MR. JACKSON O. OHENHEN v. NIGERIAN PETROLEUM DEVELOPMENT COMPANY LIMITED & ORS
(2019)LCN/12924(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/B/206/2013
RATIO
APPEAL: GROUND OF APPEAL
“The law is well settled that though a ground of appeal must stem from the of the judgment (ipsissima verba), this by no means limits the scope of ground of appeal. A ground of appeal can arise in a number of situations such as the following:
(a) From the of the decision appealed against.
(b) From the procedure under which the claim was initiated
(c) From the procedure under which the decision was rendered;
(d) From other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates, or
(e) From commissions or omissions by the Court which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in over doing the act complained of. See OGBUEFI V. A.S.E.C. (2011) ALL FWLR (PT. 603) 1873 @ 1901-1902 PARAS G-C.” PHILOMENA MBUA EKPE, J.C.A.
APPEAL: PROCESSES OF APPEAL
“To my mind, in order to resolve the sole issue in this appeal, recourse should be made to the processes initiating the fundamental right application. The law is settled that the validity of the originating process in a proceeding before a Court is fundamental as the competence of proceeding is a sine qua non to the legitimacy of any suit, see KIDA V. OGUNMOLA (2006) 13 NWLR (PT. 997) 377 @ 394 PARA E .” PHILOMENA MBUA EKPE, J.C.A.
APPEAL: WHERE A PROCEDURE OF APPEAL HAS BEEN PRESCRIBED BY LAW
“It is also imperative to note that the word used in Order 11 Rule 3 is SHALL which presupposes that the requirement is mandatory. In UDENE V. UGWU (1997) 3 NWLR (PT. 491) 62 it was held inter alia where a procedure has been prescribed by a statute for a redress or an act to be done or required to be done, and there is no doubt from the language used in the statute that that should be the only procedure available, the Court or any Tribunal would not allow any departure from the procedure.” In the same vein, in NEMI V. STATE ( 1994) 10 SCNJ 1@ 45 it was held thus once a statue has provided a procedure to be followed, an applicant would be wrong to adopt another procedure such that the procedure adopted by the applicant would render the whole process a nullity.” In the instant case, it appears the Appellant chose a procedure different from the one prescribed by the rules, and without any iota of doubt, this dealt a fatal blow to his application.” PHILOMENA MBUA EKPE, J.C.A.
COURT : WHERE A COURT MAKES DECISION UNDER A WRONG LAW
“…In WITT & BUSCH LTD. V. D.P.S. PLC. (2007) ALL FWLR (PT. 382) 1816 @ 1843 PARAS D-E it was held where a Court has jurisdiction to make an order, the fact that the power of the Court is invoked under a wrong law or rule of Court is no reason for setting it aside?. In OKONJI V. NJOKANMA (1999) 12 SCNJ 257 @ 276 the point was admirably captured thus the law has long been settled that if a Court arrives at a correct decision but cites a wrong and inappropriate section of the law that would not be sufficient to upturn the judgment. The appellate Court will invoke the plenitude of its judicial power to correct the error and substitute the relevant law.” It therefore stands to reason that the slip by the trial judge can be corrected by this Court and should not be basis for setting aside the judgment.”PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. JACKSON O. OHENHEN
(Suing by His Lawful attorney IDADA K.E. ESQ.) Appellant(s)
AND
1. NIGERIAN PETROLEUM DEVELOPMENT COMPANY LTD
2. NIGERIAN NATIONAL PETROLEUM CORPORATION PLC
3. NIGER-DELTA POWER HOLDING COMPANY(NDPHC)
(Sued as 4th Respondent at the trial Court)
4. MINISTER OF PETROLEUM RESOURCES
(Sued as 6th Respondent at the trial Court)
5. FEDERAL MINISTER OF POWER
(Sued as 7th Respondent at the trial Court) Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the judgment of Hon. Justice V. O. Eboreime of the High Court of Edo State sitting at Benin, delivered on the 15th day of March, 2013 in Suit No. B/143M/2011 wherein His Lordship dismissed Appellant?s motion seeking to enforce his fundamental rights.
SUMMARY OF RELEVANT FACTS:
By an originating motion dated 8th day of March, 2011, but filed on 9th day of March, 2011, the Appellant instituted an action against the Respondents for the enforcement of his fundamental human rights.
