answer the all important question: Is the appeal competent such that this court can entertain same? Put differently, is the instant appeal commenced by the due process of the Law?

I am in complete agreement with the two sides in the instant appeal that only where the appeal is shown to have been commenced in the manner provided by law would same be available for the court’s scrutiny. This must be so because a principle that has become trite, has over a sufficient period of time, evolved, making it mandatory to do an act only in the way specified by legislation. Any manner other than that provided by the law would be adjudged spurious and therefore unacceptable. An act done pursuant to but however not in keeping with the intent, tenor and format of a given statute is not only irregular, it becomes false.

Such an act only superficially resembles and simulates the genuine one as envisaged, provided for and defined by the law. The act which is a sham, a counterfeit, must invariably be discountenanced. It did not proceed from a reputed origin. See Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506 at 589. Obimonure v. Erinosho (1966) 1 All NLR 250: Management Enterprises Ltd v. Otusanya (1988) 2 NWLR (Pt.55) 179 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

So many decisions have been given on the import of s. 221 (1)(b) of the 1979 Constitution. There are those decisions from this very court. The Supreme Court too had had occasions to consider the issue of appeal from interlocutory decisions of the High court and the necessity of securing leave before the appeal becomes legitimate. In these decisions, the principle has been evolved that where the appeal is from the interlocutory decision of the High court and ground of appeal is not one of law alone, failure to obtain leave of either the High Court or the Court of Appeal as the occasion warranted would be fatal to the appeal itself see CCB (Nig) Plc v. Attorney-General Anambra State (1992) 8 NWLR (Pt.261) 528; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163; Ajani v. Giwa (1986) 3 NWLR (Pt.32) 796; Nwadike v. Ibekwe(1987) 4 NWLR (Pt.67) 718; Tilbury Constructions Ltd v. Ogunniyi (1988) 2 NWLR (Pt.74) 64; Ardo v. Ardo (1998) 10 NWLR (Pt.571) 700; SBN Plc v. Kyentu (1998) 2 NWLR (Pt. 536) 41; Lori v. Akukalia (1998) 12 NWLR (Pt. 579) 592; Registered Trustees C.A.C. v. Uffiem (1998) 10 NWLR (Pt. 569) 322.

The number of decisions on the issue is indeed legion. Perhaps because of the volume of these authorities, parties to this appeal seem to have agreed on what the law is as to appeals such as the instant one.

The instant appeal has unmistakably arisen from the interlocutory decision of the lower court. As submitted by plaintiffs/respondents’ counsel, whatever happens before us, the case would still have to go back for the rights and obligations of the parties before the trial court to be exhaustively determined. It is this feature of the appeal that led to the Supreme Court’s pragmatic approach in defining what an interlocutory decision which invariably leads to interlocutory appeal is in Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924; see also Ajani v. Giwa (1986) 3 NWLR (Pt.32) 796. Thus, where the decision appealed against did not “finally” determine the case of the parties at trial such a decision would in law be an interlocutory one. It gives rise to an interlocutory appeal.

In the objection raised by the respondents, the only issue that remains in controversy after appellant had filed his reply brief is as to the nature of the original ground of appeal. It perhaps need to be recalled that this original ground had already been reproduced earlier on in this judgment.

Appellant’s sole original ground is christened one of law. We are invited by appellant’s notice of appeal and this very ground to hold that the trial Judge in the discharge of his judicial function had committed an error of law. Truly, appellant’s counsel needs to be reminded, as submitted variously by counsel to all the respondents, that a ground of appeal does not necessarily qualify as a ground of law simply on the basis of the ground being so called. See ACB Plc v. Obmiami Brick and Stone (1993) 5 NWLR (Pt.294) 399 at 421 and Metal Construction (West African) Ltd v. Migliore (1990) 1 NWLR (Pt.126) 299. The determining factor in assessing whether or not a ground of appeal is one of law, mixed law and facts or facts alone is the complaint for which the ground had been put in place. What complaint an intending appellant sets out to make is invariably deciphered from an examination of the ground itself.

It has over a period of time become generally accepted that where the ground of appeal is based on complaint of errors emanating from a conclusion on undisputed facts, the ground is a ground of law. However, if the errors complained of are founded on disputed facts and by the complaint the correctness of the ascertained facts is being challenged, the ground is one of mixed fact and law. Invariably, where the trial court is asked to exercise its discretion and the appellant’s complaint as contained in his ground of appeal relates to the exercise of the courts discretionary powers, the ground would be adjudged one of mixed law and fact. The ground of appeal cannot be otherwise adjudged because an exercise of discretion involves consideration of the competing facts relied upon by the parties. See Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5; Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.

In the instant case, the appellant as defendant had prayed the lower court to exercise its discretion in his favour. He sought to re-open a case that had been closed and adjourned for judgment. He asked to be allowed to have witnesses who had testified and were discharged to be recalled. He sought to be allowed to cross-examine these witnesses. He prayed further to put his case across. Why all these prayers? Appellant alleged that he had not been effectively served the court processes and as such all proceedings that when he was not legally aware should be set aside. Whether or not the appellant was served the court processes was a question fact. The court arrived at its decision not to allow P.W.1 and D.W.1 to be recalled and cross-examined by appellant after the court’s assessment of competing facts.

A ground of appeal which questions the trial court’s conclusion drawn from disputed facts cannot certainly be one of law. Nor can a complaint on the exercise of the court’s discretion be made through the agency of a ground of appeal of law alone. It is for this reason that I hold that appellant’s sole original ground of appeal is one of mixed law and fact at best. Applying the principles of law I tried to narrate in the foregoing to the case at hand, since appellant’s sole ground of appeal has been adjudged not one of law simpliciter, the appeal before us cannot be entertained. I agree with learned respondents’ counsel that the appeal is incompetent.

It must be stated that the right of appeal is a creature of a statute. Intending appellants must comply with the law, in this case S. 221(1)(b) of the 1979 Constitution which creates the right of appeal and defines how to translate same into reality.

The appellant’s initial ground of appeal, though filed within time as agreed by both sides to this appeal, cannot avail appellant in his later application and the subsequent indulgence granted him to file additional grounds of appeal. A person can only be permitted to add unto something in existence. Where nothing exists of the quality, constitution, form or gender with that other which is sought to be added, no addition can truly be made.

It is only the eventual lot that would be heaped. In the instant case, since the initial ground of appeal never existed for same had been filed with out the leave of the court as required by law, further addition to same cannot tally or hold. By the time the addition was sought to be made, besides, time had ran out of appellant. It was an interlocutory appeal and the additional grounds purportedly filed subsequently were filed out of the 14 days range which the law allowed.

In essence this appeal cannot be enquired into by this court. The preliminary objection by respondents’ counsel is well taken and is hereby sustained. Accordingly the appeal is hereby struck out.

Respondents are entitled to cost. N2,000.00 is hereby awarded to each set of respondents making accumulative total of N6,000.00 against the appellant.

Other Citations: (2000)LCN/0871(CA)

Amos Bez Idakula (Des’d) V. Dorcas Richards & Anor (2000) LLJR-CA

Amos Bez Idakula (Des’d) V. Dorcas Richards & Anor (2000)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is a composite appeal against three decisions of Momoh J. (as she then was) of the Plateau State High Court, sitting at Jos in suit No. PLD/J/334/89 delivered on three different dates as follows:

(i) “Judgment delivered on 22/4/91 for plaintiff against 1st defendant for the admitted sum of N30,000.00 with 15% interest effective from July, 1987 till amount is fully paid up. The unadmitted balance and case against 2nd defendant is to proceed to trial on 8/5/91.

