ABUGA & ANOR v. AJAGABO (2020)

ABUGA & ANOR v. AJAGABO

(2020)LCN/14918(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/MK/37/2015

RATIO

FIAT: MEANING AND NATURE OF FIAT

The word fiat, is a Latin word, which literally means: let it be done. Expatiating on implications of a fiat, I.T. Muhammad, JSC (now CJN) in Ebe v COP (supra), (2008) LPELR-984(SC) at page 29 said:

“Firstly, it is a Latin word which means “Let it be done”. Technically, therefore, it denotes the grant or conferment of power on another by a person having complete authority on the issue upon which the fiat was given…”
The Black’s Law Dictionary, Ninth Edition at page 700, defines a fiat as:
An order or decree, esp. an arbitrary one
A court decree, esp. one relating to a routine matter such as scheduling…
A fiat, in the context of this appeal, also called as an assignment order, is issued by the Chief Judge of a State to a Judge within the same State jurisdiction who has been transferred from his judicial division to another to enable the Judge conclude hearing of a part heard matter. It is a direction by the Chief Judge issued administratively or routinely where the circumstances so warrant, such as where the part heard matter has reached an advanced stage before the transfer of the Judge to another division. The fiat or assignment order is usually issued upon the application of one or both of the parties in the matter, to ensure the speedy conclusion of the pending matter.

This Court in H.R.H. Oba Folagbade Olateru-Olabegi v. The Governor of Ondo State & Ors (2007) LPELR-4227(CA), per Gumel, JCA, took judicial notice of the administrative functions of the Chief Judge of a State in the running of the judiciary of the State, which include the issue of fiats or assignment orders, in this manner:
“The High Court laws of every State in Nigeria, as well as the Constitution make provisions for the establishment and appointment of a State Chief Judge, with both judicial and administrative functions. Among the administrative functions of a Chief Judge include overseeing the day to day running of the State judiciary and its administrative and executive functionaries. He indeed supervises and manages and heads the judicial arm of government in the State as well as certain ceremonial functions such as administering the oath of office on a Governor and Deputy Governor on assumption of office. He also assigns cases to ensure the smooth administration of justice in the High Court. Equally, he also oversees the daily affairs of the officers of the lower Courts in the State…The Chief Judge ensures a fair and even distribution and assignment of cases between the judges of the High Court. The current practice that is so notorious and which does not admit of any arguments is that Chief Judges of High Courts do some times withdraw one case or the other from one judge to another or from one judicial division to another…For example, if a judge goes on transfer from one judicial division to another, the Chief Judge may, by an assignment order, direct that all the cases that have reached certain advanced stages be moved or carried on by the same judge on transfer to another division. This power is normally by an administrative fiat…These practices are so replete and notorious that I can take judicial notice of them. They are indeed worthy of being taken judicial notice of and I accordingly so do in this appeal.”
(Emphasis mine)
See also: Ukachukwu v. Inec & Anor (2013) LPELR-20668(CA). In the exercise of these powers, the Chief Judge is performing purely administrative functions. This means that the Chief Judge may decide to issue the fiat or assignment order, or he may choose not to do so. It is not a judicial function. PER OTISI, J.C.A.
FIAT: JURISDICTION OF A COURT TO CONCLUDE THE HEARING OF A PART HEARD BASED ON FIAT

