INCORPORATED TRUSTEES OF NAA & ORS v. KILIYA & ORS
(2022)LCN/16862(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, February 08, 2022
CA/ABJ/CV/513/2020
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. INCORPORATED TRUSTEES OF NIGERIA ASSOCIATION OF AUCTIONEERS 2. CHIEF SAIBU AKAN 3. ALHAJI FATAI MOGBOJUBOLA 4. CHIEF SAURA A. AJUWON 5. MUSA KURA 6. ABDULATEEF ABDULRAHMAN 7. EBENEZER OLU ODEYEMI APPELANT(S)
And
1. ALHAJI ALIYU KILIYA 2. HON. OWOYEMI A. MICHAEL 3. ENGR ISIBOR B. ABHULIMEN 4. HON. ABUBAKAR DANLATI GAMANDI 5. GODWIN TERFA ORINYE 6. CHIEF I.K. NWANKWO 7. HAJIA SALAMATU LAWAL 8. ALHAJI AMINU GARBA SAI BABA 9. MUHAMMED USMAN 10. ALHAJI GALADIMA 11. BEN COCO 12. MUSTAPHA BAKO 13. CHIEF MAJOR MAYENGE 14. CHIEF J.B. SELE RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS THE PLAINTIFF’S ORIGINATING PROCESSES THAT DETERMINES THE JURISDICTION OF THE COURT TO ENTERTAIN THE MATTER
The law is settled that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are those filed by the Plaintiff or Applicant which may be the Writ of Summons and Statement of Claim or Originating Summons and its supporting affidavit. Jurisdiction is the authority of the Court to decide a matter before it as it is the entire basis for the Court to take cognizance of any matter for adjudication before it. See the cases of INAKOJU V. ADELEKE 2007 4 NWLR PT. 1025, ELABANJO V. DAWODU 2006 15 WLR PT. 1001 76, MILITARY ADMINISTRATOR BORNU STATE V. ABAYILO 2001 FWLR 604. As stated clearly in C.S. INC. V. M/T CINDY GAIA 2007 4 NWLR PT. 1024 222 per Ogunbiyi JSC as he then was:
“Therefore the determination of whether the Appellants’ claim at the lower Court was cognizable in admiralty is dependent on the totality of the facts on the Statement of Claim. In other words, isolated and randomly picked paragraphs or even the Reliefs sought would not suffice to give a good picture of the totality of the claim.”WILLIAMS-DAWODU, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
Fair hearing first and foremost implies that both or all sides be given an opportunity to present their respective cases by the Court or Tribunal. It implies that each side should know what case is being made against it and be given an opportunity to reply thereto. No party should be allowed to take the opposite party by surprise. “It is a Constitutional provision which acts as the machinery or locomotive of justice not a spare part to propel or invigorate the case of the user. Not a casual principle of law available to a party to be picked up at will in a case in respect of which the Courts are forced to apply to his advantage.” See the case of SABIRU ADEBAYO V. A-G OGUN STATE 2008 33 NSCQR VOL. 1 P. 25 per Niki Tobi.
Fair hearing lies in the procedure followed in the determination of a case and not in the correctness of a decision. An appellate Court will not save a correct decision in breach of fair hearing. See the cases of OLUFEAGBA V. ABDUR-RAHEEM 2009 40 NSCQR 684 and SAMBA PETROLEUM LTD. V. UBA 2010 43 NSCQR 119. Breach of it vitiates proceedings and renders same null and void. Where denial of a party’s right is established, the proceedings will become null and of no effect. WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory (FCT) High Court No. 5, Jabi, Abuja delivered on May 8th 2020 by Hon. Justice A.A.I. Banjoko in Suit No. FCT/CV/481/16 wherein, judgment was entered in favour of the Respondents (the Plaintiffs at the Court below).
Consequently, the Appellants have approached this Court with their Notice of Appeal of Four (4) Grounds seeking an order setting aside the whole judgment of the Court and an order for the dismissal of the Suit.