(ii) Judgment delivered on 16/5/91 as follows at p.56 of records:-

The plaintiff now claims the balance of N28, 200 with 15% interest from July, 1987. Defendant Pleads liable to the said balance claimed. The defendant liable to pay the balance of N28,200.00 with 15% interest from July, 1987. Defendant ordered to pay the said amount.

I apply to be allowed to pay N15,000.00 per quarter.

The defendant to pay the judgment debt when due by quarterly instalments in advance beginning from the month of June, 1991 until amount is fully liquidated. The 1st defendant’s vehicle Reg.No. PL 16 JE seized in execution is to be released. The case against the Bank, 2nd defendant adjourned to 10/7/91. The notice and grounds of appeal was filed on 27/6/96.

(iii) A ruling of the learned trial Judge delivered on 12/12/91 dismissing an application of the judgment debtor applicant to set aside its ruling of 13/11/91 granting leave for the judgment-creditor to levy execution on the immovable property of the judgment debtor at 15 Mangu Road, Jos on the ground that the motion papers were served on the judgment debtor on 12/11/91 and argued and granted on 13/11/91, when two clear days had not yet expired as required by Order 8 rule (4)(17) and (21) of the High Court Civil Procedure Rules of Plateau State.”

The notice and grounds of appeal against this last ruling was dated 12th December, 1991.

The facts of the case leading to these multiple appeals were as follows: Sometime in April, 1987, the 1st respondent, Dorcas Richards, was awarded a contract by the Directorate for Rural Development to supply ten INDIA MARK II hand pumps at the rate of N6,500.00 (Six thousand five hundred Naira only) per pump totaling N65,000.00. On finding difficulty in obtaining INDIA MARK II hand pumps locally, the plaintiff wrote to the said Ministry of Rural Development pleading that she should be allowed to supply Nigerian Hand pumps instead of the INDIAN at the same price, and she was duly granted permission to do so.

In due course, the hand pump were duly delivered, and vouchers for the sum of N58,200.00 (i.e. N65,000.00 less Government Tax) duly prepared and made payable to the plaintiff. However, for a reason that was not clearly explained in her pleadings, plaintiff directed that the cheque for N58,200.00 should be delivered to the 1st defendant for onward payment to her. That was done, but instead of the 1st defendant taking the cheque to the plaintiff, he paid the cheque into his personal account at the Savannah Bank in Jos. Not only that, he also began to take out of the money and converted to his personal use. When plaintiff came to know about these, she wasted no time in instituting an action against the 1st defendant alone for the recovery of her money-N58,200.00 only. Furthermore, for a reason that was also not stated, the plaintiff changed her counsel and brought in a new counsel O. B. James Esq., who now filed amended papers joining Savannah Bank Ltd. as 2nd defendant. He further increased the amount claimed from N58,200.00 to N208,200.00 whereof N58,200 was the plaintiff’s money fraudulently converted by the 1st defendant, while N150,000.00 was damages for negligence apparently against the 2nd defendant, for allowing or colluding with 1st defendant to allow him cash a cheque that was not endorsed to him.

An amended statement of claim was also filed to bring in the 2nd defendant, the additional cause of action and the increased amount claimed. In response to the amended statement of claim the 1st defendant filed a statement of defence in which he admitted collecting a cheque for N58,200.00 from the Ministry of Rural Development on behalf of the plaintiff, but stated further that he was authorized by the plaintiff to deduct the sum of N11,100.00 from the money as his commission for intervening on behalf of the plaintiff with the officials of Ministry of Rural Development to influence them to vary the terms of the contract with plaintiff, by allowing her supply to them TEN NIGER HAND PUMPS instead of TEN INDIA MARK II HAND PUMPS originally contained in the specification given to plaintiff. It was in accordance with the plaintiff’s instruction that he paid the Lion Bank’s cheque given to him by the Ministry of Rural Development into his account at Savannah Bank Ltd. Apart from deducting N11,100.00 for himself as instructed by plaintiff, he also invested N30,000.00 in Idakula Mining Company also as directed by plaintiff. Finally, that he was also directed by the plaintiff to pay over the balance of N17,100.00 to her in the name of NDUDIM IKELUA, who resided at No. 7 Enugu-Agidi Street, which was plaintiff’s business Head Office, and he did so by a Savannah Bank Cheque No. 142/c 112537 issued on 16/7/87.

After some protracted delay, the 2nd defendant also filed its statement of defence in which he denied all the allegations of fraud, collusions and negligence made against it by the plaintiff. He stated further that the 1st defendant had pleaded passionately with them to allow him pay the cheque for N58,200.00 issued in the name of “CASOBIC (NIGERIA) ENTERPRISES” into his account as he was the Managing Director of the said company and they allowed him to do so.

In due course, the case came before Momoh J. (as she then was) for trial at High Court No. 4 Jos on 22/4/91.

On that day Mr. Moses Gwadana who appeared as counsel for the 1st defendant informed the court that the 1st defendant was liable to the plaintiff in the sum of N30,000.00 as against N58,200 claimed. Mr. O. B. James who was the learned counsel for plaintiff then applied for judgment in the said sum of N30,000.00 with 15% interest admitted by the 1st defendant for the balance to proceed to trial.

The learned trial Judge then entered judgment in favour of plaintiff as follows:-

“(1) Judgment for the plaintiff against the 1st defendant for the admitted sum of N30,000.00 with 15% interest effective from July, 1987 till amount is fully paid up.

(2) The unadmitted balance and case against 2nd defendant to proceed to trial on 8/5/91.

Sgd. C. A. R. Momoh

Judge

22/4/91”.

Against this judgment, the 1st defendant, did not appeal immediately, but waited till 27th June, 1996 when he had to obtain leave and extension of time from the Court of Appeal, Jos, before doing so. On that same date the 1st defendant through his counsel filed a notice of appeal with only one ground of appeal that read as follows:

Ground One:

The learned trial Judge erred in law when she ordered the appellant to pay 15% interest per annum on the sum admitted on 22/4/91 from July, 1987 when she lacked the jurisdiction to so order and this has occasioned a substantial miscarriage of justice.

Eight “Particulars of error” were thereafter set down, which is not necessary to reproduce here, as they were later subsumed in the issues for determination.

As mentioned in the introductory paragraphs of this judgment there were two other appeals in this case making three altogether. The next appeal was against the decision of the same Judge against the 1st defendant on 16/5/91, when the case went to court again for the hearing of in respect of the unadmitted balance of N28,200.00. However, on that day, instead of the plaintiff commencing to give evidence on her case, or calling other witnesses, the following notes then appeared in the record at p. 56 lines 19-28:

“The plaintiff now claims the balance of N28,200 with 15% interest from July, 1987. Defendant pleads liable to the said balance claimed. The defendant liable to pay the balance of N28,200.00 with 15% interest from July, 1987. Defendant ordered to pay the said amount. I apply to be allowed to pay N15,000.00 per quarter. The defendant to pay the judgment debt when due by quarterly instalments in advance beginning from the month of June, 1991 until amount is fully liquidated. The 1st defendant’s vehicle registration No. PL 16 JE seized in execution is to be released. The case against the Bank, 2nd defendant adjourned to 10/7/91.”