It is also important to note that the jurisdiction of the Court to conclude the hearing of the part heard matter for which a fiat or an assignment order is issued is not hinged on the said fiat or assignment order. The jurisdiction of the Court is determined by more fundamental factors, which, as submitted by Appellants’ Counsel, have been judicially established to be:
1. That the Court is properly constituted as regards numbers and qualifications of the member of the bench, and no member is disqualified for one reason or another;
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and;
3. The case comes before the Court, initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See:Madukolu v Nkemdilim (supra); Lawal v Oke (supra); Sken Consult v. Ukey (supra). As rightly submitted for the Appellants, the jurisdiction of the sole Judge of the Upper Area Court, Nasarawa Eggon to entertain any matter is grounded by the Statute creating it. The jurisdiction of a Court is not grounded or circumscribed by an administrative act of the Chief Judge of the State.
I am strengthened in this position by the decision of the Apex Court in Egbo v Agbara (supra), (1997)1 NWLR (PT 481) 293, (1997) LPELR-1036(SC), per Iguh, JSC, which clarified, page 22 of the E-Report:
“A Judge of a State High Court having jurisdiction to sit in one of the Judicial Divisions of that State does not lose the jurisdiction to sit and adjudicate on a matter by the mere fact of his transfer to another Judicial Division of the same State. I also agree that issues of Judicial Divisions, transfer order and like matters being strictly administrative, do not go to jurisdiction.”
Further, in Olaniyan v Oyewole (Supra), (2007) LPELR-8694(CA), per Ogunwumiju, JCA (now JSC) restated the position of the law, page 6 of the E-Report:
“The point has to be made yet again that matters of transfer orders, Judicial Divisions and fiat etc being strictly administrative, do not go to jurisdiction and therefore a judge of a Judicial Division of the State does not lose the jurisdiction to sit and adjudicate on a matter by the mere fact of his transfer to another Judicial Division of the same State. See Egbo v. Agbara (1997) 1 SCNJ 91 at Pg. 107.” PER OTISI, J.C.A.
ORDER: PRESUMPTION OF VALIDITY OF A COURT ORDER

A Court order, even where made in error, is deemed valid and subsisting until it is set aside. A party affected by the Court order would act in disobedience to the said order at his peril. However, the settled position of the law is that the order of Court has to be served on the party before it can be said that the party acted in disobedience to a subsisting order of Court; Attorney General of Ekiti State & Ors v. Prince Michael Daramola & Ors (2003) LPELR-606(SC); Uwazuruike & Ors v. The Attorney General of The Federation (2013) LPELR-20392(SC); Ekweozor & Anor v. Savannah Bank of Nigeria Plc & Anor (2016) LPELR-42128(CA). A party against whom a Court order is made is deemed to have notice of the said order as soon as the said order is brought to his notice. Therefore, a party can neither be said to have acted in disobedience of nor be bound by an order of a Court that has not been served on him, or that he is unaware of. PER OTISI, J.C.A.
INTERPRETATION: GOLDEN RULE OF INTERPRETATION

In the first place, the golden rule of interpretation of statutes is that where the words used in a statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute, per Kekere-Ekun, JSC in Dankwambo v. Abubakar & Ors (2015) LPELR-25716(SC). See also PDP v INEC (1999) LPELR-24856(SC); Uwazuruike & Ors v. The Attorney General of The Federation (2007) LPELR-3448(SC). This Court, in Ajudua v FRN (2019) LPELR-47959(CA), per Kolawole, JCA restated that the law is trite that whilst considering the construction of a document, the primary rule is that, effect should be given to the factual contents in their plain or ordinary meanings in the same context as they appear on the documents. Where the words of a document are clear and unambiguous, they must be so construed. PER OTISI, J.C.A.

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. DOLE ABUGA 2. SOLOMON MASIN APPELANT(S)

And

HON PHILIBUS AJAGABO (Suing For Himself And On Behalf Of Angbaku’s Family) RESPONDENT(S)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the decision of the High Court of Justice, Nasarawa State, sitting in its appellate jurisdiction, delivered on October 16, 2014, by their Lordships, Audu Bako, J., and Rose G. Soji, wherein the lower Court allowed the appeal lodged by the Respondent herein and set aside the judgment of the trial Court.

The facts leading to the appeal, as can be gleaned from the Record of Appeal, are as follows: The Respondent who was the plaintiff at the trial Court, Upper Area Court, Nasarawa Eggon, on behalf of himself and Angbaku’s family took out a plaint against the Appellants claiming the following reliefs.
a. A Declaration that the plaintiff is entitled to the customary right of occupancy of the farmland lying, being and situate at Litini Lambaga.
b. A Declaration that the purported sale between the 1st defendant and 2nd defendant is null and void.
c. A perpetual induration restraining the dependents the heirs, agents, servant or privies from further acts of trespass on the land.
d. An Order for forfeiture.

