IFEANYI CHUKWU OKONKWO v. CENTRAL BANK OF NIGERIA
(2010)LCN/4027(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of November, 2010
CA/E/211/2008
RATIO
JURISDICTION OF A COURT: IMPORTANCE OF THE JURISDICTION OF A COURT
The law is very clear concerning the fundamentality and importance of jurisdiction of a court, to its adjudication over cases before it. In this regard, the law reports are replete with decisions to the effect that the question of jurisdiction strikes at the root of any cause or matter and consequently raises the issue of competence of the court to adjudicate in particular proceedings. Therefore any defect in competence is fatal as such proceedings become null and void no matter how well conducted and decided the proceedings have been. See ADATAYO v. ADEMOLA (2010) All FWLR (Pt.533) 1806 and COTECNA INTERNATIONAL LIMITED V. IVORY MERCHANT BANK LTD (2006) All FWLR (PART 315) 26. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
ABUSE OF COURT PROCESS: WHETHER THERE MUST BE SUFFICIENT DISCLOSURE OF THE FACTS LEADING TO AN ABUSE OF COURT PROCESS BEFORE THE COURT CAN HOLD THAT AN ABUSE OF COURT PROCESS HAS BEEN OCCASIONED
The question as to whether or not an action constitutes an abuse of court process is one of fact. In this regard see the case of INTERNATIONAL BANK FOR WEST AFRICA V. SASEGBON (2007) 1 All FWLR (Pt. 388) 1099, where this Court per Galinje, JCA at page 1114 said thus: – “An abuse of court process is a product of facts. When facts leading to an abuse of court process are not disclosed sufficiently, it is difficult for a court or tribunal to hold that an abuse of court process has been occasioned. The disclosure of such facts before a court is done through an affidavit evidence. In absence of such disclosure the lower court was right when it discountenanced the address of counsel on the issue of abuse of court process on the grounds that the facts constituting the abuse of court process were not deposed to in an affidavit.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WHETHER A COURT HAS A DUTY TO CONSIDER AND MAKE A PRONOUNCEMENT ON ALL APPLICATIONS/MOTIONS PENDING BEFORE IT
The law is not only settled but also makes it mandatory that a court must consider and make a decision and pronouncement on all applications/motions pending before it. Failure to do this, it has consistently been held, amounts to a breach of fair hearing. See in this regard the cases of COOKEY V. FOMBO (2005) 22 NSCQR 411 at 428: AFROCONTINENTAL (NIG) LTD V. CO.OPERATIVE ASSOCIATION OF PROFESSIONALS ING (2003) 13 NSCQR 186 at 196; and NEWSWATCH COMMUNICATIONS LTD V. ATTA (2006) 26 NSCQR 438 at 458-459. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
PRINCIPLE OF FAIR HEARING : CONSEQUENCE OF A BREACH OF THE PRINCIPLE OF FAIR HEARING ON THE PROCEEDING
The consequence of a breach of the principle of fair hearing is that the proceeding in the case is null and void. It does not matter whether if the proper thing had been done, the decision would have been the same. It is equally immaterial that the same decision would have been arrived at in the absence of the departure from the essential principles of justice. A decision given in breach of fair hearing must be declared to be no decision and set aside. See NDUKAUBA V. KOLOMO (2005) All FWLR (Pt. 248) 1602 at 1614. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
POWER OF THE COURT OF APPEAL: WHETHER THE PARTY ASKING FOR THE INVOCATION OF THE POWER OF THE COURT OF APPEAL TO ACT AS IF IT WERE THE TRIAL COURT MUST SHOW THAT THERE IS A REAL ISSUE IN CONTROVERSY FOR THE COURT OF APPEAL TO DETERMINE AND THAT IT IS A GOOD CASE FOR REHEARING
In the case of ENEKWE v. I.M.B. (NIG.) LTD (2007) 1 All FWLR (Pt. 349) 1053, the Supreme Court dwelling on the power of the Court of Appeal to act as if it were the trial court made it clear that the power should never be invoked for the mere asking. That the party asking for the invocation of the power must show that there is a real issue in controversy for the court to determine and that it is a good case for rehearing. That the power of this Court to act as if it were the trial court, is not in the statute to instigate competition in jurisdiction between the Court of Appeal and the High Court. That the section of the Court of Appeal Act conferring the power lacks the legal capacity to wipe out the original jurisdiction of the High Court but is there to assist in the speedy hearing of appeals. The power is not a substitute for trial procedure in the High Court. I am of the firm view that before this Court can properly invoke its power under Section 16 of its Act, there must be a clear decision of the lower court (found to be wrong) that must necessarily result in a rehearing. I do not think it can be said that a case in which the decision therein has to be set aside or has been set aside for lack of fair hearing, has been heard at all in the first place; and definitely there is no decision in such a case upon which a rehearing can be predicated. It would amount to this Court competing with the lower court, for this Court to exercise the original power of the lower court in a matter in which it has not pronounced on the correctness or otherwise of the lower court’s decision. In other words, the resolution in favour of the Appellant of the issue of denial of fair hearing is antithetical to his relief that this Court should pronounce on the merit of his originating summons by invoking its power under Section 16 of its Act. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
AYOBODE LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
IFEANYI CHUKWU OKONKWO Appellant(s)
AND
CENTRAL BANK OF NIGERIA Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 18th February, 2008 by Hon. Justice A. O. Fabi of the Enugu Judicial Division of the Federal High Court of Nigeria in SUIT NO: FHC/EN/CS/139/2006 – IFEANYICHUKWU OKONKWO V. CENTRAL BANK OF NIGERIA. The learned trial Judge dismissed the action for being a gross abuse of court process.