At the Court below, the Respondents sought the following reliefs against the Appellants (the Defendants/Respondents at the Court below) as amended upon the determination of six (6) questions:
1. A declaration that the 1st -4th defendants have no power whatsoever to cancel or annul the election of the 1st-10th plaintiffs validly done at the annual general meeting of the association held on 24th November 2016 and that the subsequent election and inauguration of the 5th -7th defendants and others as the purported national executives of the association is ultra vires the association’s constitution therefore renders same, unconstitutional, null and void.
2. A declaration that the cancellation or nullification of the election of the 1st-10th plaintiffs by the 1st -4th defendants and the imposition of a caretaker committee which subsequently conducted the election of the 5th-7th defendants as purported new national executive members of Nigeria Association of Auctioneers is illegal, null and void and of no effect.
3. A declaration that the 1st-10th plaintiffs being the legitimate and validly elected national executive members of Nigeria Association of Auctioneers on the 24th November 2016 for a fixed term are the legally recognized national executives of the association to the exclusion of any other persons.
4. A declaration that the 1st -4th defendants have no power whatsoever to interfere with the day-to-day running, administration or management of the affairs of Nigeria Association of Auctioneers as stipulated by the association constitution.
5. An order of injunction restraining the 5th-7th defendants’ (purported new national executive members) by themselves, their privies, agents, workers or any one claiming through them from presenting or parading himself/themselves as National Executive of Nigeria Association of Auctioneers or taking any benefit from such office(s) whatsoever.
6. An order restraining the 1st-4th Defendants as Members’ Board of Trustees of Nigeria Association of Auctioneers from further interfering with the tenure of the 1st-10th Claimants by engaging in unconstitutional acts such as calling any type of meetings and making unauthorized statements on behalf of the Association.
7. An order directing that the Alternate Secretariat located at Kukaza plaza, behind Access bank Aminu Kano Crescent, Wuse II Abuja operated by the 5th- 7th defendants with the support and approval of the 1st -4th defendants as National Secretariat of the Association be shut down for being an Illegal office.
8. The sum of N10,000,000.00 (Ten Million Naira) only as damages.
9. The sum of N1,000,000.00 (One Million Naira) only being cost of this suit.
The gist briefly of what culminated into this appeal as garnered from the Record is that following an election into the National Executive Committee of the Association of Auctioneers on November 25th 2016 which was seen as free and fair and which brought the 1st -14th Respondents into the National Executive Committee, the 1st-4th Appellants, being Trustees of the Association claimed there were petitions from contesters and observers for the cancellation of the election. According to the 1st and 4th Appellants, when the Respondents refused to meet so they could resolve the matter amicably, they cancelled the election through the Daily Trust Newspaper on December 13th 2016 and set up a Caretaker Committee to act for six (6) months and thereafter conducted another election on November 24th 2017 with the 5th Appellant as the National President, the 7th Appellant as General Secretary and others as National officers. That the Respondents unknown to the 1st-4th Appellants and against Section 251 (1) (e) of the 1999 Constitution and of the Association without complaining to the disciplinary committee and ratification by the National Executive instituted an action at the Court below. Their position further is that some of the Appellants, like the 5th and 7th Appellants were not served with the Court processes and yet the Court heard the Respondents’ Originating Summons.
The Respondents’ position differs as they claimed that the election was free and fair, there were no petitions for cancellation and the Appellants were duly put on notice.
Being aggrieved at the decision of the Court, the Appellants filed their Grounds of Appeal vide their said Notice of Appeal as amended.
Parties filed and exchanged their briefs of argument in compliance with the Rules of this Court. Mr. Wilson E. Ivara Esq. who settled the Appellants’ joint brief, dated and filed August 26th 2021 together with the Reply dated and filed November 2nd 2021 urged that the appeal be allowed. The Respondent’s which is dated and filed on September 21st 2021 was settled by Mr. M. Yakubu who adopted same and urged that the appeal be dismissed.
The following reliefs are being sought by the Appellants:
…
The parties submitted Issues as follows for determination:
APPELLANTS’ THREE (3) ISSUES:
“a. Whether the judgment of the lower Court vides the Amended Originating Summons in suit No. FCT/HC/CV/481/2016 was without jurisdiction, fair hearing and a nullity (Grounds 1, 2 and 3).