The trial sole Judge, Hon. V.V Manga

Esq., sat from the commencement of the matter until 25/10/2012 when he was transferred to the Chief Magistrate Court Wamba. Upon his transfer to Chief Magistrate Court Wamba, the Respondent applied to the Chief Judge of Nasarawa State for a fiat to enable the said sole Judge to conclude the proceedings commenced at Upper Area Court Nasarawa Eggon. The Chief Judge of Nasarawa State approved the fiat on 15/1/2013 for the sole Judge to conclude hearing of the matter within 40 working days. The sole Judge commenced further sitting on 14/6/2013 but did not conclude before the approved 40 working days were exhausted on 6/8/2013. The Respondent through its counsel applied for another fiat, which was granted by the Chief Judge of Nasarawa State on 4/9/2013 for a further 22 working days. The trial sole Judge then concluded the proceedings and delivered judgment, dismissing the Respondent’s case.

Dissatisfied with the said judgment, the Respondent instituted an appeal before the High Court of Nasarawa State, challenging, in one of the grounds of appeal, the jurisdiction of the trial Court contending that it sat outside the days allowed by the fiat. The lower

Court allowed the appeal on this ground and set aside the decision of the trial Court. Being dissatisfied with the said judgment of the lower Court, the Appellant, with a leave of the lower Court, lodged the instant appeal by Notice of Appeal filed on 15/12/2014, on six grounds of appeal, pages 206-211 of the Record of Appeal.

The parties filed Briefs of Argument in line with the Rules of this Court. The Appellants’ Brief, which was settled by O.M. Okwori, Esq., was filed on 10/8/2017 but deemed properly filed and served on 10/9/2020. The Respondent’s Brief, which settled by O.C. Ucheaguwa, Esq., was filed on 9/10/2020. Both Briefs were respectively adopted at the hearing of the appeal on 17/11/2020 by Ayiwulu Baba Ayiwulu, Esq., with Akatiki Grace Dominic, Esq., for the Appellants and by Mr. Ucheaguwa for the Respondent.

The Appellants abandoned ground 3 of the Grounds of Appeal and distilled three issues for determination of this appeal, thus:
1. Whether the lower Court was right when it held that it is the fiat of the Honourable Chief Judge that donates jurisdiction to a sole judge to continue its part-heard matters in the Court

where the sole judge was transferred from (grounds 1 and 5).
2. Whether the lower Court was right to have interpreted the date of commencement of the fiat issued by the Honourable Chief Judge to mean the date of issuance of the said fiat (grounds 2 and 4).
3. Whether the lower Court was right to have set aside the proceedings and judgment of the trial Court which has not occasioned any miscarriage of justice (ground 6).
For the Respondent, the Issues were framed in this manner:
1. Does the learned sole judge who sat on this suit at the Court of first instance have the powers to sit over the case outside the days stipulated in the fiat given to him to conclude the suit? (Distilled from grounds 1 and 5 of the grounds of the notice of Appeal).
2. Whether the lower Court was right to have interpreted the date of commencement of the fiat issued by the honorable Chief – Judge to mean the date of issuance of the said fiat. (Distilled from grounds 2 and 4 of the notice of Appeal).
3. Whether the lower Court was right to have set aside the proceedings and judgment of the trial Court which has not occasioned any miscarriage of justice (Distilled from ground 6 of the notice of Appeal).

These issues seek similar determinations, though differently worded. I shall adopt the issues as framed by the Appellants, resolving Issues 1 and 2 together.

Issues 1 and 2
For the Appellants, it was argued that the lower Court was in error when it held that it was the fiat of the Honourable Chief Judge of a State that donates jurisdiction to a sole Judge to continue to hear part heard matters in the Court he was transferred from. A Court is said to have jurisdiction when:
(a) It is properly constituted as regards numbers and qualifications of the member of the bench, and no member is disqualified for one reason or another.
(b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction and
(c) The case comes before the Court, initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
The decisions in Madukolu v Nkemdilim (1962) 2 SCNCR 341; Lawal v Oke (2001) 7 NWLR (Pt 711) 88; Sken Consult v. Ukey (1981) I SC 6 were cited and

relied on. It is the Statute creating the Court that donates jurisdiction to the Court. In this case, it was submitted that it is the Area Court Law of Northern Nigeria, 1968, specifically Sections 14 -19 of thereof, that clothed the Upper Area Court Nasarawa Eggon, the trial Court and an Area Court of Northern Nigeria, with jurisdiction and not the fiat of the Chief Judge of Nasarawa State.

