EX-NAVY CAPTAIN O.C. IBITOYE v. THE NIGERIAN NAVY BOARD
(2016)LCN/8209(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of February, 2016
CA/L/553/2013
RATIO
PRACTICE AND PROCEDURE: APPLICATION FOR JUDICIAL REVIEW; STATUTORY PROVISION ON THE TIME AN APPLICATION FOR JUDICIAL REVIEW MUST BE FILED
The said application was brought pursuant to Order 34 Rule 4 and Order 48 Rule 4 of the Federal High Court Rules 2001.
Order 34, Rule 4 provides: “An application for judicial review shall brought within three months of the date occurrence of the subject of the application.” Order 48, Rule 4 provides that: “The judge may, as often as he deems fit and either before or after the expiration of the time
appointed by these Rules or by any Judgment or order or the Court, extend or adjourn the time for doing any act or taking any proceedings.” per. SIDI DAUDA BAGE, J.C.A
PRACTICE AND PROCEDURE: VOID ACT; WHETHER VOID ACT CAN BE SET ASIDE
It is not a disputed fact in this appeal, and the Appellant himself did not dispute the fact that when he filed his application at the Court below, the originating summons was brought after the time allowed by the rules of that Court. By the act of filing the said originating summons out of time, it has constituted a void action in the first place. On the said void application, the trial Court erroneously granted the leave sought before it by the Appellant on the 14th April, 2008. The same trial judge granted another order on the 24th February, 2010 to regularize the null order of Court of 14th April, 2008. This Court has stated that, the order made on the 14th April, 2008 was null and void. There was therefore no basis for the order of 24th February, 2010 to regularize the previous order, being void abinitio there would be nothing to regularize. See I.B. ANIMASHAWUN VS OWUTA OSUMA & ORS (1972) 4 S.C. 200 AT 212, The Supreme Court stated as follows:
“In the first place, when a party believes or has reason to believe that a transaction liable to affect his rights is null and void, he is under no obligation to ask for a declaration that that transaction is null and void. Moreover, we observe with respect that a void transaction cannot be set aside because being void abinitio there would be nothing to be set aside.”
Also, the Supreme Court in the case of K. AKPENE VS BARCLAYS BANK OF NIGERIA LTD & ANOR (1977) 1 S.C. 47 AT PAGES 58-59 stated as follows:
“Since the Plaintiff was not a party to the deed of conveyance (between the Defendants) he was not competent to bring an action to set it aside. That, the learned trial judge was thus in error in holding that, the Plaintiff should have sought for a declaration that, the transaction between the Defendants was null and void.
In the words of Lord Denning. ‘If an act is void, then it is in law a nullity. It is not only bad but also incurably bad. There is no need for an order of the Court to set it aside.
It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse. (Per Lord Denning in MACFOY VS UNITED AFRICAN COMPANY LTD (1961) 3 W.L.R. 1405 PC at 1409)”
The Supreme Court in ALHAJI LABARAN NAKYAUTA VS ALHAJI IBRAHIM MAIKIMA & ANOR (1977) 6 S.C. 51 AT 78 reiterated this position as follows:
“Having reached that conclusion, it is unnecessary and inappropriate to set aside a nullity because there is nothing to be set aside.” per. SIDI DAUDA BAGE, J.C.A
PRACTICE AND PROCEDURE: RULES OF COURT; THE IMPORTANCE OF RULES OF COURT
The Rules of Court are not made as mere cosmetics, they are made to be obeyed. See the recent Supreme Court decision in OKOROCHA VS P.D.P. & ORS (2014) 229 LRN 7O at 116,,the Apex Court stated as follows:
“The Rules of Court are meant to be obeyed for protecting the sanctity and dignity of the law and Court. He who comes to equity must come with clean hands and which presupposes diligence and care.” per. SIDI DAUDA BAGE. J.C.A
COURT: JURISDICTION; THE IMPLICATION OF A COURT DETERMINING A CASE WITHOUT JURISDICTION
