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Uzoho & Ors V. National Council Of Privatization & Anor (2022) LLJR-SC

Uzoho & Ors V. National Council Of Privatization & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellants, herein, commenced an action by way of Originating Summons at the Federal High Court, Abuja Judicial Division (hereinafter, simply, referred to as “the Trial Court”). They sought both declaratory and injunctive reliefs against the respondents with respect to the propriety on their advertisement on April 22nd, 2004 issue of THISDAY Newspaper.

The said advertisement was titled a “Request for expression of Interest.” It invited Legal Practitioners, amongst other professionals, with expertise in petroleum logistics in the Oil and Gas industry, to offer legal services to the respondents on the condition that lawyers subordinated themselves to non-lawyers, shared legal fees with non-lawyers and engaged in partnership relationships with non-lawyers.

The appellants, therefore, sought the following reliefs:

​1. A declaration that having regard to Rule 50 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars partnerships between lawyers and members of other professions or non-professional persons where any part of the partnership’s employment consists of the practice of law, it was improper for the defendants to invite ‘expressions of interest’ from Legal Practitioners in relation to the privatization of the Pipeline and Products Marketing Company on the condition that legal Practitioners participate in a partnership/consortium led by an investment bank;

  1. A declaration, that having regard to Rule 45 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars legal practitioners from sharing legal fees with non-lawyers, it was improper for the defendants to invite ‘expressions of interest’ from legal practitioners in relation to the privatization of the Pipeline and Products Marketing Company on the condition that legal practitioners participate in partnership/consortium led by an investment bank;
  2. A declaration that having regard to Rule 48 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which provides that a lawyer’s relation to his client should be personal and that the responsibility should be direct to the client, it was improper for the defendant to invite ‘expressions of interest’ from legal practitioners in relation to the privatization of the Pipeline and Products Marketing Company on the condition that legal practitioners participate in a Partnership/consortium led by an investment bank;
  3. A declaration that having regard to Rule 50 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars partnerships between lawyers and members of other professions or non-professional persons where any part of the partnership’s employment consists of the practice of law, it is a violation of the aforesaid Rule 50 for Legal Practitioners, including the plaintiffs, to join a partnership/consortium with other professionals or non-professional persons to provide legal services in relation to the privatization of the Pipeline and Products Marketing Company;
  4. A declaration that having regard to Rule 45 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars legal practitioners from sharing legal fees with non-lawyers, it is a violation of the aforesaid Rule 45 for Legal Practitioners, including the plaintiffs, to share legal fees with non-lawyers by their participant in a partnership/ consortium of professional in relation to the privatization of the Pipeline and Products Marketing Company;
  5. A declaration that having regard to Rule 48 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which provides that a lawyer’s relation to his client should be personal and that the responsibility should be direct to the client, it is a violation of the aforesaid Rule 48 for Legal Practitioners, including the plaintiffs, to offer and/or provide legal services to the defendant by participating in a partnership/consortium of professional led by an investment bank in relation to the privatization of the Pipeline & Products Marketing company;
  6. A declaration that having regard to the provisions of the Legal Practitioners Act, 1990, and the Public Enterprises (Privatization and Commercialization) Decree No.28 of 1999, the defendant cannot, in relation to the privatization of the Pipelines and Products Marketing Company, validly retain the professional services of lawyers who are not entitled to practice law in Nigeria;
  7. A declaration that having regard to the defendants’ publication inviting Expressions of Interests for legal services in relation to the privatization of the Pipelines & Products Marketing Company and the qualifications therein contained, the defendants are indeed not acting in good faith with respect to the invitation of Expressions of Interests from legal practitioners in Nigeria;
  8. An order restraining the defendants, their officers, employees, agents, assigns and/or representatives from enforcing the conditions stipulated in its April 22nd, 2004 Request for Expressions of Interest and violating the Rules of Professional Conduct applicable to the Nigerian legal profession with respect to the short-listing and/or hiring of applicants for the position of legal adviser for the privatization of the Pipelines and Products Marketing Company;
  9. An order perpetually restraining the defendants, their officers, employees, agents, assigns and/or representatives from seeking Expressions of Interests from legal practitioners and/or hiring legal practitioners with respect to the Nigerian privatization programme on conditions that contravene the Rules of Professional Conduct applicable to the Nigerian legal profession;
  10. An order for an interlocutory injunction restraining the defendants from closing the deadline for the submission of Expression of Interests by Nigerian legal practitioners with respect to the position of legal adviser on the privatization of the Pipelines & Products Marketing Company pending the hearing and determination of the substantive suit;
  11. And for such further or other orders as the Honourable Court may deem fit under the prevailing circumstances.