It was the contention of the Appellants’ Counsel that matters relating to transfers and the issue of a fiat being strictly administrative in nature, do not go to jurisdiction. Therefore, a Judge of a judicial division or of a coordinate jurisdiction of a Court in a State does not lose the jurisdiction to sit and adjudicate on a matter he was adjudicating over before his transfer to another judicial division of the same State. The following authorities were cited and relied upon: Egbo v. Agbara (1997) 1 NWLR (Pt. 481) 293; Olaniyan v. Oyewole (2008) WRN Vol. 8 pg 86. A sole Judge who was transferred to a Court of a co-ordinate jurisdiction does not loose jurisdiction to entertain matters he partly heard at the earlier Court, unless he is issued a fiat by the Chief Judge of the State.

Jurisdiction being a statutory issue, there was no provision in the law that donates jurisdiction to the Upper Area Court Nasarawa Eggon to the effect that it is the fiat of the Chief Judge which gives him jurisdiction to continue to adjudicate upon part-heard matters. It was further argued that the fact that a sole judge was transferred neither amounts to disqualification nor offends the principle of law on jurisdiction as enunciated case of Madukolu v Nkemdilim (supra). Counsel for the Appellants further submitted that the wisdom behind the issuance of the fiat upon transfer of a Judge is to enhance the speedy conclusion of a part-heard matter. It is not the issuance of a fiat that clothes the Court with jurisdiction.

The lower Court had found that the fiat issued by the Chief Judge did not have a commencement date. It was argued that the commencement date of the fiat was contained in the operative part of the fiat, which was:
NOW THEREFORE: in exercise of the powers conferred upon me and all other powers enabling me in that behalf, do HEREBY confer you with powers to go to Upper Area Court, Nasarawa Eggon and conclude this case within (40) working days.

There being no commencement date thereon, it was submitted that the lower Court was wrong to have adopted the issuance date as the date of commencement of the fiat. It was contended that the interpretation by the lower Court that the commencement date of the fiat was the date of issuance of the fiat was in error and contrary to the motive and intendment of the Chief Judge who issued the fiat. In interpreting statutes or instruments, Courts cannot give a meaning contrary to that which is intended. Reliance was placed on AG Lagos State v Hotels Ltd & Anor (2006) 18 NWLR (PT. 1011) 376 at 458; AG Federation v Abubakar (2007) ALL FWLR (PT 375) 465 at 547. It was posited that the lower Court ought to have adopted a liberal and purposive approach in interpreting the commencement date of the fiats by considering the general object meant to be attained and give effect to that intendment. Reliance was placed on Olaniyan v Oyewole (2008) NWLR (PT 1079) 114 at 138; Egolum v Obasanjo (1999) 5 SCNJ 92; Braithwaite v GDM (1998) 7 NWLR (PT 558) 307 at 325. The Court was urged to resolve these issues in favour of the Appellants.

For the Respondent, the crux of the matter was whether the learned sole Judge who was on transfer and was issued with a fiat had the power to sit outside the days assigned to him in the fiat. To this query, the Respondent’s Counsel submitted that a sole Judge who is assigned to conclude a matter by fiat cannot sit outside the days provided in the fiat, relying on State v Rain Albor & anor (2005) 1 CNQSR 414 at 430. It was submitted that even though the issue of a fiat was administrative, as defined in Olaniyan v Oyewole (supra), relied on by the Appellants, the holder of a fiat cannot operate outside its provisions. The decision in Ebe v COP (2008) ALL FWLR (PT 406) 1849 at 1871 was also cited and relied upon. It was submitted that the sole Judge could not have sat outside the period given to him and that the lower Court rightly set aside the sittings outside the period and allowed the appeal.

