DARLINGTON v. POLARIS BANK & ORS (2020)

DARLINGTON v. POLARIS BANK & ORS

(2020)LCN/14607(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, September 15, 2020

CA/L/624/08

RATIO

PLEADINGS: JURISDICTION OF THE FEDERAL HIGH COURT TO ENTERTAIN A CERTIORARI

As a background, it will not be out of place to remind us that jurisdiction is simply the authority of the Court that is recognized by law to determine disputes brought by parties before it. It is the statute or the Constitution that creates the Courts that also confer jurisdiction to determine disputes brought before them. The constitutional or statutory jurisdiction of the Court is its substantive jurisdiction, while the rules of procedure of a Court have the function of giving effect or life to the substantive jurisdiction of the Court, as they usually provide how the Court should exercise its substantive jurisdiction in determining disputes, such as mode of commencement of suits etc. This is the procedural jurisdiction of a Court. It means that the question of jurisdiction remains a question of law and both substantive and procedural jurisdiction of a Court is very fundamental to adjudication. This is why an issue of jurisdiction can be raised at any stage of proceedings even for the first time on appeal before the Supreme Court. See Madukolu Vs. Nkemdilim (supra) Obiuweubi V. CBN (2011) LPELR-2185 (SC), Mobil Producing Nig. UnLtd Vs. LASEPA (2002) 18 NWLR (pt. 798) 1, Nagogo Vs. CPC & 3 Ors. (2012) LPELR-15521 (SC), Achonu Vs. Okuwobi(2017) 14 NWLR (pt. 1584) 142,Jikantoro Vs. Dantoro (2004) 13 NWLR (pt. 889) 187, A. G. Fed. Vs. Abubakar (2008) 16 NWLR (pt. 1112) 135 and a host of others relied upon by the counsel in the parties’ respective briefs of argument.
Similarly, the trite position of law remains that whenever the jurisdiction of a Court to determine a cause or matter is challenged, the Court examines only the originating processes filed by the Claimant/Plaintiff. The facts of the case as stated in the statement of claims of the Plaintiff and the reliefs sought from the Court are the determining factors whether the suit is within the substantive jurisdiction of the Court and/or whether it has been commenced by due process provided by the rules of Court. See APGA Vs. Anyanwu (2014) 7 NWLR (pt. 1407) 541, John Shoy Int’l Ltd Vs. FHA (2016) 14 NWLR (pt. 1530) 427 at 453 cited and relied by the 9th Respondent’s learned Counsel on this principle of law. As I stated earlier, the Appellant commenced Certiorari proceedings against the Respondents through his originating motions. Certiorari proceedings have been subject of uncountable decisions of this Court and the Apex Court over the years and the learned counsel on both sides have referred to and relied on a host of such decisions. Certiorari writ is a prerogative writ of common law origin available to the High Court at its discretion, by which it exercises power of supervisory control over Courts of inferior jurisdiction. It is so issued by the superior/High Court commanding that the proceedings of such inferior Court or tribunal be brought for inspection and review for excesses of jurisdiction, and where cause is shown, to quash such proceedings. See Esabunor & Anor. Vs. Faweya &Ors. (2019) LPELR-46961 (SC) where Rhodes-Vivour, JSC speaking for the Apex Court held that:
“The grant of Certiorari is discretionary and it would only issue to quash judicial acts and not ministerial, administrative or executive acts. The remedy would be available. (a) Where a party was denied fair hearing (b) Where an inferior Court acted without or in excess of jurisdiction. (c) Where there are errors in the record of the inferior Court. (d) Where a conviction or order has been obtained by collusion, or by fraud…. The object of the prerogative Writ of Certiorari is for the superior Court to quash arbitrary decisions of inferior Courts, especially when they exceed their jurisdiction and make pronouncements that are wrong.”
Earlier on, the Supreme Court in the case of Head of Military Governor V. Gov. of Midwestern State & Anor. (1973) LPELR- 1269, (cited by the 9th Respondent’s counsel as (1973) 12 SC 23) ,held, inter alia that although the remedy of certiorari was in early times limited to Courts in normal sense, it has since been extended to other authorities or bodies exercising judicial or quasi-judicial act. Such authorities or bodies that are not Courts in the normal sense, must be exercising judicial or quasi-judicial act for an order of certiorari to lie against them. For instance in the case ofJudicial Service Commission of Cross Rivers State V. Young (2013) 11 NWLR (pt. 1364) 1, where the question whether certiorari would lie against the decision of the Cross Rivers State Judicial Service Commission,(1st Appellant in the case) to retire the Respondent from service as the Chief Registrar of the High Court of the State, Fabiyi JSC held at pages 35 to 36 that; “The important thing is the nature of the duty it carried out in retiring the 1st Respondent rather than the character of the 1st Appellant.” The Judicial Service commission was held to be a quasi-judicial authority, and as such it was bound to adhere to rules of natural justice by availing the Respondent a fair hearing in the enquiry it conducted before taking its decision to retire him. In that case, there was statutory procedure laid down by the Rules of Civil Service of the State before the Respondent could be removed from office, which the JSC failed to adhere to.
It is clear from all the decisions of this Court and the Supreme Court that certiorari is limited to apply or lie only against inferior tribunals or Courts or any body or authority having the legal authority to determine questions affecting the right of others and which also has the duty to act judicially, but which acted in excess of their legal authority. It is only where the body or authority has the duty to act judicially or quasi-judicially that it is bound to observe the rule of natural justice. But where a body or authority is not acting judicially or quasi-judicially, it is only expected to act fairly and certiorari will not lie against any complaint of unfair decisions emanating from such bodies. The remedy in such cases will be through suits for declaratory reliefs commenced either by ordinary writ of summons or an originating summons. SeeHead of Military Governor Vs. Governor of Midwestern State (supra), where Elias, J.S.C. quoting the English law Lord Heward, CJ in Rex Vs. Legislative Committee of Church Assembly (1924) 1 K.B. 171 when certiorari order could lie against non-judicial body or authority, held that:
“In order that a body may satisfy the required test, it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic that the body had the duty to act judicially.” In this appeal, the trial Court is the Federal High Court, created by Section 249(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution).Its substantive jurisdiction is conferred by Section 251(1) (a) to (s) of the Constitution, by which it has exclusive jurisdiction to determine civil causes or matter, inter alia, where the Federal Government or any of its organs/agencies is party suing or being sued on a subject matter stated in the subsections (a) to (s), such as causes relating to the revenue of the Federal Government, or relating to taxation of companies, or matters relating to customs and excise duties or arising from the operation of the Companies and allied matters or relating to any action or proceedings for injunction on the validity of any executive or administrative action or decision by the Federal Government or any of its agencies, etc. It is a specialized Court with specific and limited jurisdiction enumerated under the said Section 251 of the Constitution. Where the cause of action of the plaintiff/claimant or applicant does not fit into any of the enumerated areas of jurisdiction of the Federal High Court stated in the said section, it will have no jurisdiction to determine it. SeeDr. Taiwo Oloruntoba-Oju & Ors. Vs. Dopamu & Ors. (2008) 7 NWLR (pt. 1085) 1 and Onuorah Vs. Kaduna Refining and Petrochemical Co. Ltd (2005) 6 NWLR (pt. 921) 393, among others. In addition, Section 14 (1) to (3) of the Federal High Court Act specifically empowered the Federal High Court to make orders of mandamus, certiorari and prohibition.
In order to give life to the substantive jurisdiction of the trial Court aforementioned, Section 254 of the Constitution empowers the Chief Judge of the Federal High Court to “make rules for regulating the practice and procedure of the Federal High Court.” The extant Rules of Civil Procedure at the time relevant to this appeal, that is, as at the time the Appellant filed his applications was the Federal High Court (Civil Procedure) Rules 2000. The applications, both ex-parte and on notice, were filed pursuant to Order 47 Rules 1 to 8 of the said 2000 Rules of Civil Procedure of the trial Court, as clearly indicated on the substantive application of the Appellant (page 268, volume I of the record of appeal) that it is:
IN THE MATTER OF AN ORDER OF CERTIORARI PURSUANT TO ORDER 47 RULES 1,2,3,4,5,6,7, AND 8 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2000
It is pertinent to state here that for the trial Court to have the vires to make an order of certiorari under Section 14 of the Federal High Court Act and under Order 47 of its Rules, the cause of action must, as a necessity be tied to its substantive jurisdiction enumerated under Section 251(1) of the Constitution and therefore cannot be exercised at large. The subject-matter of the suit and the parties are the necessary consideration before the Court can decide whether it can competently issue the orders of mandamus, certiorari or prohibition order. Per BALKISU BELLO ALIYU, J.C.A.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