Against the above judgment, the 1st defendant also appealed on 27th June, 1996, after obtaining leave and extension of time from the Court of Appeal, Jos, to do so. Two grounds of appeal were filed, which without their particulars read as follows:

“Ground One

The learned trial Court erred in law when it entered judgment for the respondent in the sum of twenty-eight thousand, two hundred Naira when there was neither admission by the appellant nor evidence adduced in proof and this has occasioned a substantial miscarriage of justice.

Ground Two

The learned trial Judge erred in law when she ordered the appellant to pay 15% interest per annum the sum on 16/5/91 from July, 1987 when she lacked the jurisdiction to so order and this has occasioned a substantial miscarriage of justice.”

A separate brief of argument dated 12th September, 1996 was later filed in which two issues for determination were raised as follows:

“(a) Whether the judgment of the lower court given on the 16/5/91 for the balance of N28,200 is justified.

(b) Whether the claim for interest awarded by the trial court has any valid basis.

Issues A & B formulated above relates to grounds 1 & 2 respectively.

Finally, a 3rd notice of appeal dated 12 December, 1991 was filed complaining against a decision of the learned trial Judge, Momoh, J. (as she then was) when she dismissed the application brought by the appellant to set aside the order of court on 13th November, 1991 which granted leave for execution to be levied against 1st defendant’s immovable property at No.15 Mangu Road, Jos. However, I have looked through the whole of our courts record and can find no indication that a brief of argument was subsequently filed in this appeal as required by our rules. In such a situation, it is our law that:

“Where no argument was offered in a brief in support of a ground of appeal, such a ground of appeal, is deemed to have been abandoned, and should be struck out. Ukariwo Obasi & Anor v. Eke-Onwuka & Ors. (1987) 7 SCNJ 84, (1987) 3 NWLR (Pt. 61) 364.”

I should also mention that on the oral hearing of this appeal (ex parte) on 15/5/2000, Mr. Oguadinma who appeared as learned counsel for appellant informed the court that they had consolidated their two appeals together, i.e. appeals No.CA/J/104/96 and CA/J/104A/96, for which two briefs were dated and filed on same date 12/9/96. He was therefore arguing them. In the absence of respondent, the two appeals were deemed consolidated and therefore argued together. Also, in view of the authorities mentioned above, it is deemed that the notice and grounds of appeal filed on 12/12/91 against the learned trial Judge’s ruling of 12/12/91 was inferentially abandoned. It is hereby struck out. I should also mention that there is in this appeal file, a motion paper dated 8th December, 1997 and filed on 11/12/97 which indicated that the original appellant Amos Bez Idakula died on the 7th November, 1997, as a result of a road traffic accident along Suleja-Minna road. As a result of that application which was supported by a Death Certificate dated 8/11/97 from General Hospital, Minna, the name of the original appellant (Amos Bez Idakula) was struck out, and that of his wife Mrs. Rhoda Idakula substituted as the new appellant to enable the appeal heard to the end.

The said application was duly granted on 7/11/99. All the processes of court in this appeal ought therefore to have been amended to show that the new appellant was Mrs. Rhoda Idakula. It appears that only the name on the file jacket was amended. It is accordingly hereby ordered that all the documents in this appeal records be amended to show Mrs. Rhoda Idakula (Administratrix of Amos Idakula (deceased) – Appellant.

With the death of the original appellant comes the question as to whether the cause of action survived the deceased or not, based on the maxim that ‘action personalis moritur cumpersona’. This is a question of law (not fact) which was not raised nor argued by any of the parties or their counsel. It is our rule of practice that where a point of law is raised by the court, suo motu, learned counsel on both sides should be given opportunity to address on it. However, since the respondent had lost interest in this appeal, and filed no brief at all, in consequence of which the appeal was heard ex parte on 15/5/2000, we do not think that any useful purpose will be served in stopping the judgment at this late stage, to write counsel for any further addresses. The question whether the cause of action survived the deceased 1st defendant/appellant or not, was a question that should have been considered by our learned predecessors in this court, when the motion for substitution was moved and granted. Since we cannot sit on appeal over the judgment or ruling of our learned brothers, we assume their decision was right. See the case of Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535 and Ajakaiyi v. Idehai (1994) 8 NWLR (pt. 364) 504; Adebisi v. Saka (1995) 8 NWLR (pt. 414) 475 and Ebonga v. Uwemedimo (1995) 8 NWLR (pt.411) 22 C.A.

I shall therefore continue to consider this appeal, based on the issues formulated in the two briefs of arguments in appeal No. CA/J/104A/96

The only issue formulated in appeal No. CA/J/104/96 reads as follows:

“Whether the trial Judge was right in awarding to the respondent interest at the rate of 15% from the time of the transaction till payment”

The simple answer to this in the submission of the learned counsel for the appellant was that the court had no right to have awarded both a pre-judgment interest, which must usually be based on the agreement of the parties, as well as a post judgment interest which is governed by the rules of court under which the court cannot award more than 10% interest on any judgment debt. The Supreme Court case of Ekwunife v. Wayne (WA) Ltd. (I989) 5 NWLR (Pt. 122) 422 was cited in support as well as several others.

“I have carefully considered the lone issue for determination formulated in this case and must say that this is a case in which the appellant tried to kill a fly with a sledge hammer. He cited as many as 20 decided cases just to show that the learned trial Judge was not right in awarding to respondent interest at the rate of 15% from time of the transaction till payment. It should be noted that the appellant did not appeal against the award of the principal sum of N30,000.00 which appellant himself admitted. The only quarrel was against the award of 15% interest which the learned trial Judge was misled by the plaintiff’s counsel to award on the erroneous assumption that it was part of the admission made by the 1st defendant, whereas it was not. The admission concerned only the sum of N30,000.00 being part of the principal amount claimed, and did not cover the amount of interest and the rate claimed. In the recent unreported case of Alh. Ibrahim Umaru Wuro Hausa v. First Bank of Nigeria Plc decided by this court in appeal No.CA/J/295/98 on 12th April, 2000, (Coram Akpabio, Chukwuma-Eneh and Mangaji, JJ.C.A.) in which the facts were similar, I had the following to say in the lead judgment:

“I have carefully considered all the arguments canvassed above by learned counsel on both sides, and must agree with learned counsel for respondent that there are two types of interest charges usually awarded by the courts in this country, namely (a) pre-judgment interest and (b) post-judgment interest. As submitted by the learned counsel for the respondent, pre-judgment interest must be claimed by the plaintiff in his writ of summons, and evidence subsequently adduced in proof of it, failing which the court will not award it. I should also mention the fact that the award of pre-judgment interest is usually dependent on the agreement of the parties and the custom of the trade concerned. The court will readily award a pre-judgment interest where the plaintiff is a Commercial Bank, and the rate of interest fixed at the inception of the loan or overdraft transaction; whereas if the plaintiff was a private person; or the loan stated to be a “friendly loan” and nothing said about interest charges at the time of entering into the loan agreement, the court will not award interest in such circumstances. (See the cases of U.B.N v. Sax (Nig) Ltd. (1994) 8 NWLR (Pt. 361) 150; U.B.N Ltd. v. Salami (1994) 3 NWLR (Pt. 333) 385. See also the recent case of U.B.N. Ltd. v. Salami (1998) 3 NWLR (Pt.543) 538″.From the foregoing, I have no difficulty in holding that the learned trial Judge was in error in awarding 15% pre-judgment interest on the admitted sum of N30,000.00 “effective from July, 1987 till amount is fully paid up”. Although this item of claim appeared on both the writ of summons and the amended statement of claim, there was no evidence whatsoever to show whether payment of interests was agreed upon by the parties, and if so, at what rate. Also none of the parties was a licensed Commercial Bank so as to make any trade custom applicable. The award of interest charges must therefore be disallowed and set aside as was done by the Supreme Court in the case of Himma Merchants Ltd. v. Aliyu (1994) 5 NWLR (Pt.347) 667.