The 1st and 2nd Respondents did not file any process, but the 4th Respondent in its process raised the issue of the absence of an affidavit setting out the facts on which the Applicant relied on as required by the Fundamental Rights Enforcement Procedure Rules. The 4th Respondent also raised the issue that contrary to the rules it was the Applicants’ Attorney that deposed to the affidavit that accompanied the application and there was no explanation as to the reason why it was not the Applicant that personally deposed to the said affidavit.
Having taken arguments from all sides, the Hon. Judge in a considered judgment delivered on 15th day of March, 2013 dismissed the case of the Appellant in its entirety.
Dissatisfied with the judgment of the lower Court, the Appellant via an Amended Notice of Appeal dated 19th day of June 2017, but filed on 22nd day of June, 2017 appealed to this Court.
The Notice and Grounds of Appeal, shorn of its particulars, are reproduced here under for ease of reference.
GROUND ONE: Error in Law
The learned trial judge erred in law and acted without jurisdiction by formulating a different case for the appellant, when she invoked the originating summons procedure as basis for her conclusion and decision, as well as a non-existent Order 19(1) unknown to the FREP Rules, as basis for refusing the application which was duly filed by Motion on Notice in compliance with the FREP Rules.
GROUND TWO: Error in law
The learned trial judge erred in law and acted without jurisdiction when she entertained and relied on the 4th Respondent’s defence and the incompetent processes initiating same as basis for her decision, when same were filed in contravention of the special method and mandatory provisions/condition precedent of the FREP Rules.
GROUND THREE: Error in Law
The learned trial judge erred in law and occasioned a miscarriage of justice against the appellant, when, despite the expeditious stance and relevant provisions of the FREP Rules, she refused/failed to give judgment for him, when the respondents did not file a defence or valid defence to controvert the case made against them thereby conceding same.
The Appellant amended the order in which the parties were listed at the trial Court, thus, the erstwhile 4th Respondent becomes the 3rd Respondent, while the 7th Respondent is the 5th Respondent.
From the grounds of appeal, the appellant raised the following issues for determination to wit:
1. Did the learned trial judge have the jurisdiction or right to formulate a different case for the appellant in breach of his right to fair hearing by invoking originating summons procedure, and a non-existent Order 19(1) unknown to the FREP Rules, to refuse the application which was duly filed through Motion on Notice; and on that basis, was the trial judge right to conclude that there were no facts and Evidence before the Court upon which the reliefs sought could stand? (Ground 1)
2. Given the expeditious disposition and special method of the FREP Rules, did the learned trial judge have the jurisdiction to act upon and rely on the 4th respondent?s defence and incompetent processes which did not comply with the prescribed special method and mandatory provisions of the Rules; and was the appellant not entitled to succeed in his case which the respondents thereby conceded? (Grounds 2 and 3)
On its part, the 1st and 2nd Respondents in a Respondent?s Brief dated 10th day of May, 2018, but filed on 21st day of May, 2018, formulated a lone issue for the determination of the Appeal, to wit:
Whether the Lower Court was right in refusing the grant of the Appellant?s Application for enforcement of fundamental rights.?
Counsel for the 3rd and 5th Respondents in a Respondents Brief dated and filed on 25th day of May 2018, also raised one issue, to wit:
Whether the learned trial Court was correct to hold that the appellant?s application was incompetent for failure to comply with the provisions of Order 19 Rule 1 of the Fundamental Rights Enforcement Procedure Rules (FREP Rules), 2009.?
NOTICE OF PRELIMINARY OBJECTION:
By a Notice of Preliminary objection dated and filed on 25th day of May 2018, the 3rd and 5th Respondents urged this Court to strike out grounds 2 and 3 of the Notice and Grounds of Appeal that it did not raise any issue or complaint against the judgment of the lower Court; and that its particulars are unnecessarily prolix, vague, argumentative, repetitions, replete with irrelevances and in some instances clearly incomprehensible.
Arguing the Preliminary objection, counsel to the 3rd and 5th Respondents referred to Order 7 Rules 2(3) and 3 of the Court of Appeal Rules, 2016 as to the contents of a Notice of Appeal. Counsel cited UCHE NWOLE V. C. IWUAGWU & ORS (2005) 16 NWLR (PT. 952) 416 @ 567 on what an appeal entails. Counsel quoted excerpts from page 306-307 of the records and contended that same constitutes the ratio decidendi of the judgment and the appeal ought to be predicated on same. Learned counsel for the 3rd and 5th Respondents x-rayed grounds 2 and 3 of the Notice and Grounds of Appeal and submitted that the grounds did not raise any complaint against the judgment of the lower Court. Counsel contended further that the grounds of appeal are a misconception of the ratio of the judgment of the trial Court. Counsel stated that the lower Court did not consider or evaluate at any point in its judgment the merits of the defences put forward by all the respondents. On the authorities of MERCANTILE BANK OF NIG. PLC & ANOR. V. L. NWOBODO 23 NSCQR 60; and SARAKI V. KOTOYE (1992) 11/12 SCNJ 26 @ 42 Counsel submitted that the said grounds 2 and 3 of the Notice of Appeal be struck out since they have not arisen from the judgment and did not attack any issue from the judgment.