The Appellant being the Plaintiff at the Federal High Court (hereinafter simply referred to as “the lower court”) commenced an action against the Respondent herein, by Originating Summons. The question which the Appellant seeks for its determination in the originating summons reads thus:-
“In purview of Garnishee Order Nisi dated 19/5/2006 Exhibit ‘A’, the Defendant’s Affidavit dated 19/5/2006 (sic) Exhibit ‘B’, the Garnishee Order absolute dated 19/7/2006 Exhibit ‘C’, constructing them with statutory duty imposed on the Defendant Bank by the community reading of sections 83, 85, 86 & 87 of the Sheriffs and Civil process Law.
Whether the default/neglect by the Defendant Bank to pay over forthwith the sum of 22.5 million naira (sic) vide Exhibit ‘C’, whereas, no stay of Execution (sic) was granted by any court of competent jurisdiction under the provisions of the Sheriffs and Civil process Act; is not a violation of the Plaintiffs proprietary right?”
The reliefs which the Appellant claims, as set out in the originating summons are: –
“(a) An Order of Declaration that in purview of the interpretation of the Court processes (the Garnishee order Nisi Exhibit ‘A’, the Defendant’s Affidavit dated 19/6/2006 Exhibit ‘B’, Order absolute dated 19/7/2006 Exhibit ‘C’) and the legal effect of sections 83, 85, 86 & 91 of the Sheriffs and Civil process Act, the default/neglect by the Defendant Bank to pay over forthwith default/neglect by the Defendant Bank to pay over forthwith the sum of 22.5 Million Naira vide Exhibit ‘C’ without any Order of stay of execution granted by any Court of competent jurisdiction in conformance with the provisions of the Sheriffs and Civil Process Law; is a flagrant violation of the plaintiffs proprietary right to the sum of 22.5 million Naira.
(b) An Order of Declaration that the act/default of the Defendant Bank complained of, is illegal, arbitrary and unconstitutional.
(c) An Order of Declaration that pursuant to section 54 of the Evidence Act, the Garnishee Order absolute dated 19/7/2006 Exhibit ‘C’ being a final judgment is a conclusive proof as against the Defendant bank and its privies, moreso when the said Defendant never appealed against the Order absolute.
(d) An Order of Declaration that by the Defendant Bank’s Affidavit dated 19/6/2006 Exhibit ‘B’ and pursuant to section 151 of the Evidence Act, the Defendant Bank is Estopped (sic) from denying the truth of the facts deposed in their said Exhibit ‘B’, moreso, having regard to the statutory protection provided a Garnishee/Debtor in section 91 of the Sheriffs and Civil process Law 2004.
(e) An Order of Declaration that the Defendant Bank willfully and in breach of the statutory duty imposed on it failed/neglected to see that the Plaintiff will suffer damages, as a result of the tortuous act committed against the right and interest of the plaintiff (sic) entitlement of (sic) the sum of 22.5 Million Naira, money had and received by the Defendant Bank when it defaulted in carrying out the Order of the Federal high Court in the Garnishee Order dated 19/7/2006 Exhibit ‘C’ directing the Defendant Bank as the Garnishee to pay the Plaintiff (Garnishor) the sum of 22.5 million Naira forthwith.
(f) An Order of Declaration that the Defendant Bank failed/neglected to take proper or any care to determine that there is a distinction in the construction/interpretation of the meaning of “public officer” in relation with the Public officers protection (sic) Act, CAP. P.41 LFN 2004, which is square pertaining to matters of TORT and CONTRACT. In contradistinction to who is a PUBLIC
OFFICER, in conformance with section 318 (1) of the 1999 Constitution of the Federal Republic of Nigeria, the and interpretation of section 84(1)(2)(3)(a) of the Sheriffs and Civil Process Act, Cap. S. 6 vol. 14 LFN 2004.
(g) An Order of Declaration that by Exhibit ‘B’, and the legal effect of Exhibit ‘C’ the Plaintiff is entitled to claim from the Defendant Bank the sum of 22.5 million naira, money had and received by it; plus, interest at rate of 32% compound regime from 19th day of July 2006, till payment, having regard to the obvious cost of borrowing the same amount from a Commercial Bank.
(h) An Order of Declaration that pursuant to sections 83, 85, 86 & 91 of the Sheriffs and Civil process (sic) Act, the Defendant Bank has no legal right known to law to continue to hold on to the Plaintiffs property the sum 22.5 million Naira, purportedly pursuant to any public duty, authority or by using the pendency of motions either by itself or any interested party as a restraining Order of a Court, to disobey a valid and subsisting final Order of Execution.
An Order Directing (sic) the Defendant bank to pay a compound interest at the rate of 32o/o on the sum of 22.5 million Naira, with effect from 19th day of July 2006 till date of liquidation of the entire sums.
(i) An Order Directing (sic) the defendant to pay the plaintiff the sum of 5 Million Naira General damages recoverable for its breach or violation of the Plaintiffs legal right to its (sic) property the sum of 22.5 million Naira due from the Defendant vide Exhibit ,C’.
(j) An Order Directing (sic) the Defendant Bank to pay the plaintiff an Exemplary/Aggravated damages in the sum of 5 Million Naira, for its illegal, arbitrary and unconstitutional act/conduct.
(k) An Order Directing (sic) the Defendant Bank to pay the Plaintiff an Exemplary/Aggravated damages in the sum of 5 Million Naira, for its illegal, arbitrary and unconstitutional act/conduct.
(l) An Order directing (sic) the Defendant to pay a post Judgment interest of 10% on the total Judgment sum awarded by the Honourable Court from the date of Judgment till final liquidation of the Judgment award.
(m) An Order of perpetual injunction restraining the Defendant Bank from interfering or further interference in whatever manner whatsoever or instituting or continuing with any proceedings in any court design (sic) to illegally and unlawfully stop it from complying with the Garnishee 0rder absolute dated 19/7/2006 Exhibit ‘C’ other than by an appeal against the said final Order.”