Also where a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at, at such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. Also a party by taking a step in the cause before that Court does not waive his right to object to the Courts want of jurisdiction. See THE QUEEN EXPARTE OJIEGBO IKORO OF NGODO VS THE GOVERNOR, EASTERN REGION & ANOR (1962) 1 ALL NLR 40; UWAIFO VS ATTORNEY GENERAL OF BENDEL STATE & ORS (1982) 7 S.C. L24 at 279; PEENOCK INVESTMENTS LTD VS HOTEL PRESIDENTIAL LTD (1982) 12 S.C. 1 at pages 68-69; TEHIAT A.C. SULE VS NIGERIAN COTTON BOARD (1985) 6 S.C. 62 at 101. per. SIDI DAUDA BAGE,J.C.A
PRACTICE AND PROCEDURE: WHETHER COURTS ARE REFRAINED FROM ANSWERING ACADEMIC QUESTIONS
It is trite that Courts are refrained from answering academic questions. per. SIDI DAUDA BAGE,J.C.A
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
EX.NAVY CAPTAIN O.C. IBITOYE Appellant(s)
AND
THE NIGERIAN NAVY BOARD Respondent(s)
SIDI DAUDA BAGE,?J.C.A. (Delivering the Leading Judgment):? The Appellant by an originating summons dated 29th February 2008, instituted an action in the Federal High Court in Lagos against the Respondent the following:?
1) A declaration that the decision of the Respondent upholding the judgment of the general Court martial is null and void and liable to be set aside since the Appellant was given no opportunity to present a written or other documentary evidence before the Judgment of the General Court Martial was confirmed as required by Section 149 of the Armed Forces Act .
2) An order of this honourable Court setting aside the decision of the Nigerian Navy Board confirming the dismissal of the Applicant from the Nigerian Navy without first giving him the opportunity of making a representation before it as provided for by the Armed Forces Act.?
3) A declaration that the Applicant was given no opportunity to make representation before the Navy Board as required by Section 149 of the Armed Forces Act before the decision of the General Court Martial was confirmed by the Respondent.
?The Respondent filed a motion dated 22nd July
2009 seeking an order dismissing the judicial Review Proceedings of the Appellant for lack of jurisdiction and on the 2nd day of November 2009 filed a counter affidavit to the Appellant’s application for judicial Review wherein the Respondent in its written address raised the issue of the Appellant’s failure to file the originating summons within 3 months. See pages 45 to 47 of the Record of Appeal.
The receipt of the counter affidavit and on the 30th of November 2009, the Appellant filed a motion seeking leave to extend the time within which to file the originating summons dated 29th February 2008 after being served with the counter affidavit of the Respondent.
The Respondent in opposing the Appellant’s application to extend the time within which to file the originating summons filed a counter affidavit dated 8th December, 2009. See pages 73 to 79 of the record of appeal.
The lower Court in a considered ruling on the 24th of February 2010 granted the Appellant’s motion for extension of time to file the originating summons and thereafter parties adopted their respective addresses for and against the Appellant’s application for judicial
Review.
In the ruling delivered on the 12th January 2011 in respect of the originating summons, the Court struck out the Appellant’s application for judicial Review on the ground that the application was not filed within (3) three months as prescribed under Order 34 Rule 11 of the Federal High Court Rules 2001.
This appeal is against the ruling of the lower Court striking out the application for judicial Review.
The Appellant being dissatisfied with the judgment of Honourable Justice I. N. Auta of the Federal High Court, Lagos delivered on the 20th day of January 2011 appealed to this Court vide his notice of appeal dated 4th of April, 2011 at pages 168-170 of the record of appeal, from the four grounds of appeal contained therein, the Appellant distilled the following three (3) issues for determination namely:
1) Whether the trial judge was right in striking out the Appellant’s originating summons having earlier granted the Appellant’s motion extending time to file the originating summons. Distilled from ground 1.