Arguing further on the objection, learned counsel stated that grounds 2 and 3 of the grounds of appeal ought also to be struck out because they are merely academic issues and called in aid PLATEAU STATE V. A.G. FED (2006) 3 NWLR (PT.967) 346 @ 419-420 PARS F-A.
Reacting to the preliminary objection in his Reply Brief dated 11th day of June, 2018 but filed on 13th day of June 2018, the Appellant submitted that the preliminary objection is misconceived and an academic exercise. Counsel noted that the preliminary objection is challenging grounds 2 and 3 of the grounds of appeal and not the entire grounds. Counsel cited NNPC V. FAMFA OIL LTD (2012) 5-7 MJSC (PT.1) 4-5 @ 29 paragraphs E-G on the impropriety of filing a preliminary objection to some grounds of appeal. Counsel also cited NWAOLISAH V. NWABUFOH (2011) 38 WRN 11 @ 26 LINE 5 where it was held inter alia that ?preliminary objection? should only be filed against the hearing of the appeal and not against one or more grounds of appeal. Counsel contended that grounds 2 and 3 raised issues of competence or jurisdiction of the processes filed, and the jurisdiction of the lower Court to entertain same. Relying on OUR LINE LTD V. S.C.C. (NIG.) LTD (2009) 38 WRN 39 @ 52 LINES 10-15 counsel contended that a ground of appeal challenging jurisdiction can be raised at any time of trial even on appeal. Learned counsel cited a host of authorities including ORLU V. GOGO-ABITE (2010) 1 MJSC (PT.11) 194 @ 208 PARAS B-C on the point that wrongful admission of evidence is a ground of law for which no leave is required. The case of ADUKU V. FRN (2010) 1 WRN 155 @ 163 LINES 25-30 was called in aid on the point that the failure (omission) of a lower Court can constitute a ground of appeal.
Arguing further on the preliminary objection, learned counsel for the Appellant submitted that objections to grounds of Appeal do not and could not relate to a matter decided in the judgment appealed against and cited the case of NWATURUOCHA V. STATE (2010) 31 WRN 96 @ 111 LINES 40-45. He submitted that a preliminary objection that flirts with facts instead of law must be supported by an affidavit failing which the Court will not consider it. He then called in aid A.G.F. V. ANPP (2003) 18 NWLR 194 @ 207 PARAS A-D.
Counsel submitted further that the Respondents did not point out the part of the particulars which it complained was vague or incomprehensible. He stated that the Respondent raised and canvassed arguments on the alleged vague ground of Appeal and cited AJAYI V. OLOWU (2010) 51 WRN 159 @ 168 LINE 40 on the point that Courts are reluctant to strike out a notice of appeal on the grounds that the particulars are inelegantly drafted. Counsel submitted that having not opposed the application for amendment of the notice of appeal, the Respondent cannot challenge same at this stage as that will amount to approbating and reprobating. Counsel cited several authorities on the need for parties to be consistent and not to approbate and reprobate. He then referred to Order 21 Rule 5 of the Court of Appeal Rules, 2016, and urged that the preliminary objection be dismissed.
OPINION:
I have taken a critical look at grounds 2 and 3 of the Appellant?s Notice and Grounds of Appeal and to my mind the complaint in the said ground is succinct, precise and leaves no room for ambiguity.
The law is well settled that though a ground of appeal must stem from the of the judgment (ipsissima verba), this by no means limits the scope of ground of appeal. A ground of appeal can arise in a number of situations such as the following:
(a) From the of the decision appealed against.
(b) From the procedure under which the claim was initiated
(c) From the procedure under which the decision was rendered;
(d) From other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates, or
(e) From commissions or omissions by the Court which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in over doing the act complained of. See OGBUEFI V. A.S.E.C. (2011) ALL FWLR (PT. 603) 1873 @ 1901-1902 PARAS G-C.
