MRS M. E. ENABOIFO & ANOR v. IBOROABASI FRANCIS UMOREN
(2010)LCN/4146(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of December, 2010
CA/C/07/2010
RATIO
ISSUE FOR DETERMINATION: EFFECT OF AN ISSUE FOR DETERMINATION THAT IS NOT DISTILLED FROM ANY OF THE GROUNDS OF APPEAL FILED
The law is that an issue that is not distilled from any of the grounds of appeal is an incompetent issue and it must be struck out. see: Yadis Nig. Ltd. vs. G.N.I.C. Ltd. (2007) All FWLR (Pt.370) 1348; Oyegun vs. Nzeribe (2010) All FWLR (Pt. 542) 1612. PER ISAIAH OLUFEMI AKEJU, J.C.A.
RULES OF INTERPRETATION: POSITION OF THE LAW ON HOW A STATUTE OR ENACTMENT MUST BE CONSTRUED
A statute or enactment must be construed in such a manner that will reasonably reflect the intention of the maker. The proper approach is therefore not to read a particular provision in isolation, but to read and compare it with other provisions in the statute which may complement and explain that part of the enactment that is being construed. See Mobil Oil (Nig.) Plc vs. TAL 36 Inc. (2000) 6 NWLR (Pt. 659) 146; PDP vs. INEC (1999) 7 SC (Pt. II) 30; Basin Motors Ltd. vs. Woermann-Line 2010 All FWLR (Pt. 4S5) 163. PER ISAIAH OLUFEMI AKEJU, J.C.A.
INTERPRETATION OF STATUTE: MEANING OF THE WORDS “CAUSE” AND “MATTER” AS CONTAINED IN THE INTERPRETATION SECTION OF THE HIGH COURT RULES
The interpretation Section of the High court Rules adopted the definition accorded those words in Section 64 of the Federal High Court Act as follows: “Cause” includes any action, suit or other original proceeding between a plaintiff and a defendant and any criminal Proceeding”. And “Matter” includes every proceeding in court not a cause. The word “action” itself “means a civil proceeding commenced by writ or in such other manner as may be prescribed by Rules of Court but does not include criminal proceedings.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
COMPETENT OF THE COURT: WHEN A COURT WILL BE SAID TO BE COMPETENT
It is the law that a court can only be competent when the following are in place. (1) The court must be properly constituted by the required number of members and their qualification in that no member is disqualified for one reason or the other. (2) The subject matter of the case must be within the jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. (3) The case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Minilodge Ltd. vs. Ngei (2010) All FWLR (Pt.506) 1806; Attorney-General Anambra State vs. Attorney-General, Federation (1993) 6 NWLR (Pt.302) 692; Sken-Consult vs Ukey (1981) 1 SC 6; Nwankwo vs. Yar’Adua (2010) 12 NWLR (Pt.1209) 518. PER ISAIAH OLUFEMI AKEJU, J.C.A.
ISSUE OF JURISDICTION: IMPORTANCE OF THE ISSUE OF JURISDICTION OF THE COURT
Jurisdiction is a fundamental and crucial issue in administration of justice as it goes to the root of all actions or proceedings in the court. A court that operates without jurisdiction is like a builder erecting a building without foundation. Adjudication must follow jurisdiction. Consequently any trial conducted or decision reached without jurisdiction is a complete nullity. See Adetayo v. Ademola (2010 All FWLR (Pt. 533) 1806; Okoye v. Nigerian Cons & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; AG Federation v. Guardian (1999) s sc (Pt. 111) 59. It is for the reason of this significance of the issue of jurisdiction that whenever it is raised in any proceedings it should be determined by the court before going into any other issue’ See Okonkwo v. Okonkwo (2010) 14 NWLR (Pt. 1213) 228; F.B.N. Plc v. T.S.A. Inds. Ltd. (2010) NWLR (Pt.1216) 247. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JURISDICTION: WHETHER JURISDICTION CAN BE CONFERRED ON THE COURT BY THE PARTIES
Jurisdiction is not conferred by the parties, it is rather granted by statute. It cannot be removed or conferred by any act of the parties. PER ISAIAH OLUFEMI AKEJU, J.C.A.