The record remitted to the lower Court revealed that the fiat was issued by the Chief Judge on 15/1/2013 but the trial sole Judge began to sit on 14/6/2013, more than 40 days after the fiat was issued. It was argued that at the lower Court

the contention that the fiat was served on the trial sole Judge after the 40 days had elapsed was not canvassed with any proof regarding the date it was served on the trial Judge. It was submitted that the decision of the lower Court to hold that the issuance date of the fiat was the commencement date was in line with established principles. The lower Court was guided by the principle that in construing a document, words expressly written exclude words expressly not written, relying on NDIC v Ifediegwu (2003) 1 NWLR (PT 800) 66; Incar Nig. Plc v Bolex Enterprises (2001) 5 SCNJ 460; Rector, Kwara State Polytechnic v Adefila (2008) ALL FWLR (PT 431) 941.

It was argued that the intention of the Chief Judge in the issuance of the fiat was to have the matter concluded speedily within the days stipulated in the fiat. This was however not done. The Court was urged to resolve these issues in favour of the Respondent and dismiss the appeal.

RESOLUTION:
The word fiat, is a Latin word, which literally means: let it be done. Expatiating on implications of a fiat, I.T. Muhammad, JSC (now CJN) in Ebe v COP (supra), (2008) LPELR-984(SC) at page 29 said:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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cases between the judges of the High Court. The current practice that is so notorious and which does not admit of any arguments is that Chief Judges of High Courts do some times withdraw one case or the other from one judge to another or from one judicial division to another…For example, if a judge goes on transfer from one judicial division to another, the Chief Judge may, by an assignment order, direct that all the cases that have reached certain advanced stages be moved or carried on by the same judge on transfer to another division. This power is normally by an administrative fiat…These practices are so replete and notorious that I can take judicial notice of them. They are indeed worthy of being taken judicial notice of and I accordingly so do in this appeal.”
(Emphasis mine)
See also: Ukachukwu v. Inec & Anor (2013) LPELR-20668(CA). In the exercise of these powers, the Chief Judge is performing purely administrative functions. This means that the Chief Judge may decide to issue the fiat or assignment order, or he may choose not to do so. It is not a judicial function.
It is also important to note that the

jurisdiction of the Court to conclude the hearing of the part heard matter for which a fiat or an assignment order is issued is not hinged on the said fiat or assignment order. The jurisdiction of the Court is determined by more fundamental factors, which, as submitted by Appellants’ Counsel, have been judicially established to be:
1. That the Court is properly constituted as regards numbers and qualifications of the member of the bench, and no member is disqualified for one reason or another;
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and;
3. The case comes before the Court, initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See:Madukolu v Nkemdilim (supra); Lawal v Oke (supra); Sken Consult v. Ukey (supra). As rightly submitted for the Appellants, the jurisdiction of the sole Judge of the Upper Area Court, Nasarawa Eggon to entertain any matter is grounded by the Statute creating it. The jurisdiction of a Court is not grounded or circumscribed by an

administrative act of the Chief Judge of the State.
I am strengthened in this position by the decision of the Apex Court in Egbo v Agbara (supra), (1997)1 NWLR (PT 481) 293, (1997) LPELR-1036(SC), per Iguh, JSC, which clarified, page 22 of the E-Report:
“A Judge of a State High Court having jurisdiction to sit in one of the Judicial Divisions of that State does not lose the jurisdiction to sit and adjudicate on a matter by the mere fact of his transfer to another Judicial Division of the same State. I also agree that issues of Judicial Divisions, transfer order and like matters being strictly administrative, do not go to jurisdiction.”
Further, in Olaniyan v Oyewole (Supra), (2007) LPELR-8694(CA), per Ogunwumiju, JCA (now JSC) restated the position of the law, page 6 of the E-Report:
“The point has to be made yet again that matters of transfer orders, Judicial Divisions and fiat etc being strictly administrative, do not go to jurisdiction and therefore a judge of a Judicial Division of the State does not lose the jurisdiction to sit and adjudicate on a matter by the mere fact of his transfer to another Judicial Division

of the same State. See Egbo v. Agbara (1997) 1 SCNJ 91 at Pg. 107.”
Therefore, the issue of a fiat or an assignment order is purely an administrative function of the Chief Judge and does not go to jurisdiction of the Court. I believe I need say no more on this issue.