JOHN EROMOSELE DARLINGTON APPELANT(S)

And

POLARIS BANK PLC 2. CHIEF FEMI SOMOLU 3. MR. OLATUNDE AYENI 4. MR. ADEKUNLE OSIBODU 5. ALH. IBRAHIM IDA 6. PRINCE E. O. C. ELUDOYIN 7. MR. COLLINS CHIKELUBA 8. ABINBOLA IZU 9. PHAREZ LIMITED RESPONDENT(S)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Lagos judicial division (trial Court), in respect of Suit No. FHC/L/CS/1152/05 delivered on the 27th January 2006 by Hon. Justice I. N. Auta. By the said ruling, the learned trial Judge struck out the Appellant’s originating motion on notice for lack of jurisdiction and he also set aside his earlier ex-parte orders made in favour of the Appellant herein.

The Appellant was the Applicant and he filed a motion ex-parte on the 1st November 2005 before the trial Court, by which he sought for leave to apply for an order of certiorari and injunctions against the Respondents. On the 9th November 2005, the learned trial judge after considering the affidavit evidence in support and the documents attached, granted the Appellant leave to apply for an order of certiorari quashing the reports on investigation of allegations of wrongdoing against him. See in page 537 to 542 of volume II of the record of appeal.

Interestingly, the record of appeal shows that the Applicant filed his motion ex-parte seeking leave simultaneously with

the motion on notice on the same date, the 1st November 2005. The said motion on notice can be found in pages 268 to 271 of volume 1 of the record of appeal. By that application, the Appellant prayed the trial Court for the following orders:
I. AN ORDER OF CERTIORARI quashing the reports on the investigation of allegations of Impropriety of Mr. John Eromosele Darlington, Managing Director/Chief Executive Officer of the 1st Respondent dated 13th and 27th October, 2005 by the 9th Respondent on the instruction and/or authority of the 1st to 8th Respondents.
II. AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents, their agents, privies, and/or successors from carrying out and or effecting the recommendations of the Reports dated 13th and 27th October 2005 prepared by the 9th Respondent on the instructions of the 1st to 8th Respondents.
III. AND FOR SUCH FURTHER ORDER or other orders the Honourable Court may make in the circumstances.
IV. Other grounds.

The Application was predicated on the following grounds:
I. The commissioning of the 9th Respondent by the 1st to 8th Respondents violates and or contravenes the contract of

service dated 19th December 2002 between the Appellant and the 1st Respondent and the Memorandum and Articles of Association of the 1st Respondent.
II. The decision/resolution of the 9th Respondent arrived at as contained in their reports of 13th and 27th October 2005 without hearing the Applicant or an opportunity to be heard and or to defend himself contravened the provisions of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
III. That the entire process of investigations carried out by the 9th Respondent on the instructions of the Respondents contravened the provisions of the Memorandum and Articles of Association of the 1st Respondent.
IV. The method of investigation by the 9th Respondent contravened the provisions of Memorandum and Articles of Association of the 1st Respondent and the Applicant’s right to fair hearing as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria.
V. Other grounds.

The application was supported by a statement, a verifying affidavit and an affidavit in support sworn to by the Appellant with documentary exhibits attached. The facts that gave rise to the

applications are stated in the affidavit in support. The Appellant averred that he was employed as the Managing Director and Chief Executive officer of the 1st Respondent then known as Bond Bank Plc. in 2002 under a contract of service. Under the said contract of service, the Appellant was to serve the 1st Respondent for a period of 10 years from 20th August 2002. However, sometimes in 2005, the Respondents convened a meeting of Directors of the Bank (1st Respondent) in which they took a decision/resolution to commission the 9th Respondent to investigate ‘allegations of impropriety against the Appellant. He also asserted that he was not informed of the allegations against him nor was he invited or summoned to appear before the 9th Respondent in relation to the allegations of wrongdoing made against him.

It was only after the 9th Respondent has submitted its report to the 1st to 8th Respondents on the 13th October 2005 that the Appellant was given a copy which he forwarded to his lawyers for them to protest the failure of the Respondents to give him a hearing. Further, the 1st to 8th Respondents again served him with another report of investigation

against him dated 27th October 2005 made by the 9th Respondent and requested him to respond within 48 hours to the allegations against him contained in the said report. He denied all the allegations contained in the said report and asserted that it was done mala fide a witch hunt, and it was a deliberate attempt to tarnish his image and professional reputation in the banking industry. He attached the two reports of 9th Respondent, the Article of Association of Bond Bank and contract of service he had with the bank to the supporting affidavit. Based on these facts, he prayed for order of certiorari for the quashing of the said reports of investigation made by the 9th Respondent, which formed the basis of his dismissal from the service of the 1st Respondent.

Upon being served with the trial Court’s ex-parte orders and the motion on notice, the 1st to 8th Respondents responded by filing a motion on notice on the 17th November 2005 praying the trial Court to discharge and set aside its ex-parte orders made in favour of the Appellant. They also prayed the trial Court for an order striking out the motion filed by the Appellant on the grounds that:

The action is improperly constituted
ii. The applicant misled the Court and hid some facts from it to grant the application
iii. Certiorari does not avail the applicant and/or is not an appropriate procedure for this type of action
iv. Applicant intended to and is using the processes of Court mala fide to the embarrassment of the respondents.
v. That the Honourable Court lacks jurisdiction to entertain the action.

The application of the 1st- 8th Respondents was supported by two affidavits, in support and a further affidavit, wherein they averred that the Appellant was the servant of the 1st Respondent but was dismissed by the Respondents from their service on the 3rd November 2005, through a letter of dismissal served on him on the same date. That was before the ex-parte order of the trial Court was made on the 9th November 2005. They also denied setting up any judicial panel to investigate the affairs of the Appellant while he was in the service of the 1st Respondent. They asserted that the application was filed mala fide by the Appellant because he knew that the 1st Respondent was in the process of a merger with Prudent Bank Plc. and

the Appellant’s solicitors wrote a letter to Prudent Bank claiming that the suit of the Appellant before the trial Court was in relation to the merger exercise and also warning Prudent Bank against proceeding with the merger exercise; when in fact no paragraph in the affidavit in support of the Appellant’s processes before the trial Court refer to the on going merger exercise between the 1st Respondent and the Prudent Bank. As a result of the letter of the solicitors of the Appellant, Prudent Bank clearly told the 1st Respondent that it was having a negative rethink of its merger plans with it.

They further claimed that the Appellant hid the fact that he was arrested by the EFCC on allegations of improprieties he committed while he was the servant of the 1st Respondent using his office then as the Managing Director of the 1st Respondent. This resulted in the CBN issuing quarry to the 1st Respondent over the embarrassing situation and activities that led to the Appellant’s arrest by the EFCC. See pages 555 to 570 volume II of the record of appeal).

