Societe Bic S.a & Ors Vs. Charzin Industries Ltd (2014)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
Before the High Court of Justice of Lagos State, Lagos Judicial Division, the plaintiff, now respondent, claimed against the defendants, now appellants, as follows:
“(a) The sum of N10,000,000.00 (Ten million naira) as damages for injury suffered by reason of the libel on the plaintiff’s “CHARZIN” Ball Point Pens contained in the advertisements the defendants published and caused to be published in the issues of the “Vanguard Newspaper, of August 18, 1995 on page 10 and the Daily Times Newspaper of November 13, 1995 in page 4.
(b) A perpetual injunction restraining the defendants and each of them whether by themselves or by their servants or agents from further printing, issuing, publishing or circulating or causing to be printed, issued, published or any other similar libel affecting the plaintiff.”
The plaintiff filed its Statement of Claim along with the writ of summons. Upon service on them of the Writ and Statement of Claim, the defendants (now appellants) filed a motion on notice on 23rd February, 1998 asking for the following reliefs:
“(1) An order striking out this Suit in that this Honourable Court has no jurisdiction to entertain the same being an action within the exclusive jurisdiction of the Federal High Court.
(2) An order striking out this Suit as constituting an abuse of Court process in view of the fact that the issues necessary for the determination of the same are subjudice in the case of Suit No. FHC/L/CS/1182/95: Societe Bic SA & Compagnie De Moulagues v. Charzin Industries Ltd & Charles Ezeagwu…”
The reliefs were predicated on the grounds that:
“1 By the provisions of section 230 (1) subsection (f) of the Constitution (Suspension and Modification) Decree No. 107 of 1993, jurisdiction is conferred on the Federal High Court to the exclusion of all other Courts, with respect to civil and criminal cases or matters relating to:-
‘Any Federal enactment relating to Copyright, Patents, Designs, Trade Marks and Passing-off, Industrial Designs and Merchandise Marks, Business Names and Commercial Industrial Monopolies, Combines and Torts, Standards of goods and Commodities and Industrial Standards.’
- The claim in this Suit arising from a publication made on protection of the defendants’ Registered Trade Marks, Copyrights and Design falls within the exclusive jurisdiction of the Federal High Court as provided for under the Constitution (Suspension and Modification) Decree No. 107 of 1993.
- There is pending before the Federal High Court Lagos presided over by His Lordship, Mr. Justice G. A. A. T. Jinnadu, Suit No. FHC/L/CS/1182/95 Societe Bic S. A. & Compagnie De Moulagues v. Charzin Industries Ltd & Charles Ezeagwu, over the same subject matter as the present Suit wherein parties and the issues raised are substantially the same as this present Suit.
- The issues necessary for the determination of this Suit are subjudice in the said Suit No. FHC/L/CS/1182/95: Societe Bic SA & Compagnie De Moulages v. Charzin Industries Ltd & Charles Ezeagwu.
- The plaintiff in this Suit represented by the same solicitors herein has taken several steps in Suit No. FHC/L/C/S/1182/95: Societe Bic S. A. & Compaqnie De Moulagues Industries Ltd & Charles Ezeagwu before Honourable Mr. Justice G.A.A.T. Jinnadu and are entitled to raise a counter-claim in the suit where they have already been sued.”
The motion was supported by a 12-paragraph affidavit to which were annexed Exhibits A-F1, further and better affidavit of six paragraphs of 20th March 1998 to which were annexed Exhibits AA-CC1 and 2nd further and better affidavit of five paragraphs deposed to on 21st April 1998 with one Exhibit – IJU1. Though there is a further counter-affidavit of six paragraphs, the records do not contain a counter-affidavit.
In its ruling delivered on 6/11/98, the trial Court stated, inter alia, that:
“The applicant has a 12 paragraphs (sic) affidavit with Exhibits attached marked ‘A-F1’ and a further and better affidavit of 6 paragraphs with Exhibits marked ‘AA-CC1’ and 2nd further and better affidavit of 5 paragraphs with another Exhibit marked ‘IJU1’. The trial Court concluded its ruling thus:
‘Since the issue involved is the tort of libel and injunction I hold that this Court has the jurisdiction to adjudicate in respect of this suit. The objection by the learned Counsel to the Defendant is therefore misconceived and this application is accordingly struck out.”‘
In a challenge to the ruling on their Motion on Notice, the defendants/applicants, now appellants, filed before the Lagos Division of the Court of Appeal a Notice of Appeal containing five grounds of appeal on 15/11/98.