Now, there were two fiats in issue herein. The first fiat read, page 2 of the Record of Appeal:
Hon. Vincent V. Manga Esq. 15th January, 2013
Chief Magistrate Court,
Wamba
FIAT TO CONCLUDE CASE BETWEEN PHILIBUS AJAGABOGO VS DOLE ABUGA AND IOR
WHEREAS: I am in receipt of an application for fiat from the plaintiff’s counsel, to enable you complete the above matter;
AND WHEREAS: I have no reason to refuse the application;
NOW THEREFORE: in exercise of the powers conferred upon me and all other powers enabling me in that behalf, Do HEREBY confer you with powers to go to Upper Area Court, Nasarawa Eggon and conclude this case within (40) working days:
(signed)
Hon. Justice Suleiman Umar Dikko, OFR
Chief Judge, Nasarawa State.

The second fiat read, page 3 of the Record of Appeal:
CJ/FIAT/25/VOL./2013
4th September, 2013
Hon. Vincent V. Manga Esq.
Chief Magistrate Court,
Wamba.
FIAT TO CONCLUDE: FIAT RE: PHILIBUS AJAGABOGO VS. DOLE ABUGA & IOR
WHEREAS: I am in receipt of an application from the Counsel to the Plaintiff, to enable you complete the above matter,
AND WHEREAS: I have no reason to refuse the application,
NOW THEREFORE: in exercise of the power conferred upon me and all other powers enabling me in behalf, DO HEREBY confer you with powers to go to Upper Area Court, Nasarawa Eggon and conclude this case within (22) working days.
(signed)
Hon. Justice Suleiman U. Dikko
Chief Judge, Nasarawa State.
On the tenor and efficacy of these fiats, the lower Court mused as follows, pages 203 – 204 of the Record of Appeal:
“We have carefully appraised the arguments canvassed on behalf of parties in this Appeal. May we start by saying that crucially the fiat dated 15th January, 2013 clearly does not have a commencement date, consequently it left room for inferences but certainly not without clues. We ask the questions, when did the Sole Judge become aware of the fiat? What happened, did

the issuing authority granted(sic) the fiat and kept it for 5 whole months before directing it to the Sole Judge? Would the Sole Judge had proceeded to resume taking the proceedings without a fiat?
Certainly not!
Now without mincing words, the fact that the Sole Judge was transferred certainly robbed him of the jurisdiction to continue this case and the only instrument which empowered him is the issue of fiat. The operative part of the fiat under reference reads:
NOW THEREFORE in exercise of the power conferred upon me and all other powers enabling me in behalf DO HEREBY confer you with powers to go to Upper Area Court, Nasarawa Eggon and conclude this case within (40) working days.
We are of the humble opinion that this calls for interpretation of the legal effect of the above quoted extract and we are of the firm view that in the absence of anything to the contrary, the date of issue of the fiat is what must be reckoned with as the command therein could not have been or meant to lie idle and only effective at the caprices of the Sole Judge or of the parties to implement. The argument that words expressly written excludes that which is not

written is sound and most acceptable…
Consequently, it is also our firm view that at the time the Learned Sole Judge commenced giving effect to the fiat, the period granted under the fiat had lapsed and what that means is that he had no jurisdiction to preside over the matter any more as far as he purports to be acting upon the authority of the said fiat…”
As rightly found by the lower Court, none of these fiats stated a date for the commencement thereof. Would it be proper to construe the commencement date of the fiats as being effective from the date of issue of the said fiats by the Chief Judge, whether or not the said fiat or assignment order has come to the knowledge of the Sole Judge? In an attempt to answer this query, it would be apposite to draw an analogy with the duty on a party to comply with subsisting orders made by a Court.
A Court order, even where made in error, is deemed valid and subsisting until it is set aside. A party affected by the Court order would act in disobedience to the said order at his peril. However, the settled position of the law is that the order of Court has to be served on the party

before it can be said that the party acted in disobedience to a subsisting order of Court; Attorney General of Ekiti State & Ors v. Prince Michael Daramola & Ors (2003) LPELR-606(SC); Uwazuruike & Ors v. The Attorney General of The Federation (2013) LPELR-20392(SC); Ekweozor & Anor v. Savannah Bank of Nigeria Plc & Anor (2016) LPELR-42128(CA). A party against whom a Court order is made is deemed to have notice of the said order as soon as the said order is brought to his notice. Therefore, a party can neither be said to have acted in disobedience of nor be bound by an order of a Court that has not been served on him, or that he is unaware of.
The Respondent’s Counsel pointed out that there was no proof of when the fiat was brought to the notice of the trial sole Judge. While that may well be so, the fact that the trial sole Judge can only act on a fiat or assignment order the existence of which he is aware of cannot be downplayed.
Further, in my view, the meaning of the operative words in the fiat which also reveal the intendment of the fiat cannot be ignored. These operative words are:
NOW THEREFORE: in exercise of