On its part, the 9th Respondent responded to the Appellant’s application by

filing a notice of preliminary objection on the 22nd November 2005 by which it prayed the trial Court to dismiss/strike out the entire suit for lack of jurisdiction on the following grounds:
i. The action/the suit as presently constituted is incurably defective, incompetent and totally unmaintainable against the 9th Defendant/Applicant
ii. The suit is incurably defective in that it was commenced by a wrong procedure, i.e. by an application for order of certiorari which is inapplicable to this action.
iii. Certiorari is a prerogative order whose main purpose is to ensure that inferior Courts or a body entrusted with a duty to perform a judicial or quasi judicial function in a judicial or quasi judicial capacity keeps within the limits of the jurisdictions conferred upon them by the statute establishing them.
iv. The 9th Defendant/Applicant is a fact-finding agent that has no judicial or quasi-judicial capacity or performed a judicial or quasi-judicial function.
v. The 9th Defendant/Applicant is an agent of a disclosed principal; Bond Bank Plc. who is sued as 1st Defendant in this suit. The action against the 9th Defendant is therefore

an abuse of Court process as an agent of a disclosed principal is not ordinarily personally liable on a contract he enters on behalf of the said principal.
vi. The suit as presently constituted amounts to scandalous abuse of Court process.

The record of appeal shows that (page 588 to 589) the Appellant’s counsel applied that the both motion of the 1st to 8th Respondents and the Notice of objection of the 9th Respondents be taken/argued together to which the counsel of the 1st 8th Respondents and 9th Respondent objected. But the learned trial Judge simply adjourned the matter for the hearing of the “preliminary objection” to the 29th November 2005. The trial Court’ proceedings of 29th November 2005 show that both motion of the 1st to 8th Respondents and the objection of the 9th Respondent were argued before the trial Court. See pages 607 to 633, volume II of the record of appeal.

On the 27th day of January 2006, the learned trial Judge delivered his ruling, which effectively sustained the objections of the Respondents. Consequently, the Application of the Appellant was struck out in limine for lack of jurisdiction, having

been commenced by a wrong procedure.

The Appellant was aggrieved with the ruling of the trial Court and he appealed same through the extant notice of appeal filed on the 21st January 2019, deemed properly filed on the 24th June 2020. He relied on twelve (12) grounds of appeal contained in the said notice of appeal. The record of appeal and the Appellant’s brief of argument filed on the 22nd January 2019 were equally deemed properly transmitted, filed and served on the same 24th June 2020 the date the appeal came up for hearing. The Appellant’s brief was settled by Oladipo Osinowo Esq. and at pages 6 to 7 thereof, the learned Counsel proposed seven (7) issues from the 12 grounds of appeal for the determination of this appeal thus:
1. Whether the lower Court was right in rejecting the Memorandum and Articles of Association of the 1st Respondent, Exhibit JED2 on the ground that it was not signed by any officer of the Corporate Affairs Commission (Ground six).
2. Whether the Court can make out a case for the parties without giving them the opportunity to address the Court on the issue raised suo moto? (Ground five).
3. Whether

the lower Court was right in holding that Exhibit JED7 is not a legal document that the Court can order to be produced for the purpose of quashing in view of the fact that the Respondents did not deny the existence of the said document? (Ground seven).
4. Whether the lower Court was right in striking out the action without considering all the processes before it on the ground that there was no describable juristic person in the case? (Ground Eight and Ten).
5. Whether the Appellant disclosed a cause of action against all the Respondents? (Ground Nine).
6. Whether the Appellant obtained an order of certiorari and injunction against the Respondents on the 9th November 2005? (Grounds one, two and three).
7. Whether the Court was right in declining jurisdiction to hear the suit and failed to consider other issues raised by the partied. (Grounds eleven and twelve).

In response to the appeal, the 1st to 8th Respondents filed their brief of argument, settled by Faith Adarighofua of Wole Olanipekun & Co, on the 23rd January 2019, deemed properly filed and served on the 24th June 2020. The 1st to 8th Respondents distilled and proposed the

following two issues for the determination of the appeal:
1. Considering the principle of law on jurisdiction of Courts as well as when a suit would be adjudged competent to confer jurisdiction on a Court, whether the lower Court was right to strike out the appellant’s suit for want of jurisdiction. Grounds 1, 2, 3, 4,5, 6, 7, 8, 9, 10.
2. Whether the lower Court breached the Appellant’s right to fair hearing. (Grounds 11 and 12).

The 9th Respondent filed its brief of argument on the 8th February 2019, also deemed property filed on the 24th June 2020. The 9th Respondent’s brief was settled by its counsel Ademola Adesina Esq. of City gate Chambers, and he distilled the following two issues for determination:
1. Having regards to the facts and circumstances of this case, particularly the nature of the Appellant’s suit viz-a-viz the documents attached thereto, whether the lower Court was not right when it declined jurisdiction to further entertain the Appellant’s suit. (Grounds 1, 2, 3, 6, 7, 8, 9 and 10).
2. Whether the lower Court breached the Appellant’s fundamental right to fair hearing? (Grounds 5,

11 and 12).

The Appellant filed separate reply briefs on the 24th January 2019 as response on points of law to the 1st to 8th Respondents’ and to the 9th Respondent’s briefs of arguments respectively. On the 24th June 2020, the appeal was called for hearing and learned counsel for the Appellant adopted the Appellant’s briefs in praying the Court to allow the appeal while the Respondents adopted their respective briefs in urging the Court to dismiss the appeal in its entirety.

APPELLANT’S SUBMISSIONS
The Appellant’s learned counsel argued issue one from pages 7 to 11 of the Appellant’s brief of argument, regarding the admissibility of the Memorandum and Article of Association of the 1st Respondent attached to his application and marked as exhibit JED2. He submitted that the said exhibit being a public document has satisfied the requirements of Section 104 of the Evidence Act and therefore admissible in evidence. He argued that it is a public record of a private document which original is in the custody of the CAC and that since the Respondents did not produce any document challenging the genuineness of exhibit

JED2, nor did they file any affidavit from any appropriate certifying officer of the CAC denying the genuineness of the exhibit, “this Honourable Court is bound by the provisions of Section 146 formally Section 114 of the Evidence Act.” Learned Counsel urged us to hold that exhibit JED2 was wrongly rejected in evidence by the lower Court. He relied on several cases in support of his submissions including the cases of ShittaBey J. V. A. G. Federation (1998) 10 NWLR (pt. 570) 392 at 419, Okonji V. Njokanma (1999) 14 NWLR (pt. 638) 250 at 266 and Daggash V. Bulama (2004) 14 NWLR (pt. 892) 144 at 219-221.

On the Appellant’s issue two, his learned counsel submitted that the issue of instituting the case by due process of law as canvassed by the trial Court was not an issue raised by any of the parties and neither did it form part of the parties’ argument canvassed before the lower Court. He argued that the trial Court did not have any jurisdiction to put forward a case for parties or raise an issue suo moto without giving them an opportunity to address it on the issue it raised.

The learned counsel also argued that contrary to the

holding of the trial Court, the order of certiorari was appropriate remedy available to the Appellant in this case. He relied on the decisions of this Court in Steel Bell (Nig.) Ltd V. Govt. of Cross River State (1996) 3 NWLR (pt. 438) 571 at 587 to submit that the 9th Respondent was vested with the quasi judicial power and its failure to obey the rule of natural justice by failing to give the Appellant the opportunity to be heard makes the report invalid and it is subject to the order of certiorari. This is because the order of certiorari will apply to persons other than Courts, like persons making reports/recommendations or preliminary decisions that acquire legal force by its adoption and consequential action by another body. He further relied in support of this argument on the English cases of R Vs. BoycoteExparte Kinsley (1939) ECC 626 andGnumuick Processing Lab. Vs. Adversary Conciliation and Arbitration Service (1978) 1 ALL ER 388, where it was held that writ of certiorari may apply to quash a report or recommendation.