Before Their Lordships
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
MASSOUD A. OREDOLAJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
1. MRS M. E. ENABOIFO
2. ATTORNEY GENERAL OF THE FEDERATIONAppellant(s)
AND
IBOROABASI FRANCIS UMORENRespondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment) The Appellants were the defendants in Suit No.FHC/CA/CS/33/2008 commenced by the Respondent through the writ of Summons and Statement of claim filed on 26th June, 2008 at the Federal High court, Calabar. The Respondent had sought a declaration that he was entitled to payment of his unpaid entitlement when he was in service of Federal Government at Federal Training Centre, Calabar and an order for payment of that entitlement being a total of N287, 829.89.
The appellants’ statement of defence filed on 2nd February 2008 was on 4th February 2008 deemed as properly filed and the respondent thereafter filed a Reply to that statement of defence. After completion of the pleadings, the appellants by the motion on notice filed on 9th February, 2009, sought declarations that the action was statute barred and did not disclose any cause of action as well as an order striking out the action.
The motion was supported by affidavit of 5 paragraphs against which the respondents filed a Counter affidavit of 9 paragraphs on 25th day of February, 2009.
The objection was argued through written addresses of counsel and on 30th June, 2009 the learned trial judge, Hon. Justice A. F. A. Ademola gave a Ruling which he concluded in the following manner on page 103 of the Record of Appeal:
“Having regard to the provision of Order (sic) Rules 1 (5) and (4) and Order 29 of the Courts, new rules as well as in the interest of justice, the Defendants’ solicitor’s application dated 16th February, 2009 along with the written addresses of counsel will be taken at the conclusion of trial.”
Dissatisfied with the above decision of the learned, trial judge the appellants appealed to this court on three grounds with the particulars as on pages 105-108 of the Record of Appeal. The two learned counsel filed their respective Briefs of Argument and formulated therein the issues for determination.
Appellants’ counsel, E. O. Omonowa set down the following two issues:
“1 Whether the trial court was not wrongful when it held that, this suit is not “a part herd matter’, within the meaning of Order 1 Rule 3 (1) of the Federal High Court (Civil Procedure) Rules, 2009 when pleadings were completed, motion challenging the competence of the suit on the ground of being statute barred had been filed with the Counter Affidavit opposing same received; and on the Order of the Court, the arguments of counsel on the motion were reduced into writing, filed and served before 30th April, 2009 when the new Federal High Court (Civil procedure) Rules 2009 came into operation.
2. Whether the trial court was not wrongful when it set down for taking of oral evidence of witnesses in the hearing of the plaintiffs case without pronouncing on the merit of the Appellants’ application which was challenging the competence of the suit on the ground that, the matter was statute barred.”
In his own Brief, learned counsel to the Respondent, F. E. Ekanem Esq. raised the following issues for determination:
“(a) whether the filing of a suit, filing of defence and written addresses on the application filed by the defendants which written addresses were argued after the new Rules of the Federal High court 2009 came into operation without parties giving evidence amount to PART-HEARD MATTER on merit and therefore governed by the old Rules of the Federal High Court 1999.
(b) Whether Section 2 (a) of the Public Officers Protection Act is applicable to employment with statutory flavour which is contractual in nature and whether the Respondent having worked in the Federal establishment and retired honourably is entitled to collect his monetary benefits paid to him by his employment (sic) but withheld by the 1st appellant.”
On his issue 1, the Appellants’ counsel stated that Order I Rule 3 (1) and (2) of Federal High Court (Civil Procedure) Rules 2009 clearly established the situation in which a matter can be said to be part-herd so as to exclude such matter from the application of the new Rules and when a matter may be said to have commenced under the same Rules.
He submitted that by the provisions of Order 1 Rule 3 (1) and (2) of the Federal High Court (Civil procedure) Rules 2009, “when:
(i) the only step in any suit was the filing of originating processes and no more, the matter was not part heard and same is subject to the application of the 2009 Rules.