The respondents filed a notice of Preliminary Objection challenging the jurisdiction of the trial Court, on the grounds that:

i) The appellants have no locus standi to institute the action; and

ii) The first respondent is not a juristic person.

By a ruling delivered on October 21st, 2004, the trial Court held that the suit is academic in nature. It, consequently, struck it out. The trial Court also struck out the name of the first respondent as being a non-juristic person.

​Dissatisfied with that ruling, the appellants then appealed to Court of Appeal, Abuja Judicial Division, (hereinafter, simply, called “the lower Court”) via a Notice of Appeal. By its judgment, delivered on January 15th, 2007, the lower Court dismissed the appeal in part, by holding that the trial Court was right to have struck out the substantive suit on the ground that it was academic. It reversed the holding of the trial Court that the first respondent was not a juristic personality.

Dissatisfied with the judgment of the lower Court, the appellants have now appealed to this Court via an Amended Notice of Appeal containing nine grounds.

​Now, distilled from the nine Grounds of Appeal, the appellants put forward the following four issues for the determination of this Court:

  1. Whether the lower Court was right in not reversing the trial Court for prejudging the substantive suit by holding at an interlocutory stage that the respondent’s ‘Request for expression of interest [EOI]’ did not violate the Legal Practitioner’s Rules of Professional Conduct, notwithstanding that the appellant’s originating summons presented rules 45, 48 and 50 for interpretation with respect to the aforesaid publication?
  2. Whether the lower Court was right in not reversing the trial Court’s ruling on the basis that the trial Court, suo motu, raised and considered the substantive suit as academic and on that basis struck out the same without affording the appellants the opportunity of being herd, and if so, whether the substantive suit was indeed academic?
  3. Whether the lower Court was right to have dismissed the appeal on the basis of ‘non-justiciability and/or lack of locus standi’ notwithstanding that

a. The trial Court did not strike out the substantive suit on the basis of non-justiciability and/or lack of locus standi;

b. None of the Grounds of Appeal challenged the ruling on the basis of the justiciability of the substantive suit and/or lack of locus standi;

c. The issue of ‘non-justiciability and/or lack of locus standi’ did not arise in the appeal and could not have been distilled from any of the grounds of appeal.

​The respondents raised four issues for determination, in similar manner with the appellants, to wit:

  1. Whether the lower Court was right in holding that the ruling of the trial Court did not prejudge the substantive action at the interlocutory stage as there was no substantive action by reason of the absence of a live issue before the trial Court?
  2. Whether the lower Court was right when it held that ‘in my humble view; I do not think the advert is a sufficient catalyst to arouse any grouse against the respondents by the appellants or anyone at that. Furthermore, the respondents not being Legal Practitioners are not subscribers to the rules of professional conduct for Legal Practitioners; hence the rules have no bearing to and cannot be enforced against them.’
  3. Whether the lower Court was right in not reversing the trial Court’s ruling on the basis that the trial Court acted suo motu and raised and considered the substantive suit as academic without affording the appellant’s the opportunity of being heard?
  4. Whether the lower Court was right to have dismissed the appeal on the basis of ‘non-justiciability and/or lack of locus standi’ notwithstanding, that
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a. The trial Court did not strike out the substantive suit on the basis of non- justiciability and/or lack of locus standi;

b. None of the Grounds of Appeal challenged the ruling on the basis of the justiciability of the substantive suit and/or lack of locus standi;

c. The issue of ‘non-justiciability and/or lack of locus standi’ did not arise in the appeal and could not have been distilled from any of the grounds of appeal.

I shall, in this judgment deal, with the appeal by reference to the issues as formulated by the appellants.

ISSUE 1

Whether the lower Court was right in not reversing the trial Court for prejudging the substantive suit by holding at an interlocutory stage that the respondent’s ‘Request for Expression of Interest [EOI]’ did not violate the Legal Practitioner’s Rules of Professional Conduct, notwithstanding that the appellants’ originating summons presented Rules 45, 48 and 50 for interpretation with respect to the aforesaid publication?