1. Whether the trial Court was in error in granting the Respondents reliefs without proper evaluation of the facts, considering the Respondents’ tenure, the association’s constitution and the general powers of trustees as enshrined in other extant laws (Grounds 3 and 4).
c. Whether the trial judge erred in law when it held that the provisions of Chapter 10 Section 2 (1) of the Association Constitution is (sic) inconsistent with Section 6 (6) of the Constitution of the Federal Republic of Nigeria, as amended (Grounds 5 and 3).
RESPONDENTS’ FIVE (5) ISSUES
“1. Whether the originating summons and pleadings filed by the respondents at the lower Court discloses (sic) a cause of action arising from operation or administration of the Companies and Allied Matters Act (CAMA) to rob the trial Court of the requisite jurisdiction over the matter and confer jurisdiction on the Federal High Court
2. Whether proper service of the originating summons on the 2nd-4th appellants at No. 70 Capital Road Agege Lagos State out of jurisdiction of the lower Court after obtaining leave of the Court by the respondents to serve out of jurisdiction evidenced by enrolled Court order issued by Hon. Justice A. M. Talba of the FCT High Court (Now JCA) on the 21st November 2017 and the proof of service on the 2nd -4th appellants amount to good service.
3. Whether service of the amended originating summons pursuant to obtaining leave for amendment and joinder of the 5th -7th appellants through Adewale Yusuf Esq counsel already retained by the appellants who accepted service on behalf of the 5th – 7th appellants without raising objection timeously and the subsequent steps taken by the 5th -7th appellants by participating in the defence of the suit via their counsel Adewale Yusuf Esq. amounts to denial of fair hearing which rob (sic) the lower Court of jurisdiction to hear and determine the suit the way it did.
4. Whether the lower Court considered all the issues raised by the respondents as plaintiffs in the lower Court in their amended originating summons and was right in arriving at the conclusion it made after a proper and correct evaluation of evidence.
5. Whether the constitution of the Nigeria Association of Auctioneers can circumscribe the constitutional power of the Court as enshrined in Section 6(6)(a) & (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to adjudicate and dispense justice to the respondents that sought it.”
Having very carefully considered the Issues donated by the two sides, I am satisfied that the Issues by the Appellants will fairly and justly determine this appeal. Therefore they are adopted in that regard.
SUBMISSION ON BEHALF OF THE APPELLANTS
APPELLANTS’ ARGUMENT
The learned Appellants’ Counsel submitted that the Court lacked jurisdiction as it denied fair hearing to the Appellants, therefore the proceedings amounted to a nullity and that the issue of jurisdiction can be raised at any time. In support he cited the cases of BRONIK MOTORS LTD. V. WEMA BANK LTD 1983 1 SCNLR 296, A- G LAGOS STATE V. DOSUNMU 1989 3 NWLR PT. 111 P. 582 EE and OLOBA V. AKEREJA 1988 3 NWLR PT. 84 P. 508. He submitted further that the six (6) questions and seven (7) reliefs in the Respondents’ amended Originating Summons relate to issues of election, powers of trustees, meetings, Appellants’ tenure of office which by implication relate to the operation, management and control of the affairs of the 1st Appellant, a company under the Corporate Affairs Commission. Therefore, by Section 251 (1) (e) of the 1999 Constitution of the Federal Republic of Nigeria as amended, the matter should have been filed at the Federal High Court he added and cited in support the cases of OMISADE & ORS V. AKANDE 1987 2 NWLR PT. 158, SKENCONSULT V. UKEY 1981 SC, FMBN V. NDIC 1999 2 NWLR PT. 591 P. 233 and NIDB V. FEMBO NIG. LTD. 1997 2 NWLR PT.489 P. 192 amongst the others cited.
He argued that leave of the Court was not sought and obtained by the Respondents to serve the originating processes on the Appellants outside the Court’s jurisdiction at No. 70 Capital Road Agege, Lagos State. That the originating processes were never issued for service outside and were never served on the 2nd-4th Appellants and in support cited the cases of NWABUEZE V. OKOYE 1988 3 NSCC 53, NEPA V. ONAH 1997 1 SCNJ 220 and ORDER 43 RULE 9 of the FCT High Court Civil Procedure Rules.