(ii) However, where the parties have gone beyond the mere filing of the suit or of joining issues by taking further steps to challenge the competence of the suit, and the said challenge was countered by the opponent, and on the order of the court as in this matter, arguments on the competence of the suit were filed and exchanged before the new Federal High Court (Civil Procedure) Rules 2009 came into operation on 30th April, 2009, such a matter ought to be regarded and treated as PART HEARD CASE by virtue of Order 1 Rule 3 (1) OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2009; See pages 8-9 of the Appellants’ Brief of Argument.
He stated that in respect of the Respondents’ claim, the statement of defence of the appellants had been filed on 2nd February, 2009 and regularized on 4th February, 2009 while the motion challenging competence of the suit was filed on 19th February, 2009 to which the respondent filed a Counter Affidavit on 25th February, 2009 with arguments thereon completed on 31st March, 2009.
The learned counsel submitted that the parties had therefore taken steps in the action beyond the mere filing and the case ought to have been regarded as part heard matter under Order 1 Rule 3 (1) and therefore not subject to the new Rules. He contended that the learned trial judge did not properly apply the Rules and came to a wrong conclusion in his Ruling which had occasioned a miscarriage of justice.
The learned counsel urged court to resolve this issue in appellants’ favour and hold that:
(i) This matter was part heard within the provisions of Order 1 Rules 2 and 3 of the Federal High Court (Civil Procedure) Rules 2009.
(ii) The Rules were not applicable to part-heard matters.
(iii) The trial court subjected the matter to the 2009 Rules contrary to the provision of Order I Rule 3 (1) thereof.
On issue 2, the Appellants’ counsel stated that the appellants were public officers and they were sued as such for acts allegedly done or omitted in the course of their duties. He said the respondent was also a public officer till December 2006 but instituted this action on 26th June, 2008 after a period of 17 months had passed. He submitted that the public officers Protection Act cap P.41 Laws of the Federation,2004 (previously Cap.379 LFN. 1990) was applicable to any suit commenced against Public Officers for acts or omissions in the course of their duties.
He referred to the leading judgment of A.I. Iguh JSC in Ibrahim vs. Judicial service commission (1993) 12 SCNJ 255 at 275 and urged this court to hold that the action of the respondent having been filed 17 months after the date the cause of action arose was statute barred while the claim was not valid in law.
He cited the cases of Alhaji Maisule Mohammed & Ors vs. Military Administrator of Plateau state (2001) 16 NWLR (Pt. 740) 524 and Egbe vs. Adefarasin (1937) 1 NWLR (Pt. 47) and submitted that the learned trial judge was wrong in his ruling since the orders he relied upon were not correct and were not superior to the decisions of courts on the issue of statute of limitation and provisions of Public officers Protection Act. He submitted further that the orders and Rules of court relied upon by the learned trial judge in his ruling were irrelevant to the matter before him as the 2009 Rules were not applicable to part heard matters such as the instant case.
The learned counsel submitted that the statute of limitation applies to all actions commenced against a Public Officer for acts done or omitted to be done in the course of public duty, citing the case of Ekeogu vs. Aliri (1991) 3 SCNJ 45 at 51; Arch. Victors Daudu & Ors vs. University of Agriculture Makurdi & Ors (2002) 46 WRN 80. He submitted also that “time starts to run when there is in existence a person who can sue and another who can be sued; and all facts have happened which are material to be proved to enable the plaintiff to succeed,” which he said was held in Humbe vs. Attorney General of Benue State (2000) 3 NWLR (Pt. 649) 419. He urged court to resolve issue 2 in favour of the appellants.
In his own Brief of Argument, the Respondent’s counsel argued on issue I that suit no. FHC/CA/CS/33/2008 was merely filed without any evidence taken up to 30/4/2009 when the new Rules became operative while the argument on the competence of the suit were concluded on 14/5/09 and as a result the suit could not be regarded as part heard. He said the lower court was empowered by Order 1 Rule 3 (3) of the 2009 Rules to give directions that would be expedient to ensure conformity of suits with the new Rules and this was what the learned trial judge rightly did in his ruling of 30/6/2009 so as to do justice in the case, a decision which according to counsel was also supported by order 54 Rule 1 of the 1999 Rules and its equivalent in Order 56 Rule I of the 2009 Rules.