In its judgment, based on the lone issue presented for determination, the lower Court, on 17th January 2005, dismissed the appeal in the following terms:
“On the whole, the lone issue in this appeal is resolved against the Appellants. The appeal has no merit and is accordingly dismissed. The decision of the lower Court is hereby affirmed. Appellants are ordered to pay the Respondents the cost of this appeal put at N10,000 Ten thousand naira.”
Dissatisfied with the judgment once more, the appellants filed in this Court a Notice containing five grounds of appeal. The notice was dated 1st February, 2005. Though the notice was numbered as pages 156 to 160 of the transcripts, it was not stamped, it contains no evidence that payment for its filing fees was made nor does it have a date of filing. However, I will assume that the process was duly filed since it was numbered as part of the records for this appeal.
In compliance with the rules and practice of this Court, learned Counsel for the parties filed and exchanged briefs of argument.
From the five grounds of appeal, learned Counsel for the appellants distilled the following three issues for determination in the appellants’ brief:
“(i) Whether the Court of Appeal was right in deeming as abandoned the 2nd prayer of the appellants’ motion on notice, asking for an order striking out the Suit as constituting an abuse of Court process in that the issues necessary for determination of the Suit are subjudice, in Suit No. FHC/L/CS/1182/95 Societe Bic S. A. & Compagnie De Moulagues v. Charzin Industries Ltd & Charles Ezeagwu. (Ground (sic) 1 & 2).
(ii) Whether on the totality of the materials before the Court of Appeal the learned trial Judge was right in finding that the cause of action in the Suit was founded in the tort of trade libel and not in trademark and therefore the High Court of Lagos State has jurisdiction to hear and determine the Respondent’s suit. (Ground 4).
(iii) Whether the Court of Appeal was right in treating the issue of jurisdiction raised in the appellants’ motion on notice, dated 23rd January 1998 and filed with affidavits in support, as a matter in lieu of Demurer proceedings and whether the Court could rule on the issue of demurer without inviting parties and/or their Counsel to address the Court on such an issue. (Ground 3).”
In his brief of argument, learned Counsel for the Respondent raised and argued a preliminary issue as to the competence of the appellants’ third issue for determination. In his view, the issues that arose from the grounds of appeal are:
“(1) Whether from the records the Court of Appeal was right in deeming as abandoned the 2nd prayer of the appellants in their motion on notice dated 23rd February, 1998 praying for an order striking out the Respondent’s suit as constituting an abuse of Court’s process (Grounds 1 and 2).
(2) Whether the Court of Appeal was right in holding that the Respondent’s cause of action in this Suit was founded in tort and not trademark and therefore the High Court of Lagos State has the jurisdiction to hear and determine the Suit (Ground 4).
(3) Whether from the facts and circumstances of this case the Court of Appeal was right in holding that for purposes of determining jurisdiction, the plaintiffs’ cause of action is defined by reference to only the plaintiff’s statement of claim (Ground 3).”
Arguing his issue one, learned Counsel for the Appellants referred to the motion for striking out from which this appeal arose and submitted that Counsel for both parties made submissions on the 2nd prayer in the motion. He referred to page 126 of the record which recorded learned Counsel who moved the application thus:
“She refers to the motion dated 23/2/98 and the ground stated. She refers to the affidavit in support and the further affidavit in support, of 6 paragraphs and further and better affidavit of 5 paragraphs.”
He said that though the trial Court restated the motion and the facts and grounds upon which it was founded, the Court failed to make a pronouncement on the 2nd prayer of the motion. He relied on Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511 at 539 para. B; Rumain v. Rumain (1992) 4 NWLR (Pt.238) SC 650 in support of his argument that a Court has a duty to give full consideration to all issues raised or canvassed before it.