With regards to the Appellant’s issue three, the learned Appellant’s counsel submitted that trial Court was wrong to

hold that the report of investigation on the alleged malpractices in the 1st Respondent (exhibit JED7) conducted by the 9th Respondent was not a legal document. The reason being that none of the Respondents denied its existence and it was on its basis that the Appellant was wrongly dismissed from the services of the 1st Respondent. He further contended that having not denied the existence of exhibit JED7, the trial Court erred in law when it failed to consider it before arriving at its conclusion in striking out the Appellant’s suit. He relied on the decisions in the cases of RE: AMOLEGBE (2014) 8 NWLR (PT. 1408) 76 AT 96 and FAAN Vs. WAMAL EXPRESS SERVICES NIG. LTD (2011) NWLR (PT. 1249) 219 AT 236, to the effect that averments in affidavit which have not been denied or controverted are deemed admitted by the opponent.

In arguing Appellant’s issue four, the learned counsel submitted that learned trial Judge was wrong when he held that there is no describable juristic person in the case that the order of certiorari can be issued to. He argued that the learned trial Judge arrived at this decision without considering all the processes attached

to the Appellant’s further affidavit dated 23rd December 2005 (page 634 to 635 of the record of appeal), in which he described all the parties in the suit as juristic persons. He referred to the cases ofAhmadu Kwallo & Ors. Vs. Muhammad Ashiru Abbas (2016) LPELR-40230 and Kayode V. APC &Ors. (2014) LPELR-23092; on the duty of the Court to assess and analyze all processes brought before it before arriving at its decision. We were urged upon to resolve this issue in favour of the Appellant.

On the Appellant’s issue five, learned counsel relied on the case of Egbe Vs. Adefarasin (1985) 1 NWLR (pt. 3) 549 at 551 and others, on the definition of cause of action, and he submitted that the learned trial Judge was wrong when he held that the Appellant’s case did not disclose a cause of action. That the learned trial Judge was bound to consider only the Appellant’s motion praying for an order of certiorari and no other application in deciding whether a cause of action is disclosed therein. He referred to the averments in the affidavit in support of the Appellant’s application and argued that the affidavit disclosed a cause

action against the Respondents in paragraphs 1 to 9 thereof. Further that a cause of action accrues against the Respondents upon their failure to obey the rules of natural justice in the performance of their administrative duties as agents of 1st Respondent.

With regards to the holding of the learned trial Judge that the status of the 9th Respondent was not disclosed for him to know whether it was a judicial body, learned counsel referred to the notice of preliminary objection of the 9th Respondent in which it stated that it acted as an agent of the 1st Respondent in a fact-finding function; and that it did not perform any judicial or quasi-judicial function. He submitted that any person or body called upon to act in a judicial, quasi-judicial, executive or administrative capacity has the duty to observe the rule of natural justice. That in this case, the 9th Respondent was in breach of the Appellant’s fundamental right as enshrined in Section 36(6) of the 1999 Constitution having violated his right to fair hearing when preparing the report against him. Learned counsel drew the attention of this Court to the fact that the complaint of the Appellant

before the lower Court was against the breach of the rule of natural justice against him in the preparation of the report of the 9th Respondent. He relied on the cases of Baba Vs. NCATC (1991) 5 NWLR (pt. 192) 388 at 415 and Jibrin Vs. NEPA (2004) 2 NWLR (pt. 859) 210 at 229 to argue that the Appellant’s application seeking for an order of certiorari was sustainable on the face of it and there was a demonstrable and easily discernable competent action that can be agitated by the parties. We were urged to resolve this issue in favour of the Appellant.

With regards to the Appellant’s issue number six, learned Counsel argued that what the Appellant applied for and obtained ex-parte, pursuant to Order 47 Rule 3(1) of the Federal High Court Civil Procedure Rules 2000, from the trial Court was leave to apply for an order of certiorari and leave to apply for an order of perpetual injunction against the Appellant and nothing more. He relied on the case of Umar V. Onwudine (2002) 10 NWLR (pt. 774) 129 among others to the effect that a motion ex-parte is the beginning of the journey under the order. That the ex-parte order of the trial Court dated 9/11/05

is very clear and he urged the Court to resolve this issue in favour of the Appellant.

Learned Appellant’s counsel argued the Appellant’s proposed issue 7 from page 25 to 28 of the Appellant’s brief. He submitted that in declining jurisdiction on the Appellant’s case, the trial Court failed to consider other issues raised by the parties of undertaking to damages and abuse of Court’s process, which it is bound to consider and make a pronouncement on. He relied on the cases of Yusuf V. Adegoke (2007) 11 NWLR (pt. 1045) 332 at 260, Crown Flour Mills Ltd Vs. Olokun (2007) ALL FWLR (pt. 393) 24 at 54, Nospetco Oil & Gas Ltd V. Olorunnimbe (2012) 10 NWLR (pt. 1307) 115 at 166 to submit that even where a Court resolved the issue of jurisdiction to hear a suit in favour of the party challenging its jurisdiction, it is enjoined to hear (determine?) other issues submitted for determination. He further submitted that the failure of the trial Court to consider all the issues placed before it amounted to denial of fair hearing and has occasioned a miscarriage of justice. He therefore urged us to resolve this issue in favour of the

Appellant and to set aside the trial Court’s order of striking out this case.

1ST – 8TH RESPONDENTS’ SUBMISSIONS
The 1st to 8th Respondents’ brief of argument spanned 30 pages of in respect of the two issues they proposed for determination. However, the learned counsel for the 1st to 8th Respondents argued their proposed issue one under different headings to include their responses to the argument of the Appellant in his proposed seven issues for determination. Under the issue one, the learned counsel argued that jurisdiction is a threshold issue in the course of adjudication and any decision arrived at will amount to nullity where the Court is bereft of jurisdiction. He relied on the case of Madukolu V. Nkemdilim (1962) 1 ALL NLR 587 at 590 and other subsequent decisions of the Apex Court that followed the principle settled therein, to submit that a party is enjoined to not only comply with the requirement of the subject matter of jurisdiction, but he must also fulfill all conditions precedent to the exercise of the Court’s jurisdiction and that there should be no feature in the case preventing the Court from exercising

jurisdiction over the matter. Learned Counsel posited that in this case, since the Appellant filed his motion ex-parte seeking leave to apply for an order of certiorari contemporaneously with the motion seeking the said order, the two applications were the originating processes. Both processes according to the counsel sought for the same reliefs, certiorari, which was an invitation of the trial Court to activate its supervisory jurisdiction over the proceedings of a judicial bodies and/or quasi-judicial bodies that are inferior to the Court in order to assess whether there was any impropriety in their adjudicatory process. That the argument of the counsel of the 1st to 8th Respondents before the trial Court was that the affidavit in support of the Appellant’s motion ex-parte was bereft of sufficient facts to ground the (grant) of the application. The reason being that the two exhibits JED2 and JED7 relied upon by the Appellant and upon which the entire suit was predicated were inadmissible evidence and therefore the trial Court was right to terminate the proceedings for lack of jurisdiction. He relied on the case of Mshelia V. Bank of Agriculture Ltd

(2016) LPELR-40317 (CA) P.5 to the effect that a Court is entitled to put an end to the proceedings if at any stage, the suit becomes incompetent.