In my humble view therefore, grounds 2 and 3 of the Grounds of Appeal even though they are not from the of the decision are still competent as the grounds allege that the learned trial judge applied the wrong procedure in dismissing the Appellant?s case. I am therefore of the opinion that the preliminary objection is misconceived and ought to be dismissed.
I have taken into consideration all the issues raised by the various parties herein and it is my humble view that this appeal can be determined on the sole issue formulated by the 1st & 2nd Respondents? counsel to wit:
whether the lower Court was right in refusing the grant of the Applicant?s application for the enforcement of his fundamental rights.?
ISSUE ONE:
On this issue, learned Appellant’s counsel quoted excerpts from the judgment as contained in page 307-308 of the records and submitted that making reference to a non existence Order 19(1) of the FREP Rules, amounts to the Court embarking on an academic exercise which is not part of judicial function; counsel referred to OKE V. MIMIKO (2013) 5-7 (PT. 111) MJSC 66 @ 89 PARAS C-E, for this submission. Counsel submitted further that a Court is only obliged to do justice by procedures laid down by the law and the procedure laid down for its attainment and not to invoke a law which has no bearing or relevance to the circumstances of the case, AROWOSAYE V. OGEDENGBE (2009) 30 WRN 37 AT 61 LINES 25-35. Counsel also citedOYAWOLE V. SHEHU (1995) 8 NWLR 488-489 where it was held that in fundamental rights cases, the facts of the case are usually set out in the Statement in support of the application and supported (or verified) by an affidavit.
In a further argument, counsel cited IGWE V. EZEANOCHIE (2010) 43 WRN 133-134 @ 147-148 LINES 35-10 wherein a distinction was made between a fundamental right application commenced via motion, and one commenced via summons. Counsel referred to Order 11 Rule 2 of the FREP Rules, and stated that an applicant can commence a fundamental right application through any originating process and not necessarily through Originating Summons. Counsel cited AMADI & ANOR. V. INEC & 2 ORS. (2012) 2 MJSC (PT. 1) 5 @ 46 PARAS A-E on the point that a statute should be given its ordinary meaning. Counsel contended that it was wrong for the trial Court to have relied on the case of ETIM V. OBOT (2010) NWLR (Pt.1207) 108 @ 171 and the Originating Summons Procedure which was not relevant, in striking out the case of the Appellant. Counsel called in aid AROWOSAYE V. OGEDENGBE (2009) 30 WRN 37 @ 61 LINES 25-35 to buttress the point that a Court is without jurisdiction to invoke a law not directly opposite in the circumstances of the issue or issues before it. Counsel added that in a fundamental right application, a party has alternative approach to enforcing his right and should not be disadvantaged for choosing a particular approach. He cited AMASIKE V. THE REG-GEN., C.A.C. (2010) 39 WRN 21 @ 76 LINES 20-25.
Learned counsel opined that failure to hear a party?s case based on the materials placed by him before the Court is a breach of the party?s right to fair hearing which renders the judgment perverse; counsel then cited TOLANI V. KWARA STATE JUDICIAL SERVICE COMMISSION (2010) 2 WRN 96 @ 117-118 LINES 45-15. He contended that having acknowledged a 43 paragraph facts in support as well as a 7 paragraph affidavit in support of the application, the trial judge approbated and reprobated when he held that there was no evidence before the Court upon which the reliefs sought could stand. Counsel cited ODUTOLA HOLDINGS LTD. V. LADEJOBI (2006) 12 NWLR (PT. 994) 329 @ 360 PARAS B-C on the point that a Court ought not to approbate and reprobate. Learned counsel posited that by bringing the case of the Appellants within the purview of an Originating summons, the trial judge invoked a procedure and made a different case from what the appellant presented. Counsel cited ADEOSUN V. GOVERNOR EKITI STATE (2012) 24 WRN 9 @ 28 LINES 25-30 and a host of other authorities to drive home the point that it is not the business of Court to set up for parties a case different from the one they presented. Counsel referred to the preamble, Order 11 Rule 2 and Order XI of the fundamental rights rules, and contended that assuming without conceding that an application was brought under the wrong procedure, the Court ought to still have afforded the Appellant the remedy he claimed. Counsel urged that this issue be resolved in favour of the Appellant.
