Prince Cyril Ahaneku & Ors V. Nze Michael Ekeruo & Ors (2001)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A.
This is an appeal against the judgment of the Imo State High Court (G.I. Udom-Azogu, J.), sitting at Owerri. The appellants were the plaintiffs before the court below. They had started proceeding by way of judicial review against the respondents herein, challenging the action of the 2nd-4th respondents putting the 1st respondent forward and according him recognition, as the Eze. At one stage, a motion on notice was filed on behalf of the 1st respondent, urging the court below to strike out the appellants’ application for judicial review on the grounds, that same was incompetent and statute-barred and the court lacked the jurisdiction to entertain it. The appellants in their turn, caused a notice of preliminary objection to be filed to the motion on notice on the ground, that the issue raised by it was in the nature of demurrer, which could only be raised in answer to pleadings or affidavit evidence.
On the day set for hearing, counsel for the appellants urged the court to hear his preliminary objection to the respondents’ motion on notice first. Counsel for the respondents would not hear of it, urging the court to hear his motion first as it raised the fundamental issue of jurisdiction of the court. The appellants’ counsel addressed the court and then, the two counsels for the respondents addressed.
The court then adjourned for ruling. In its ruling delivered on 15/5/97, the court declared the notice of preliminary objection incompetent and struck it out. It held the motion on notice challenging the jurisdiction to be meritorious and accordingly, struck out the appellants’ application for judicial review for want of jurisdiction and because it was statute barred.
Against this ruling, the appellants have appealed to this court on nine grounds of appeal numbered A – J in the amended notice of appeal (the letter ‘I’ was omitted in the numbering). Chief E.T.C. Ogbusu, who prepared the amended appellants’ brief, indicated that he would abandon grounds B – D.
Chief Ogbusu formulated four issues, which Mr. O. N. Owuamalam, the learned Principal Legal Officer, Imo State, adopted in the 2nd -4th respondents’ brief. I think, however, that only one issue is called for by this appeal, and that is the issue formulated by Mr. D.O. Madu, in the 1st respondent’s brief. I recast it thus, to make it more intelligible:
Whether or not the court below was right in the circumstances in striking out both the appellants’ notice of preliminary objection and their substantive application for judicial review.
Chief Ogbusu argued the four issues formulated by him separately, but they all boil down to the single complaint that the learned trial Judge ruled on the three main matters before it (i.e. the appellants’ application for judicial review, the respondents’ motion on notice challenging the jurisdiction of the court to entertain that application, and the appellants’ notice of preliminary objection to the hearing of the motion on notice), without the benefit of any argument on them by counsel. Learned Counsel pointed out that the only point canvassed before her and on which she was competent to rule on was, which, as between the motion on notice and the notice of preliminary objection, she should hear first. Counsel pointed out that she did not even rule on that point, but jumped forward, so to speak, to rule on the motion on notice, which was yet to be argued.
For the 1st respondent Mr. Madu submitted that the learned Judge was perfectly in order to rule as she did on both the motion on notice and the notice of preliminary objection thereto. In presenting the statement of facts learned Counsel, referring to pages 46, 47 and 48 of the Record of Proceedings, asserted in paragraphs 3.14 and 3.15 of the 1st respondent’s brief:
“The court thus, took argument from counsel on all sides on the Notice of Preliminary Objection by appellants and the motion by 1st respondent attacking the jurisdiction of the court to continue with further determination of the main motion filed by the appellants for judicial review. See pages 46, 47 and 48 of the records.
The court below after the full blown argument from counsel on all sides reserved its ruling, which was delivered on 15/5/97 striking out the Notice of Preliminary Objection as being incompetent, allowing the motion challenging the jurisdiction of the court and as a natural consequence, terminating the motion for judicial review by appellants which was clearly incompetent.”
He devoted the entire argument to justifying the holding of the Judge that the appellants, application for judicial review was incompetent. For the 2nd-4th respondents, Mr. Owuamalam asserted, referring to page 47 of the record that-
“when the matter came up for hearing the court called on all parties to address her on the applications before the court…
…Counsel for the applicants has not denied that court allowed counsel on all sides to address her…
…the issue of jurisdiction were (sic) canvassed before the Court.” (See paras. 5.01,5.02 and 6.02 of the 2nd 4th respondents’ brief).
These conflicting assertions call for a closer look at the record of the proceeding of 17/2/97, when the addresses on which the learned Judge ruled were made. As indicated by counsel, the proceeding for that day can be found on pages 46 – 48 of the record. It reads, after the appearances of counsel had been noted:
“Dike says he filed notice of preliminary objection on 13/2/97. O.N. Owuamalam says notice of preliminary object was served on counsel for 1st and 2nd respondents in court this morning.
Because of the contentious nature of the matter she would want time to file a counter-affidavit to the substantive motion, served on 29th November, 1996.
D. O. Madu says, he was also served this morning. But urges the court to take the application on jurisdiction.
By Court: The court is minded to take the motion attacking the jurisdiction of the court.
F.C. Dike Esq. contends that, having filed a motion of preliminary objection, that objection should be taken first. The preliminary objection is collateral to the motion on notice by the 1st respondent/applicant. The application is attacking the competence of the motion attacking the jurisdiction of the court.