In response to the argument of the Appellant under its issue six, the learned counsel conceded that the learned trial Judge made a slip in his ruling where he stated that the Appellant obtained “orders of certiorari”, but he submitted that this is a mere slip which did not lead to any miscarriage of justice. He relied on the case of Nigerian Navy V. Garrick (2006) 4 NWLR (pt. 969) 69 at 110-111 to the effect that it is not every mistake or error in judgment that would result in an appeal being allowed. On the propriety of commencing this suit by way of certiorari procedure, learned Counsel referred us to the affidavit in support of the Appellant’s motion on notice, which showed that the crux of the Appellant’s dispute with the 1st to 8th Respondents bordered upon his dismissal from the services of the Bond Bank Plc., a matter of simple contract that is clearly outside the jurisdiction of the trial Court. He submitted that it is the claim of the plaintiff that determines the

jurisdiction of the Court to determine it. He referred to the provisions of Section 251 of the 1999 Constitution of Nigeria and the cases of Onuora Vs. KRPC Ltd (2005) 6 NWLR (pt. 921) 393 at 408 and PDP Vs. Sylva (2013) NWLR (pt. 1316) 85 at 127 for support.

It was further submitted that though the trial Court is empowered by Section 14 of the Federal High Court Act to grant an order of certiorari, the order is not granted as a matter of course. Learned counsel posited that the order does not lie against the actions or recommendations of a private consultancy firm like the 9th Respondent, but lie only against actions of Court or judicial tribunal or a statutory body performing judicial function. He relied on the decisions of this Court in Offor & Ors. Vs. His Worship M. D. Kanu Esq. (2016) LPELR-40462 (CA) at page 19, Lagos JSC &Anor. Vs. Musbau Olubankole Kaffo (2008) 17 NWLR (pt. 117) 525 at 344 andJSC Cross Rivers State & Anor. Vs. Dr. Mrs. Asari Young (2013) 11 NWLR (pt. 1364)1 at 19-20, where the context in which Certiorari proceedings would be appropriate was expounded. He argued that none of the 1st to 9th Respondents qualify to be

classified as either a Court, a judicial tribunal or a quasi judicial body whose actions/decisions can be made subject to review by the lower Court; and the Appellant did not place any materials before the lower Court in his affidavits that properly classified the 9th Respondent as a judicial body whose decisions could be subject to the review of the trial Court. He submitted that the trial Court was right to hold that the identity of the 9th Respondent was not established as to whether it was a body that was expected to act judicially.

It was further argued that proper parties were not before the trial Court and it was therefore right to decline jurisdiction. The Court was urged to discountenance the argument of the Appellant under his issue four wherein he posited that the parties were properly identified to the trial Court in the Appellant’s further affidavit. Learned Counsel drew our attention to the fact that the Appellant’s further affidavit in support of his motion in which he claimed to identify the parties, was actually filed on the 23rd December 2005, a day after the trial Court had taken all counsel submissions on the

Respondents’ objections and had adjourned for ruling. He submitted that the trial Court was right to discountenance the Appellant’s further affidavit because it was an attempt to steal the match against the Respondents.

In response to the Appellant’s submission that the trial Court raised the issue of whether the suit was instituted by due process was never raised before the trial Court, learned 1st to 8th Respondent’s counsel submitted that this was untrue because the submissions of the learned Appellant’s counsel is not supported by the record. He referred us to pages 607 to 616 and 618 to 623 of the record of appeal showing that each party canvassed submissions on this issue before the trial Court. In fact the trial Court also reviewed and summarized the argument of the counsel to the parties in it’s ruling as shown in pages 636 to 654 of the record of appeal. The issue was therefore not raised suo moto by the trial Court as argued by the Appellant and we were urged to discountenance his argument canvassed under his proposed issue two.

On the Appellant’s exhibits JED2 and JED7, which he relied upon in his

applications before the trial Court, learned counsel submitted that exhibit JED2, the memorandum and article of association of Bond Bank Plc. is a public document, requiring certification before it can be admitted in evidence as provided bySection 102, 104 and 105 of the Evidence Act 2011. He relied on the cases of Nwabuoku & Ors. Vs. Francis Onwordi & Ors.(2006) 5 SC (pt. III) 03 and Ogboru & Anor. V. Uduaghan & Ors. (2011) 2 NWLR (pt. 1232) 538 at 574, in support of this principle of law. He argued that the Appellant’s exhibit JED2 was not an original document, but a copy of the original, which was not certified and therefore the lower Court was right to have struck it out being inadmissible evidence.

In response to the argument of the Appellant that the trial Court should have presumed exhibit JED2 to be regular, the respondents’ learned counsel submitted that the provisions of Section 104 of the Evidence Act are mandatory before the document can be presumed to be regular. He relied on the cases ofAchu V. Okonkwo (2016) LPELR-41015 (CA) and Falke Vs. Billiri LGC &Ors (2016) LPELR-40772 (CA) in support. With respect to

exhibit JED7, learned counsel argued that the fact that it was not signed by anyone made it worthless as was found by the trial Court. He further argued that the Appellant’s submissions to the effect that the Respondents did not deny the existence of exhibit JED7 was incorrect and not supported by the record of appeal. He posited that, what was in issue before the trial Court was the validity/admissibility of exhibit JED7 for the purpose of certiorari proceedings and not its existence. He posited that the nature of the proceeding, which sought to quash the report of the 9th Respondent and the validity of the report was a take off point of the conferment of the jurisdiction on the trial Court. Being unsigned, learned counsel argued that the trial Court was right to hold that the exhibits was void and not properly before it.

In response to the Appellant’s submission under his issue five regarding whether the Appellant’s suit disclosed a reasonable cause of action, the1st to 8th Respondents’ learned counsel submitted that every claim and relief the Appellant sought before the trial Court was solely hinged on his exhibits JED2 and

JED7. He contended that since the two documents suffer the fate of inadmissibility, the Appellant’s suit became empty and devoid of a reasonable cause of action and the trial Court was right when it struck them out having found same to be incompetent. Learned counsel referred to a host of authorities to support his argument under this issue including the case ofNnonye V. Anyichie (2000) 1 NWLR (pt. 639) 66 at 76, and urged us to resolve the issue against the Appellant.

In arguing the 1st to 8th Respondents’ issue two regarding whether the trial Court breached the Appellant’s right to fair hearing, learned counsel conceded that it is the law of adjudication that a Court must consider and pronounce on all the issues raised before it. He however argued that the issue to be resolved in this appeal is different because it is whether the trial Court ought to have considered and pronounced on all other issues after it found that it has no jurisdiction. Relying on the case of F. B. N. Plc. Vs. T.S. A. Industries Ltd (2010) ALL FWLR (pt. 633) 654, he submitted that where the jurisdiction of the Court is challenged, the only jurisdiction the

Court has at that stage was to determine whether it has jurisdiction, before proceeding if need be to determine the matter on the merit. He further contended, relying on the authority in the case of 7-Up Bottling Co. Ltd & 2 Ors. Vs. Abiola & Sons Bottling Co. Ltd (2001) 13 NWLR (pt. 730) 469 at 493 that once a Court identifies a main issue capable of doing justice to the case, it need not consider any other issue raised by the parties. In this case, the trial Court identified the issue of jurisdiction as the main issue to be resolved and therefore it cannot be said that the Appellant’s right to fair hearing has been breached. He posited that in any event, it is the Respondents who raised the issues of abuse of Court’s process and undertaking to damages as grounds of their objection and that their objection succeeded on other grounds. It is therefore the Respondents who should complain to this Court by way of Respondent’s Notice or Cross-Appeal of the trial Court’s failure to pronounce on these grounds of objection and not the Appellant. Learned Counsel pointed out that the relief the Appellant seeks in this appeal is for an

order dismissing the Respondents’ applications/objections, as such the complaint that the trial Court did not consider and pronounce on the issues of undertaking as to damages and abuse of Court’s process is at cross purposes with the reliefs he is seeking in this appeal. He urged the Court to resolve this issue against the Appellant.

Conclusively, learned counsel submitted that the Appellant’s suit before the trial Court was incompetent ab initio conferring no jurisdiction on the trial Court. There was therefore no need to waste precious judicial time to adjudicate over an incompetent suit. He urged the Court to dismiss this appeal in its entirety.