In reply, learned counsel for the 1st & 2nd Respondents posited that the instant appeal is strictly against the judgment of the lower Court refusing Appellant?s application for enforcement of his fundamental right on the grounds that there were no facts donated by an affidavit to ground the application. Counsel quoted excerpts of the judgment as contained in page 307 of the Records and stated that the judgment is unassailable. He referred to Order 2 Rule 2 of the FREP Rules, 2009, and contended that while the mode of commencing an action for enforcement of fundamental right is not fixed, the manner of proof in such action is fixed, and it is through affidavit evidence; counsel then called in aid BAA V. ADAMAWA EMIRATE COUNCIL & 2 ORS (2013) LPELR 22068 for this contention. He also cited OJAGBAMILA V. LEJUWA (2005) 3 NWLR (PT. 911) 105 where it was held inter alia ?it is trite that before a Court arrives at the decision to grant or not to grant prayers sought in a motion, that Court must be guided by the affidavit evidence before it? counsel referred to the affidavit which was deposed to by IDADA KINGSLEY ETINOSA contained at page 33 of the records and stated that the said affidavit does not contain or set out facts upon which the application could be entertained.
Counsel contended that the submission of the Appellant that the Statement in support filed by him constitutes evidence in proof of the application is misconceived. He referred to UKAOBASI V. EZIMORA & ORS (2016) LPELR 40174 on the point that in a fundamental right application the determination thereof is predicated on the affidavit evidence before the Court. Counsel posited that there is no provision for verifying affidavit under the FREP Rules, which was what the Appellant filed. He contended that in the absence of supporting facts deposed to by way of affidavit, the application remains bare and there is no evidence in support of same; the case of OKAFOR V. LAGOS STATE GOVT. & ANOR. (2016) LPELR 41066 was referred to.
Arguing further, counsel submitted that the burden of proof lies on the Applicant, and he bears this burden even in the absence of a counter affidavit; see NABORE PROPERTIES LTD V. PEACE-COVER NIGERIA LTD & ORS (2014) LPELR 22585. Counsel posited that there was no substantive affidavit which the Respondents could have countered by way of counter affidavit. Counsel noted that the cases of OYAWOLE V. SHEHU (1995) and MARTINS & ORS. V. NWACHUKWU & 2 ORS. (2009) relied on by the Appellant are inapplicable to the appeal as the cases were decided based on the 1979 FREP Rules. Counsel stated that it was a slip by the lower Court in referring to ORDER 19 (1) instead of ORDER 9 RULE 1 of FREP Rules, and the Appellant capitalizing on this without attacking the reason and con of the lower Court invoking the provisions on non compliance amounts to chasing shadows. Counsel argued further that even if the Court agrees to convert the statement and grounds in support of the application to an affidavit the application will still fail. Counsel noted that the so called affidavit was deposed to by a person other than the Appellant and no explanation was given as to why he was unable to personally depose to the affidavit.
Counsel cited ALUKO & ANOR V. C.O.P. & ORS (2016) LPELR 41342 on the point that an applicant who is acting for another person must include a description of the capacity he is acting in. Counsel then contended that no such disclosure or explanation was made in the instant case.
Furthermore, counsel contended that even if the facts contained in Statement of facts were to be countenanced as affidavit, same did not derive from the personal knowledge of the deponent, hence the deponent cannot verify such statement. Counsel stated that the affidavit did not only violated FREP Rules, but also the provisions of the Evidence Act. Counsel cited NJOEMANA V. UGBOMA & ANOR (2014) LPELR 22494 on the need to state the source of the information deposed to in an affidavit, as required by Section 115 of the Evidence Act. He noted that the reliefs sought by the Appellant are principally tortuous in nature and ought to have come by way of originating summons and not Fundamental Rights Enforcement claim. Counsel cited OKON V. ENYIEFEM & ORS (2016) LPELR 41168 on the need for application under FREP Rules to be mainly as regards Chapter 4 of the Constitution. Counsel concluded by urging the Court to uphold the decision of the lower Court as same cannot be faulted.
In a Reply Brief dated 4th day of June 2018, the Appellant contended that the points argued by counsel to the 1st and 2nd Respondents are merely academic as there was no finding by the lower Court on the points, and the Appellant did not raise such issues for the determination of the appeal and they are not distilled from the grounds of Appeal. Counsel stated that the 1st and 3rd Respondents ought to have filed a Cross-appeal or Respondents Notice. Counsel cited OKAFOR V. INEC (2010) 31 WRN 36 @ 69-70 LINES 45-25 on the point that arguments must relate to issues raised for the determination of the appeal and parties and Courts must confine themselves to same. Learned counsel cited NWATURUOCHA V. STATE (2010) 31 WRN 96 @ 108-109 LINES 30-35 on the point that a Respondent who has not cross-appealed or filed a respondent?s Notice of contention must confine himself to the issues raised by the Appellant for the determination of the appeal and derivable from the grounds filed.