Under this issue, appellants contended that the trial Court prejudged the appellants’ suit at the interlocutory stage by determining the issue in the substantive suit. Consequently, the lower Court erred when it upheld the trial Court’s decision. Reliance was placed on the following casesMobil Oil Nig. Plc v Kena (2001) 1 NWLR (pt. 695) 555 (CA); Attorney-General, Federation v Attorney- General, Abia State [2001] 11 NWLR (pt. 725) 689; Abacha v State [2002] 11 NWLR (pt. 779) 437, 501-506.

He, further, contended that the interpretation of the rules at an interlocutory stage by the learned trial Judge is an infringement of the appellants’ right to fair hearing.

RESPONDENTS’ CONTENTION

The respondents, on the other hand, argued that it is fundamental that, when a Court is examining the issues submitted to it, and finds that it lacks the necessary vires to hear and determine the case, it has a duty to terminate the proceedings before it.

Learned counsel submitted that the law has progressed towards encouraging a Court to attempt to make pronouncement on all issues even when it lacks jurisdiction, to afford this Court the opportunity of examining the issues, if the lower Court is adjudged to be wrong, Itanyi and Anor v Bagudu and Ors (2018) LPELR-46984-(CA). He urged that the Court declines the invitation to interfere with the concurrent findings of the two lower Courts having not been demonstrated to be perverse. He, therefore, entreated the Court to resolve issue one in favour of the respondent.

RESOLUTION OF THE ISSUE

The question presented by issue one is: was the lower Court’s right in its response to the approach of the trial Court which decided a substantive issue at an interlocutory stage. An answer to this question would require a recourse to the ruling of the trial Court.

Now, at pages 33-34 of the record, the learned trial Judge held thus:

The plaintiffs in their originating summons are seeking interpretation of the Rules of Professional Conduct binding on applicable or Legal Practitioners in Nigeria vis-a-vis the publication annexed as exh. A to the affidavit in support of the originating summons. The plaintiffs who are legal practitioners are alleging that the condition for practicing in the exercise violates provisions of the Rules of Professional Conduct binding on them as lawyers. That because their interest to participating cannot be realized due to these conditions, their civil rights have been infringed thus foisting them with locus to challenge same.

I have read over several times the questions for determination and the reliefs sought. It may be true that it is exh. A that has triggered this action and the interpretation given to it by the plaintiffs but at the end of it. I find no live issue at hand. The reliefs sought have a blanket implication to them. The whole suit appears academic and the Court does not do academic exercises. If this were a live issue and the Court were to assume jurisdiction over it. I would Statutory easily come to the conclusion that the fear of the plaintiffs is misplaced. That Exh. A does not in any way imply what they have concluded and does not in any way violate the Rules of Professional Conduct. But as I have said, this is an academic exercise and the Court would not use its limited time in that.

My Lords, I am unable to agree that, from the above passage, the learned trial Judge had pre-judged the substantive suit. Of course, in determining whether a Court has jurisdiction over a suit, the Court is bound to make reference to the pleadings of the appellant, in this case, the Originating Summons, Madukolu v. Nkemdilim [1962] 2 SCNLR 341; Enwezor v Onyejekwe [1964] 1 All NLR 14; Adeyemi v Opeyori [1976] 9-10 SC 31; Tukur v. Government of Gongola State [1989] 4 NWLR (pt. 117) 517.

​From the questions for determination and the reliefs sought, what clearly emerges is that no issue was joined by the parties. The learned trial Judge is also expected to make a careful and proper appraisal of all the evidence before him in arriving at his conclusion. No matter how a question of jurisdiction is broached, the Court must deal with it as it is fundamental to the vires of the Court.

Where the question of jurisdiction succeeds, it results into a total negative operational effect. In other words, the totality of the suit becomes non-existent as it is with the situation at hand. For question of fair hearing to apply, there must be a valid and subsisting suit, not an academic or hypothetical suit, as in the instant case, Gbagbarigha v. Toruemi [2013] 6 NWLR (pt 1350) 289, 316.

​Now, at page 101 of the record of appeal, the lower Court held inter alia, thus:

“…The ruling is very clear; it does not amount to prejudging the alleged substantive action. Indeed, there is no substantive action, there being no live issue and dispute between the parties. The learned trial Judge was therefore right in declining jurisdiction to adjudicate upon the case of the appellants. To have done otherwise will be absurd as the resultant effect would be merely and totally speculative. My observation with due respect is, that the appellants are purely busybodies, interlopers, meddlers and rabble rousers who have no serious business in hand to grapple with and are merely seeking for cheap popularity.”