The Appellant filed a 15 paragraph affidavit in support of the originating summons. In the supporting affidavit and Exhibits attached thereto the Appellant amongst other disclosed that he obtained judgment in the sum of 22.5 million Naira against the Independent National Electoral Commission (INEC) and another, in SUIT NO: FHC/EN/CS/99/2005 which he instituted for himself and on behalf of the Nigeria Advance Party (NAP). Due to the non liquidation of the judgment sum, the Appellant registered the Certificate of Judgment at the Federal High Court, Enugu as SUIT NO: FHC/EN/CS/77/2006. The Appellant was the Judgment Creditor/Garnishor in the suit; THE INDEPENDENT ELECTORAL COMMISSION (INEC) and THE RESIDENT ELECTORAL COMMISSIONER, ANAMBRA STATE were sued as Judgment Debtors; and the CENTRAL BANK OF NIGERIA was sued as Garnishee. The garnishee proceedings ended in favour of the Appellant as the trial court having earlier made a Garnishee order Nisi against the Central Bank of Nigeria on 19/5/2006, later made the Order absolute on 19/7/2006. In the supporting affidavit, the Appellant disclosed that he will rely on some depositions in the affidavit filed by the Respondent in SUIT NO: FHC/EN/CS/129/2006. The depositions in the main were to the effect that the Respondent would pay over to the Appellant the money in its possession belonging to the judgment debtor, i.e. INEC; if the Respondent’s application to stay the execution of the Garnishee Order absolute made on 20/7/2006 as well as an application filed by it (i.e. Respondent) for the setting aside by the trial court of its decision delivered on 19/7/2006, failed. It was disclosed in the supporting affidavit to the originating summons that the Respondent’s motion for stay of execution of the Garnishee Order absolute was dismissed by the trial court on 31/7/2006, while the motion praying for the setting aside of the decision of the trial court delivered on 19/7/2006 was equally dismissed on 2/8/2006. It is the case of the Appellant that the refusal of the Respondent to pay over to him the judgment sum of 22.5 million awarded against INEC not only constituted a violation of his constitutional right but also entitled him to all the reliefs he claims in the originating summons.
The Respondent filed a counter affidavit to the supporting affidavit of the originating summons on 20/10/2006. (See pages 35 – 37 of the record of appeal). Therein the Respondent disclosed that it was not a party to either SUIT NO: FHC/EN/CS/99/2005 or SUIT NO: FHC/EN/CS/77/2006 as no processes in respect of the said cases were ever served on it. The Respondent however admitted filing an Affidavit to show Cause in SUIT NO: FHC/EN/CS/77/2006. The Affidavit to show Cause is Exhibit ‘B’ attached to the supporting affidavit to the originating summons. The Respondent also disclosed that it had been served with some processes filed by both INEC and the Resident Electoral Commissioner for Anambra State. These are: –
(a) Notice of Appeal against the decision delivered on 24/1/2006 in SUIT NO: FHC/EN/CS/99/2006 – MR. IFEANYICHUKWU E. R. OKONKWO V. INEC & ORS;
(b) Notice of Appeal against the decision of the lower court delivered on 19/7/2006 in SUIT NO: FHC/EN/CS/77/2006 – IFEANYICHUKWU OKONKWO V. INEC & 2 ORS;
(c) Application in the Court of Appeal for extension of time to appeal against the decision of the trial court in SUIT NO: FHC/EN/CS/129/2006 as well as for orders of injunction and stay of further proceedings; and
(d) Application in the Court of Appeal for stay of further proceedings and the execution of the judgment in SUIT NO: FHC/EN/CS/77/2006.
Aside from the counter affidavit filed by the Respondent on 20/10/2006 to the affidavit in support of the originating summons, it also filed a process titled Motion on Notice on the said 26/2/2007. In the process the Respondent prayed the lower court to set down for hearing and determination certain issues arising from its counter affidavit.
The Appellant reacted to the counter affidavit and motion on notice filed by the Respondent, by filing on 27/2/2007 a motion on notice of the same date. The motion was filed by the Appellant pursuant to the directive given by the lower court on 26/2/2007 that he should make a formal application after he informed the court that he had objection to the competence of the processes filed by the Respondent. (See page 285 of the record of appeal).
When the case came up on 21/5/2007, the learned trial Judge being aware of the processes filed by the parties as catalogued above, and after he was also informed by the Appellant that he has not filed any counter affidavit to the Respondent’s motion as he would be relying on law and would also argue his motion dated 27/2/2007 in answer to the Respondent’s motion, proceeded to state thus: –
“Court: Having looked through the pending applications, I am of the view that the interest of expeditious hearing will be better served by proceeding to take arguments on the originating summons. This is because the issues raised in Mr. Ani’s motion have been raised in the counter-affidavit to the originating summons. So either way, the issues would still come up for determination. The matter is therefore hereby adjourned to 25/6/2007 for originating summons at 11a.m.”
When the case came up on 25/6/2007, the Appellant again informed the lower court that he had filed a motion dated 27/2/2007. Respondent’s counsel having acknowledged the service of the process, the learned trial Judge proceeded to make an order for the filing of addresses by the parties. The order was made to cover all the processes filed in the case and which were pending for hearing. On 6/11/2007, parties adopted their respective addresses in respect of all the processes pending for hearing before the lower court and the court fixed Ruling for 18/12/2007. The lower court eventually delivered a “judgment” in the case on 18/2/2008 and as already stated, the court dismissed the Appellant’s suit for being a gross abuse of court process.
The Appellant being dissatisfied with the judgment of the lower court lodged a Notice of Appeal against the same. The Notice of Appeal is dated 11/3/2008 and was filed on the same date. There are two grounds of appeal in the Notice. The grounds of appeal shorn of their respective particulars read thus:
“GROUNDS OF APPEAL:
A. ERROR IN LAW:
The learned trial Judge erred in law when he proceeded and determined the case on the objection raised by the Defendant/Respondent, without first resolving the Plaintiff/Appellant’s objection on both the competence of the Counter-Affidavit and Motion on Notice without affidavit, filed by the Defendant/Respondent in flagrant breach of the plaintiff’s fundamental right to fair hearing, thereby came to a perverse decision.