He urged this court to hold that since the suit was pending before the lower court, and had not been heard on merit, it was not part heard matter and in view of the fact that the parties concluded written addresses after the new Rules came into effect on 30/4/2009 then the suit was governed by the new Rules. He said the Ruling of the lower court was rightly based on Order 29 Rules 2, 4 and 5 of 2009 Rules and urged this court to uphold that Ruling.
On issue no. 2, the learned counsel said the suit was not founded upon tort and did not complain about dismissal which the respondent accepted in good faith. He said the respondent was only claiming his unpaid entitlement for work he did while in service at the Federal Training Centre, Calabar and the unauthorized deductions from his salary through this action which he filed after he had left service. He therefore argued that the respondent was still within the statutory time for the recovery of the debt. He argued further that the employment of the Respondent as watchman at the Federal Training Centre was a contract with statutory flavour and not under the relationship of Master and Servant. He submitted that the claim of the respondent was not affected by Section 2 (a) of the Public officers Protection Act, citing Oduka vs. Government of Ebonyi State (2004) 13 NWLR (Pt.891) 457 at 493. He submitted that the claim was outside the Public officer Protection Act, and was not Statute barred as there was no time limit to bring the action. He cited Central Bank of Nigeria vs. Olasupo Adedeji (2005) All FWLR (Pt.244) 917; Osun State Government vs. Dalami Nig. Ltd. (2007) 148 LRCN 1311 .He urged that this appeal be dismissed and the ruling of the lower court dated 30/6/2009 be affirmed by this court.
The three grounds of appeal filed by the appellants pointedly complain that the lower court failed to consider and resolve the motion challenging its jurisdiction on merit. As I have enough space to do so, I reproduce the grounds of appeal (without their particulars) as follows:
GROUND ONE
The trial court erred in law when it wrongly applied ORDER 1 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE RULES), 2009 to decline delivering its Ruling on the merit of the Defendants/Appellants, application challenging the competence of the suit, thereby occasioning a miscarriage of justice.
GROUND TWO
The trial court erred in law when it sat down for hearing the case that is statute barred and the plea to that effect supported by a written address ignored, with no-pronouncement on the merit of the application thereby occasioning a miscarriage of justice.
GROUND THREE.
The trail court erred in law when it wrongly applied Order 29 of the Federal High Court (Civil Procedure Rules) 2009 to the threshold issues of the non disclosure of a reasonable cause of action and statute of limitation which are conditions precedent to the competence of the suit and the jurisdiction of the court, and with out resolving these fundamental issues (which the court has been addressed in writing), proceeded to set the matter down for hearing, thereby occasioning a miscarriage of justice.
From the foregoing while I accept the two issues presented by the appellants’ counsel as distilled from these three grounds, the same cannot be said of issue no. 2 in the respondent’s brief which is quite extraneous to the grounds of appeal.
The law is that an issue that is not distilled from any of the grounds of appeal is an incompetent issue and it must be struck out. see: Yadis Nig. Ltd. vs. G.N.I.C. Ltd. (2007) All FWLR (Pt.370) 1348; Oyegun vs. Nzeribe (2010) All FWLR (Pt. 542) 1612.
To that extent, issue no. 2 in the Respondents’ Brief is of no moment in this appeal and it is accordingly struck out. It is also noted that in a large portion of his argument in his issue no. 2, the appellants’ counsel dwelt extensively on the issues of Public officers Protection Act and its consequences on the limitation of actions. He also argued on the merits of his motion before the lower court and for the fact that those arguments are outside the issues formulated in this appeal, they are also discountenanced for the purposes of this judgment.