Furthermore, as pointed out by the learned counsel for the appellant the trial court had discretion under Order 40 Rule 7 of the High Court (Civil Procedure) Rules 1987 of Plateau State to award a post-judgment interest at the rate of not more than 10% per annum from the date of judgment till final liquidation. This is a discretion given by the Rules to the learned trial Judge to be exercised on the date of delivering judgment. She did not do so nor did so wrongly. Can this court now do so?

The answer in my respectful view is in the affirmative because under S.16 of the Court of Appeal Act, 1976, the Court of Appeal is given wide powers to do anything which the court below could have done. In other words, we have “full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance”.

Pursuant to S. 16 of our Court of Appeal Act, therefore, while the award of pre-judgment interest at 15% from July, 1987 to date of judgment is hereby set aside, post-judgment interest at the rate of 10% per annum is hereby granted to the respondent on the admitted sum of N30,000.00 from 22/4/91, being the date of judgment, till the amount is fully paid up.

In effect therefore, the appeal No.CA/J/104/96 succeeds partially and is hereby allowed as such. For avoidance of doubt, the pre-judgment interest of 15% per annum awarded from July, 1987 to date of judgment on the admitted sum of N30,000.00 is hereby set aside, as there was no evidence to support it. However, the post-judgment interest, which is discretionary, is hereby awarded to the plaintiff/respondent at the rate of 10% per annum on the same amount from date of judgment (22/4/91) till final liquidation, instead of at the rate of 15% per annum earlier awarded by the learned trial Judge.

I now turn to appeal No.CA/J/104A/96 in which two issues were formulated as follows:

(a) Whether the judgment of the lower court given on the 16/5/91 for the balance of N28,200 is justified and

(b) Whether the claim for interest awarded by the trial court has any valid basis.

As in the sister-appeal, only the appellant filed his brief of argument, while the respondent filed no brief. I shall therefore proceed to dispose of this appeal based on the only brief filed by the appellant.

Re: issue “(a) whether the judgment of the lower court given on the 16/5/91 for the balance of N28,200.00 was justified.

The main complaint under this issue was that the learned trial court erred in law when it entered judgment for the respondent in the sum of twenty-eight thousand two hundred Naira when there was neither admission by the appellant nor evidence adduced in proof thereof. It was pointed out that the main business before the court that day was a motion for stay of execution and installmental payment which counsel moved on that 16/5/91. It was then submitted that there was no evidence on record showing that the appellant either in person or through his counsel admitted liability in the sum of twenty-eight thousand, two hundred Naira. It was conceded however that on the said 16/5/91, apart from entertaining the application for installmental payment, the learned trial Judge went further to enter judgment for the balance of N28,200 without any application made in that regard, and also awarded interest at 15% retroactively. It was against that judgment that the appellant has now appealed. It was then submitted that the said judgment was unjustified and a breach of the appellant’s constitutional right, and that a substantial miscarriage of justice has been occasioned. The court was then urged to allow this appeal on that ground. No respondent’s brief was filed to counter the above argument.

I have already reproduced in the introductory paragraphs of this judgment, the full of the judgment now appealed against, dated 16/5/91, which appears at p. 56 of the records. For convenience of exposition I shall reproduce it again hereunder as follows:

“The plaintiff now claims the balance of N28,200 with 15% interest from July, 1987. Defendant pleads liable to the said balance claimed. The defendant liable to pay balance of N28,200.00 with 15% interest from July, 1987. Defendant ordered to pay the said amount. I apply to be allowed to pay N15,000.00 per quarters. The defendant to pay the judgment debt due by quarterly instalments in advance beginning from the month of June, 1991, until amount is fully liquidated. The 1st defendant’s vehicle reg. No. PL 16 JE seized in execution is to be released. The case against the Bank, 2nd defendant adjourned to 10/7/91.

(Sgd) C.A.R. Momoh J.

16/5/91

From the above extract, I regret to say that I do not see anything unusual about it. It simply shows that the 1st defendant/appellant, who had earlier on 22/4/91 pleaded liable to only the sum of N30,000.00, and chose to contest the balance of N28,200.00 later came to court on 16/5/91, when the contest was billed to commence, and decided to change his plea, and ask for installmental payment instead, and he was duly given both the change of plea and the installmental payment. I should also state that under our jurisprudence a record of appeal is presumed to be correct and accurate, unless shown by affidavit to be otherwise. An appeal should be fought on the basis that the record is correct. Where record of appeal does not correctly represent what took place at the court below, steps should be taken to make it so. See the cases of Ehikioya v. C.O.P. (1992) 4 NWLR (pt. 233) 57 at 74; Djeme v. Momodu (1994) 1 NWLR (Pt. 323) 685 at 697.

In the instant case, no affidavit has been filed by either the appellant or his counsel to say that the record was incorrect in any material respect. It was not sufficient for the appellant’s counsel to come to the court for the first time, to say that the record was not accurate as no trial took place on that date. The law is that “what is admitted needs no proof.” (See 75 of Evidence Act, 1990). Therefore, where a defendant, as in this case admitted the balance of plaintiff’s claim, there was nothing more left to be contested. The record is deemed to be correct. Issue No.1 is therefore hereby resolved in favour of the respondent, namely that judgment of the lower court given on 16/5/91 for balance of N28,200 was justified.

Re-issue (b)

“Whether the claim for interest awarded by the trial court has any valid basis.”

This issue is the same as the only issue for determination in the sister appeal No.CA/J/104/96, just decided. In that case I held that there are two types of interests usually awarded by our courts of law viz:-

(i) Pre-judgment interests otherwise known as “interests as of right” and

(ii) Post-judgment interest, otherwise known as “Discretionary interests”, which a court is allowed by the Rules of Courts to award to a successful litigant at the end of the trial, at a rate fixed by the rules, which is usually between 5% and 10%.

In respect of pre-judgment interest, (or interest as of right), a plaintiff must claim it in his pleadings, and also call evidence at the trial to establish it. Usually, it is founded on the agreements of both parties or on any mercantile or trade custom. The courts will usually award a pre-judgment interest where one of the parties is a licensed Commercial Bank, and not where the plaintiff is a private person. In the instant case since the appellant was a private person and did not also testify to give the basis of his pre-judgment interest of 15% per annum, awarded from July, 1987 to date of judgment, it was wrongly awarded and must be set aside. The post judgment interest of 15% per annum awarded from date of judgment until final liquidation, should have been allowed to stand if it had not exceeded the statutory limit of 10% per annum given under Order 40 rule 7 of the Plateau State High Court (Civil Procedure Rules, 1987). The said interest award is hereby set aside, but in its place shall be instituted a new award at the rate of 10% per annum from date of judgment 16/5/91) until final liquidation, by virtue of powers conferred on this court by S. 16 of Court of Appeal Act, 1976.

This appeal therefore succeeds partially as in the sister case, and is therefore allowed as such. The pre-judgment interest at the rate of 15% per annum from July, 1987 to date of judgment on the balance sum of N28,200.00 is hereby set aside. However, the post-judgment interest on the same amount from date of judgment till final liquidation is hereby reduced from 15% to 10% per annum.