He relied on Magnussun v. Koiki (1993) 9 NWLR (pt.317) 287 at 296-297; Harriman v. Harriman (1989) 5 NWLR (Pt.119) C77 () paragraph A and argued further that a Court is bound to consider any prayer as well as the materiality and the relevance of the affidavit in relation to the prayer and rule accordingly even in cases where Counsel is silent in his submission on them. He contended that the Lower Court misdirected itself in law when it held that because the appellants allegedly did not canvass the issue of abuse of Court process during the argument in the trial Court, that Court was right when it declined to make a finding based on evidence before it.
He referred to Magnussin v. Koiki (supra) to the effect that “the abandonment of prayers which are supported by affidavit evidence can only take place if the applicant expressly withdraws such prayer(s)”.
Learned Counsel referred to page 42 of the record where the Court recorded learned Counsel for the Respondents thus:
“He then referred to the petition before the Federal High Court and stated that the cause of action there was different whereas what was before this Court is simply defamation”
and argued that the learned Counsel for the respondent actually joined issues with the appellant on the 2nd prayer allegedly abandoned.
He relied on Inah v. Ukoi (2002) 9 NWLR (Pt.773) 563 at 593 in which the Court of Appeal held that an order drawn up or proceedings which stated that the respondent’s Counsel moved in terms of the motion paper was proper. He urged the Court to hold that the Lower Court erred in holding that the appellants abandoned their 2nd prayer in the motion.
He argued that the Court of Appeal had a duty to do what the trial Court omitted to do, that is to pronounce on the 2nd prayer which alleged abuse of process of Court. He relied on Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 155 at 188-189 for circumstances giving rise to abuse of judicial process. He argued that once a Court is satisfied that the proceedings before it is an abuse of its process, it has a duty to invoke its coercive powers under Section 6 (6) (a) of the 1979 Constitution to dismiss the action.
He is of the view that the claim in Suit No.FHC/L/C/S/1182/95 is the same as in the Suit at hand and that the parties are the same. He argued that the learned trial Judge “in his effort to justify his assumption of jurisdiction in the matter” clearly overlooked the issue and thereby erred in his ruling. (Underlining mine). He urged the Court to consider the prayer on abuse of process of Court and set aside the judgment of the Court of Appeal and that of the trial Court.
In issue two, learned Counsel for the appellants referred to the Vanguard Newspaper of Friday 18th August 1995 at page 10 and the Daily Times Newspaper of Monday, November 13, 1995 page 4 where it was alleged that the respondent:
“falsely and maliciously published and caused to be published a photograph of ball point pens get-ups with the name CHARZIN inscribed on one of them under a large type caption ‘AVOID IMITATION”.
He argued that the above publication was not a tort of trade libel but was an infringement of the appellants’ trademark which falls within the exclusive jurisdiction of the Federal High Court under Section 236 (1) of the 1979 Constitution of the Federal Republic of Nigeria then in force. He referred to a cause of action as the factual situation which if substantiated entitles the plaintiff to a remedy against the defendant. He relied on Briggs v. Bob-Manuel (1995) 7 NWLR (Pt.409) 559; Tukur v. Government of Gongola State No.20 (1989) 4 NWLR (Pt.117) 517 at 581.
He referred to paragraph 5-11 of the Statement of Claim at pages 3-5 of the record and said that the ingredients needed for the proof of the claim involved the issue of ownership of trademark. Learned Counsel argued that:
“The learned trial Judge shut his eyes to the facts as alleged in the Statement of Claim and in the various Affidavit Evidence of the parties which act prevented him from a dispassionate consideration of whether or not the matter before him concerned trademark issue and therefore outside his jurisdiction”:
and that the Court of Appeal fell into the same error when it affirmed the decision of the trial Court. He urged the Court to consider what he called “the component of the cause of action” of the plaintiff’s Suit and resolve the issue in favour of the appellants.
In issue three, learned Counsel for the appellants reproduced paragraphs 5, 6, 7, 9, 10 and 11 of the Statement of Claim at pages 3-5 of the record and contended that the claim showed clearly that the issues raised border on an alleged injury to a trademark “CHARZIN” and the right enjoyed by the said trademark. He referred to Trademarks Act, Cap 68 Laws of the Federation of Nigeria, 1990 and Section 230 (1) (f) of the Constitution (as amended) now Section 251 (1) (f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and argued that the issues in the case fall under the exclusive jurisdiction of the Federal High Court.