The portion of the ruling of the lower court that is the basis of issue 1 is on page 102 of the Records appeal. His Lordship said:
“By virtue of Order 13(1) the new Rules are not applicable to any pending cause or part-heard matters on the said date whilst sub-rule (3) behoves upon the Court in all other cases to give directions as may be necessary or expedient to ensure conformity with requirements of these rules. This matter is yet to be heard on its merits based on the evidence to be adduced at Trial by parties whilst the Motion on Notice of the Defendants/Applicants’ Solicitors disputing this court jurisdiction was filed twenty-one days upon the service of the Originating process i.e. Writ of Summons/Statement of claim filed in this suit by the plaintiff s solicitor. …”
It is clear from the two Briefs in this appeal that after the commencement of the respondent’s action at the lower court and after the filing of the appellants’ motion challenging its competence, new Rules of the Federal High Court came into being. The following provisions of the Rules are relevant and material for the determination of issue 1 raised in the Briefs of the two learned counsel;
Order 1 Rule 1
“The Federal High Court (Civil Procedure) Rules 2000 is hereby revoked.”
Order 1 Rule 2
“These Rules may be cited as the Federal High Court (Civil Procedure) Rules 2009 and shall come into force on the 30th day of April, 2009”.
Order 1 Rule 3
“(1) These Rules shall not apply to any cause or matter part-heard on the date when these Rules came into force.
(2) Where an action is filed and no further step is taken other than the filing, other subsequent procedure shall be under this rule.
(3) In all other cases where causes or matters are pending the court shall give such directions as may be necessary or expedient to ensure conformity with requirements of these Rules”.
Order 1 Rule 4
“The fundamental objective of these Rules is just and expeditious disposition of cases.”
Order 1 Rule 5
“In these Rules, unless the content otherwise requires.
Order 1 Rule 6
“Words other than those defined in Order I Rule 5 of these Rules shall have the same meanings as in the Act.”
The word “Act” as defined in Order1 Rule 5 means Federal High Court Act and by Section 64 of that Act, “Cause” includes any action, suit or other original proceeding between a plaintiff and a defendant and any criminal proceeding while “matter” includes every proceeding in court not a cause.
Order 1 Rule 1 is clear and direct, it revoked or repealed the Federal High Court (Civil Procedure) Rules 2000 and by that provision those Rules of 2000 can no longer be applied to proceedings in that court.
It is settled that once a statute or Act is repealed, it has completely ceased to exist and it can no longer be basis for commencement of action or proceedings in a court. It is no longer an existing law. See Uwaifo vs. Attorney Gen. Bendel State & ors. (1932) 7 SC 124.
The implication of this position is that from the 30th day of April ,2009 when the Federal High Court (Civil Procedure) Rules 2009 came into force it became the only extant Rule of the Federal High Court that can regulate proceedings in that Court.
From the record of appeal and the Briefs of Argument, it is the provisions of Order I Rule 3 (1) and (3) that has generated some confusion in the lower court. The learned trial judge and the two learned counsel interpreted that part of the Rules in different and divergent ways and concluded either that the Rules applied to the instant action or it did not apply. The controversy seems to have been caused more particularly by the words “cause” and “matter” used in Order 1 rule 3 (3).
A statute or enactment must be construed in such a manner that will reasonably reflect the intention of the maker. The proper approach is therefore not to read a particular provision in isolation, but to read and compare it with other provisions in the statute which may complement and explain that part of the enactment that is being construed. See Mobil Oil (Nig.) Plc vs. TAL 36 Inc. (2000) 6 NWLR (Pt. 659) 146; PDP vs. INEC (1999) 7 SC (Pt. II) 30; Basin Motors Ltd. vs. Woermann-Line 2010 All FWLR (Pt. 4S5) 163.
Order 1 Rule 3 of the High Court(Civil Procedure)Rules is generally side noted as “Savings Part heard matters” and it simply means the provision that saves and validates all previous actions and proceedings under the revoked rules of
1999.
To hold as the learned trial judge had done that the new Rules do not apply to part heard matters on the date it came into force is to suggest that the Rules of 1999 that had been expressly revoked could still apply or that a different set of Rules would apply to those cases so that the same court will operate under two set of Rules at the same time. What a great absurdity this will create in the courts. It is abundantly clear that the Federal High Court (Civil Procedure) Rules 2009 that came into operation on 30th April, 2009 is the only set of Rules applicable to all proceedings before the Federal High court from 30th April, 2009.