​I cannot agree more with the lower Court’s position on this issue. Requiring the trial Court to interpret Rules 45, 48 and 50 of the Rules of Professional Conduct for Legal Practitioners in Nigeria would have served no useful purpose. The Court would not have decided an existing lis between the parties who brought it. It would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour. I, therefore, have no hesitation in holding that I resolve issue one in favour of the respondents.

ISSUE 2

Whether the lower Court was right in prejudging the substantive suit by holding in an interlocutory appeal that ‘in my humble view; I do not think the advert is a sufficient catalyst to arouse any grouse against the respondents by the appellants or anyone at that. Furthermore, the respondents not being legal practitioners are not subscribers to the rules of professional conduct for legal practitioners; hence the rules have no bearing to and cannot be enforced against them’?

It is the submission of the appellants that the lower Court prejudged the substantive suit at an interlocutory stage. Learned Counsel, further, posited that this Court has, repeatedly, held that a Court is not at liberty to prejudge a substantive suit at an interlocutory stage, Attorney-General, Federation v. Attorney-General, Abia State (supra); United Spinner Ltd v. CB Ltd [2001] 14 NWLR (pt. 723) 195, 212-213; University Press Ltd v. I.K. (Nig.) Ltd [2000] 4 NWLR (pt. 654) 584, 595. He urged the Court to resolve in favour of the appellants.

RESPONDENTS’ SUBMISSIONS

For the respondents, it was submitted that the lower Court was right in holding that the Rules of Professional Conduct [“RPC”] did not apply to the respondents who were not Legal Practitioners.

​It was, further, posited that a cursory look at the twelve reliefs sought by the appellants shows that they are all premised on the applicability of the Rules of Professional Conduct on the respondents. He pointed out that, exhibit A, the newspaper advert, read in conjunction with the relevant provisions of the Rules of Professional Conduct provided insufficient catalyst to arouse any grouse against the respondents.

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Learned counsel, further, argued that the learned trial Judge, having come to the conclusion that there was no live issue, after examining the reliefs as set out by the appellants, did not stray outside the boundaries of the law. Thus, that the lower Court was of a similar mind when it came to the conclusion that exhibit A was not a sufficient catalyst to arouse any grouse against the respondents. To buttress these points, reliance was placed on the following cases Amalgamated Trustees Ltd v. Associated Discount House Ltd [2007] LPELR-454 (SC); Malle v. Maigari and Ors (2019) LPELR-47183 (CA).

He maintained that the appellants’ submissions are further weakened by the nature of case they set up at the trial Court. The appellants’ case, he explained, was brought by way of Originating Summons. Under that procedure, no witnesses are called or evidence led. As such, the case of the appellants was either academic or not. There was nothing to pre-judge.

​Finally, it was opined that the lower Court did not err by proceeding to give its views on the substantive suit. Heavy reliance was placed on the cases of Habeeb and Anor v Attorney-General, Federation and Ors [2012] LPELR-15515 (SC); Adah v N.Y.S.C [2004] 13 NWLR (pt. 891) 639, 643; Katto v C.B.N [1991] 9 NWLR (pt. 214) 126, 149. He urged the Court to resolve this issue in favour of the respondents.

RESOLUTION OF THE ISSUE

The appellants have raised a lot of dust on the fact that the lower Court’s pronouncements prejudged the substantive suit in an interlocutory appeal. I find it necessary to reproduce the relevant portions of the judgment of the lower Court in contention.

​At page 100 of the record, the lower Court found as follows:

“In my humble view, I do not think the advert is a sufficient catalyst to arouse any grouse against the respondents by the appellants or anyone at that. Furthermore, the respondents not being legal practitioners are not subscribers to the rules of professional conduct for legal practitioners; hence the rules have no bearing to and cannot be enforced against them. Indeed, if in the event of any Legal Practitioner responding to the respondents’ advert to render the required services, such legal practitioner would be seen to have willingly and by choice done so and in the absence of any fraud or unlikely coercion, there cannot be a cause of action against the respondents.”