2) Whether the delivery of the Judgment 11 (eleven) months after final address occasioned a miscarriage of justice.
Distilled from ground 2.
3) Whether the trial judge ought not to have granted the claims of the Appellant as set out in the originating summons for judicial review.
On the side of the Respondent, three (3) issues were formulated for the determination of the appeal namely:
1) Whether the trial judge was right in striking out the Appellant’s originating summons having earlier granted the Appellant’s motion extending time to file the originating summons.
2) Whether the delivery of the Judgment 11 (eleven) months after final address occasioned a miscarriage of justice.
3) Whether the trial judge ought not have granted the claims of the Appellant as set out in the originating summons for judicial review.
From the above, the Respondent adopts the issues as formulated by the Appellant for the determination of the appeal. The appeal therefore shall be determined on the three issues set out earlier by the Appellant.
ISSUE ONE (1)
Learned counsel to the Appellant submitted that the trial judge was wrong to have struck out the originating summons when the same Court in an earlier ruling on the 24th of February,
2010 extended the time to file the originating summons. The basis for striking out the originating summons was that the Applicant did not file the application within 3 months as provided for under Order 34 Rules 11 of the Federal High Court Rules 2001, which provides that the application for judicial Review must be brought within 3 months of the date of occurrence of the matter complained of. The trial judge on page 114 of the record held that the Applicant has complied with the provision of this rule and has paid penalty and that it will be the highest act of injustice to shut the Applicant out and to stop him from ventilating his case.
The trial judge however, took the view that the Appellant’s motion for extension of time to file the originating summons is capable of curing any defect. See page 114 of the record of appeal.
The trial judge in the face of the ruling dated 24th February 2010 was clearly in error in holding that the Appellant did not comply with Order 34 Rule 4 of the Federal High Court Rules 2009. The trial Court was functus officio over this issue and could not have revisited same while considering the originating summons. The only
remedy available to the Respondent if dissatisfied with the ruling of 24th?February, 2010 was to appeal the said ruling which they have not appealed to date. We urge this Court to set aside the decision of the trial judge delivered on 12th January 2011 and also hold that the trial judge was functus officio to determine the issue of whether or not the originating summons was filed within time having regard to the position taken by the Court in the ruling of 24th February,2010.
In response to the submissions above, the learned counsel for the Respondent submitted the Appellant’s application at the Federal High Court was ex-parte filed on the 29tn day of February, 2008. On the 14th day of April, 2008, the Honourable Judge ruled on the Ex-parte application, and “leave only” granted, while the second leg of the application was not granted for the extension of time. It is trite that there are prescribed conditions in the rules of Court in Nigeria for claiming certain acts or taking certain steps in a proceeding. Failure to comply with such conditions before taking the step will render it incompetent and this will deprive the Court the requisite jurisdiction to
deal with the matter. See Jurisdiction of Courts in Nigeria (materials and case by Lawal Pedro 2006 edition at pages 343-344). See also DREXEL ENERGY AND NATIONAL RESOURCES LTD & 2 ORS VS TRANS INTERNATIONAL BANK LTD & 2 ORS (2009) 173 LRCN 114 AT 133; MADUKOLU VS NKEMDILIM (1962) 2 NSCC (vol. 2) 374; (1962) 1 ALL NLR (Pat 4) 587 and restated in the recent case of OKOROCHA VS P.D.P. & ORS (2014) LRCN 70 AT 116; UMANALI VS ATTAH (2007) 145 LRCN 479 at 501.
Learned counsel submitted further that the leave granted on the 14th April, 2008 was a nullity. The Court again granted an incompetent order on the 24th February, 2010 purporting to extend time, though it was not the proper prayer to ask for. The order sought for by the Appellant on 30th November, 2009 was for extension of time to file the originating summons dated 29th February, 2008 and deeming same as properly filed and served. An order for extension of time to file originating summons is not the same with an order sought for time within which to apply for a judicial Review.