Counsel argued that the 1st and 3rd Respondents raised the issue of locus for the first time in this appeal. He cited several authorities on the point that leave must be obtained before arguing fresh issues on appeal and referred to preamble 3(E) of the FREP Rules, 2009, submitting that no fundamental rights case may be dismissed or struck out for want of locus standi.
As regards the contention of the 1st and 3rd Respondents at paragraph 4:8 to the effect that this form of originating process in fundamental right application is not fixed, counsel for the Appellant replied that the lower Court ought to have made such finding first before applying the law to the fact as found; he cited EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR 165 ratio 2, and other authorities on this point. Counsel referred to Order 1 Rule 2 (3) of the 1979 FREP Rules, and Order 11 Rule 3 of FREP Rules, 2009 and contended that but for removal of the need to seek leave of Court ex parte under the 1979, and stylistic differences, the two rules are the same. Counsel stated that the word ?verify? and ?support? as per the affidavit in the 1979 and 2009 Rules convey the same meaning. Counsel submitted that the argument of the 1st and 3rd Respondent as regards the verifying affidavit is misconceived and should be discountenanced.
Counsel summed up his reply by contending that the issue raised in the 1st and 3rd Respondents brief is basically omnibus, muddled up and mainly does not arise from the grounds of appeal. Counsel urged that the arguments of the 1st and 3rd Respondents be discountenanced and the appeal upheld.
On its part, counsel to the 3rd and 5th Respondents set the tone by quoting excerpts from pages 306 – 307 of the records containing judgment of the trial Court which counsel stated was the ratio decidendi of the judgment. Counsel contended that by Order 11 Rule 3 of the FREP Rules an applicant must comply with two requirements for the application to be competent; to wit: there shall be a statement of facts, and there shall be an affidavit setting out the facts upon which the application is made. Counsel stated that while the Appellant fulfilled the first requirement, he failed to meet the second requirement as the affidavit does not contain any facts upon which the application was made. Counsel noted that the Appellant deposed to an affidavit of verification which cannot satisfy the requirement for an affidavit setting out the facts upon which the application was made.
?
Learned counsel referred to Order IX Rule 1(i) of the FREP Rules to the effect that non compliance in the mode of commencement renders the application a nullity. Counsel stated that the effect of non compliance is that the suit has not been commenced in accordance with due process of law which robs the Court of jurisdiction; counsel relied on MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 578 for this submission. He argued further that reference by the trial judge to Order 19 (1) of the FREP Rules was an error as what the learned trial judge meant was Order IX which deals with effect of non compliance. Counsel cited SKYPOWER AIRWAYS LTD V. OLIMA (2005) 18 NWLR (PT. 957) 224 @ 244 PARA D on the point that once a Court arrives at the correct decision, the fact that it did so via citing of the wrong or inappropriate section of the law is not sufficient to upturn the judgment.
?
On the contention of the Appellant that the trial judge formulated a case different from what was presented, learned counsel for the 3rd and 5th Respondents contended that the Court did not formulate a different case for the Appellant. Counsel stated that the Appellant imported words into the judgment. Counsel noted that the Court never held that the Appellant cannot initiate this application on the basis of a motion on notice; thus the Appellant was not denied fair hearing as the Court duly considered the application of the Appellant and held that it did not comply with the FREP Rules, 2009. Counsel posited that the issue of the Court approbating and reprobating as alleged by the Appellant does not arise as the Court struck out the case of the Appellant in limine and did not delve into the merits or otherwise of the application. He cited B.A.S.F. (NIG) LTD (2010) 4 NWLR (PT. 1183) 104 @ 119 PARAS G-H and 131-132 PARAS G-H on the point that jurisdiction is a threshold issue and must be resolved first anytime it is raised.
Arguing further, on the contention that the 4th Respondent offered no defence to the application, counsel stated that 4th Respondent filed a counter affidavit together with a written address. He referred to pages 212 to 225 of the records which contain the motion for extension of time to file and deem as duly filed and served the counter affidavit and written address. He also referred to pages 226-320 of the records for the motion challenging the jurisdiction of the Court. On the alleged contention by the Appellant that the 4th Respondent admitted liability and paid compensation, learned counsel referred to the proceedings of 14th day of June, 2012 contained at page 294 of the records and that no such thing took place. Counsel concluded by urging that the appeal be dismissed.