Learned Counsel for the appellant once more called the integrity and impartiality of the learned trial Judge in issue when he argued that:
“The learned trial Judge, in order to avoid the ouster of his jurisdiction in this matter, erroneously held that the Statement of Claim did not raise the issue of Trademark and that as a result the Lagos State High Court had jurisdiction to adjudicate on the claim of the plaintiff.”
He referred to page 47 of the record wherein the trial Court said, inter alia:
“It is clear that the plaintiff had a mark Charzin in their ball pens, the publication in the National Dailies did not involve the mark but the false and malicious publication…”
Learned Counsel inferred from the above that the trial Court decided the issues of trademark. He referred to page 47 of the record wherein the Lower Court agreed with the ruling of the trial Court and reproduced and considered Orders 23 and 42 of the Lagos State High Court (Civil Procedure) Rules 1999 and submitted that the allegation of trade libel, raised is ancillary to the issues of Trade Mark Law as the question whether or not the plaintiff is entitled to the reliefs claimed will depend on Trade Mark Law.
He reproduced and relied on the finding of the Court below that, inter alia:
“The defendant/objector having conceded and relied upon the averments in the plaintiff’s claim is deemed to have admitted the facts as averred to there.
In practical terms, the demurer procedure has continued to be in spite of its abandonment by the rules of Court.”
and argued that the issue raised by the appellants is not a matter for the demurer proceedings but is more fundamental than that, adding that the objection to jurisdiction can be taken even on a motion without affidavit. He argued that the issue of demurer was not raised by either party in the trial Court, and that since the issue was raised by the Lower Court suo motu the parties should have been called upon to address same before a decision on it is taken. He relied on Ejowhomu v. Edok Eter Ltd (1986) 5 NWLR (Pt.39) 1 SC () pages 34-35 H-A. He urged the Court to declare the decision on the issue of demurer as “nullity and proceed to set it aside”.
He urged the Court to pronounce on the prayers contained in the applicants’ motion on notice of 23/2/98 and to overturn the judgment of the Court below. He urged the Court to set aside the ruling of the trial Court.
Arguing the preliminary issue he raised in his brief, learned Counsel for the respondent said that the appellants’ 3rd issue consists of two issues co-joined as one. He said the two issues are; (1) whether the Court of Appeal was right in treating the issue of jurisdiction…as a matter in lieu of demurer proceedings and the second issue is “whether the Court could rule on the issue of demurer without inviting parties and/or their Counsel to address the Court on such an issue.” He argued that contrary to the appellate practice that two issues cannot be formulated from one ground of appeal, the appellants framed the two issues from one ground, ground 3.
He referred to Yusuf v. Akindipe (2000) 8 NWLR (Pt.669) 376 at 384 para C-D; Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt.1057) 218 at 240 paras A-B and urged the Court to strike out appellants’ issue three as incompetent. He urged the Court to strike out the issue on the further ground that it was framed from the particulars of ground 3, that is, particulars of misdirection, number (iv) of ground 3.
In his issue one on the alleged abandonment of prayer 2 in the appellants’ motion, he referred to pages 126-127 of the record to the effect that Counsel for the appellants argued only the first prayer in the motion and made no reference to the second relief of abuse of process of Court. He relied on Oforkire v. Maduike (2003) 3 NWLR (Pt.812) 166 at 187 paras C-F in his contention that Court will not grant a relief in respect of which it was not moved.
He argued that the Court below was right in its finding that the second prayer upon which the Court was not moved was abandoned and that the trial Court rightly did not pronounce on it. He referred to Inah v. Ukoi (supra) relied on by learned Counsel for the appellant and contended that the facts are not the same as Counsel in the present case did not move the Court in terms of the motion paper.