​It is indeed the law that, in dealing with an interlocutory proceeding, the Court should avoid pre-judging the substantive suit, Odutola Holdings Ltd and Ors v. Ladejobi [2006] 12 NWLR (pt. 994) 321; Barigha v. PDP and 2 Ors [2012] 12 SC (pt. v) 1; Agwu and Ors v Julius Berger (Nig.) Plc [2019] LPELR-47625 (SC); CIL Risk and Asset Management Ltd v. Ekiti State Govt. and Ors [2020] LPELR-49565 (SC).

It is never proper for a Court to make pronouncements in the course of the interlocutory proceedings on issues capable of prejudging the substantive suit. However, should this rule apply where there is, indeed, no substantive suit? I think not.

​It is manifest that the case before the learned trial Judge had hardly taken off because a preliminary objection was made challenging the jurisdiction of the Court to entertain the matter. The respondents filed a notice of Preliminary Objection that the trial Court lacked the jurisdiction to hear and determine the action. The objection was predicated on the grounds that the appellants have no locus standi to institute the action and that the first respondent is not a juristic person.

Once the preliminary objection was determined by the trial Court, whatever error conceived to have been made as regard the decision ceased at that point to be an issue, that is, a live issue in respect of which the appellants can still feel aggrieved.

I agree with the submissions of learned counsel for the respondents that, where the lower Court declines jurisdiction on an appeal before it, it is better for that, not being the final Court, to hand down a decision on the substance of the case to enable this Court give consideration to the substance where it may wish to overrule the lower Court’s decision to decline jurisdiction, Stowe v Stowe [2012] 9 NWLR (pt. 1306) 450; Angadi v. P.D.P and Ors. [2018] LPELR-44375 (SC). There, mere consideration of the substance of a case does not automatically amount to pre-judging a purported substantive suit. Issue two is also resolved in favour of the respondents.

ISSUE 3

Whether the lower Court was right in not reversing the trial Court’s ruling on the basis that the trial Court acted suo motu and raised and considered the substantive suit as academic without affording the appellant’s the opportunity of being heard?

It was the position of the appellants that the trial Court was in error in basing its ruling on an issue which it raised suo motu and without affording the parties, particularly, the appellants, the opportunity of being heard. He added that the lower Court erred in law when it failed to reverse the trial Court’s ruling.

It was further submitted that the trial Court raised and considered the issue of the appellants’ suit being academic, suo motu, without giving the appellants an opportunity to be heard on those issues before its determination on same, adding that this was indeed the fulcrum upon which the trial Court reached its decision.

The appellants, further, pointed out that although the respondents neither grounded their preliminary objection on the “academic issue” nor argued same, the trial Court, nevertheless, struck out the suit on the ground that it was academic.

​Learned counsel, also, contended that contrary to what the two lower Courts had held, the suit embodies “live issues” that when decided, would affect the parties, vested rights and interests, particularly the appellants, Attorney-General, Federation v. A.N.P.P [2003] 18 NWLR (pt. 851) 182, 215. He urged the Court to resolve this issue in favour of the appellants.

RESPONDENTS’ ARGUMENTS

Learned counsel for the respondents, on his part, pointed out that this issue had been canvassed at the lower Court, which Court held, inter alia, that it failed to see how the learned trial Judge can be indicted for raising any issue suo motu.

It was further submitted that just as the lower Court held, the phrase “live issue” within the peculiar circumstances of the instant case was not an issue of law or innovation which should necessitate for the trial Court to call on counsel for special consideration of.

Learned counsel argued that, to hold otherwise, would be to open an un-closeable door of opportunism that will make every phrase used by the jurist, a potential ground of appeal and make writing judgments, a long walk on miry clay.

​It was further posited that where it is obvious that the Court lacked the competence and, by extension, the jurisdiction to entertain a case, the Court has the necessary vires to so hold. He urged the Court to resolve this issue in favour of the respondents.

RESOLUTION OF THE ISSUE

This issue reminds of the dictum of this Court in Sodipo v Lemminkainem OY and Anor[1986] 1 NWLR (pt. 15) 220, According to the Court:

“A Judge exists to determine disputes and examine with due care and microscopic senses all matters before him in his pursuit of justice.”

This dictum, to my mind, is a complete answer to the criticism by the appellants to the way and manner the learned trial Judge resolved the preliminary objection. In the first place, the question of no “live issue” found in the suit, was not raised by any of the parties in arguing the preliminary objection.