Learned counsel further submitted that, the two great mistakes made by the learned trial judge were,
(1) he ought not to have granted the leave because the process before him on the 14th April 2008 was incompetent consequently, lacked competence and jurisdiction to have entertained the suit.
(2) the relief granted on 24th February, 2010 to the Appellant which the Appellant argued strenuously to regularize the originating summons. It was granted without jurisdiction on the ground that, you cannot put something on nothing and expect it to stand. See MACFOY VS U.A.C. (1061) 3 NLR 1405 AT 1409.The trial judge was therefore to subsequently strike out the suit for lack of jurisdiction. See OWOH VS ASUKE (2008) LRCN 49 AT 66 jj – 67 AK. Also the Court is without power to review any matter which it has struck out save on application of either party. See WOLUCHEM VS WOKOMA (1974) 3 SC 153 AT 170-171. Since the matter was merely struck out for incompetence and lack of jurisdiction, the Court had not become functus officio to revisit the case. See LAKANMI VS ADELE (2003) 10 NWLR (Pt. 828) 353; OBI VS INEC (2008) 155 LRCN 58 AT 93. See also Order 14 Rule 10 of the Federal High Court Rules on the effect of Courts judgment or ruling made without jurisdiction. The setting
aside the order of 14th April, 2008 has impliedly shot down the extension supposedly granted on 24th February 2010, because it has no structure to stand on.
The Appellant in the reply brief dated 14th December, 2015 and filed on the 7th January, 2016 contended that, the arguments of the Respondent in paragraphs 4.29 to 4.30 is misconceived and flawed in law and in fact. The order of 24th February, 2010 which extended the time to file the originating summons no matter how erroneous as contended by the Respondent is valid and binding, until set aside on appeal. The Respondent who is contending that, the order of 24th February,2011 has no base must first set the order of 24th February, 2010 aside no matter how erroneous the order is.
On the part of this Court, the submissions above are carefully examined. From the record before this Court, on the 29th of February, 2008 vide an exparte application, the Appellant had sought for the following orders at the trial Court.
1) “An order granting the Applicant in this suit leave to apply for a judicial review of the Respondent in terms and on grounds set out in the statement file herein, and
2) An order granting the Applicant leave to make the said application for judicial review by way of originating summons as per the draft annexed to the affidavit in support of this motion ex-parte.”
The said application was brought pursuant to Order 34 Rule 4 and Order 48 Rule 4 of the Federal High Court Rules 2001.
Order 34, Rule 4 provides:
“An application for judicial review shall brought within three months of the date occurrence of the subject of the application.”
Order 48, Rule 4 provides that:
“The judge may, as often as he deems fit and either before or after the expiration of the time
appointed by these Rules or by any Judgment or order or the Court, extend or adjourn the time for doing any act or taking any proceedings.”
It is not a disputed fact in this appeal, and the Appellant himself did not dispute the fact that when he filed his application at the Court below, the originating summons was brought after the time allowed by the rules of that Court. By the act of filing the said originating summons out of time, it has constituted a void action in the first place. On the said void application, the trial Court
erroneously granted the leave sought before it by the Appellant on the 14th April, 2008. The same trial judge granted another order on the 24th February, 2010 to regularize the null order of Court of 14th April, 2008. This Court has stated that, the order made on the 14th April, 2008 was null and void. There was therefore no basis for the order of 24th February, 2010 to regularize the previous order, being void abinitio there would be nothing to regularize. See I.B. ANIMASHAWUN VS OWUTA OSUMA & ORS (1972) 4 S.C. 200 AT 212, The Supreme Court stated as follows:
“In the first place, when a party believes or has reason to believe that a transaction liable to affect his rights is null and void, he is under no obligation to ask for a declaration that that transaction is null and void. Moreover, we observe with respect that a void transaction cannot be set aside because being void abinitio there would be nothing to be set aside.”