The other aspect is the random use of the words “cause” and “matter” by the court and the two learned counsel as if they are easily interchangeable. The interpretation Section of the High court Rules adopted the definition accorded those words in Section 64 of the Federal High Court Act as follows:
“Cause” includes any action, suit or other original proceeding between a plaintiff and a defendant and any criminal Proceeding”. And “Matter” includes every proceeding in court not a cause. The word “action” itself “means a civil proceeding commenced by writ or in such other manner as may be prescribed by Rules of Court but does not include criminal proceedings.”
From the foregoing, “cause” in the circumstances of the instant case was the respondent’s suit no. FHC/CA/CS/33/2008 itself while the “matter” was the appellants’ motion challenging that action, while the cause over which no step had been taken was not part-heard, the matter which was awaiting the court’s ruling was part heard but the two must be considered under the same 2009 Rules of that court.
I agree with the learned counsel to the appellants that the lower court did not correctly apply the relevant provisions of the Federal High Court (Civil Procedure) Rules 2009 in his Ruling.
The second issue formulated by the Appellants’ counsel is about the failure of the learned trial judge to determine on merit the motion filed by the appellants on 10th February 2009 challenging the competence of the respondent’s suit. The motion on notice with the supporting affidavit as well as the Respondent’s Counter Affidavit are on pages 45-51 of the Record while the written addresses thereon are on pages 56-95.
In the concluding part of his ruling on that motion on page 103, the learned trial judge stated as follows:
“Having regard to the provision of Order (sic) Rules 1 (5) and (4) and Order 29 of the Courts’ new rules as well as in the interest of justice, the Defendants’ solicitor’s application dated l6th February, 2009 along with the written addresses of counsel will be taken at the conclusion of trial.
The complaint of the appellants before the lower court was about the competence of the suit before that Court. It is the law that a court can only be competent when the following are in place.
(1) The court must be properly constituted by the required number of members and their qualification in that no member is disqualified for one reason or the other.
(2) The subject matter of the case must be within the jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.
(3) The case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Minilodge Ltd. vs. Ngei (2010) All FWLR (Pt.506) 1806; Attorney-General Anambra State vs. Attorney-General, Federation (1993) 6 NWLR (Pt.302) 692; Sken-Consult vs Ukey (1981) 1 SC 6; Nwankwo vs. Yar’Adua (2010) 12 NWLR (Pt.1209) 518.
The complaint of the appellants was therefore directly questioning the lower court’s jurisdiction over the suit.
Jurisdiction is a fundamental and crucial issue in administration of justice as it goes to the root of all actions or proceedings in the court. A court that operates without jurisdiction is like a builder erecting a building without foundation. Adjudication must follow jurisdiction.
Consequently any trial conducted or decision reached without jurisdiction is a complete nullity. See Adetayo v. Ademola (2010 All FWLR (Pt. 533) 1806; Okoye v. Nigerian Cons & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; AG Federation v. Guardian (1999) s sc (Pt. 111) 59.
It is for the reason of this significance of the issue of jurisdiction that whenever it is raised in any proceedings it should be determined by the court before going into any other issue’ See Okonkwo v. Okonkwo (2010) 14 NWLR (Pt. 1213) 228; F.B.N. Plc v. T.S.A. Inds. Ltd. (2010) NWLR (Pt.1216) 247.
Jurisdiction is not conferred by the parties, it is rather granted by statute. It cannot be removed or conferred by any act of the parties. I do not agree with the learned counsel to the respondent that by their no compliance with some provisions of the Rules of court the appellants had waived their right to dispute the jurisdiction of the lower court. In the instant appeal the learned trial judge postponed the determination of the court’s jurisdiction based on the interest of justice “and regard to the provision of Order (sic rules 1 (5) and 4 of Order 29 of the court’s new Rules.” With due respect to his lordship, I cannot find the beneficiary of this gesture of justice. The appellants that filed the application wanted a decision thereon, the respondent too were entitled to know the fate of the suit while the court itself was keeping a suit that could not be said to be competent until it is so declared. The beneficiary of interest of justice must be certain.