By way of reply on points of law (in the Appellant’s reply brief) to the 1st to 8th Respondents’ submissions, learned counsel to the Appellant posited, on the admissibility of exhibits JED2 and JED7 that it is at the hearing of the substantive application that an objection to uncertified public documents could be raised and not at preliminary stage. The reason is that the admissibility of a document goes to the merit of the substantive suit and the trite position of the law

is that a Court will not determine a substantive suit at a preliminary or interlocutory stage. He relied on Adejumo Vs. Governor of Lagos State (1970) 1 ALL NLR 183, Cross River Property Dev. & Inv. Co. Ltd Vs. Obongha (2000) 8 NWLR (pt. 670) 751 and others in support and to submit that the trial Court was clearly in error when it considered the admissibility of the documents attached to the substantive motion at preliminary stage.

On the argument of Respondents that the 9th Respondent is not a judicial or quasi judicial body, Appellant’s learned counsel relied on the definition of ‘quasi-judicial’ by the Black’s Law Dictionary, Ninth Edition and argued that every panel or body sitting as a quasi-judicial body that makes decision that affects the right of others is required to comply with the principle of natural justice. That the jurisdiction of a Court to quash proceedings would arise where such proceedings determined the rights of individual before it as in this case. We were urged to discountenance the submissions of the 1st to 8th Respondents’ learned counsel and to set aside the ruling of the trial Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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SUBMISSIONS OF THE 9TH RESPONDENT
In arguing the 9th Respondent’s issue one on the rightness of the decision of the trial Court when it declined jurisdiction to determine the Appellant’s application, learned counsel submitted that the argument of the Appellant under his proposed issues 1 to 6 in his brief constituted nothing more than a last ditch effort to infuse life into an action which is incompetent in view of its fundamental and incurable defect. He pointed out that the nature of the Appellant’s case before the trial Court being for an order of certiorari inviting the lower Court to exercise its supervisory powers of judicial review over the purported proceedings and eventual report of the 9thRespondent that led to the termination of the Appellant from the service of the 1st Respondent. He argued that by his suit (motion), the Appellant is maintaining that the 9th Respondent constitutes an ‘inferior Court’ or organization/body performing judicial or quasi-judicial functions whose proceedings can be brought before the trial Court for the purpose of being quashed. He highlighted the core basis of the trial Court’s

decision that it lacked jurisdiction to entertain the Appellant’s case thus:
i. An action for an order of certiorari presupposes a report, ruling, judgment or proceedings of an inferior Court or any other organization or authority performing judicial or quasi judicial functions, that contains some irregularities that should be brought before the Court for the purpose of being quashed.
ii. Exhibit JED7 attached to the affidavit in support, which is purported to be the report of the 9th Respondent is unsigned and uncertified and is therefore invalid.
iii. The Court was at a loss as to the identity of the 9th Respondent as it is not described anywhere in the pleadings as an inferior Court or authority performing judicial or quasi-judicial functions.
iv. Further to (ii) above, there is no legal proceeding/report of a judicial or quasi-judicial body before the Court for the Court to exercise its supervisory jurisdiction to quash.
v. Further to (iv) above, there is no describable juristic person in this case against whom the order of the Court will issue.

The rest of the argument of the learned 9th Respondent’s counsel on

issue one are the same in context with the argument already canvassed and captured supra by the learned Counsel of the 1st to 8th Respondents, relying on the same principle of law regarding jurisdiction of the trial Court. He also made submissions in response to Appellant’s argument in respect of the Appellant’s issues 4, 5 and 6, before concluding that the lower Court was right to decline jurisdiction to hear the Appellant’s suit. He urged the Court to discountenance the argument of the Appellant under issues 1 to 6 and resolve the 9th Respondent’s issue one in favour of the 9th Respondent.

On the 9th Respondent’s proposed issue two, regarding the Appellant’s complaint of failure of the trial Court to determine all the issues raised before it, the learned counsel also made similar submissions on the issue of fair hearing as the 1st to 8th Respondents’ counsel. He added that the trial Court having decided that it lacked jurisdiction to determine the suit, the other issues raised, to wit; abuse of Court’s process and undertaking as to damages have become academic. He relied on the case of Abe V. Unilorin

(2013) 16 NWLR (pt. 1379) 183 at 203 and others where the Apex Court held that acting in vain never forms part of a Court’s function. He concluded by submitting that the trial Court did not breach the Appellant’s right to fair hearing as he claimed. He therefore urged the Court to resolve this issue in favour of the 9th Respondent and to dismiss this appeal in its entirety.

The Appellant filed reply brief as his response on points of law to the 9th Respondent’s submissions. The reply contained the same argument as his reply to the 1st to 8th Respondents’ brief already captured supra. It will serve no useful purpose to repeat the same submissions here.

RESOLUTION
Upon a calm consideration of the record of appeal, and in particular, the grounds of appeal and the issues distilled therefrom on which the submissions of the learned counsel are predicated, I find that the central issue in contention common to all the twelve grounds of appeal is whether or not the trial Court has jurisdiction to determine the Appellant’s suit as constituted by his originating motions. In fact all the seven issues raised for determination by

the Appellant can be collapsed into his issue number seven. Also noteworthy is the fact that the 1st to 8th Respondents and the 9th Respondent have distilled and proposed identical issues for the determination of this appeal, which are also related to issue of jurisdiction to determine the Appellant’s suit. Indeed, the Appellant’s seven issues can be conveniently subsumed into the two issues proposed by the Respondents. It is for this reason that I am of the view that the appeal can be determined upon the issues proposed by the 9th Respondent and I therefore adopt its two issues as my guide in the determination of this appeal.

ISSUE ONE
This issue distilled from grounds 1 to 10 of appeal questioned the correctness of the trial Court’s decision declining jurisdiction to determine the Appellant’s application for order of certiorari. As a background, it will not be out of place to remind us that jurisdiction is simply the authority of the Court that is recognized by law to determine disputes brought by parties before it. It is the statute or the Constitution that creates the Courts that also confer jurisdiction to determine

disputes brought before them. The constitutional or statutory jurisdiction of the Court is its substantive jurisdiction, while the rules of procedure of a Court have the function of giving effect or life to the substantive jurisdiction of the Court, as they usually provide how the Court should exercise its substantive jurisdiction in determining disputes, such as mode of commencement of suits etc. This is the procedural jurisdiction of a Court. It means that the question of jurisdiction remains a question of law and both substantive and procedural jurisdiction of a Court is very fundamental to adjudication. This is why an issue of jurisdiction can be raised at any stage of proceedings even for the first time on appeal before the Supreme Court. See Madukolu Vs. Nkemdilim (supra) Obiuweubi V. CBN (2011) LPELR-2185 (SC), Mobil Producing Nig. UnLtd Vs. LASEPA (2002) 18 NWLR (pt. 798) 1, Nagogo Vs. CPC & 3 Ors. (2012) LPELR-15521 (SC), Achonu Vs. Okuwobi(2017) 14 NWLR (pt. 1584) 142,Jikantoro Vs. Dantoro (2004) 13 NWLR (pt. 889) 187, A. G. Fed. Vs. Abubakar (2008) 16 NWLR (pt. 1112) 135 and a host of others relied upon by the counsel in the parties’

respective briefs of argument.
Similarly, the trite position of law remains that whenever the jurisdiction of a Court to determine a cause or matter is challenged, the Court examines only the originating processes filed by the Claimant/Plaintiff. The facts of the case as stated in the statement of claims of the Plaintiff and the reliefs sought from the Court are the determining factors whether the suit is within the substantive jurisdiction of the Court and/or whether it has been commenced by due process provided by the rules of Court. See APGA Vs. Anyanwu (2014) 7 NWLR (pt. 1407) 541, John Shoy Int’l Ltd Vs. FHA (2016) 14 NWLR (pt. 1530) 427 at 453 cited and relied by the 9th Respondent’s learned Counsel on this principle of law.