B. MISDIRECTION IN LAW:
The learned trial Judge misdirected himself in law when he opined thus:
“I do not think that Plaintiff seriously contends that the processes filed at the Court of Appeal do not exist. Neither does he contend that the exhibits attached to the Counter-Affidavit do not exist. Indeed, one of them is his own document. Had this sort of objection been raised by a legal practitioner, it would be rightly regarded as unethical. The plaintiff is however a lay-man not schooled in the ethics of the noble profession.”
The learned trial Judge was oblivious of the position of the law that whether or not a suit constitutes an abuse of court process is a matter of fact, which must be established by credible and admissible evidence occasioning thereby a miscarriage of justice.”
The reliefs sought by the Appellant from this Court as set out in the Notice of Appeal are: –
(i) to allow the appeal and set aside the judgment of the lower court dated 18/2/2008; and
(ii) Upon the grant of prayer (i), to invoke the powers of the Court of Appeal under section 16 of the Court of Appeal Act, and assume jurisdiction and determine the originating summons. The reason being that all the facts and written argument of the parties are before the court on record. It will be unnecessary to return the case back to the Federal High Court for fresh trial. This will save litigation time, and costs, Moreso, it will completely settled (sic) finally the matter in controversy between the parties.”
In compliance with the practice and Rules of this Court, parties duly filed and exchanged briefs of argument. The Appellant himself settled the Appellant’s Brief of Argument dated 11/6/2008 and filed on the same date. Respondent’s Brief of Argument dated 22/7/2008 and filed on the same date was settled by Anthony I. Ani Esq. and C. J. Aneke Esq. The appeal was entertained on 4/10/2010 and the Appellant who represented himself as well as Tochukwu Maduka of counsel for the Respondent respectively, adopted and relied upon the Briefs of Argument of parties as earlier identified above, as their arguments in the appeal.
The Appellant formulated two issues for the determination of the appeal in his Brief of Argument. The issues read thus:-
“ISSUE NO.1
Whether the Appellant was given a fair hearing in the manner his suit was dismissed by the trial Court without considering his pending application and written argument challenging the competence of the processes filed by the Defendant/Respondent?
ISSUE NO.2
Whether the decision of the trial Court is right dismissing the action for gross abuse of Court process based on its investigation of the allegation of the Defendant/Respondent, Without (sic) determining firstly the credibility and admissibility of the Counter-Affidavit evidence challenged by the Plaintiff/Appellant?”
A lone issue was formulated for the determination of the appeal in the Respondent’s Brief of Argument. The issue reads thus: –
“Whether the Honourable Trial Judge was right in dismissing the Plaintiff/Appellant’s action as a gross abuse of the process of Court?”
The appeal will be determined upon the issues formulated by the Appellant given the fundamentality of the issue of denial of fair hearing raised therein.
APPELLANT’S ISSUE NO. 1
The Appellant contended that the decision delivered by the lower court is very wrong in law and ought to be set aside because it was delivered in violation of his constitutional right as guaranteed under section 36(1) of the 1999 Constitution. The Appellant referred to the proceedings of 25/6/2001 (sic) as showing clearly that he had a motion before the lower court and submitted that the learned trial Judge was bound to consider his processes in the conduct of his judicial duty. That in the light of the issues joined by the parties in the processes before the lower court, the learned trial Judge was under a duty to make findings and pronouncements on the issue of the competence of the processes filed by the Respondent. That the decision of the lower court delivered on 18/2/2008 without the learned trial Judge considering/determining the pending application before the lower court amounted to a gross violation of his (Appellant’s) right to fair hearing. The cases of Long-John vs. Blakk (1998) 6 NWLR (Pt. 555) 524 and Ibatoi v. Barakuro (2007) 1 NWLR (Pt. 1040) 475 at 502 were cited in aid. It is also the submission of the Appellant that the question as to whether or not a court has the jurisdiction to entertain any action can be raised viva voce and that where this is done, the court is duty bound to settle the matter one way or the other before proceeding to determine the case. The cases of NDIC vs. CBN (2002) 7 NWLR (Pt.766) 272 at 295; Ugo vs. Ugo (2008) 5 NWLR (pt. 1079) 1 at 13; and Mobil Producing Nig. Unlimited vs. Monokpo (2003) 1B NWLR (pt.852) 346 at 412 – 413 amongst others were cited in aid. The Appellant submitted to the effect that the learned trial Judge in failing to pronounce on his motion before the lower court and his objection to the processes filed before the said court by the Respondent, (whether or not the motion and objection were properly made), failed to discharge the constitutional duty imposed on him. That this is particularly so as the motion and objection touched upon the steps taken by the Respondent in the proceedings. It is also the submission of the Appellant that the failure on the part of the lower court to decide on the merit of his motion and objection rendered the decision of 18/2/2008 null and void. This is because it is the duty of any court to entertain and decide on the merit, any application before it, no matter the perceived strength or weakness of the application. The cases of Onyekwuluje vs. Animashaun (1996) 3 NWLR (pt. 439) 637; and Abiara vs. Reg. TMCN (2007) 11 NWLR (Pt. 1045) 280 at 300 – 301 were cited in aid. This Court was urged to overturn the decision of the lower delivered on 18/2/2008 given its failure in first considering the Appellant’s objection and pronouncing on it one way or the other. The case of Adebayo vs. Shogo (2005) 7 NWLR (pt. 925) 467 at 480 – 481 was cited in aid. The Appellant urged the Court to resolve the issue under consideration in his favour,
Dwelling on Appellant’s issue 1, the Respondent said that the laborious contentions of the Appellant on the issue are totally misconceived and untenable. This is because the Appellant lost sight of the fact that he commenced his action by originating summons in which the supporting affidavit as well as the counter affidavit and/or further counter affidavit of the Respondent are akin to the pleadings of the parties, The cases of Adesokan vs. Adegorolu (1997)3 NWLR (Pt.493) 261; and Fawehinmi vs. President of the Federal Republic of Nigeria (2007) 14 NWLR (Pt. 1054) 275 at 329 – 330 amongst others were cited in aid. The Respondent submitted that any pronouncement by the learned trial Judge on the competence or otherwise of its counter affidavit and further counter affidavit would have amounted to delving into the merits of the case between the parties and which is presently pending on appeal before the Court of Appeal. It is also the submission of the Respondent that it was in realisation of the futility of the position being taken by the Appellant that the learned trial Judge held that going into the merit of the case would be like taking the wind off the sail of the Court of Appeal. The Respondent also submitted that the submission of the Appellant that the learned trial Judge erred in his judgment by failing or refusing to determine the Appellant’s pending application challenging the competence of all the Respondent’s processes and the jurisdiction of the court to entertain the same is not only preposterous but also untenable. This is because whether a court has jurisdiction or not to entertain an action commenced by originating summons is determinable only from the supporting affidavit of the originating summons. The cases of Senate President vs. Nzeribe (2004) 9 NWLR (pt. 878) 251 at 272 and Abubakar vs. Buko (2004) All FWLR (pt.215) 309 amongst others were cited in aid. The Court was urged to resolve the issue against the Appellant and in favour of the Respondent.