Whether it is a demurrer or on jurisdiction. Contends it is a demurrer. Limitation is a matter of defence to an action which must be pleaded by the defendants Cites Clerks v. Lindsell on Tort 15th, Edition P.330, paragraph 9132. Cites Order 24 High Court (Civil Procedure) Rules 1988. Contends jurisdiction goes to cause of action but limitation goes to remedy. The cause of action in the substantive motion is that the plaintiff recognized without being properly nominated. Contends has to swear counter-affidavit on the allegation rebutting same. Cites Provincial Council of Ogun State v. Makinde (1991) 2 NWLR (Pt. 175) p. 613 at 620 & 621A-C; Gbafe v. Gbafe (1996) 6 K.L R. page 1144 at 1147 & 1148, (1996) 6 NWLR (Pt. 455) 417.
Court has to determine whether there has been concealment of the act, giving rise to the cause of action. Clarke v. Lindsell 341. D. O. Madu replies and states that the motion is competent and should be taken first.
It goes to the root of the proceedings. State v. Onagoruwa (1992) 2 NWLR (Pt. 221) p. 33 at 35, necessary so deal with jurisdiction, first before any other cause of action.
Note: No pleadings were filed. What was filed was a motion for judicial review. The only means of hearing it by affidavit evidence. Issues of law are not raised in an affidavit. Order 24 of the High Court Laws does not apply – The authorities cited deal with when pleadings are filed and exchanged. Limitation of action is a question of jurisdiction – where the time is barred, the cause of action ceases to exist and there will therefore be no jurisdiction dispute between the parties. Onyejekwe v. Nigerian Police Council 0996) 7 NWLR. (Pt. 463) P.704 at 705. Egbe v. Adefarasin (1985)1 NWLR (Pt. 3) 549,(1985) 5 S.C. 50 at 86. Cites Madukolu v. C Nkemdilim (1962) 2 SCNLR 341,(1962)1 ALL NLR 587. Challenge to the jurisdiction of the Court can be brought by way of limitation. Badejo v. Federal Minister of Education (1996) 8 NWLR (Pt. 464) P 15 at 19, 22 and 23. Urges Court to take the motion on jurisdiction first. O. N. Owuamalam Esq. adopts the argument of counsel for 1st respondent – The issue of jurisdiction is fundamental. Mcfoy v. U.A C. Assuming without conceding that the issue of demurrer ought to be raised. Submit, the mode of commencement has made it inapplicable. By Order 1(2) High Court (Civil Procedure) Rules 1988. It ought to have been commenced by way of writ to enable parties to file pleadings. It was commenced by way of judicial review.
Order 24 is inapplicable. The matter is by way of affidavit evidence. Cites Egbe v. Adefarasin cited supra of (1985) 1 NWLR (Pt. 3) p. 549. Submits affidavit evidence takes the place of pleadings when pleadings not filed. The pleadings also had not pleaded. Mbonu v. Mbonu. Effluxion of time does not extinguish the right of action, acknowledgement revives it.
Court adjourned to 22nd April, 1997 for Ruling.”
I have no hesitation whatsoever, having regard to the italicized words, in agreeing with the appellants, that the only point addressed that day, was whether to take the motion on notice challenging the jurisdiction of the court first or whether to take the notice of preliminary objection first. Each counsel made it clear, that he was addressing the court on the question which of the two matters ought to be taken first. Nowhere did the defendant’s counsel move his application on notice. What he and the other counsel did, was to advance reasons why the motion challenging jurisdiction should be taken first.
In the circumstances, I cannot help agreeing with Chief Ogbusu that the manner in which the learned trial Judge proceeded was a serious infringement of appellants’ fundamental right to fair hearing, especially having regard to the pronouncements of the Supreme Court, per Kutigi J.S.C. in Onyema & Ors v. Egbuchulam (1996) 5 NWLR (Pt. 448) 224, at 265 that-
“The court had a duty to make its decision on the preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against same. In the instant case, the court did not only fail to rule on the preliminary objection as to the competence of the appeal, but proceeded suo motu to decide the appeal without hearing the parties.”
and at p. 267, per Uwais, C. J. N., that-
“There can be no doubt that, the court below committed a serious error. Since the parties were denied the right to fair hearing as guaranteed by the Constitution, the determination of the appeal before that court is a nullity and I have no hesitation to declare it null and void.”
Following this authority, I must declare the ruling complained of null and void. That being the case, this appeal must be allowed. I allow it. I hereby set aside the decision of Udom-Azogu, J, and the consequential orders made therein.
One of the reliefs sought by the appellants in their amended notice of appeal, is that the matter be sent down for hearing de novo before another Judge.
I am inclined to accede to this request. Having taken a stand on the appellants’ application for judicial review, it will not be proper for the learned Judge to continue to hear it. Accordingly, all the matters involved in this appeal, are remitted to the Imo State High Court, to be heard de novo before another Judge.
1st respondent to pay costs of N5,000.00 to the appellant.
Other Citations: (2001)LCN/0958(CA)