The learned Appellants’ Counsel contended that the 5th, 6th and 7th Appellants were denied fair hearing before the determination of the motion for joinder as they were not served with the application since service on Yusuf Adewale Esq. could not take the place of service on the said Appellants who were yet to be joined at the time and there was no Court order to serve them through Yusuf Adewale Esq.
He submitted that since the Respondents filed an Additional affidavit which is different from a Further and Better affidavit, they failed to challenge the position of the Appellants that the Association had an internal mechanism for dispute resolution as a pre-condition before instituting an action and cited in support the cases of BADEJO V. FEDERAL MINISTRY OF EDUCATION 1996 8 NWLR PT. 464 15 and NWOSU V. ISESA 1990 2 NWLR PT. 135 P. 688 SC. Therefore he submitted that the trustees could call meeting, cancel/annul elections, set up caretaker and any other step necessary to accomplish the aims and objectives of the Association. Further, he submitted that with the petitions received and fruitless attempt to resolve the issues involved, a caretaker committee was set up rightly. That the Respondents lacked locus standi to sue and that robbed the Court of its jurisdiction. He argued that Chapter 10 of the Constitution of the Association is not a departure from Section 6 (6) of the Constitution and more so as the parties had consented to comply with its provisions and cited in support the cases of BADEJO V. FEDERAL MINISTRY OF EDUCATION supra, OBIKOYA V. WEMA BANK and UGO V. OBIEKWE 1989 1 NWLR PT. 99, 5666.
With respect to the 1st -4th Appellants’ action of organizing another election, learned Counsel argued that Part C of the CAMA 2004 confers expressly unlimited powers on them to act with regard to the affairs of the Association. He submitted that there was no comparison made between the provision of Section 6 (6) of the 1999 Constitution and the constitution of the Association. And that, parties by implication agreed to comply with the internal mechanism of the Association as a condition precedent to institution of suits in Court. He cited in support the cases of BADEJO V. FEDERAL MINISTRY OF EDUCATION supra, AGBAJE V. IBRU SEA FOODS LIMITED 1972 5 SC 50 and JIBRIN V. EJE 1992 7 NWLR PT. 255 617 amongst others cited.
In conclusion, he urged that the appeal be allowed and the judgment of the Court below set aside.
RESPONDENTS’ ARGUMENT
The learned Respondents’ Counsel submitted that what is contained in their amended Originating Summons shows clearly that the Respondents’ case was for the interpretation of the constitution of the Association and not the CAMA as being erroneously argued by the Appellants. That Section 257 (1) of the 1999 Constitution gives unlimited jurisdiction to the FCT High Court. He contended that the legal right and interest of the Respondents were infringed upon by the actions of 1st – 4th Appellants who unilaterally interfered with the Respondents’ mandate after a successful election by setting up the caretaker committee, a body alien to the constitution of the Association. He submitted that the Court below was the proper forum with the requisite jurisdiction and that the Appellants’ challenge on the subject matter has no place in law. In support he cited the cases of NGERE V. OKURUKET “XIV” 2017 ALL FWLR PT. 882 P. 1343, ORU V. NIGERIA BAR ASSOCIATION 2016 ALL FWLR PT. 816 P. 543 and OLUBUKOLA V. AG LAGOS STATE 2017 ALL FWLR PT. 867 P. 507.
He asserted that leave was sought and granted for service outside jurisdiction to the Respondents on the 2nd -4th Appellants at No. 70 Capital Road Agege Lagos State through the Court Bailiff and the proof of service dated 23/11/2017 in compliance with Order 11 Rule 28 of the FCT High Court Rules is contained in the Additional Record of Appeal. And that the affidavit of service is prima facie evidence of service cited in support the cases of EMEKA V. OKOROAFOR 2017 ALL FWLR PT. 915 P. 1166. Therefore he argued that the onus probandi to establish non-service which is squarely on the 2nd-4th Appellants was not discharged and cited in support the cases of CHEMIRON INT’L LTD V. STABILINI VISIONONI LTD. 2018 ALL FWLR PT. 965 48 SC, MOHAMMED V. SHEHU 2018 ALL FWLR PT. 957 85 1 and FEDERAL UNIVERSITY OF TECHNOLOGY MINNA V. OLUTAYO 2018 ALL FWLR PT. 935 1255 SC.