On the totality of the foregoing the appeals in appeal Nos.CA/J/104/96 and CA/J/104A/96 succeeds partially in that pre-judgment interests of 15% per annum from July, 1987 to date of judgment are hereby set aside as there was no evidence given as to the basis of such an award. However, the post-judgment interest awarded from date of judgment till final liquidation is hereby reduced from 15% per annum to 10% per annum in accordance with Order 40 Rule 7 of the High Court Civil Procedure Rules, 1987 of Plateau State. There shall be costs of N3,000.00 in favour of the appellant in the consolidated appeal.

Other Citations: (2000)LCN/0870(CA)

Alidu Adah V. National Youth Service Corps. (2000) LLJR-CA

Alidu Adah V. National Youth Service Corps. (2000)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A

In paragraph 16 of the statement of claim filed in this matter before the Makurdi High Court Benue State, the appellant (i.e. the plaintiff in the court below) claimed against the respondent (i.e. defendant in the court below) the following reliefs:

“(a) A declaration that the suspension of the plaintiff from office without pay vide the defendant’s letter Ref. No. NYSC/SC/STA/PER/28/Vol. 11/185 of 20/12/90 is null and void and of no effect as the said letter was given in breach of the Federal Civil Service Rules.

(b) A declaration that the termination of the appointment of the plaintiff by the defendant vide a letter Ref. No. NYSC/BNS/PER/3/54 of 28/6/91 is null and void and of no effect whatsoever, in that the procedure in the Federal Civil Service Rules was not followed.

(c) A declaration that the plaintiff is still in the employment of the defendant and that plaintiff is entitled to all his salary and allowances and or benefits including promotions from 20/12/90 when plaintiff was purportedly suspended from office without pay.

(d) An order reinstating plaintiff and for the payment of all the entitlements and allowances for the plaintiff including his salary.”

After the appellant’s oral evidence followed by a short address delivered by his counsel, the trial court in a considered judgment reached the following conclusion.

“Therefore where plaintiff has been queried and he has submitted his representations the defendant is at liberty to take any decision it deemed fit. In the circumstances of this case, the plaintiff cannot complain that he was not given an opportunity to be heard. He was heard in the allegations against him. His constitutional right to fair hearing was recognised and given. The defendant had the right to take a favourable or an unfavourable decision against him.

On the claim that he was terminated during the pendency of his criminal trial. I note that rule 04109 provides that if criminal proceedings are instituted against an officer, proceedings for his dismissal upon any grounds involved in the criminal charge shall not be taken pending the criminal proceedings. However, in this case the plaintiff has failed to tender the record of proceedings in the Magistrate Court to establish when the proceedings in that court terminated. I therefore invoke the provisions of Section 149(d) of the Evidence Act against the plaintiff for withholding that information as there is a presumption that if such proceeding was produced it could have been unfavourable to the plaintiffs.

I may say that as pathetic as the case of the plaintiff may appear to be, the court cannot substitute its own decision with that of the defendant. The duty of the court is to ensure that due process was followed in the disciplinary matter and no more.

For the foregoing reasons, I find that proper procedure was followed before the plaintiff was terminated. The case of the plaintiff is therefore dismissed.”

Utterly dissatisfied with the decision, the appellant has appealed to this court against thedecision and has itemised his grouse against the decision under 3 (three) grounds of appeal. And they are reproduced without their particulars as follows:

“(1) The decision is against the weight of evidence.

(2) The learned trial Judge misdirected himself in law when he held thus:

“Therefore, where plaintiff has been queried and he has submitted his representations the defendant is at liberty to take any decision it deemed fit. In the circumstances of this case, the plaintiff cannot complain that he was not given an opportunity to be heard. He was heard on the allegations against him. His constitutional right to fair hearing was recognised and given. The defendant had the right to take favourable or an unfavourable decision against him” and this has occasioned a miscarriage of justice.

(3) The learned trial Judge erred in law when he invoked S.149(d) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, against the plaintiff/appellant herein and this has occasioned a miscarriage of justice.”

Beside his entry of appearance and a flurry of activities at the early stages of the matter such as taking a preliminary objection on the issue of jurisdiction and an application to appeal out of time both of which applications were overruled, the defendant went into a slumber and did not corne alive into the matter until after judgment. He practically abandoned the matter. He filed no pleading nor took part in the trial before the court below. The appellant’s case has therefore, remained simple, unchallenged and uncontradicted.

The plaintiff (now appellant) was employed by the defendant as a driver as per Exhibit ‘A’ (i.e. letter Ref. NYSC/STA/PER/28/1) on 22/9/79. By another letter Ref. No.NYSC/63/S.6/SEC/1/000 i.e. Exhibit ‘A2’ he had his appointment confirmed as a permanent and pensionable staff in the public service of the Federation of Nigeria. On 9/12/90, the official vehicle he was in control of, broke down in the course of his employment. He invited one Usman Aper a driver/mechanic and a staff of the Federal Livestock, North Bank, Makurdi to carry out repairs to the vehicle. While test driving the vehicle along Lafia Road, North Bank, Makurdi on 9/12/90, the vehicle was involved in an accident and the mechanic Usman Aper was killed at the spot. The appellant was injured and hospitalized. He was queried and suspended without pay as per Exhibit ‘A3’ i.e. letter Ref. No. NYSC/SC/3TA/PER/28/Vol. 11/85 of 20/12/90. Later on 28/12/90 he was arraigned before the Makurdi Chief Magistrate Court as per charge No. MCM/19C3/90; Commissioner of Police v. Alidu Adah. As if his woes were not enough the appellant’s employment was by Exh. ‘A3’ by letter Ref. No. NYSC/BN8/PER/3/54 of 28/6/91 terminated with retrospective effect from 9/12/90 for gross misconduct. He was at the time on grade level 6 step 4 i.e. N8,800.00p.a. On 11/5/95, the criminal charge instituted against him was concluded and he was discharged for want of prosecution. He then brought this action seeking the reliefs herein before reproduced. In substance, the appellant has challenged his suspension without pay since 9/12/90 and the subsequent termination of his employment on 28/6/91 during the pendency of the criminal trial as per charge No. MCM/19c/90. After the appellant’s testimony and a brief address by his counsel, the defendant not having been a party to the hearing, the court below in a considered judgment dismissed the claim. All the same, he has now appealed to this court against the decision.

The issues for determination as perceived by the parties have been set forth in their respective briefs of argument. The appellant has set out two issues for determination as follows:

“(i) Whether the learned trial Judge was correct in his interpretation and application of Rule 04107(vi) of the Federal Civil Service Rules 1974.

(ii) Whether the dismissal of the claims of the appellant by the court below was proper, even though the respondent herein neither filed a statement of defence nor testified at the trial and in the circumstances whether the invocation of S. 149(d) of the Evidence Act against the appellant was correct.”

The 3 (three) issues raised by the respondent in his brief are as follows:

“(i) Whether the decision of the trial Judge was against the weight of evidence.

(ii) Whether the learned trial Judge misdirected himself in law as to the issue concerning the plaintiff/appellant’s constitutional right of fair hearing.

(iii) Whether learned trial Judge erred in law when he applied the provisions of S.149(d) of the Evidence Act Cap.112. Laws of the Federation of Nigeria 1990.”