the powers conferred upon me and all other powers enabling me in that behalf, Do HEREBY confer you with powers to go to Upper Area Court, Nasarawa Eggon and conclude this case within (40) working days.
In the first place, the golden rule of interpretation of statutes is that where the words used in a statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute, per Kekere-Ekun, JSC in Dankwambo v. Abubakar & Ors (2015) LPELR-25716(SC). See also PDP v INEC (1999) LPELR-24856(SC); Uwazuruike & Ors v. The Attorney General of The Federation (2007) LPELR-3448(SC). This Court, in Ajudua v FRN (2019) LPELR-47959(CA), per Kolawole, JCA restated that the law is trite that whilst considering the construction of a document, the primary rule is that, effect should be given to the factual contents in their plain or ordinary meanings in the same context as they appear on the documents. Where the words of a document are clear and unambiguous, they must be so construed.
The tenor and purport of the fiat by its words are straightforward and

clear. They ought to be accorded and ascribed their ordinary, grammatical and plain meaning, by established judicial practice; UNIC Insurance Plc v. Fadayi & Ors (2018) LPELR-45571(CA). The unambiguous words of the fiat in issue do not tie its commencement to the date of issue. Indeed, I do not see how this interpretation can be read into it at all.
The fiat or assignment order was made pursuant to the enabling powers of the Chief Judge to permit the trial sole Judge conclude the hearing of the part heard matter within the stated period. The order was made for administrative purposes by the Chief Judge who is empowered to do so for the smooth and speedy administration of justice. This assignment order would take effect from the date that the sole Judge commences sitting at the Upper Area Court, Nasarawa Eggon to conclude the part heard matter, which hearing should be concluded within 40 working days after sitting is commenced. That is the fundamental purpose of the fiat, as evidenced by the unambiguous words used. To my mind, it would be faulty to read into the fiat an intendment it does not contain, from the explicit words used therein.

The fiat cannot be read to commence from the date of its issue, when the sole Judge to whom the order was addressed may not have become aware of its issue. However, rather than conjecture whether or not the sole Judge was aware of the issue of the fiat from the date of issue, it is in line with the clear words and intendment of the fiat to interpret the commencement of the 40 days as being from the time the sole Judge recommences hearing of the part heard matter.

Issues 1 and 2 are therefore resolved in favour of the Appellants and against the Respondent.

Issue 3
The Appellants contend that the lower Court was in error to have set aside the proceedings and judgment of the trial Court which had not occasioned any miscarriage of justice to the parties. The proceedings were all conducted in the presence of the parties and their Counsel. The Respondent as appellant in the lower Court had failed to show the miscarriage of justice he had suffered. Appellants’ Counsel relied on a number of authorities to urge the Court to set aside the judgment of the lower Court.

For the Respondent, it was argued that the mere fact that the parties

unknowingly subjected themselves to sitting outside the dates provided in the fiat cannot validate the fiat. It was argued that the lower Court rightly struck out the proceedings.

RESOLUTION
The lower Court held, pages 205 – 206 of the Record of Appeal:
“Consequently, it is also our firm view that at the time the Learned Sole Judge commenced giving effect to the fiat, the period granted under the fiat had lapsed and what that means is that he had no jurisdiction to preside over the matter any more as far as he purports to be acting upon the authority of the said fiat. It follows that the proceedings of 14/6/2012, 5/7/2013, 18/7/2013, 2/8/2013, 6/8/2013, 17/10/2013, 19/10/2013, 17/1/2014 and 31/1/2014 in the trial Court appropriately ought to be set aside and or expunged from the records. That being the case, the judgment suffers a fundamental is vice and it is flawed and there is no gain saying that any proceeding conducted without jurisdiction is a nullity and we so hold.”