I should state also that the “direction” of his lordship cannot be justified by Order I Rule 3); Order.29 or any part of the Rules as a court cannot give a direction that contradicts the well laid down principles of law. That itself will be a misdirection. The relevant part of Order 29 is Rule 1 that:
“1. Where a defendant wishes to:
(a) dispute the court’s jurisdiction to try the claim, or
(b) argue that the court should not exercise its jurisdiction, he may apply to the court for an order declaring that it has not such jurisdiction or should not exercise any jurisdiction which it may have, and the court may take such application together with the plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.”
Underlining done by me for emphasis).
The substantive suit in the instant case was commenced by Writ of Summons and Statement of claim in which case it will not be correct to presume that such a suit will not involve the taking of oral evidence, unlike an action commenced through originating summons. The motion on notice itself had been contested up to the stage of argument awaiting the ruling of the court. So all the processes required for the determination of the application were already placed before the court. I will conclude this aspect of this judgment with the following words of Niki Tobi, JSC in AG Federation v. Abubakar (2008) 16 NWLR (Pt. 112) 135 at 158:
“As jurisdiction is the pillar of every adjudication and its cynosure, courts of law must take it first before the merits of the matter. They must not in any case, keep the issue of jurisdiction till late in the litigation or when the merits of the case are heard. This is because if the court holds that it
has no jurisdiction that is the end of the matter.”
I hold that the lower court was wrong to have, in the circumstances of the appellants’ motion on notice postponed the determination of the jurisdiction of the court to the conclusion of trial.
I note that at the end of his Brief under “CONCLUSION” at page 25. the learned counsel to the appellants stated thus:
“6.01 In conclusion, the Appellants urged this Honourable (sic) to:
(i) Uphold this Appeal and to set aside the Ruling of Justice A.F. A. Ademola of the Federal High Court, Calabar made on 30th June, 2009.
(ii) Hold that the respondents’ case commenced on 26th June, 2008 against the Appellants who are public officers for acts or omission allegedly committed in the discharge of public duty after the expiration of 17th Months from the date the cause of action arose is statute barred.
(iii) To dismiss the Respondent’s case against the Appellants on the ground that, same is not maintainable.
There is no aspect of this appeal (either the grounds of appear or the issues formulated thereon) that can be the basis for the prayers (ii) and (iii) sought by the appellants in view of the concurrence of both counsel as evidenced by the record that the lower court has not rendered any,
decision or determination of the appellants’ motion in contention.
The Court of Appeal is established under Section 237 (1) of The constitution of the Federal Republic of Nigeria, 1999 to exercise appellate jurisdiction granted under sections 241-246 of the
constitution. By the unambiguous provisions of those Sections of the constitution, the appellate jurisdiction of the court of Appeal can only be exercised over decisions of the various courts mentioned therein being the Federal High court, a High court (of a State), customary court of Appeal, and code of conduct Tribunal. What amounts to a decision has been interpreted in Section 318 (1) of the same constitution to be in relation to a court, “any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.” The court of Appeal therefore has no jurisdiction to grant reliefs where there is no decision or determination by the lower court on an issue. For these reasons those reliefs are not available to the appellants in this appeal and they are refused accordingly.
I resolve the two issues in favour of the appellants. I find merit in this appeal and it is allowed. Consequently the ruling of the learned trial judge dated 30th day of June, 2009 is set aside. Parties are to bear their cost of this appeal.
KUMAI BAYANG AKAAHS, J.C.A.: I agree.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of having a preview in draft of the elucidating lead judgment just delivered by my learned brother, Akeju, JCA. I am in complete agreement with his reasoning, resolution of the various issues raised in the instant appeal coupled with his final conclusion reached thereon. I adopt them as mine. Let me state as an addendum that courts which the Court of Appeal exercises appellate jurisdiction over their decisions, as mentioned in the concluding part of the lead judgment, also include the High Court and Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of a State and a court martial. I also find merit in the appeal and it is accordingly allowed by me. I further set aside the ruling of the learned trial judge.
Appearances
E. O. OmonowaFor Appellant
AND
F. E. Ekanem Esq.For Respondent