Subject to my observations hereunder, the three issues made out by the respondent for determination dove-tail easily into the two issues raised by the appellant in his brief. In particular, issues Nos.1 (on question of facts) and 3 in the respondent’s brief are covered by issue No. 2 in the appellant’s brief: while appellant’s issue No. 2 has amply covered respondent’s issue No. 2. For purposes of considering this appeal, I have adopted the two issues formulated by the appellant. However, issue No.1 as formulated by the respondent in my view is imprecise and provokes some observations. It is framed in the general terms of general ground of appeal as in civil appeals: See Okezie v. Queen (1963) 1 All NLR 3; B.P. (Will) Ltd. v. Allen (1962) NSCC 409 at 410 and the unreported judgment of this court No. CNJ/98/95: Hamza Alhaji Audu Bilam Dambam v. Ardo Lele delivered on 8/6/2000. My reservations against it stem from its having been raised in general terms. Challenging a judgment on the ground of being against the weight of evidence being by its nature an appeal on facts contemplates a wide range of facts within its compass including:

(1) That the judgment cannot be supported by the evidence adduced by the successful party which the trial court accepted.

(2) That the inference drawn from accepted facts cannot be justified.

(3) That there is no evidence which if accepted could support the findings of the trial court.

(4) That if the evidence of both parties are put in the imaginary scale, the judgment given in favour of the respondent will be against the totality of the evidence adduced at the trial.

(5) In deciding upon this issue, it may be necessary to consider whether the credibility given to the testimonies of witnesses was wrongly given. See Anyaoke and Ors. v. Adi and Anor. (1986) 2 NSCC (Vol. 17) 799; 3 NWLR (Pt.31)731, Ogboda v. Adulugba (1971) 1 ANLR 68; 1 All NLR 68, Mogaji and Ors. v. Odofin and Ors. (1978) 4 S/C 91.

Order 3 R. 4 of the Court of Appeal Rules has recognised that the general ground of appeal is otherwise vague or general in terms but has permitted it as a competent ground. To my mind, it is unacceptable to couch an issue for determination thus “whether the decision of the trial Judge was against the weight of evidence” as it still remains vague or general as an issue nonetheless. It is only logical that when identifying issues for determination in this respect that the particular areas on questions of facts i.e out of the five implications above ought to guide the formulation of the issues for determination. In other words, the respondent’s issue No.1 in this matter has failed to identify as it were, in specific terms the question of facts encompassed by ground 1 (one) of the appellants grounds of appeal for determination here. The respondent ought to have pinpointed the relevant areas on questions of facts he is raising as issue to save the court unguided meandering through all possible issues that could be considered under questions of facts. Issues for determination ought not to be as vague or general nor couched in general terms as here. The essence of issues for determination is to narrow down the relevant points in controversy. I am very mindful that since the decision in Oduola and Ors. v. Coker (1981) NSCC (Vol. 12) 180 at 182, the decisions in Odufunade v. Rossek (1962) 1 All NLR 98 and Mobil Oil (Nig.) Ltd. v. Coker (1975) 3 SC 175 no longer represent correct statement of law in so far as a defendant who called no evidence could not challenge the facts on which a decision is based. The instant issue i.e. respondent’s issue No. 1, is grossly vague; to merely upstage a ground of appeal as here as an issue for determination may not always crystalise the issue for determination and so may prove most unsatisfactory. I have decided to deal with it at best as can be expected with issue No.3 in the respondent’s brief of argument.

As regards issue No. 1 dealing with the question of the procedure followed in the termination of the appellant’s employment, the appellant expressed the view that the court below wrongly relied on Rule 04107(vi) of the Federal Civil Service Rules to justify its decision. Not only that he canvassed that the said rule had no bearing on the matter as it did not apply to established officers when read with the rest of the sub-rules i.e. Rule 04107(i) and (vi) but that the applicable rule according to him for dealing with the appellant’s situation was rule 04121 which connotes that some sort of investigation into the appellant’s misconduct had to be carried out under Rules 04104, 04106, 04201 and 04121. The procedure to terminate the appellant’s employment if at all have to comply with Rules 04107 and 04121. On the content of “misconduct”, the appellant was alleged to have committed, he has referred to Rule 04201 as the encompassing provision on offences of misconduct. He has particularly observed also that no written warning had been given to the appellant nor had he before then suffered any loss of increment. And quite significantly that the appellant was not given a good hearing before being terminated even going by the procedure in Rule 04107(i) – (iv) relied by the court below to arrive at its decision. He further submitted that the issuance of a query had not met the clear requirements under Rule 04107. On how the rules should be construed he relied on the case of Oyeyemi v. Commissioner for Local Government and Ors. (1992) 2 SCNJ (Pt.11) 266 at 280 (1992) 2 NWLR (Pt.226) 661 per Nnaemeka-Agu, JSC to imply that they have to be read together.

On issue No.2, the appellant observed that the respondent filed no defence and that as there was non-joinder of issues that the court below erred to have invoked S. 149(d) against non-tendering of the record of proceedings in the criminal case No.MCM/19c3/90: Commissioner of Police v. Alidu Adah and to have used it to find against the appellant. He has also contended that as no issues were joined that the appellant’s claim had to be deemed admitted by the respondent i.e. defendant and so that the question of burden of proof did no longer arise: See Lewis Peat (N.R.I.) Ltd. v. Akhimien (1976) FNR 81 and 83 – 85 (1976) 1 All NLR Onobruchere v. Esegine (1986) All NLR (Pt.1) 238 at 241 (1986) 1 NWLR (Pt.19) 799 and 0.25 R9 – of the Benue State High Court (Civil Procedure Rules) 1988. On the minimal proof required of him in this matter he referred in support to the cases of Onwuka v. Omogui (1992) 3 SCNJ 98 at 1277 (1992) 3 NWLR (Pt.230) 393 Mogaji v. Odofin (1978) 4SC 91 at 93 – 96 and Nwabuoku v. Ottih (1961) ANLR (Pt.2) 485. See Ukoha and Ors v. Okoronkwo (1972) 1 All NLR (Pt. 2) 100 at 105 Obembe v. Wemabod Estates Ltd. (1977) 5SC 155 at 140 and Baba v. Nigeria Civil Aviation Training Centre (1991) 7 SCNJ (Pt. 1) 1 at 22 (1991) 5 NWLR (Pt.192) 388 per Nnaemeka-Agu, JSC.

As regards the use made of the presumption under S.149(d) he submitted that it is always invoked in cases where the facts are disputed or the issues are joined on the facts but not as here where the plaintiff had proven his case in this matter as per paragraphs 7,8,9,10 of the statement of claim unchallenged. That the respondent could not use the presumption to fend off his clear breach of Rule 04109 wherefore the appellant’s appointment was terminated without waiting for the outcome of the criminal trial.

The respondent in his brief repudiated the appellant’s case in its entirety and maintained that the appellant’s employment with the respondent was properly terminated as evidenced by Exhibit ‘A5’, supported by the query Exhibit ‘A3’ and his answers and a plea for mercy i.e. Exhibit ‘A4’. In noting the distinction between a right to be heard and a right to oral hearing, the respondent referred to the case of Dr. Akinlade Falomo v. Lagos State Public Service Commission (1977) 5 S.C. 51 at 62, Hart v. Governor etc. (1976) Digest of the Supreme Court cases 1958/84 Vol. 3 P. 500 and Osakwe v. Nigeria Paper Mill Ltd. (1998) 10 NWLR (Pt.586) 1 at 11 paragraphs B-C and opined that by the written representation that is Exhibit ‘A4’ by the appellant the requirement to be heard under rule 04107 of the Civil Service Rules of 1974 was satisfied, more so, as the appellant was thereby given due opportunity to have fair hearing.