A miscarriage of justice occurs when there has been a failure of justice or there is no justice as recognized by law. In Larmie v. Data Processing Maintenance & Services Ltd (2005) LPELR-1756(SC), the

Supreme Court, per Onnoghen, JSC (as he then was), defined miscarriage of justice in these terms:
“The term “miscarriage of justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of reversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.
It is the law that miscarriage of justice warranting a reversal of a decision should be declared only when the Court, after examination of the entire case, including the evidence is of the opinion that it is reasonably probable that a result more favourable to the appellant would have been reached in the absence of the error. A miscarriage of justice therefore means such a departure from the rules which permeates a judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all – SeeNnajiofor v.Ukonu.”
Now, the reason given by the lower Court for

denouncing the proceedings in issue was that they were alleged to have been conducted outside the period in the fiat, which was interpreted by the lower Court to have commenced from the issue of the fiat. Issues 1 and 2 as resolved, have exposed the error in this interpretation.
Further, the Record of Appeal reveals that the parties participated in the entire proceedings before the sole Judge. In Egbo v Agbara (supra) at page 24 of the E-Report, the Apex Court, per Iguh, JSC, said:
“In the present case, even if the transfer order in issue is irregular by the mere fact that it was not under seal and I do not so hold the irregularity neither materially affected the merits of the case nor engendered any miscarriage of justice. Besides the appellants were at all material times represented by counsel throughout the trial period of seven years but registered no protest to the transfer of the suit from Ahoada to Port Harcourt Judicial Division. In my view, the appellants cannot now be heard, having acquiesced in and fully participated in the proceedings to judgment, to complain against the said order of transfer.”
Having acquiesced in and

fully participated in the proceedings to judgment, the Respondent cannot be heard to complain against the proceedings conducted pursuant to the fiat. I must confess that I am inclined to wonder whether the Respondent would have at all raised this complaint if the judgment of the trial Court had been in his favour!
I therefore hold that the Respondent has failed to show that he has suffered any miscarriage of justice by the proceedings conducted pursuant to the fiat in issue. Issue 3 is thus resolved in favour of the Appellants and against the Respondent.

The appeal is meritorious and hereby succeeds. The decision of the High Court of Justice, Nasarawa State, sitting in its appellate jurisdiction, delivered on October 16, 2014, by their Lordships, Audu Bako, J. and Rose G. Soji, is hereby set aside. The judgment of the trial Sole Judge delivered on 31/1/2014 is hereby restored.
The Appellants are entitled to costs, which I assess at N100,000.00.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Onyekachi A. Otisi, JCA and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.

JOSEPH EYO KANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Otisi, JCA, which has just been delivered. I agree with the reasoning and conclusion that the appeal has merit.

In construing a statute or document, a construction that leads to absurdity should be avoided. It is absurd to suggest that the date of the commencement of the fiats was the date of their issuance. The result would be that if the fiat did not get to the knowledge of the sole Judge within 40 working days or 22 working days respectively of their issuance, they would have expired even before he started sitting. The proper and purposive construction is that the period granted in the fiat would run from the date that the sole Judge commenced sitting.

The jurisdiction of the sole Judge of the Upper Area Court is donated by the statute creating the Court and not the flat. Therefore the fact that a Judge has been transferred from one Judicial Division to another does not result in his losing the jurisdiction to sit as such. See Egbo V Agbara (1997) 1 NWLR (Pt. 481) 293. Thus the issue of fiat is an administrative issue and not an issue of

jurisdiction.

Since the respondent did not raise any objection to the sole Judge hearing the matter to conclusion, he acquiesced in the irregularity, if there was any irregularity at all. He was therefore not entitled to complain about it in the appeal before the High Court. See Akhiwu V The Principal Lotteries Officer, Mid – Western State (1972) 1 All NLR (Pt. 1) 229.

It is for the above reasons and the more comprehensive reasons set out in the lead judgment that I find merit in the appeal and I also allow it. I abide by the consequential orders made in the lead judgment.

Appearances:

Ayiwulu Baba Ayiwulu, Esq., with him, Akatiki Grace Dominic, Esq.,For Appellant(s)

C. Ucheaguwa, Esq.For Respondent(s)