ISSUE TWO:
In arguing this issue, learned counsel to the Appellant referred to Order 11 Rule 6 and Order XII Rule 1 of FREP Rule and stated that a Respondent who wishes to defend the application and challenge the competence of the suit must file two processes, to wit: a. written address accompanied by a counter affidavit, and Notice of Preliminary Objection which must be filed with the counter affidavit. Counsel contended that instead of filing a notice of preliminary objection as required by the rules, the 4th Respondent challenged the competence of the application in its written address. Counsel opined that challenging the competence of the suit and jurisdiction must follow the mandatory provisions of the FREP Rules. Counsel cited OGBORIEFON V. OGBORIEFON (2011) 23 WRN 165-166 @ 176 LINES 35-40 on the need to strictly comply with a condition precedent or mandatory provision in order to invoke the Court?s jurisdiction to entertain a process.
Counsel stated that the 4th Respondent failed to comply with the mandatory condition precedent of FREP Rules, hence there was no valid written address by the 4th Respondent upon which the Court could base its judgment. Counsel cited F.G.N. V. ZEBRA (2003) 105 LRCN 367 @ 390 on the need to follow laid down procedure. Counsel relied on OKOROCHA V. PDP & ORS (2014) 2 (PT.111) MJSC 7-8 @ 41-42 PARAS 41-42 on the point that preliminary objection cannot be raised surreptitiously or through the back door. Counsel stated that issues of jurisdiction must be raised in a way to comply with the rules. Counsel called in aid ENE V. ASIKPO (2010) 41 WRN 139-140 @ 160 LINES 20-30 on the point that a preliminary objection should not be raised or used as an issue for determination.
?
Arguing further on this issue, learned counsel to the Appellant submitted that the only preliminary objection filed by the 4th Respondent challenging the jurisdiction of the Court on the ground that the 4th Respondent was a Federal Government Agency was defective because contrary to Order VII Rules 1 and 2 of FREP Rules, the said objection was not filed along with a counter affidavit. Counsel contended that filing preliminary objection with a counter affidavit is a condition precedent to the Court assuming jurisdiction under the FREP Rules. Counsel stated that in addition to not filing the preliminary objection in compliance with the rules as highlighted above, no good or sufficient reasons were given as to the 4th Respondent?s failure to comply with the mandatory period of 5days for filing respondent?s processes in opposition.
Counsel opined that in spite of the Respondents abandoning their case, the trial judge refused to give judgment to the Appellant. Counsel accused the trial judge of practically assisting/aiding the Respondents, particularly the 4th Respondent. Counsel cited AKINWALE V. AKINWALE (2010) 31 WRN 134 @ 144 LINES 15-25 on the point that Court should not aid a party to sort out his case. Counsel stated that the 4th Respondent?s defence and the process initiating same was as good as not filed since, despite the expeditious posture of the FREP Rules, the said process or defence, was filed between 13 to 14 months after being served with Appellant?s Originating process. Counsel noted that the implication of this was that the 4th Respondent, just like the 1st and 2nd Respondents also conceded the case made against it by the Appellant, counsel referred to Order VIII Rule 6 for this contention. Counsel added that after the Appellant had filed his Reply on points of Law and written address on the directive of the Court, the trial judge had no further jurisdiction to indulge the 4th Respondent in filing a written address and counter affidavit.
Counsel posited that when processes are filed in contravention of the FREP Rules, the Court is enjoined to dismiss same; see COMMISSIONER FOR EDUCATION V. AMADI (2013) 2-3 MJSC (PT.11) 4-5 @ 29 PARA G. Counsel cited CHAMI V. UBA PLC (2010) 18 WRN 6 @ 19-20 LINES 45 on the point that where a party?s case is not controverted or remained unchallenged, the party is entitled to succeed. Counsel urged that the issue be resolved in favour of the Appellant and that judgment be entered in his favour.
OPINION:
In his brief of argument, learned counsel for the Appellant has strenuously argued that the learned trial judge formulated a different case for the Appellant and upon that dismissed his case. Before proceeding, I have carefully perused the judgment appealed against and I cannot fathom where learned counsel for the Appellant based this assertion. The trial judge did not formulate any case for any of the parties, let alone formulating a different case for the Appellant.