​A trial Judge, however, is within his rights to properly inform himself of a defect in a suit, either with or without external intervention, because it touches directly on the competence of the suit and hence the jurisdiction to entertain it as such. Thus, the established principle that the issue of jurisdiction can be raised at any stage of the proceedings, at the instance of either the parties or by the Court suo motu, Amale v. Sokoto Local Govt and Ors. [2012] 1 SC (pt. IV) 45; Odiase v. Agho [1972] 1 All NLR (pt.1) 170; Petrojessica Entreprises Ltd v. Leventis Technical Co. Ltd, [1992] 2 NWLR (pt. 244) 675.

Where however, the issue of jurisdiction is raised, it should be examined in all ramifications. It should not be compartmentalized and subjected to piecemeal examination and treatment, Oloba v Akereja [1988] 3 NWLR (pt. 84) 508.

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The very many faces of jurisdiction should come under the searchlight and be pronounced upon, notwithstanding that it might not have been brought to the attention of the Court.

Once the Court finds that it lacks jurisdiction over the matter before it, it has a duty to put an end to the proceedings, Sken-consult (Nig.) Ltd v Ukey [1981] 1 SC 6, 25; Adesokan and Ors. v. Adetunji and Ors. [1994] LPELR-152 (SC); Metilelu v. Olowo-Opejo and Anor [2006] LPELR-11598 (SC).

Courts of law in this country assume jurisdiction only on live issues, Madukolu v. Nkemdilim (supra); Lado v C.P.C [2011] 18 NWLR (pt. 1279) 689; Dickson v. Sylva ​[2017] 10 NWLR (pt. 1573) 299; Attorney-General, Kwara State v Alao [2000] 9 NWLR (pt. 671) 84; Atake v Afejuku [1994] 9 NWLR (pt. 368) 379; UB.N Plc v Scpok (Nig.) Ltd [1998] 12 NWLR (pt. 578) 82; Attorney-General, Federation v A.N.P.P [2003] 18 NWLR (pt. 851) 182.

There cannot be said to be a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started.

In the instant case, it would be, in my opinion, the pursuit of great injustice, if the learned trial Judge, discovering the absence of a live issue in the suit, had allowed sleeping dogs to lie.

As regards the appellants’ contention that the interpretation of the rules at an interlocutory stage by the learned trial Judge is an infringement of the appellants’ right to fair hearing, it is my view that this is a total misconception on the part of the appellants.

​The trial Court availed both parties the opportunity to address it on the preliminary objection. It was in the course of determining the preliminary objection, upon the consideration of reasons advanced by both counsel, that it became apparent to the learned trial Judge that the gravamen of the suit itself was devoid of justiciability.

The finding of the learned trial Judge cannot be faulted on this regard. The lower Court, also, in not reversing the ruling of the trial Court, was properly guided and, therefore, cannot be faulted.

ISSUE 4

Whether the lower Court was right to have dismissed the appeal on the basis of ‘non-justiciability and/or lack of locus standi’ notwithstanding, that:

a. The trial Court did not strike-out the substantive suit on the basis of non-justiciability and/or lack of locus standi;

b. None of the Grounds of Appeal challenged the ruling on the basis of the justiciability of the substantive suit and/or lack of locus standi;

c. The issue of ‘non-justiciability and/or lack of locus standi’ did not arise in the appeal and could not have been distilled from any of the grounds of appeal.

The appellants, in this issue, contended that an appellate Court is bound to limit its determination of a pending appeal on issues distilled from the underlying Grounds of Appeal legitimately challenging the decision of the subordinate Court, Ikweki v. Ebele [2005] 11 NWLR (pt. 936) 397 (SC); Iriri v. Erhurhobara [1991] 2 NWLR (pt. 172) 252 (SC); Edem v. Canon Balls Ltd [2005] 12 NWLR (pt. 938) 27 (SC); Usiobaifo v. Usiobaifo [2005] 3 NWLR (pt. 913) 665 (SC).

Learned counsel explained that the lower Court dismissed the appellants’ appeal on the basis of issues that were neither covered in the Grounds of Appeal nor distilled therefrom. In doing so, the lower Court considered the non-justiciability of the appellants’ substantive suit and their locus standi which were not even the anchor points upon which the trial Court struck out the substantive suit.