In answer to the appellant’s claim to judgment on his challenged evidence, the respondent made the point that the court below could not be precluded from finding otherwise inspite of the fact that the respondent failed to file a defence and to take part in the proceedings as the facts adduced by the appellant had not supported his claims.

On the relevance of S. 149(d) of the Evidence Act 1990 to this matter where the appellant failed to tender any documentary evidence of the proceedings leading to his discharge in the charge No. MCH/19c3/9 by the Magistrate Court, the respondent asserted that the presumption under S.149 was properly exploited on the facts of the matter.

On 16/2/99, the court suo motu raised the issue of jurisdiction vis-a-vis Decree No. 107 of 1993 and so ordered the parties to advert to it and if need be to submit further addresses on the issue. In compliance with the order, the appellant filed – “Appellant’s brief on issue of jurisdiction” and formulated a solitary issue thus:

“Whether or not the jurisdiction of the court below was ousted by virtue of S. 230(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 107 of 1993, having regard to the date of the accrual of the cause of action.”

The respondent on his part filed “respondent’s additional/supplementary briefs” and raised also one issue on jurisdiction formulated thus:

“Whether the trial court has jurisdiction to hear the matter taking cognisance of the Constitution (Suspension and Modification) Decree No. 107 of 1993.”

The appellant without argument conceded two material facts namely:

(1) That the respondent comes within the purview of S. 230(1) as amended by Decree No. 107 of 1993.

(2) That by the time of institution of this action on 28/7/95 Decree No. 107 of 1993 had come into being on 17/11/93.

The appellant has asserted that jurisdiction is determined by the state of the law when the cause of action arose and not when it is invoked. See Governor of Oyo Stare v. Folayan (1995) 9 SCNJ 50 (1995) 8 NWLR (Pt.13) 292 Uwaifo v. A/G Bendel State (1982) 7 SC 121; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539 and 339, Alao v. Akano (1988) NSCC (Vol. 19) 329(1988) 1 NWLR (pt.71) 431. It was also submitted that the cause of action arose on 9/12/90 or 28/6/91 as contained in “Exhibit ‘A5’ ” (the two dates represent the dates of the fatal incident and the termination respectively). He referred to S. 6(6) (b) and S.236(1) of 1979 Constitution as conferring on the court below unlimited powers at the accrual of the cause of action and urged the court not to follow the case of University of Ilorin v. Odutola (1988) 12 NWLR (Pt. 576) 72 at 79-80 as it misconstrued the relevant provisions of Decree 107 of 1993.

He relied on S. 6(1)(b)(c) and (e) of the Interpretation Act Cap. 192 Laws of the Federation of Nigeria 1990 as supportive of his view of the applicable law. On the issue of jurisdiction the respondent has supported the contention that the court below lacked jurisdiction in the matter. Its jurisdiction having been ousted by S. 230(i)(q)(r)(s) of the Constitution 1979 as amended by Decree No. 107 of 1993 as the respondent is a Federal Government Agency by virtue of Decree No.51 of 1993 which amended Decree No. 24 of 1973. On the effect of the absence of jurisdiction in the court below the respondent relied on the case of Obikoya v. Registrar of Companies and Anor. (1975) 4 SC 31 at 34-35, Nelson v. Ebanga (1998) 8 NWLR (Pt. 563) P. 701 Nwanwata v. Esumei (1998) 8 NWLR (Pt. 563) 650 at 672.

Whenever the issue of jurisdiction is raised, it is a fundamental issue that goes to the vires of the court to competently deal with the matter before it and so has to be despatched of first. See Egbe v. Adefarasin (1987) 1 NSCC (Vol. 18) 1 (1987) 1 NWLR (pt.47) 1. Both the appellant and the respondent have recognised that the jurisdiction to determine a claim as in this matter has to depend on the state of the law when the cause of action arose and not at the time it is invoked: See Uwaifo v. A/G Bendel State and Ors. (supra) and Mustapha v. Governor Oyo State (supra).

In the case of Uwaifo v. A/G Bendel State and Ors., the appellant was being investigated by Maido Panel under Public Officers (Special Provisions) Decree 1978. He sought a number of reliefs at the High Court including declarations challenging the panel’s jurisdiction, failure to apply the rules of law and natural justice and that the panel’s recommendations were null and void. The High Court declined jurisdiction as its jurisdiction was ousted and its stance in this respect was upheld by the Federal Court of Appeal. On further appeal to the Supreme Court it held that the obligations and rights of parties must be considered in the light of the law when the cause of action arose. The appellant who had no enforceable right at the time when the cause action arose, that is, before the 1979 Constitution could not have it after the 1979 Constitution no matter that some of the laws in place when the cause of action arose i.e. before the 1979 Constitution had been repealed. The case of Mustapha came closely on the heels of Uwaifo’s case to reinforce this rule of law. See Alao v. Akano (supra).

The respondent’s line of argument comes to this that once it is shown that an agency is duly established by the Federal Government as is the case with the respondent (under Decree No. 51 of 1993 which repealed an earlier Decree No. 24 of 1973) all matters reserved by the said Decree No. 107 of 1993 become exclusively triable by the Federal High Court. In the event, that the unlimited jurisdiction conferred on the State High Courts by S. 6(6)(b) and S. 236(1) of the 1979 Constitution has become restricted and expropriated with regard to any actions, or proceedings for declaration of injunctions affecting the validity of executive or administrative actions or decisions by the Federal Government and its agencies, now to be handled by the Federal High Court.

In short, the respondent’s argument in this court i.e. that the court below bereft of any enabling power to proceed with this matter on coming into effect of the Decree No.107 of 1993 could not proceed therewith and that the proceedings before it were an exercise in futility; therefore of no effect and ought to be set aside.

The promulgation of the Decree No. 107 of 1993 undoubtedly has clearly abridged the unlimited jurisdiction of State High Courts as to the kind and nature of actions which they i.e. the State High Courts have to have cognisance of. At the beginning of this matter, the appellant unreservedly conceded two material factors as germane in considering this matter namely that the respondent is a Federal Government Agency covered by Decree No. 107 of 1993 and more significantly that by the time the instant action was commenced in the court below on 28/7/95 to be precise that the said Decree had come into effect i.e. on 17/11/93. He has strongly maintained nonetheless that this action being outside the ambit of the operation of Decree No. 107 of 1993, that is, judging from the date the cause of action arose that it was well within the competence of the court below to deal with by virtue of S.236(1) of the 1979 Constitution being the operative law to determine the jurisdiction of the court below when the cause of action arose. This according to the appellant in this court is the crunch of the appellant’s case. This is notwithstanding that the action was initiated in 28/7/1995 long after Decree No.107 of 1993 became operative. In other words, Decree No. 107 of 1993 was most inapposite in law to meet the situation in this matter.

The opposing posture taken by either side on the question of jurisdiction has been set out above. However, I recognise there is considerable force in another view of this issue which is not adequately exploited may be it did not appeal to the parties. Going by the appellant’s expostulations as I understand, it is not being disputed that on 2817/95, that is, the date when the action was instituted, the Federal High Court was also competent to entertain the matter. Putting it point blank, that is to say, that both courts that is the court below or the Federal High Court could entertain the matter. This can only be feasible if the two courts possessed concurrent jurisdiction in the matter as at 28/7/95. This of course raises a fundamental question and to resolve it, I have to advert to S. 230(1)(q)(r) and (s) of the Constitution of 1979 as amended.