APPELLANT’S ISSUE NO.2
The Appellant contended that a trial as in the present case is not an investigation and that investigation is not the duty of a court. That the result produced by the lower court from the purported investigation in which it engaged, in the decision of 18/2/2008 is wrong in law and illegal. The case of Adeleke vs. Lyanda (1994) 9 NWLR (Pt.366) 113 at 126 – 127 was cited in aid. The learned trial Judge was accused of missing the gist of the case as presented before the lower court when he failed to concern himself with the hearing and determination of the issues joined by the parties. This lapse the Appellant submitted has led to a serious miscarriage of justice and that this Court has a duty to set aside the judgment of the lower court. The cases of Adejuche vs. Ologunja (2004) 6 NWLR (Pt. BOB) 46 and Iheanacho vs. Chigere (2004) 7 SC 49 at 58 were cited in aid. The Appellant not only accused the lower court of formulating the weakness of his case suo motu and of resolving the case so set up by it, in favour of the Respondent, but also that the lower court’s decision is perverse as the learned trial Judge had no jurisdiction to come to a decision outside due process known to law. This Court was urged to hold that the decision produced by the illegality in which the lower court engaged, is null and void ab initio.
The Appellant submitted that the issue of abuse of court process is a matter of evidence; that whether or not a suit is an abuse of court process therefore is a matter of fact which must be established by credible and admissible evidence. It is the further submission of the Appellant that the learned trial Judge ought not to have gone into the merits of the case without first resolving the challenge he made preliminarily on the credibility and admissibility of paragraphs of the counter affidavit which the Respondent relied upon in answer to his (Appellant’s) case. The cases of N.I.W.A. VS. STB PLC (2008) NWLR (PT. 1072) 483 at 500 and Jambo vs. Governor, Rivers State (2007) All FWLR (Pt. 394) 312 were cited in aid. It is the submission of the Appellant that the learned trial Judge was wrong in not taking his objection first. This is because there is a duty and need to resolve the issue of jurisdiction first before going into the merit of the case. The cases of The M.V. “Med Queen” v. Erinfolami (2008) 3 NWLR (Pt. 1074) and Nwaka v. Head of Service, Ebonyi State (2008)All FWLR (Pt. 402) 1156 were cited in aid. The Appellant urged the Court to resolve the issue under consideration in his favour.
Dwelling on Appellant’s Issue No. 2, the Respondent submitted to the effect that the submission of the Appellant that the learned trial Judge erred in his judgment by first considering the case of the Respondent was untenable in law. The Respondent said that the preliminary objection of the Appellant was as to the competence of its counter affidavit and further counter affidavit as well as to certain paragraphs of the said processes vis-a-vis Sections 77 – 89 of the Evidence Act. That on the other hand, its own preliminary objection challenged the jurisdiction of the court to entertain the suit on the grounds of non-disclosure of a cause of action and abuse of process amongst others.
The Respondent said that the law is settled that it is better and advisable to first hear a preliminary objection challenging the jurisdiction of a court to entertain a matter once it is raised. This is because the objection if upheld renders it unnecessary to hear the substantive matter. The cases of:Mohammed vs. Ali (1989) 2 NWLR (Pt. 103) 349 and APP vs. Ogunsola (2002) 5 NWLR (Pt. 761) 484 were cited in aid. The Respondent submitted that it was of no moment that the Appellant has consistently submitted that his preliminary objection is founded on the jurisdiction of the lower court to entertain the matter before it. This is because what the Appellant is complaining about cannot be equated to a jurisdictional issue by any stretch of imagination, The Respondent urged that this issue be resolved against the Appellant and in its favour.
It is glaring that it was by the process titled motion on notice dated 20/10/2006 and filed on the same date (see pages 97 – 98 of the record of appeal) that the Respondent sought for the setting down for hearing and determination by the lower court of three issues arising from its counter affidavit. The process though titled motion on notice has no supporting affidavit. The issues for the determination of the lower court as set out in the process read thus: –
“(1) whether there is a cause of action disclosed in this case.
(2) whether having regard to the decisions of the court in the following cases namely;
(i) FHC/EN/CS/99/2006 MR. IFEANYICHUKWU E.R. OKONKWO V. INEC & OTHERS,
(ii) FHC/EN/CS/77I2006 IFEANYICHUKWU OKONKWO V. INEC & 2 OTHERS.
(iii) FHC/EN/CS/129/2006 IFEANYICHUKWU OKONKWO V. INEC & 2 OTHERS, and appeals pending thereon in the Court of Appeal, this case is an abuse of the court’s process.
(3) whether having regard to the reliefs in this case this action is rightly commenced by originating summons.”