The appellants, further, submitted that what the lower Court did in this regard was improper and ipso facto an error, shouting for a reversal. He, therefore, urged the Court to resolve this issue in favour of the appellants.

RESPONDENTS’ SUBMISSIONS

Contrarily, learned counsel for the respondents submitted that the issue of justiciability of the action and locus standi were properly laid out before the lower Court.

Thus, the decision of the lower Court on them is, consequently, good in law.

It was further posited that the portion of the decision complained of is, at best, merely an obiter dictum and cannot overturn the fuller judgment of the Court, Ogbolonsingha and Anor v. Bayelsa State IEC and Ors [2015] LPELR-24353 (SC); Osuagwu v. Emezi and Ors (2013) LPELR-22030 (CA). He urged the Court to resolve this issue in favour of the respondents.

RESOLUTION OF THE ISSUE

It is my observation that, in this appeal, the appellants appear to be speaking from both sides of the mouth. In one breath, the appellants want this Court to fault the decision of the lower Court for not reversing the trial Court’s ruling on the basis that the said Court acted suo motu and raised and considered the substantive suit as “academic” without affording the appellants the opportunity of being heard.

​In other words, that the ruling of the trial Court was not decided based on the ground of objection that the appellants lacked the locus standi to institute the action, as raised by the respondents. in another breath, it is also urged on the Court to reverse the decision of the lower Court which dismissed the appellants’ appeal on the basis of non-justiciability and/or lack of locus standi.

Learned counsel must be reminded that a party cannot blow hot and cold or approbate and reprobate but must be consistent in his case, Ngige v. Obi [2006] 14 NWLR (pt. 999) 1; County and City Bricks Development Co. Ltd v. Hon, Minister of Environment Housing and Urban Development and Anor [2019] LPELR-46548 (SC); Attorney-General, Rivers State v. Attorney-General, Akwa-Ibom State [2011] LPELR-633 (SC). It is unacceptable in law.

To my mind, the appellants’ contention in this issue appears to be saying that were it to be that the trial Court had struck out their suit for want of locus standi and not for want of a live issue, the decision would have been correct. Again, it is ironic that the appellants still want to fault the lower Court for doing just what they criticize the trial Court for failing to do.

​In this appeal, the main action was commenced by way of Originating Summons. Under this procedure, pleadings are not filed nor witnesses called. It is, generally, heard on affidavit evidence deposed to in support and in opposition, with documents exhibited, Famfa Oil Ltd v. Attorney-General, Federation and Anor [2003] LPELR-1239 (SC); JEV and Anor v. Iyortyom and Ors[2014] LPELR-23000 (SC); Zakirai v. Muhammmad and Ors [2017] LPELR- 42349 (SC).

As earlier stated, in deciding an interlocutory application, a Court should endeavor to limit itself to the dispositions made in the affidavit evidence before it. Thus, having regard to the nature of the originating process, and there being nothing but documentary evidence placed before the lower Court, the lower Court was in a good position to examine the entire affidavit evidence and the other documents placed before the trial Court in determining whether the ruling of the trial Court with regards to the preliminary objection was correct, Chief Agbaisi and Ors v Ebikorefe and Ors [1997] 4 SCNJ 147, 160; Agbahomovo and Ors v. Eduyegbe and Ors. [1999] 3 NWLR (pt. 594) 170; Jikantoro and Ors, v. Dantoro and Ors. [2004] 5 SCNJ 152, 177; Agbareh and Anor v. Mimrah and Ors, [2008] LPELR-43211 (SC).

​It is apposite to state here that it has been established by sufficient authority that an appellate Court is only interested in the correctness of a judgment/ruling or conclusion reached and not with the correctness of the reason by which the Court arrived at its decision, unless it has occasioned a miscarriage of justice, Taiwo and Ors v Sowemimo [1982] 5 SC 60, 74-75; Ibuluya v Dikibo [2011] 3 WRN 1, 23; Agbeje v Ajibola [2002] 2 NWLR (pt. 750) 127; Hillary Farms Ltd. v MV Mahtra[2007] 14 NWLR (pt. 1054) 210. In the absence of this, as in the instant case, this Court need not interfere therewith.

In view of the foregoing, I have no hesitation in dismissing this appeal for lacking in merit. The judgment of the lower Court delivered January 15th, 2007, is hereby affirmed. Appeal dismissed; no order as to costs.


SC.141/2007

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