Also, the Supreme Court in the case of K. AKPENE VS BARCLAYS BANK OF NIGERIA LTD & ANOR (1977) 1 S.C. 47 AT PAGES 58-59 stated as follows:
“Since the Plaintiff was not a party to the deed of conveyance (between the
Defendants) he was not competent to bring an action to set it aside. That, the learned trial judge was thus in error in holding that, the Plaintiff should have sought for a declaration that, the transaction between the Defendants was null and void.
In the words of Lord Denning. ‘If an act is void, then it is in law a nullity. It is not only bad but also incurably bad. There is no need for an order of the Court to set it aside.
It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse. (Per Lord Denning in MACFOY VS UNITED AFRICAN COMPANY LTD (1961) 3 W.L.R. 1405 PC at 1409)”
The Supreme Court in ALHAJI LABARAN NAKYAUTA VS ALHAJI IBRAHIM MAIKIMA & ANOR (1977) 6 S.C. 51 AT 78 reiterated this position as follows:
“Having reached that conclusion, it is unnecessary and inappropriate to set aside a nullity because there is nothing to be set aside.”
In the present appeal, the order made by the trial Court on the 14th
April, 2008 was a void order, the summons which brought it in was filed out of the time allowed by the rules of that Court. The subsequent order made by the Court on the 24th of February, 2010 had no base and therefore must fail. The ruling subsequently delivered by the Court on the 12th of January 2011 striking out the Appellant’s application for judicial review on the ground that, the application was not filed within (3) three months as prescribed under Order 34 Rule 11 of the Federal High Court Rules 2011, was a mere surplusage, it has no place in law having being predicated upon a void order made earlier on. The Rules of Court are not made as mere cosmetics, they are made to be obeyed. See the recent Supreme Court decision in OKOROCHA VS P.D.P. & ORS (2014) 229 LRN 7O at 116,,the Apex Court stated as follows:
“The Rules of Court are meant to be obeyed for protecting the sanctity and dignity of the law and Court. He who comes to equity must come with clean hands and which presupposes diligence and care.”
Also where a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the
decision arrived at, at such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. Also a party by taking a step in the cause before that Court does not waive his right to object to the Courts want of jurisdiction. See THE QUEEN EXPARTE OJIEGBO IKORO OF NGODO VS THE GOVERNOR, EASTERN REGION & ANOR (1962) 1 ALL NLR 40; UWAIFO VS ATTORNEY GENERAL OF BENDEL STATE & ORS (1982) 7 S.C. L24 at 279; PEENOCK INVESTMENTS LTD VS HOTEL PRESIDENTIAL LTD (1982) 12 S.C. 1 at pages 68-69; TEHIAT A.C. SULE VS NIGERIAN COTTON BOARD (1985) 6 S.C. 62 at 101.
On the whole, having found the extension granted by the trial judge was erroneous and in that respect cannot confer legitimacy on the already nulled order of the 14th day of April, 2008, the issue No. 1 is resolved against the Appellant.
On issues No 2 to wit whether the delivery of the judgment 11 months after final address and issue No. 3 whether the trial judge ought not to have granted the claims of the Appellant as set out in the originating summons for judicial review are both predicated on the nulled order of the 14th day of April, 2008. The two sets of issues have
both become academic questions. It is trite that Courts are refrained from answering academic questions.
In the final analysis, this appeal is devoid of any merit, and it is hereby dismissed. The ruling of Honourable Justice I. N. Auta now (Chief Judge) of the Federal High Court, Lagos Division delivered on the 12th day of January 2011 in suit No. FHC/L/CS/217 /2008 is hereby affirmed by this Court.
No costs awarded.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the crisp judgment prepared by my learned brother, Sidi Dauda Bage, J.C.A., with which I agree with nothing extra to add.
YARGATA BYENCHIT NIMPAR J.C.A.: I had the benefit of reading in draft the leading judgment prepared by my Learned Brother SIDI DAUDA BAGE, JCA. I too dismiss the appeal and abide by the consequential orders made in the lead judgment.
Appearances
Parties absentFor Appellant
AND
J. A. AsemotaFor Respondent