The motion dated 27/2/2007 filed on the same date by the Appellant (pursuant to the directive of the lower court) challenging the processes filed by the Respondent in the instant action is at pages 101 – 103 of the record of appeal. The supporting affidavit of the motion and exhibit attached thereto are at pages 104 – 106. In the motion, the Appellant prayed the lower court to “set down for hearing and disposal the understated issue of law and competence arising in the Defendant/Respondent’s motion on notice and the 15 paragraphed (sic) counter affidavit filed on 20/10/2006″. The Appellant further gave notice in the motion that at the trial he shall raise preliminary objection challenging the jurisdiction of the lower court to entertain both the Respondent’s motion on notice and counter affidavit upon six issues. The six issues and grounds of objection numbered as (a) – (j) are set out in the Appellant’s motion. I consider it pertinent to reproduce the six issues as set out in the Appellant’s motion. They read thus: –
” ISSUE NO. 1
Whether the motion on notice filed without any affidavit evidence in support and purportedly brought under Order 25 Rules 2 and 3 of the Federal High Court Rules 2000, is competent and same having been argued on the merits ought not be dismissed?
ISSUE NO.2
Whether the counter affidavit filed by the Defendant can be relied upon, in support of another application, moreso when the Defendant has not brought itself within the exception provided in section 34 of the Evidence Act?
ISSUE No.3
Whether the witness Mrs. Chikadibia Ekene Ugwu a legal counsel acting on behalf of the Defendant can validly depose to the 15 paragraphed (sic) counter affidavit, moreso, on the power delegated to her by a non-legal person (a business name) not being a legal practitioner who is authority (sic) to practice as a lawyer.
ISSUE NO.4
Whether paragraphs 3, 4, 5, 8, 9 and 14 of the counter affidavit deposed to by Mrs. Chikadibia Ekene Ugwu ought not to be discountenanced for violating the combined sections of 86 and 87 of the Evidence Act.
ISSUE NO.5
Whether paragraph 6 of the said counter affidavit which did not substantially comply with the mandatory provisions of section 89 of the Evidence Act, ought not to be struck out?
ISSUE No.6
Whether the residue of the counter affidavit filed on 20/10/2006, paragraphs 1, 2, 7, 10, 11, 12, 13 and 15 which failed essentially and specifically in traversing or controverting the facts contained in the Plaintiff’s affidavit in support of the originating summons, ought not to be struck out on the ground of non disclosure of reasonable defence to the Plaintiff’s action.”
It is glaring from the Appellant’s motion highlighted above, that he challenged not only the competence of the Respondent’s motion in which three Issues arising from the Respondent’s counter affidavit to the originating summons were set out for the hearing and determination of the lower court; but also the entirety of the said counter affidavit as well as the sufficiency of the unchallenged depositions in the counter affidavit in disclosing any reasonable defence to his action. It is this motion of 27/2/2007 the Appellant has accused the lower court of not entertaining and has submitted to the effect that the failure of the lower court to pronounce on the merit of the motion before it considered the Respondent’s motion on notice on the merit, is an infraction of his right to fair hearing.
The Respondent given its submissions; has not said that the lower court considered the motion of the Appellant in its judgment. The position of the Respondent simply put, is that it was unnecessary for the lower court to have considered and pronounced on the Appellant’s motion in the face of its (i.e. Respondent’s) preliminary objection to the jurisdiction of the lower court to entertain the Appellant’s case on the grounds of non-disclosure of a cause of action and for being an abuse of process of court amongst others. That it was the objection challenging the court’s jurisdiction that ought to have been considered first; and not the Appellant’s objection challenging the competence of the Respondent’s counter affidavit and further counter affidavit and the validity of certain paragraphs of the aforementioned processes vis-a-vis Sections 77 – 89 of the Evidence Act.
The law is very clear concerning the fundamentality and importance of jurisdiction of a court, to its adjudication over cases before it. In this regard, the law reports are replete with decisions to the effect that the question of jurisdiction strikes at the root of any cause or matter and consequently raises the issue of competence of the court to adjudicate in particular proceedings. Therefore any defect in competence is fatal as such proceedings become null and void no matter how well conducted and decided the proceedings have been. See ADATAYO v. ADEMOLA (2010) All FWLR (Pt.533) 1806 and COTECNA INTERNATIONAL LIMITED V. IVORY MERCHANT BANK LTD (2006) All FWLR (PART 315) 26. The issue of jurisdiction is basically determined upon the plaintiffs claims. There are however instances when it is necessary to hear some evidence first for the purpose of resolving the issue of jurisdiction of the court. This is particularly so when the jurisdictional defect is not apparent on the face of the proceedings. In this regard see the case of MOBIL PRODUCING NIGERIA UNLIMITED V LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2003) FWLR (Pt.137) 1029. In the case the Supreme Court per Ayoola, JSC; who delivered the lead judgment dwelling on ‘Jurisdiction” stated to the effect that the tendency to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on the ascertainment of facts leads to error. His Lordship then fashioned out the following guidelines: –
(i) Where on the face of the proceedings a superior court is competent, incompetence should not be presumed;
(ii) Where on the face of the proceedings, the court is incompetent, the court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings;
(iii) Where the competence of the court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of fact, the court should regard such incompetence as arising ex facie;
(iv) When the competence of the court is to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on the ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the court should be tried first before the court makes a pronouncement on its own competence;
(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for the party who alleges the court’s incompetence to raise the issue in his statement of defence in proceedings commenced by writ of summons or by affidavit in cases commenced by originating summons;
A judgment given in proceedings which appear ex facie regular is valid.
In the judgment on appeal, the lower court having stated that the matter before it involved a web of cases, proceeded to identify from the supporting affidavit of the originating summons the various cases instituted by the Appellant in the web of cases. It called Suit No. FHC/EN/CS/99/05 – “case A”; Suit No. FHC/EN/CS/77I06 – “case B”; Suit No. FHC/EN/CS/139/06 –
“Case C”; and committal proceedings instituted by the Appellant against the Garnishee – “case D”. It is “case C” that is the subject of the instant appeal.