As I stated earlier, the Appellant commenced Certiorari proceedings against the Respondents through his originating motions. Certiorari proceedings have been subject of uncountable decisions of this Court and the Apex Court over the years and the learned counsel on both sides have referred to and relied on a host of such decisions. Certiorari writ is a prerogative writ of common law origin available to the High

Court at its discretion, by which it exercises power of supervisory control over Courts of inferior jurisdiction. It is so issued by the superior/High Court commanding that the proceedings of such inferior Court or tribunal be brought for inspection and review for excesses of jurisdiction, and where cause is shown, to quash such proceedings. See Esabunor & Anor. Vs. Faweya &Ors. (2019) LPELR-46961 (SC) where Rhodes-Vivour, JSC speaking for the Apex Court held that:
“The grant of Certiorari is discretionary and it would only issue to quash judicial acts and not ministerial, administrative or executive acts. The remedy would be available. (a) Where a party was denied fair hearing (b) Where an inferior Court acted without or in excess of jurisdiction. (c) Where there are errors in the record of the inferior Court. (d) Where a conviction or order has been obtained by collusion, or by fraud…. The object of the prerogative Writ of Certiorari is for the superior Court to quash arbitrary decisions of inferior Courts, especially when they exceed their jurisdiction and make pronouncements that are wrong.”
Earlier on, the Supreme Court in the case

of Head of Military Governor V. Gov. of Midwestern State & Anor. (1973) LPELR- 1269, (cited by the 9th Respondent’s counsel as (1973) 12 SC 23) ,held, inter alia that although the remedy of certiorari was in early times limited to Courts in normal sense, it has since been extended to other authorities or bodies exercising judicial or quasi-judicial act. Such authorities or bodies that are not Courts in the normal sense, must be exercising judicial or quasi-judicial act for an order of certiorari to lie against them. For instance in the case ofJudicial Service Commission of Cross Rivers State V. Young (2013) 11 NWLR (pt. 1364) 1, where the question whether certiorari would lie against the decision of the Cross Rivers State Judicial Service Commission,(1st Appellant in the case) to retire the Respondent from service as the Chief Registrar of the High Court of the State, Fabiyi JSC held at pages 35 to 36 that; “The important thing is the nature of the duty it carried out in retiring the 1st Respondent rather than the character of the 1st Appellant.” The Judicial Service commission was held to be a quasi-judicial authority, and as such it was

bound to adhere to rules of natural justice by availing the Respondent a fair hearing in the enquiry it conducted before taking its decision to retire him. In that case, there was statutory procedure laid down by the Rules of Civil Service of the State before the Respondent could be removed from office, which the JSC failed to adhere to.
It is clear from all the decisions of this Court and the Supreme Court that certiorari is limited to apply or lie only against inferior tribunals or Courts or any body or authority having the legal authority to determine questions affecting the right of others and which also has the duty to act judicially, but which acted in excess of their legal authority. It is only where the body or authority has the duty to act judicially or quasi-judicially that it is bound to observe the rule of natural justice. But where a body or authority is not acting judicially or quasi-judicially, it is only expected to act fairly and certiorari will not lie against any complaint of unfair decisions emanating from such bodies. The remedy in such cases will be through suits for declaratory reliefs commenced either by ordinary writ of summons or

an originating summons. SeeHead of Military Governor Vs. Governor of Midwestern State (supra), where Elias, J.S.C. quoting the English law Lord Heward, CJ in Rex Vs. Legislative Committee of Church Assembly (1924) 1 K.B. 171 when certiorari order could lie against non-judicial body or authority, held that:
“In order that a body may satisfy the required test, it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic that the body had the duty to act judicially.”

In this appeal, the trial Court is the Federal High Court, created by Section 249(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution).Its substantive jurisdiction is conferred by Section 251(1) (a) to (s) of the Constitution, by which it has exclusive jurisdiction to determine civil causes or matter, inter alia, where the Federal Government or any of its organs/agencies is party suing or being sued on a subject matter stated in the subsections (a) to (s), such as causes relating to the revenue of the Federal Government, or relating to taxation of

companies, or matters relating to customs and excise duties or arising from the operation of the Companies and allied matters or relating to any action or proceedings for injunction on the validity of any executive or administrative action or decision by the Federal Government or any of its agencies, etc. It is a specialized Court with specific and limited jurisdiction enumerated under the said Section 251 of the Constitution. Where the cause of action of the plaintiff/claimant or applicant does not fit into any of the enumerated areas of jurisdiction of the Federal High Court stated in the said section, it will have no jurisdiction to determine it. SeeDr. Taiwo Oloruntoba-Oju & Ors. Vs. Dopamu & Ors. (2008) 7 NWLR (pt. 1085) 1 and Onuorah Vs. Kaduna Refining and Petrochemical Co. Ltd (2005) 6 NWLR (pt. 921) 393, among others. In addition, Section 14 (1) to (3) of the Federal High Court Act specifically empowered the Federal High Court to make orders of mandamus, certiorari and prohibition.
In order to give life to the substantive jurisdiction of the trial Court aforementioned, Section 254 of the Constitution empowers the Chief Judge of the Federal

High Court to “make rules for regulating the practice and procedure of the Federal High Court.” The extant Rules of Civil Procedure at the time relevant to this appeal, that is, as at the time the Appellant filed his applications was the Federal High Court (Civil Procedure) Rules 2000. The applications, both ex-parte and on notice, were filed pursuant to Order 47 Rules 1 to 8 of the said 2000 Rules of Civil Procedure of the trial Court, as clearly indicated on the substantive application of the Appellant (page 268, volume I of the record of appeal) that it is:
IN THE MATTER OF AN ORDER OF CERTIORARI PURSUANT TO ORDER 47 RULES 1,2,3,4,5,6,7, AND 8 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2000
It is pertinent to state here that for the trial Court to have the vires to make an order of certiorari under Section 14 of the Federal High Court Act and under Order 47 of its Rules, the cause of action must, as a necessity be tied to its substantive jurisdiction enumerated under Section 251(1) of the Constitution and therefore cannot be exercised at large. The subject-matter of the suit and the parties are the necessary consideration

before the Court can decide whether it can competently issue the orders of mandamus, certiorari or prohibition order.
With the background stated above, I now proceed to determine the complaint of the Appellant under this issue regarding whether or not the trial Court has jurisdiction to determine the Appellant’s applications upon the facts he relied upon. The facts of this case are simple and not in contention at all. The Appellant was the servant of the 1st Respondent via a contract of service entered between the two. He claimed that the 1st Respondent acting on the recommendation of the 9th Respondent wrongly dismissed him without giving him a hearing to defend himself on the allegation of impropriety against him, before his service was terminated. Upon these facts he applied for and obtained leave of the trial Court to apply for the order of certiorari against the report/recommendation of the 9th Respondent for same to be quashed on the ground of the Respondents’ failure to grant him right to be heard before the decision to dismiss him was taken.
The learned trial judge considered the documents relied upon by the Appellant

particularly exhibits JED7 and JED2, and concluded at page 653 of the record that he has no jurisdiction to make an order of certiorari to quash the report/recommendation of the 9th Respondent in view of the fact that the documents relied upon are invalid; and that the status of the 9th Respondent that issued the report was not stated by the Appellant. Consequently, he set aside his ex-parte order of leave earlier granted the Appellant and he struck out the substantive application of the Appellant.
In determining whether or not the learned trial Judge was right to hold that the trial Court has no jurisdiction to make an order of certiorari upon the facts relied upon, I have also extensively examined the application of the Appellant, the grounds relied upon and the affidavit in support, in line with the dictates of the principle of law on how jurisdiction of Court is to be determined. Indeed at the beginning of this judgment I reproduced the grounds of the Appellant’s application and the facts relied in the supporting affidavit. I found that the major grouse of the Appellant is that the action of the 1st to 8th Respondents in commissioning the 9th