With reference to the concession of the appellants in their argument that “a claim on such a publication we respectfully submit is an off-shoot of the said already pending suit… and should more appropriately be raised as a counter-claim in the suit…”, he argued that once it is accepted that the respondent has a cause of action, it is not for the opponent to dictate how that cause can be agitated and that the filing of a fresh suit in the circumstance will not constitute abuse of process of Court. He relied on R. Benkay Nigeria Limited v. Cadbury Nigeria Plc, unreported decision of this Court in SC.29/2006 of 23/3/2012.
On the alleged abuse of process of Court, he referred to Umeh v. Iwu (2008) 8 NWLR (Pt.1089) 225 at 243 paras G-H where this Court stated that to sustain a charge of abuse of process of Court the following, inter alia, must co-exist:
(1) a multiplicity of Suits;
(2) between the same opponents;
(3) on the same subject matter;
(4) on the same issues.
He said that the claims and parties in Suit No. FHC/L/C/S/1182 are completely different from the claims and parties in the present Suit, that being the case, the issue of abuse of process of Court does not arise. He referred to Plateau State v. A-G Federation (2006) 3 NWLR (Pt. 967) page 346 at 393 paras F-G and contended that the present Suit does not constitute abuse of process of Court in relation to Suit No. FHC/L/C/S/1182/95. He added that the two Suits were not instituted by the same party. He urged the Court to resolve the issue in favour of the respondent.
He argued issues 2 and 3 together. Issue two is whether the claim is founded in tort and not trademark and the Lagos State High Court has jurisdiction to hear same and issue 3 is whether or not a cause of action is determined exclusively by reference to the Statement of Claim. He referred to the argument of the appellants that the trial Court and the Court below were wrong in law to have considered only the Writ of Summons and the Statement of Claim in determining the cause of action and ipso facto the jurisdiction of the trial Court to hear the case.
He said that the argument is misconceived as the Court, on determining the cause of action, is limited to a consideration of the Writ of Summons and the Statement of Claim and is not expected to consider components of the cause of action. He relied on Oba Aremo II v. Adekeye (2000) 2 NWLR (Pt.644) 257 at 271; Fasuen Motors Ltd v. UBA Plc (2000) 1 NWLR (Pt.640) p.190 at p.200; Alhaji Sule Anka & 9 Ors v. Alhaji Abdullahi Lokoja (2001) 4 NWLR (Pt.702) p.178. He referred to page 46 of the record where the trial Court held that:
“To determine the jurisdiction of this Court vis-a-vis the claim of the plaintiff, one must of necessity look at the Statement of Claim. Paragraphs 1, 5, 6, 7, 9, 10, 11 and 12 are very germane;”
and argued that the trial Court followed a laid down principle of law.
Learned Counsel referred to the claim endorsed on the Writ of Summons and the Statement of Claim, particularly paragraph 7 thereof and said that the claim is based on alleged false and malicious publication by the appellants of the respondent’s Charzin Ball Points, adding that the trade mark of Charzin was not in issue. He referred to Gatley on Libel and Slander, 17th Edition, page 38 paras 71-72 in support of his contention that the respondent’s claim relates to trade libel.
He referred to the definitions of “Trademark” and “Mark” in Black’s Law Dictionary 7th Edn and said that the trial Judge did not contradict himself and was right in the determination that trademark was not an issue in the case. Learned Counsel referred to the concurrent findings of the two Courts below that the respondent’s cause of action is the tort of trade libel in which the Lagos State High Court has jurisdiction to entertain and urged the Court not to disturb same. He relied on R. Benkay Nigeria Limited v. Cadbury Nigeria Plc (supra). He urged the Court to dismiss the appeal and affirm the decision of the Court below.
Learned Counsel for the respondent challenged the competence of appellants’ issue 3. The issue is hereby reproduced once more for ease of reference:
“Whether the Court of Appeal was right in treating the issue of jurisdiction raised in the Appellants’ Motion on Notice dated 23rd February 1998 as a matter in lieu of demurer proceedings and whether the Court could rule on the issue of demurer without inviting parties and/or their Counsel to address the Court on such an issue (Ground 3).”
As argued by learned Counsel for the respondent, issue 3 consists of two separate issues rolled into one. The first issue questions the right of the Court below to treat the issue of jurisdiction raised in the motion as a matter in lieu of demurrer and the second issue challenges the competence of the Court below to rule on the issue it raised without giving the parties or their Counsel the opportunity to address same.