The lower court in its judgment also proceeded to identify the cases/court processes referred to in the counter affidavit of the Respondent and related them to the cases it identified as having been instituted by the Appellant in the web of cases. These are, Notice of Appeal filed in respect of “case A” and ascribed “case E” to the pending appeal; “case F” was ascribed to the appeal pending in respect of the order absolute in “case B”; and “case G” was ascribed to the pending process by which leave is being sought to appeal against the interlocutory order made in “case D” and to restrain the Central Bank (i.e. the Respondent herein) from paying the judgment sum to the Appellant. The lower court further noted that from the counter affidavit of the Respondent, there is a motion for stay of execution at the Court of Appeal in respect of cases “A” and “D”; and a Notice of Appeal against “case A”.
It is in my respectful view clear from the above, that the lower court in arriving at its decision of 18/2/2008 not only looked into the counter affidavit of the Respondent to the supporting affidavit of the originating summons but indeed relied heavily on the processes exhibited thereto which are processes filed before the Court of Appeal in relation to or in connection with the judgment sum of 22.5 million awarded the Appellant. It cannot be argued that the lower court got facts about the pending appeals against the various cases it identified the Appellant to have instituted from the supporting affidavit of the originating summons. It cannot also be argued that facts in this regard were got from the affidavit in support of the Respondent’s motion. The motion dated 20/10/2006 filed by the Respondent and pursuant to which it prayed the lower court to set down for hearing and determination three issues arising from its counter affidavit to the originating summons has no supporting affidavit.
It is therefore glaring from the judgment of the lower court that the learned trial Judge in resolving the challenge to its jurisdiction to entertain the Appellant’s action did not restrict itself to the consideration of the Appellant’s processes, namely the originating summons and its supporting affidavit. In other words, the lower court did not treat the challenge to its jurisdiction to entertain the Appellant’s action as arising ex facie the proceedings.
The question as to whether or not an action constitutes an abuse of court process is one of fact. In this regard see the case of INTERNATIONAL BANK FOR WEST AFRICA V. SASEGBON (2007) 1 All FWLR (Pt. 388) 1099, where this Court per Galinje, JCA at page 1114 said thus: –
“An abuse of court process is a product of facts. When facts leading to an abuse of court process are not disclosed sufficiently, it is difficult for a court or tribunal to hold that an abuse of court process has been occasioned. The disclosure of such facts before a court is done through an affidavit evidence. In absence of such disclosure the lower court was right when it discountenanced the address of counsel on the issue of abuse of court process on the grounds that the facts constituting the abuse of court process were not deposed to in an affidavit.”
As earlier stated the motion of the Respondent by which three issues arising from its counter affidavit to the supporting affidavit of the originating summons (and amongst which is the issue as to whether or not the Appellant’s instant action is an abuse of court process) has no supporting affidavit. The question as to whether the Respondent disclosed in such an affidavit any fact from which the issue of abuse could be deduced at all, talk less of doing so sufficiently, therefore does not arise.
Before now I have reproduced the six issues upon which the Appellant predicated his challenge to the competence of both the Respondent’s motion on notice and counter affidavit to the originating summons. The Appellant aside from challenging the entire counter affidavit filed by the Respondent in opposition to the supporting affidavit of the originating summons by issue 3, also questioned the competence of the Respondent’s motion by issue 1 and equally raised the question as to whether or not the counter affidavit of the Respondent could be used as the supporting affidavit of another application by issue 2.
It would appear clear from the judgment of the lower court that the learned trial Judge never considered the objection raised in the motion brought by the Appellant worthy of any serious consideration and definitely never made any pronouncement on the merit of the said objection. In this regard the learned trial Judge said thus: –
“I do not think that Plaintiff seriously contends that the processes filed at the Court of Appeal do not exist. Neither does he contend that the exhibits attached to the counter affidavit do not exist. Indeed one of them is his document. Had this sort of objection been raised by a legal practitioner, it would be rightly regarded as unethical. The plaintiff is however a layman not schooled in the ethics of the noble profession.”
The lower court without considering the motion of the Appellant on the merit and pronouncing on the objection concerning the counter affidavit of the Respondent made use of the said counter affidavit and clearly relied on processes exhibited to it in arriving at its decision that the Appellant’s action was an abuse of court process. I do not understand the comment of the learned trial Judge in respect of the objection raised by the Appellant in relation to the counter affidavit filed by the Respondent to be a consideration of the objection on the merit and/or a pronouncement as to its propriety.
The law is not only settled but also makes it mandatory that a court must consider and make a decision and pronouncement on all applications/motions pending before it. Failure to do this, it has consistently been held, amounts to a breach of fair hearing. See in this regard the cases of COOKEY V. FOMBO (2005) 22 NSCQR 411 at 428: AFROCONTINENTAL (NIG) LTD V. CO.OPERATIVE ASSOCIATION OF PROFESSIONALS ING (2003) 13 NSCQR 186 at 196; and NEWSWATCH COMMUNICATIONS LTD V. ATTA (2006) 26 NSCQR 438 at 458-459.
The motion by which the Appellant challenged the competence of the processes filed by the Respondent in response to the originating summons by any stretch of imagination cannot be said to have been irregularly brought before or made to the lower court. It was filed sequel to the directive of the lower court itself. It therefore behoved the lower court to have considered it and to have made a clear pronouncement on the merits of the objection of the Appellant concerning his challenge to the processes filed by the Respondent in the instant action in the light of the cases cited above. This is so, whether or not it would have been unethical if the objection was taken by a legal practitioner as opined by the learned trial Judge.
It is my considered view that the learned trial Judge was duty bound to have first resolved the Appellant’s challenge to the processes filed in the action by the Respondent, having seen the need to avert to or rely on the counter affidavit of the Respondent, in resolving the challenge to the jurisdiction of the lower court to entertain the Appellant’s action. After all the issue of jurisdiction by its very nature must be determined by processes that are regularly or properly before the court. Indeed a court would itself be acting without jurisdiction if it proceeds to determine its jurisdiction in respect of an action upon defective or incompetent processes.