The learned Counsel argued that the service on the 5th and 7th Appellants through Adewale Yusuf Esq. retained by the 2nd-4th Appellants was not denial of fair hearing to the 5th and 7th Appellants and therefore the whole proceedings remains valid and cannot be declared a nullity. That from the Record, the 5th-7th Appellants were very involved in the Suit and had Adewale Yusuf Esq. as their legal adviser even before being joined as parties and cited pages 169 and 186 of the Record where the 5th Appellant deposed to a Counter- affidavit against the Respondents’ application for injunction to restrain the 1st -4th Appellants from holding another election and the application on the propriety of the 1st Appellant being made a Defendant in the Suit, both processes were filed by Adewale Yusuf’s law firm. And the fact that they never protested or objected to not being personally served with the originating processes. Rather by their action and being present at the proceedings, they have accepted Adewale Yusuf Esq. as their legal representative. It is late in the day for them to raise any objection he added and referred to Order 5 of the Rules of the FCT High Court, that no alleged irregularity can nullify the proceedings as the 5th -7th Appellants waived their right thereby. He cited in support the cases of RASAKI V. AJIJOLA 2018 ALL FWLR PT. 931 P. 556, GAMBARI V. AMOPE 2018 AL FWLR PT. 925 P. 27 and EGBO V. AGBARA 1997 1 NWLR PT. 481 293.
He submitted that the Court correctly reached its conclusion as no Exhibits were tendered in defence of the Appellants’ case and they failed to challenge the evidence presented by the Respondents. He cited in support the case of HONDA PLACE LTD. V. GLOBE MOTORS HOLDING NIG. LTD. 2005 ALL FWLR PT. 283 P. 1. That no matter how brilliant the address of their Counsel might be, it would not substitute for evidence and in support cited the cases of UNITED CEMENT CO. NIG. LTD. V. ISIDOR 2016 ALL FWLR PT. 844 P. 2137 and OKWEJIMINOR V. GBAKEJI 2018 ALL FWLR PT. 409 P. 405. And that this Court should not interfere with the findings of the Court below and cited in support the cases of OSEMEIKHIAN V. EDIONWALE 2016 ALL FWLR PT. 838 P. 870 and OGUNDEPO V. OLUMESAN 2011 18 NWLR PT. 1278 P. 54.
He submitted that Section 602 of the CAMA as opposed to the Appellants’ submission does not give unfettered power to a board of trustees to act without guidance or authorization. With regard to the issue of the tenure of the 1st -10th Respondents, he asserted that since their tenure was disrupted by the purported dissolution by the 1st-4th Appellants, the 1st – 10th Respondents’ tenure has not lapsed as it did not run.
He argued that the institution of the Suit of the Respondents was in order as the constitution of the association was inadequate in their quest for justice, not being the final arbiter and the 1st -4th Appellants would have been the judges in their own cause. In support he cited the cases of AIYEDUN V. REGISTRAR, U.A.C. ILORIN 2018 ALL FWLR PT. 970 P. 964. In conclusion, he urged that the Appellants’ appeal be disallowed and dismissed accordingly.
THE POSITION OF THE COURT
I have very carefully considered the briefs and the Record by the parties and having so carefully done, I shall proceed with the consideration of the Issues as adopted one after the other along with the findings of the Court below. For ease of reference, the Issues will be reproduced hereunder;
ISSUE 1
a. Whether the judgment of the lower Court vides the Amended Originating Summons in suit No. FCT/HC/CV/481/2016 was without jurisdiction, fair hearing and a nullity.
