Our Line V. S.c.c. Nig. Ltd & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

The Appellant in this appeal was the Plaintiff at the trial High Court of Justice Anambra State and was the 1st Respondent at the Court of Appeal Enugu Division. The 1st and 2nd Respondents in this Court were the Defendants at the trial High Court while at the Court of Appeal, they were the Appellants. The Third Party Universal Insurance Company which was joined in the action at the trial High Court was the 2nd Respondent at the Court of Appeal. The 1st and 2nd Respondents as Defendants at the trial Court who were dissatisfied with the judgment of the trial Court against them jointly appealed against it to the Court of Appeal Enugu where in their Appellants’ brief of argument for the determination of their appeal, they raised 8 issues. The first of these issues being one on jurisdiction states whether the trial court had the jurisdiction to conclude the trial at the High court on 20th July, 1993 when the learned trial Judge was appointed as a Justice of the Supreme court in June, 1993.

In line with the requirements of the law, the Court of Appeal heard the parties on their respective briefs of argument and in a reserved judgment delivered on 8th February, 2001 allowed the appeal on the issue of jurisdiction alone holding that by his appointment as a Justice of the Supreme Court on or about 3rd June, 1993, the learned trial Chief Judge had lost the jurisdiction to conclude the hearing of the case between the parties and the delivery of judgment on 20th July, 1993.

The Court below therefore nullified the judgment of trial Court and remitted the case to the trial High Court for hearing de novo. With this conclusion, the Court below decided not to consider any of the remaining 7 issues canvassed before it by the parties. Thus, the Appellant which was the Plaintiff at the trial Court and the 1st Respondent at the Court below being dissatisfied with the judgment of the Court of Appeal, has now appealed against it to this Court on two grounds of appeal filed on its behalf and from which one single issue for determination was raised namely –

whether the verdict of the lower court is right in view of the relevant notification published in the Federal Republic of Nigeria Official Gazette No.37 Vol. 80 of 4th March, 1993:

For a better appreciation of this issue for determination canvassed in this appeal, it is appropriate to state the facts which are largely not in dispute between the parties.

The Appellant which was the Plaintiff at the trial Onitsha High Court of Anambra State instituted its action for damages in negligence in suit No.01239/89 on 24th August, 1989. After the exchange of pleadings between the parties, the case proceeded to hearing before Iguh Chief Judge of Anambra State (as he then was) on 15th November, 1990. The case for the Plaintiff was closed on 8th December, 1992 while that of the Defendant was closed on 24th May, 1993 when further hearing in the matter was adjourned to 4th June, 1993 for the Third Party Defendant to open its case. Meanwhile before the adjourned date, on or before 3rd June, 1993, it was announced and published in various Newspapers, some parts of the Nigerian Weekly Law Report, Electronic and Print Media that the learned trial Chief Judge Iguh C.J. (as he then was) had been appointed a Justice of the Supreme Court J.S.C. and will be sworn in on a date to be announced in due course. With this development, when the case came up on the adjourned date of 4th June, 1993, the learned Counsel to the Defendants now Respondents, raised the question of whether or not having regard to the appointment of the learned trial Chief Judge, the case of the parties before him could still proceed. The learned trial Chief Judge replied in the affirmative explaining that his appointment to the Supreme Court was to take effect on a future date and therefore proceeded with the hearing of the case in which judgment was delivered on 20th July, 1993. It was this judgment that was set aside on appeal by the Court of Appeal for being a nullity having been given without jurisdiction on the part of the trial High Court.

The question for resolution therefore in this appeal is whether or not the Court below was right in its judgment now on appeal.

Learned Senior Counsel for the Appellant has argued that on the authority of the decision of this Court in Apataku & Ors. v. Alabi (1985) 1 N.S.C.C. 294 at 296, the onus of proof of lack of jurisdiction on the part of the trial Court lies on the Defendants now Respondents who made the allegation and which onus according to the learned Senior Counsel was not discharged by the Respondents. Learned Senior Counsel for the Appellants relying on the case of Ogbunyinya & Ors. v. Okudo & Ors. (1979) All N. L. R. 105, pointed out that the effective date of the appointment of the learned trial Chief Judge to the Supreme Court as duly published in the Federal Republic of Nigeria Official Gazette No. 37 Vol. 80 Lagos of 4th March, 1993, was 13th September 1993; that according to the learned Senior Counsel, being the position, the judgment of the trial Court delivered on 20th July, 1993, was not affected by the appointment of the learned trial Chief Judge to Supreme Court which could have deprived the Court of its jurisdiction as alleged by the Respondents; that in this respect the Court below was wrong in its judgment declaring the judgment of the trial Court a nullity on account of it having been given in the absence of jurisdiction and therefore urged this Court to allow the appeal.