The conclusion I have reached on Appellant’s issue No. 1, is that the lower court clearly breached the Appellant’s right to fair hearing by failing to consider and making a decision on the said Appellant’s motion which not only clearly attacked or challenged the competence of the Respondent’s motion by which it sought for the hearing and determination of certain issues and counter affidavit filed in opposition to the originating summons but also in relying on the said counter affidavit in its decision of 18/2/2008 without resolving the Appellant’s objection in respect of the same. Given this conclusion, I resolve Appellant’s issue No. 1 in his favour.
Appellant’s issue No. 2 in effect questions the correctness of the decision of the lower court dismissing his action for being a gross abuse of court process.
As a general principle, a court, particularly an intermediate appellate court, is expected to deal with and pronounce on all issues raised by the parties to an appeal. However there are recognized exceptions to the general principle. One of such exceptions is where an order of retrial is considered appropriate in the circumstances of a case. Another is, in cases where the issue of breach of fair hearing is upheld and which results in the setting aside of the affected proceeding(s). See BRAWAL SHIPPING (NIGERIA) LTD V. F. I. ONWADIKE CO. LTD [2000) 6 SCNJ 508 at 522. I have resolved Appellant’s issue No. 1 in his favour because I found his right to fair hearing to have been breached. Given the finding and having regard to the position of the law, there is clearly no basis to consider the correctness of the decision of the lower court. The consequence of a breach of the principle of fair hearing is that the proceeding in the case is null and void. It does not matter whether if the proper thing had been done, the decision would have been the same. It is equally immaterial that the same decision would have been arrived at in the absence of the departure from the essential principles of justice. A decision given in breach of fair hearing must be declared to be no decision and set aside. See NDUKAUBA V. KOLOMO (2005) All FWLR (Pt. 248) 1602 at 1614.
In conclusion, the judgment of the lower court delivered on 18/2/2008 dismissing the action of the Appellant as a gross abuse of court process is liable to be set aside and it is hereby set aside.
In the reliefs sought from this Court, the Appellant has asked that the Court should invoke its powers under Section 16 of its Act and assume jurisdiction over his action and determine the originating summons. I am of the considered view that this is not a matter in which this Court can properly invoke its powers under Section 16 of its Act. In the case of ENEKWE v. I.M.B. (NIG.) LTD (2007) 1 All FWLR (Pt. 349) 1053, the Supreme Court dwelling on the power of the Court of Appeal to act as if it were the trial court made it clear that the power should never be invoked for the mere asking. That the party asking for the invocation of the power must show that there is a real issue in controversy for the court to determine and that it is a good case for rehearing. That the power of this Court to act as if it were the trial court, is not in the statute to instigate competition in jurisdiction between the Court of Appeal and the High Court. That the section of the Court of Appeal Act conferring the power lacks the legal capacity to wipe out the original jurisdiction of the High Court but is there to assist in the speedy hearing of appeals. The power is not a substitute for trial procedure in the High Court. I am of the firm view that before this Court can properly invoke its power under Section 16 of its Act, there must be a clear decision of the lower court (found to be wrong) that must necessarily result in a rehearing. I do not think it can be said that a case in which the decision therein has to be set aside or has been set aside for lack of fair hearing, has been heard at all in the first place; and definitely there is no decision in such a case upon which a rehearing can be predicated. It would amount to this Court competing with the lower court, for this Court to exercise the original power of the lower court in a matter in which it has not pronounced on the correctness or otherwise of the lower court’s decision. In other words, the resolution in favour of the Appellant of the issue of denial of fair hearing is antithetical to his relief that this Court should pronounce on the merit of his originating summons by invoking its power under Section 16 of its Act.
In the light of the foregoing, the proper order to make is one that will not substitute the appellate procedure of this Court for the trial procedure in the lower court. Accordingly, it is hereby ordered that this case be remitted to the Chief Judge of the Federal High Court of Nigeria for the purpose of its being re-assigned to another learned trial Judge for adjudication.
I make no order as to cost.
Appeal succeeds.
AMINA A. AUGIE, J.C.A: I read in draft the lead Judgment just delivered by my learned brother, Lokulo-Sodipe, JCA, and I agree with his reasoning and conclusion. He has dealt extensively with the issues at stake in the appeal, and I will only add a few words on the nature and power of this Court under Section 16 of the Court of Appeal Act, which provides as follows –
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and – – – generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the Dowers of that Court – “.
In effect, this Court has discretion to make an order necessary for the determination of the real question in controversy in an appeal pursuant to the jurisdiction vested in it over proceedings of the trial Court; and give appropriate directions as to the manner in which a case is to be dealt with by and in accordance with the powers of the trial Court – see NC/CE NPI V. Mabol & Ass. Ltd. (2009) 4 NWLR (Pt.1131) 267, and Kasimu V. NNPC (2008) 3 NWLR (ft. 1075) 569, where it was added –
“A Court of Appeal is not per se a fact finding Court. It is essentially a Court of review – – “.
In this case, the proceeding at the lower Court is a nullity. Thus, there is nothing on which to build on to determine the Originating summons. The end result is that I also allow the appeal, and I abide by the order to remit the matter to the lower Court. I also make no order as to costs.
SAMUEL C. OSEJI, J.C.A.: I have had the advantage of reading in draft a copy of the lead judgment by my learned brother, LOKULO-SODIPE J.C.A. He has carefully and lucidly discussed the issues in contention. His views that Section 16 of the Court of Appeal Act is not a statute intended to instigate competition between this Court and the High Court tallies with mine. I will also allow this appeal. The decision of the lower Court having been set aside for lack of fair hearing the proper order to make in the circumstance is for rehearing before another judge.
I also make no order as to cost.
Appearances
Appellant represents himself.For Appellant
AND
Tochukwu MadukaFor Respondent