The law is settled that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are those filed by the Plaintiff or Applicant which may be the Writ of Summons and Statement of Claim or Originating Summons and its supporting affidavit. Jurisdiction is the authority of the Court to decide a matter before it as it is the entire basis for the Court to take cognizance of any matter for adjudication before it. See the cases of INAKOJU V. ADELEKE 2007 4 NWLR PT. 1025, ELABANJO V. DAWODU 2006 15 WLR PT. 1001 76, MILITARY ADMINISTRATOR BORNU STATE V. ABAYILO 2001 FWLR 604. As stated clearly in C.S. INC. V. M/T CINDY GAIA 2007 4 NWLR PT. 1024 222 per Ogunbiyi JSC as he then was:
“Therefore the determination of whether the Appellants’ claim at the lower Court was cognizable in admiralty is dependent on the totality of the facts on the Statement of Claim. In other words, isolated and randomly picked paragraphs or even the Reliefs sought would not suffice to give a good picture of the totality of the claim.”
The contention of the Appellants amongst other issues raised is that the Respondent’s suit relates to the CAMA which regulates the operations of the Association and therefore ought to have been heard at the Federal High Court and not the FCT High Court in compliance with Section 251 (1) (e) of the 1999 Constitution of Nigeria.
I have very calmly read through the six (6) questions contained on pages 279-280 of the Record submitted for interpretation and the nine (9) reliefs sought by the Respondents in order to answer whether or not they fall under the CAMA and therefore the Suit should have been instituted at the Federal High Court as opposed to the FCT High Court; Having so carefully done, I hold the view and humbly that the FCT Court properly exercised jurisdiction over the matter.
The Appellants further contend that leave of the Court was never sought or obtained before the issuance and service of the originating processes at the Court below according to the Rules of the Court and Section 99 of the Sheriffs and Civil Process Law. In particular that, the 5th, 6th and 7th Appellants who were joined to the Suit sometime after commencement were not properly served and therefore the whole proceedings amounted to a nullity as the Court lacked jurisdiction. That, there was no Court order to serve the firm of Adewale Yusuf Esq. & Co on behalf of the 5th, 6th and 7th Appellants and that the Court refused to grant the said Counsel audience when the Respondent’s Counsel was moving his Motion for joinder.
From the Record, one finds that vide Respondent’s Motion Ex- parte no. M/616/17 which was granted, the 2nd -4th Appellants were served outside jurisdiction as on pages 2 and 3 of the Additional Record filed July 12th 2021 and deemed as properly filed and served. On November 18th 2019, the Respondents’ application to join the 5th, 6th and 7th Appellants and amend the Respondents’ originating process was granted without any objection whilst the 5th and 6th Appellants were in Court with Mr. Adewale Yusuf as the legal representative of the 2nd -4th Appellants and he continued to represent all the Appellants. See page 361 of the Record.
The 5th, 6th and 7th Appellants were served after they had been joined through the said Adewale Yusuf, learned Counsel for the Appellants. From the foregoing facts, in my considered opinion and humbly, it would not appear to be denial of fair hearing as the 5th – 7th Appellants accepted to have been served and did not raise the issue of non-service throughout the proceedings and they participated effectively to the end at the Court below. As can be seen from the Record, the 5th and 6th Appellants were in Court on the day the application was heard as on page 360 of the Record as well as page 169 of the Record where the 5th Appellant swore to the Counter- affidavit opposing the Respondents’ application for a restraining order against the 2nd – 4th Appellants from holding a fresh election in Kaduna. They did not raise the issue of non-service timeously as argued by the learned Respondent’s Counsel. Indeed, delay on their part would seem to have defeated equity herein.
Fair hearing first and foremost implies that both or all sides be given an opportunity to present their respective cases by the Court or Tribunal. It implies that each side should know what case is being made against it and be given an opportunity to reply thereto. No party should be allowed to take the opposite party by surprise. “It is a Constitutional provision which acts as the machinery or locomotive of justice not a spare part to propel or invigorate the case of the user. Not a casual principle of law available to a party to be picked up at will in a case in respect of which the Courts are forced to apply to his advantage.” See the case of SABIRU ADEBAYO V. A-G OGUN STATE 2008 33 NSCQR VOL. 1 P. 25 per Niki Tobi.