It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said principle. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. A ground of appeal should not be split to raise two issues. See also A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt.99) 566; Adelaja v. Funoiki (1990) 2 NWLR (Pt.131) 137.
The two issues ought to have been ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal. However, the respondent’s Counsel provided a life-line to the appellant when he argued that second of the two issues was framed not from ground 3 but from one of its particulars.
In other words, only the first of the two issues was raised from ground 3 but the second issue was distilled from one of the particulars therein. An issue for determination not related to or based on grounds of appeal is not only incompetent but completely valueless and must be ignored by the appellate Court. See Omo v. JSC Delta State (2000) 7 SC (Pt.11) p.1. While the first arm of issue 3 is distilled from issue 3 and is competent, the second arm distilled from the particulars under ground 3 is incompetent and is hereby struck out.
I have carefully examined the two sets of issues in this appeal. The difference between the two is the issue of demurrer. The Lower Court held, inter alia:
“The defendant/objector having conceded and relied upon the averments in the plaintiff’s claim is deemed to have admitted the facts as averred to there. In practical terms, the demurrer procedure has confirmed to be in spite of its abandonment by the rules of Court.”
With respect, the Court below erred. There is no implication that a defendant challenging the jurisdiction of the Court to hear a case has, by doing so, admitted the facts averred by the plaintiff. However, the appeal was not determined on the issue of proceeding in lieu of demurrer inadvertently raised by the Court below.
Having disposed of this side issue, I intend to determine the appeal on the issues raised by the respondent which are substantially the same as those of the appellant.
Issue 1 is whether the Court below was right in deeming as abandoned prayer 2 in the appellants’ motion. Prayer 2 in the motion filed by the appellants as defendants/applicants in the trial Court reads:
“2. An order striking out this Suit as constituting an abuse of Court process in view of the fact that the issues necessary for the determination of the same are subjudice in the case of Suit No. FHC/L/C/S/1182/95, Societe Bic S.A.A & Compagnie De Moulages v. Charzin Industries Ltd & Charles Ezeagwu.”
From the record and as argued by learned Counsel for the respondent, learned Counsel for the appellant dealt with issue 1 in his motions without any reference to the second issue, though reference was made to affidavit evidence. Appellants’ Counsel relied on the case of Magnusson v. Koiki (supra) in his argument that an abandonment of a prayer can only take place if the applicant expressly withdraws such prayer. The facts of this case appear different from the facts of the case relied on by the appellants.
In his ruling in the case, Kutigi, JSC (as His Lordship was then) said in part:
“In this case the ruling of the Court of Appeal clearly showed that the appellants’ Counsel moved the motion or application and finally urged the Court to grant the application…”
At page 41 of the record, the trial Court referring to learned Counsel for the appellants (applicants in the motion), said:
“She urged the Court to ask the question – what was trade libel” She referred to Gatley on Libel and Slander, 8th Edition Chp 9 at pages 132-134. She concluded that this Court had no jurisdiction in the subject matter of this suit.”
From the record, not only did the learned Counsel fail to mention the second relief but she actually failed to move the Court. It would have been different if the learned Counsel had asked the Court to grant the reliefs in the motion paper or had moved in terms of the motion paper.
With respect to the learned Counsel for the appellants, the motion was treated with levity as if such applications are granted as a matter of grace. The Court below was right to have held that the second relief was abandoned and only the part of reliefs proved could have been granted. See Orie & Anor v. UBA & Anor (1976) 9 & 10 SC.123. I resolve issue one against the appellants.
Issue 2 is on the respondent’s cause of action as found by the Court below. I have already reproduced the respondent’s claim. The claim is that the appellants’, by their publications in the National Dailies portrayed the respondent’s product as fake or imitation. It is the claim of the respondent that the publications were made of its product called Charzin, which was to be avoided by the public as fake or imitation. I agree with the Court below that the claim was based on a trade libel and does not involve trademark. The issue is resolved against the appellants.