Without plunging deep end into the legal history of how the Federal Revenue Court transformed into the Federal High Court, suffice it to say, that the case of Jammal Steel Structures Ltd. v. A.C.B. Ltd. (1973) 11 SC 77 (1973) 1 All NLR (Pt.2) 208 remains the locus classicus in defining the relative jurisdictions of the Federal High Court vis-a-vis the State High Court and it construed the provisions of S.7(1)(a)(b)(c) and (d) of the Federal High Court Decree No. 13 of 1973 and in doing so has emphasised the exclusiveness of the jurisdiction of the Federal High Court in matters within its jurisdictional preserves that is, as encompassed in Section 7 of the Federal High Court Decree No. 13 of 1973. The cited case exhaustively examined in the context the provisions of S. 230 and S. 236 of the Constitution of 1979 vis-a-vis the unlimited jurisdiction of the State High Court and S. 8 of the Federal High Court Decree No. 13 of 1973 vis-a-vis the exclusiveness of powers of the Federal High Court as against the State High Court. It held that the true object as well as the purpose of the Federal Revenue Court Decree was the more expeditious despatch of revenue cases for example, personal income tax, company tax, customs and excise duties, illegal currency deals, exchange control measures and the like, which the State High Courts were supposed to have been too tardy to dispose of and that it was not intended that ordinary cases of banker/customer relationship and the like were included. Thus, Jammal’s case recognised the exclusiveness of their respective jurisdiction in civil matters and it remained so until Decree No. 107 of 1993. I have to set it out and examine its provision – S.230(1)(q)(r) and (s) of the Constitution of 1979 as amended by Decree No. 107 of 1993 in relation to the facts of this matter. The section reads thus:

“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:

(q) The administration or the management and control of the Federal Government or any of its agencies;

(r) Subject to the provisions of this Constitution the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

(s) Any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; provided that;

“Nothing in the provisions of paragraph (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies an action for damages, injunction or specific performance, where the action is based on any enactment, law or equity.”

The above provision has been variously construed in a number of the decisions of the Court of Appeal and they constitute very strong authority in that regard. I shall advert to some of them in the course of this judgment. The basic principle of construction known as the golden or literal rule has it that where the words used in a statute as here are clear, simple and unambiguous, they should be given their ordinary literary meaning provided no absurdity would otherwise be occasioned. See Caledonian Ry v. North British Ry (1881) App. Cas. 114 at 121 and 122; and also Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622.Having read S. 230(1)(q)(r) and (s) of the Constitution of 1979 as amended over and over again it seems to me with respect that the proviso of the section is a curious piece of legislation and the language used in it is so woolly as not to be capable of any certain interpretation. However, construing the main provision of S.230 and its subsections together the collective effect gathered, is that there is a clear and unambiguous intention of the law maker to confer exclusive jurisdiction in mattersÂ Â specifically mentioned therein to the Federal High Court: See the case of University of Abuja v. Ologe (1996) 4 NWLR (pt. 445) 706; Ali v. C.B.N. (1997) 4 NWLR (pt. 498) 192. In this respect, I have gone through the cited cases and others and I am satisfied there is no implication in the provision empowering both courts running concurrent jurisdiction in matters referred to in S. 230(1)(q)(r) and (s) of the Constitution of 1979 as amended, and given exclusively to the Federal High Court. A random reflection on the cases that have construed the provision is worthwhile. And I start with the case of University of Abuja v. Ologe (supra); the respondent sued the University in the Federal High Court for his suspension, the appellant took a preliminary objection that the appellant not being an agency of the Federal Government that the Federal High Court had no jurisdiction in the matter. The Court of Appeal in dismissing the appeal affirmed the decision of the court below that held that it had. In Ali v. C.B.N. (supra) the issue was whether Decree No. 107 of 1993 has divested the State High Court of the jurisdiction to entertain matters on the administration or management and control of the Federal Government and its agencies; the Court of Appeal had no difficulty in concluding that Decree No. 107 of 1993 has so divested the State High Courts of their hitherto exclusive jurisdiction before the amendment, of entertaining and adjudicating over all matters relating to the administrative management and control of the Federal Government and its agencies. In the University of Ilorin v. Odutola (supra) the issue was whether the State High Court had the jurisdiction to entertain the matter involving the Federal Government Agency since the promulgation of Decree No.107 of 1993. The action was pending before the said Decree came into effect. The Court of Appeal construed the provisions of S.230(1)(q)(r) (s) of the Constitution of 1979 as amended and pronounced the said provision as having conferred exclusive jurisdiction on the Federal High Court in matters arising from the operation and interpretation of the Constitution in so far as they affect the Federal Government or its agencies. And that there is nothing in the provision to suggest that both Federal High Court and the State High Court have to exercise concurrent jurisdiction in the matters specified in the provision. The proceedings and judgment were void. It struck out the appeal.

However in 7up Bottling Co. v. Abiola and Sons (1996) 7 NWLR (Pt. 463) 714, the view was expressed that as Decree No. 107 of 1993 made no transitional provision regarding pending cases and so that it would be deemed they were not affected. There can be doubt from the cases cited above that the Federal High Court possesses exclusive jurisdiction in matters covered by S. 230(1)(q)(r) and (s) of the Constitution of 1979 as amended by Decree No. 107 of 1993. Also both courts i.e. the Federal High Court and the State High Court do not run concurrent jurisdiction in matters comprised in S. 230(1)(q)(r) and (s). I agree with these conclusions having myself examined the said provision. In the instant matter, the appellant is asking for a declaration and injunction affecting the validity of an administrative decision taken by the respondent a Federal Government Agency in terminating the appellant summarily. The appellant has properly conceded that the respondent is an agency of the Federal Government and that the action was instituted on 28/7/95, I am of the firm view that it is wrong to have commenced this action in the State High Court which at the time it was filed lacked the power to entertain the suit.

The above cited cases are in unison in recognising that the Federal High Court has conferred on it exclusive jurisdiction in matters mentioned in S.230(1)(q)(r) and (s) of the Constitution of 1979 as amended by Decree No. 107 of 1993 at the promulgation of the said Decree. The construction and conclusion syncronise with my reasoning herein. To hold otherwise would make nonsense of the clear intention of the law maker as gathered from construing the provision in the context of the other provisions of the Constitution read as a whole: See Rabiu v. The State (1982) 2 NCLR 117.

I make haste however, to observe that the facts and circumstances in the case of 7up Bottling Co. Ltd. v. Abiola and Sons (supra) and the instant case are not the same. In this case, the action was commenced on 28/7/95 whereas in the case of 7up Bottling Co. Ltd. v. Abiola and Sons (supra) the action was already pending before the said Decree came into effect. The principles established in that case are not relevant in this matter as they are non sequitur.

Flowing from my reasoning there can be no doubt that on the facts of this case that as the law stood before the promulgation of Decree No. 107 of 1993, the appellant could have at once brought his action in the court below (i.e. as a State High Court) to enforce his rights. But on the jurisdiction of the court below (i.e. as a State High Court) being ousted by the aforesaid Decree as from 17/11//93, the court below (as a State High Court) could no longer assume jurisdiction in an action like the instant one taken out on 28/7/95 even though the cause of action accrued to the appellant since 9/12/90. This conclusion is reached based on the construction of the said provision.

There is nothing to prevent the appellant reconstituting his claim all over again before the proper venue of the Federal High Court, if he so wishes.

In the result, the proceedings and the judgment of the court below having been embarked upon without jurisdiction, I declare them null and void and they are hereby set aside. Accordingly, the suit is hereby struck out with N2,000.00 costs against the respondent.

Other Citations: (2000)LCN/0869(CA)