Fair hearing lies in the procedure followed in the determination of a case and not in the correctness of a decision. An appellate Court will not save a correct decision in breach of fair hearing. See the cases of OLUFEAGBA V. ABDUR-RAHEEM 2009 40 NSCQR 684 and SAMBA PETROLEUM LTD. V. UBA 2010 43 NSCQR 119. Breach of it vitiates proceedings and renders same null and void. Where denial of a party’s right is established, the proceedings will become null and of no effect. From the Record herein, there is no denial of fair hearing to any of the Appellants. One agrees with the Respondents’ Counsel’s submission on the effect of Order 5 of the FCT High Court Rules with respect to any irregularity, which will not nullify any proceedings more so as the 5th -7th Appellants participated without any complaint or objection to the Court after the joinder and the service being complained about.
ISSUES 2 AND 3
“Whether the trial Court was in error in granting the Respondents reliefs without proper evaluation of the facts, considering the Respondents tenure, the association’s constitution and the general powers of trustees as enshrined in other extant laws.
Whether the trial judge erred in law when it held that the provisions of Chapter 10 Section 2 (1) of the Association Constitution is inconsistent with Section 6 (6) of the Constitution of the Federal Republic of Nigeria, as amended.”
The Court below found that there was no direct or specific counter/challenge of the election of the 1st to 10th Respondents by the Appellants in their affidavit in opposition. It found that the only grounds upon which an elected Executive Committee ceases to hold office are thus:
a. Resigns from office
b. Ceases to be a registered member of the Association
c. Becomes insane or by death
d. Is officially declared bankrupt;
e. Is convicted of criminal offence involving dishonesty by a Court of competent jurisdiction,
f. Is recommended for removal from office by 2/3 majority votes of members present at any Annual Conference of the Nigerian Association of Auctioneers for any reason including non- performance,
g. Ceases to reside in Nigeria.
The pertinent question is whether cancellation, as it were by the Caretaker Committee set up by the 2nd to 4th Appellants is envisaged from the foregoing list. Chapter 10 would appear to be the chapter that empowers the Disciplinary Committee to investigate complaints and allegations against a member, report its findings and make recommendations to the National Executive Committee for final ratification. From the Record and as correctly found by the Court, there was no report against the Respondents to the Disciplinary Committee, the body which is empowered to make recommendations after investigations, except the Newspaper publication of the cancellation of the election by the Board of Trustees of the Association. The claim that the Board noticed a lot of irregularities in the election of November 24th 2016, which brought in the Respondents as Executive Members, was not established as there was no evidence of the petitions from the contestants/observers upon which the Board acted. There is nowhere in Chapter 7 of the constitution of the Association which provides for the powers vested in the Board of Trustees to cancel or annul any election conducted by the 1st Appellant and inaugurate a Caretaker Committee. The Court upon its finding stated as follows on pages 379-380 of the Record:
“The 2nd – 4th Appellants were ignorant of their own Constitution, which did not vest in them any Disciplinary powers and if they wanted to so act, then the Constitution of the Association needed to be Amended.
The Complaints are not before the Court, the Referral to the Disciplinary Committee is not before the Court, the Report itself is not before the Court to show that the Recommendation to cancel their Election was sanctioned by the Disciplinary Committee.
It is clear that even if recommended by the Disciplinary Committee the Power to remove any of the National Officers or even Executive Committee Members did not lie in the hands of the Board of Trustees but on the National Executive Committee.”
The Court correctly held in respect of its findings that the Caretaker Committee is illegal and could not have conferred any legality on the actions of the Appellants. The Court therefore found in favour of the Respondents. One is unable to interfere with the foregoing findings of the Court and will not therefore disturb the decision of the Court.
In the result, this appeal cannot be allowed it therefore fails and is accordingly, hereby dismissed.
PETER OLABISI IGE, J.C.A.: I agree.
DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, E.O Williams – Dawodu, JCA just delivered and I agree with the findings and conclusion reached therein that this appeal is unmeritorious and it is dismissed by me as well.
Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/CV/481/2016 delivered on the 8th of May, 2020 by A. A. I. Banjoko, J is hereby affirmed.
Appearances:
Mr. W.E. Ivara For Appellant(s)
Mr. Madeh Yakubu For Respondent(s)