Respondent “violate and contravene the contract of service dated 10th December 2002 between it and the 1st Respondent and the memorandum and article of association of the 1st Respondent.” See paragraphs 1 to 4 of the affidavit in support of the Appellant’s motion at page 273 of the record, same as paragraphs 1 to 4 of the Appellant’s affidavit in support of his motion ex-parte for leave, which can be found at page 6 of the record of appeal.
It is crystal clear to me from the averments of the Appellant in his affidavits, that the relationship between him and the 1st to 8th Respondents is contractually governed by the contract of service and article of association of the 1st Respondent being a limited liability company. I note that the Appellant has asserted in paragraph 6 of his affidavit that under article 107 of the 1st Respondent’s Article of Association (exhibit JED2), he was to be served prior notice of the meeting of the board of directors of the company and he was not so notified. In his absence, the board made the resolution to appoint the 9th Respondent to investigate allegations of “impropriety” against

him. He did not state that either he or the Respondents are agents or organs of the Federal Government in within the jurisdiction of the trial Court under Section 251 of the Constitution. The cause of action that gave rise to the application for an order of certiorari is the contract between the parties, neither of whom is an agent of the Federal Government of Nigeria. Civil causes and matters relating to contract of services between individuals and companies do not fall within the jurisdiction of the trial Court to determine.
In the circumstances, I hold the view that because the power of the Federal High Court to issue orders of certiorari under Section 14 of the Federal High Court Act and Order 47 of its Rules of Procedure must be tied to the causes and matters of its substantive jurisdiction as provided by Section 251(1) of the Constitution; it has no jurisdiction to grant the orders of certiorari sought by the Appellant. In other words, for the trial Court to validly make an order of certiorari, same must have been sought against the action or decision of any agent or organ of the Federal Government, which must have also acted judicially or

quasi-judicially, and has the duty to so act. In this appeal, the fact that the cause of action emanates from a contractual relationship of the Appellant and the Respondents, the Federal High Court has no jurisdiction to make any orders regarding any dispute arising from their private contract.
Even assuming the trial Court has jurisdiction on the causes or matters relating to individual contracts as in this case, which I am sure it does not, the question is whether order of certiorari lie in the circumstances of this case. I have earlier stated the prayers of the Appellant before the trial Court in his application namely; “an order of certiorari quashing the reports on the investigation of allegations of impropriety of Mr. John Eromosele Darlington, Managing Director/Chief Executive Officer of the 1st Respondent, by the 9th Respondent on the instructions and or authority of the 1st to 8th Respondents.” We have seen from the definition of the certiorari by the Courts in all the decisions referred to by the parties’ on both sides, it is issued to an inferior Court or tribunal, which is exercising or exercised judicial duties or a body

having the duty to act quasi-judicially. Since the trial Court has only to examine the reliefs sought and the facts deposed in the affidavit in support to determine whether it has jurisdiction to make the said order, the Appellant needed to show in his affidavit in what capacity the 9th Respondent issued the report that he prays the Court to quash by an order of certiorari, what were the allegations of impropriety made against him and how was the investigation conducted. All these details are not stated in the affidavit in support or in the statement attached to the originating motions.
The trial Court was therefore right to hold that there is no description of who the 9th Respondent is and in what capacity it acted in issuing the said report disclosed by the Appellant in his application.
The Appellant’s learned counsel had argued that the 9th Respondent was properly identified by its further affidavit in support of the application filed on the 23rd December 2005, but the Respondents argued that the Appellant filed this further affidavit a day after their preliminary objections were heard and adjourned for ruling, an argument not refuted by the

Appellant in his reply brief. An examination of the record revealed that submissions of counsel were taken by the trial Court on the 22nd December 2005 after which the learned trial Judge adjourned the matter to 27th January 2006 for ruling. A day later, on the 23rd December 2005, the Appellant swore to a further affidavit in support of order of certiorari. See pages 633 to 655 of the record of appeal. I therefore agree with the argument of the Respondent that the Appellant tried to steal a match from the Respondents after arguments were closed by surreptitiously filing another affidavit to score a cheap victory. The learned trial Judge was right to ignore the further affidavit in his ruling. The only documents to be considered in determining whether the trial Court has jurisdiction to make the orders sought by the Appellant are the statement in support of the application, the verifying affidavit and the affidavit in support all dated 1st November 2005 and attached to the application and nothing more.
Upon all I stated above, I hold the view that that the trial Court was right to hold that it lacks jurisdiction to determine the Application of the

Appellant seeking order of certiorari in view of the facts stated in the affidavits in support of the applications. Further, writ of certiorari is not an appropriate remedy for dismissal for the Appellant’s dismissal from service of the 1st Respondent pursuant to their private contract. I resolve issue one against the Appellant.

ISSUE TWO
The Appellant’s complaint on this issue is against the failure of the learned trial Judge to make a pronouncement on issue of abuse of Court’s process and damages that were raised before him by the Respondents in their motion and notice of objection. But one of the grounds of the Respondents’ objection was the issue of jurisdiction to determine the Application of the Appellant. I have stated supra, the fundamental nature of jurisdiction to adjudication to the effect it can even be raised for the first time on appeal to the Supreme Court. Once an issue of jurisdiction is raised either at the trial Court or before the appellate Court, it takes precedence over every other issue and it must be taken and determined promptly to avoid the Court laboring in vain, for whatever orders a Court makes

without jurisdiction amount to nullity.

In this case, I have come to the conclusion under my determination of issue one supra, that the trial Court did not have jurisdiction to determine the Appellant’s suit. In that situation, neither the trial Court nor this Court can validly consider, not to talk of making any pronouncement on any other issue that may arise in the suit. The only competent order to be made is order striking out the case, especially as the application was not heard on the merits by the trial Court. See A. G. Federation V. Abubakar (supra) and Okoye V. Nig. Construction & Furniture Co. Ltd (1991) 6 NWLR (pt. 199) 501. This issue is also resolved against the Appellant.

Having resolved the two issues against the Appellant, this appeal has no merit and it is dismissed by me. The ruling of the trial Court delivered on the trial Court delivered on the 27th January 2006 in respect of Suit No: FHC/L/CS/1152/05 is affirmed by me. Parties to bear their respective costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the ample opportunity to read, in draft, the succinct leading judgment delivered by my learned brother: Balkisu Bello

Aliyu, JCA. I endorse, in toto. the articulate reasoning conclusion it.

It is settled elementary law, that a writ of certiorari, which is the anchor of the appellant’s action that transfigured into the appeal, is only employed against a Court of law, tribunal or a body that exercises judicial or quasi judicial functions. There is no concrete evidence, furnished by the appellant, demonstrating that the 9th respondent, whose reports he sought to quash, fall within the four walls of these catalogued bodies. On this score, the appellant deployed improper mode to beseech the lower Court for redress. That is the bane of his action. The lower Court did not fracture the law in its decision. The appeal cannot fly.

In the light of the above, plus the cogent reasons adumbrated in the dexterious leading judgment, I. too, dismiss the appeal in the manner ordained therein

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to, the reasoning and conclusion in the leading judgment of my Lord, Balkisu Bello Aliyu, JCA, which I was privileged to read in draft.

For the same reasons therein articulated, I also dismiss

the appeal for being bereft of merit.

Appeal Dismissed.

Appearances:

OLATUNDE OLADELE ESQ. For Appellant(s)

FAITH ADARIGHOFUE ESQ. FOR 1ST TO 8TH RESPONDENTS

ADEMOLA ADESINA ESQ. FOR 9TH RESPONDENT For Respondent(s)