The position taken by the 1st and 2nd Respondents in this appeal is contained in their brief of argument filed on 11th November, 2003. Learned Counsel observed that from the record of the trial Court, it is quite clear that the issue of the absence of jurisdiction of that Court was duly raised by the learned Counsel to the Defendants now Respondents in the Court proceedings of 4th June, 1993 and duly considered and determined by the learned trial Chief Judge who held that he still had jurisdiction to conclude the trial; that from that part of the record of the trial Court, there is no dispute that the appointment of the learned trial Chief Judge to the Supreme Court of Nigeria took place in June, 1993 before the judgment of the trial Court was delivered on 20th July, 1993, inspite of the fact that he was not sworn in until 13th September, 1993; that although the learned trial Chief Judge was sworn in on 13th September, 1993 as published in the Nigeria Weekly Report, the fact that the appointment was made in June 1993 is not also in dispute; that the distinction between the date of appointment of a judicial officer and the date of his swearing in, had been clearly brought out by this Court in Ogbunyinya v. Okudo (1979) 6 ’97 9 S.C. 32. Learned Counsel urged this Court not to rely on the Federal Republic of Nigeria Official Gazette No. 37 Volume 80 of 4th March, 1993 purportedly notifying the appointment of the learned trial Chief Judge to the Supreme Court of Nigeria in March, 1993 even before the said appointment was made, in view of the resultant absurdity on the face of the Gazette. Counsel therefore urged this Court to dismiss the appeal.

For the thirty Party Respondent however, it was the contention of its learned Counsel that while agreeing on the position of the law regarding the onus on the person who alleges want of jurisdiction to prove the same as laid down by this Court in Apataku v. Alabi (supra) and Section 135(1) of the Evidence Act, that onus had been discharged by the Respondents having regard to the evidence on record including the admission of the learned trial Chief Judge (as he then was). Relying on Section 75 of the Evidence Act, learned Counsel observed that facts admitted need no further proof and that the appointment of the learned trial Chief Judge to the Supreme Court having been admitted by him on record of the trial Court, need no further proof; that the admission of the appointment was made while the case of the parties was still pending before the trial Court was also quite obvious according to the learned Counsel who further stressed that the Court below was right in relying on further evidence on the appointment from the publications of the same in the Nigerian Weekly Law Reports; that on the authority of same case of Ogbunyinya v. Okudo (supra), learned Counsel argued that once a Judge had been appointed a Justice of the Supreme Court or the Court of Appeal, the Judge ceases to function as a Judge of the High Court irrespective of the date he will be sworn in .. Learned Counsel to the thirty Party Respondent then called in aid the provisions of Sections 211(2) and 254(1) of the 1979 Constitution of Nigeria to support his submission that the learned trial Chief Judge having lost the jurisdiction to continue with the hearing of the case between the parties on his appointment, ought to have relinquished the case for hearing by another Judge in line with the case of Madukolu v. Nkemdelim (1962) 2 All N.L.R.581.

As for the reliance placed upon the Federal Republic of Nigeria Official Gazette No. 37 Volume 80 of 4th March, 1993, which gave the effective date of appointment of Justice A. I. Iguh to the Supreme Court as 13th September, 1993, by the Appellant, learned Counsel submitted that the notification will not save the judgment delivered on 20th July, 1993, when it was already clear that Hon. Justice Iguh had been appointed a Justice of the Supreme Court; that the effective date of 13th September, 1993 given in the Official Gazette, was no more than the effective date the learned trial Chief Judge was sworn in to begin to discharge his functions in the new office as Justice of the Supreme Court because that act of swearing in, did not affect the fact that he had already been appointed a Justice of the Supreme Court before the date the judgment of the trial Court was delivered on 20th July, 1993. Learned Counsel noted that the Official Gazette was not available to the trial Court or the Court of Appeal and as such this Court is entitle to look at it in resolving the issue for determination taking into consideration that notification of appointment in the Gazette is not conclusive proof that the appointment had been made if decision of this Court in Gbafe v. Gbafe (1996) 6 N.W.L.R (Pt. 455) 417 at 434 is applied and therefore the learned Counsel urged this Court to dismiss the appeal.

As earlier identified in this judgment, the only issue for determination is whether the Court below was right in its decision that the trial Court had been deprived of its jurisdiction to conclude the hearing and determination of the Plaintiff/Appellant’s claims before it by the appointment of the learned trial Chief Judge to the Supreme Court. This calls into question of whether or not the trial High Court of Anambra State was competent to have delivered the judgment in the dispute between the parties on 20th July, 1993 in spite of the elevation of the learned trial Chief Judge to the Supreme Court on or about 3rd June, 1993. The law is well settled on the effect of defect in the constitution of a Court on the proceedings of the Court. Any defect in the competence of a Court, renders the proceedings before it a nullity, a defect of competence being extrinsic to the adjudication. This position of the law was well articulated in the much quoted dictum of Bairamian, F. J. in Madukolu & Ors. v. Nkemdelim & Ors. (1962) 1 All N.L.R. 581; (1962) 2 S.C.N.L.R. 341 at pages 589- 590 and 348 of the reports where the learned Judge observed:

A Court is competent when;