Issue 3 is on the determination of the appellants’ cause of action by reference to the Statement of Claim only. The term “cause of action” is judicially defined as denoting every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the Court.
It is any act on the part of the defendant which gives the plaintiff a cause to complain. See Lasisi Fadare & Ors v. A-G Oyo State (1982) 4 SC 1 at 7; Read v. Brown (1888) 22 QBD 128 at 131; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1. It is different from the evidence or pieces of evidence necessary to sustain the claim. It is the entire set of circumstances giving right to enforceable claim. See Odutan v. Akibu (2000) 7 SC (Pt.11) 106. On the other hand, jurisdiction of a Court is defined as the dignity which the Court has to do justice in a cause or complaint brought before it. It is the limits imposed upon the power of a validly constituted Court to hear and determine issues with reference to subject matter, the parties and the relief sought. See Ikine v. Edjerode (2001) 92 LRCN 3288 at 3316; Adeyemi v. Opeyori (1976) 9-10 SC 31.
There is a close relationship between cause of action and jurisdiction of a Court to entertain an action. In Madukolu v. Nkemdilim (1962) 1 All NLR 587, this Court stated the ingredients of jurisdiction thus:
(a) The Court or tribunal must be properly constituted with respect to the number and qualification of its members.
(b) The subject matter of the action must be within its jurisdiction.
(c) The action is initiated by due process of law.
(d) Any condition precedent to the exercise of its jurisdiction has been fulfilled. See also Ogbuinying v. Okudo (1979) 6-9 SC 32.
In the case at hand, there is no issue on the number and qualification of the members of the Court, and the issue whether or not the action was initiated by due process of law was not raised nor is there any issue as to the condition precedent to the exercise of the Court’s jurisdiction. The question here is whether or not the subject matter of the action is within the limits imposed on the power of the Court to hear and determine the case before it.
All other conditions are fulfilled and it is the claim itself that will be considered, in the light of the applicable law to determine if the Court has power to hear the case. The claim is as stated in the Statement of Claim if the claim therein is different from the one endorsed on the Writ of Summons.
In determining the issue of jurisdiction, it is the claim endorsed on the Writ or stated in the Statement of Claim that will be considered, not the facts averred in the Statement of Claim or the affidavit evidence to be relied on by the plaintiff. It is a misconception for learned Counsel for the appellants, to refer to facts pleaded in the Statement of Claim or averments in affidavit as components of the cause of action to be relied on in ascertaining the jurisdiction of the Court. Issue 3 is resolved against the appellants.
I find the language employed by learned Counsel for the appellants in his reference to the learned trial Judge disturbing.
At page 10 paragraph 4.1.21 of his brief, learned Counsel for the appellants claimed:
“Rather the learned trial Judge, in his effort to justify his assumption of jurisdiction in the matter overlooked the issue…”
(Underlining mine).
Again at page 18, paragraph 4.3.5 of the said brief, learned Counsel for the appellants said:
“The learned trial Judge, in order to avoid the ouster of his jurisdiction in the matter erroneously held…”
(Underlining mine).
It is an established fundamental principle that while a Judge can expound his jurisdiction, he cannot expand same beyond the limit imposed by law. A Judge does not hunger after jurisdiction. With due respect to learned Counsel, he portrayed His Lordship as having unlawfully assumed jurisdiction before he made effort to justify the illegal act of assuming jurisdiction denied him by the facts and law applicable to the claim before him. He also showed the Judge as having circumvented the bounds placed on his jurisdiction by law.
The above are unkind and unprofessional statements by a lawyer in reference to a Judge. It is more disturbing when the statements, as in this case, are entirely without substance. This judgment has vindicated the learned trial Judge and the statements reflected on learned Counsel who made them as being ignorant of the claim and the law applicable to same, or is bent on casting aspersion on the learned trial Judge by any means.
If a trial Judge makes a mistake in his judgment, it is enough for Counsel to demonstrate the error for the appellate Court to correct without putting to question the impartiality and ipso facto the integrity of the trial Judge without valid grounds for so doing.
Having resolved the three issues against the appellants, I hold that the appeal is devoid of merit and I accordingly dismiss same with N100,000.00 costs to the respondent.
SC.79/2005