To my mind, in order to resolve the sole issue in this appeal, recourse should be made to the processes initiating the fundamental right application. The law is settled that the validity of the originating process in a proceeding before a Court is fundamental as the competence of proceeding is a sine qua non to the legitimacy of any suit, see KIDA V. OGUNMOLA (2006) 13 NWLR (PT. 997) 377 @ 394 PARA E . In this wise, the Respondents argued forcefully that there was no supporting affidavit to grant the reliefs sought as required by the rules. That the verifying affidavit filed with the originating process suffices. There is no doubt that applications commenced by motions, evidence is not oral but by affidavit, see OSHO V. A.G. EKITI STATE (2002) 2 NWLR (PT. 758) 628 @ 652. The question that readily comes to mind is whether the verifying affidavit filed by the Appellant satisfied the requirement of the law. To my mind, there is no provision for verifying affidavit under the FREP Rules, 2009. As noted by both counsel, Order 11 Rule 3 enjoins an applicant to support his application with an affidavit which shall set out the facts upon which the application is made. In other words, an affidavit constitutes the evidence upon which the application is hinged. In the absence of an affidavit setting out the grounds, there would be no evidence upon which the reliefs can be granted. The Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought are not on oath and cannot therefore translate into affidavit evidence. This point was succinctly made in ONUJABE V. IDRIS (2012) 2 NWLR (PT.1284) 285 where the Court stated that without oath there is no affidavit.
It is also imperative to note that the word used in Order 11 Rule 3 is SHALL which presupposes that the requirement is mandatory. In UDENE V. UGWU (1997) 3 NWLR (PT. 491) 62 it was held inter alia where a procedure has been prescribed by a statute for a redress or an act to be done or required to be done, and there is no doubt from the language used in the statute that that should be the only procedure available, the Court or any Tribunal would not allow any departure from the procedure.” In the same vein, in NEMI V. STATE ( 1994) 10 SCNJ 1@ 45 it was held thus once a statue has provided a procedure to be followed, an applicant would be wrong to adopt another procedure such that the procedure adopted by the applicant would render the whole process a nullity.” In the instant case, it appears the Appellant chose a procedure different from the one prescribed by the rules, and without any iota of doubt, this dealt a fatal blow to his application.
The learned counsel for the Appellant has also made heavy weather of the learned trial judge referring to Order 19 (1) which does not exist in the FREP Rules, 2009. Without doubt, reference to Order 19(1) instead of Order 9(1) is certainly a slip, which does not in any way affect the substance of the judgment to warrant this Court setting aside the judgment. In WITT & BUSCH LTD. V. D.P.S. PLC. (2007) ALL FWLR (PT. 382) 1816 @ 1843 PARAS D-E it was held where a Court has jurisdiction to make an order, the fact that the power of the Court is invoked under a wrong law or rule of Court is no reason for setting it aside?. In OKONJI V. NJOKANMA (1999) 12 SCNJ 257 @ 276 the point was admirably captured thus the law has long been settled that if a Court arrives at a correct decision but cites a wrong and inappropriate section of the law that would not be sufficient to upturn the judgment. The appellate Court will invoke the plenitude of its judicial power to correct the error and substitute the relevant law.” It therefore stands to reason that the slip by the trial judge can be corrected by this Court and should not be basis for setting aside the judgment.
In the final analysis, in my view since there was no affidavit setting out the grounds upon which the application was made, the learned trial judge was therefore right in dismissing the application as you cannot place something on nothing and expect it to stand.
This appeal therefore lacks merit and should be dismissed. It is adjudged unmeritorious, it fails and is hereby dismissed. Accordingly, the decision of the trial High Court of Edo State, delivered on the 15th Day of March 2013, in Suit No. B/143M/2011 is upheld. Appeal Dismissed.
I make no order as to costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My Lord, P.M. Ekpe, JCA, obliged me with the draft of the lead Judgment. I agree with His Lordship that this appeal being unmeritorious, should be dismissed.
Accordingly, I hereby enter an order dismissing the appeal. I abide by the consequential order made by Ekpe, JCA in the lead Judgment.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading before now the judgment of my learned brother, PHILOMENA MBUA EKPE, JCA just delivered. I agree that the appeal is devoid of merit and I also dismiss it.
I abide by all the orders made by my learned brother.
Appearances:
K.E. Idada, Esq.For Appellant(s)
A.E. Erhabor, Esq. with him, S.E. Akhiele Esq. for 1st & 2nd Respondents.
O. Ovrawah, Esq. for the 3rd & 5th RespondentsFor Respondent(s)
