ALHAJI DABO KANKARA v. THE COMMISSIONER OF POLICE, KATSINA STATE & ORS
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of May, 2002
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
ALHAJI DABO KANKARAAppellant(s)
- THE COMMISSIONER OF POLICE, KATSINA STATE
2. THE DIVISIONAL POLICE OFFICER (CPS)
3. THE SUPERINTENDENT OF POLICE, KANDE BUNATSAN
4. CORPORAL SANUSI IBRAHIM
5. KATSINA STATE GOVERNMENTRespondent(s)
MOHAMMED, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the Katsina State High Court of Justice, sitting at Katsina and delivered by Abdullahi Yusuf, J., on 14/7/94, striking out an action brought before that court, by an Originating Summons dated 16/7/93, taken out by the Appellant, as the Plaintiff in the following terms:-
Let all the Defendants in this Suit within eight days, after the service of this Summons on them, inclusive of the day of such service cause an appearance to be entered for them to this Summons, which is issued upon the application of Alhaji Dabo Ibrahim Kankara of Katsina, who claims to be the rightful owner of the sum of Ninety-Seven Thousand, Seven Hundred and Thirty One Naria Twenty-five kobo (N97,731.25k), which the Defendants forcibly collected from him on the 22nd day of April, 1993, for the determination of the following questions:
(a) Whether or not the Defendants were right when they in the (sic) cause of investigating a complain laid to them by one Bala Shuaibu Sanlawa, that the Plaintiff conspired with some other people to cheat the Katsina State Government, arrested, detained and took the Plaintiff barefooted, under the terrible sun heat, with only a singlet and trouser on him, to the Union Bank, Nagogo Road, Katsina, on the 22nd day of April, 1993, and (sic) force him to withdraw the sum of N97,731.25k from his personal account and give to them in refund of a contract money awarded to a limited liability company (Himma Pharmaceautical Chemists Ltd.) to which the Plaintiff is just an employee.
(b) Whether or not the Defendants were right when they (sic) refuse to return the sum referred above to the Plaintiff, after withdrawing the case they filed in the upper Area Court No. 1 Katsina, on the information revealed to them by Bala Shuaibu, despite repeated demands by the Plaintiff’s solicitors.
Where of the Plaintiff claim the following reliefs and remedy:-
1. An Order answering all the above questions in the negative that the Defendants were wrong in acting the way they did.
2. That the Defendants should pay back the sum (sic) N97,731.25k) to the Plaintiff.
3. A written apology be written by the Defendants to the Plaintiff for embarrassing him without just cause.”
In support of this Originating Summons was a 19 paragraph Affidavit deposed to not by the Plaintiff/Appellant, but by a Litigation Secretary to his learned Counsel. The Respondents who were the Defendants in the action, also deposed to a Counter-Affidavit of 12 paragraphs in their joint defence to the action.
After granting the parties a full hearing in support of the facts deposed in their respective Affidavit in support of the claims of the Plaintiff/Appellant and the Counter-Affidavit in support of the defence of the Respondents as Defendants, the learned trial Judge adjourned the case for judgment to be delivered on 14/7/94. In that judgment delivered on 14/7/94, the learned trial judge after carefully examining the claims of the Appellant in the Originating Summons, the Affidavit evidence in support of these claims and the joint Counter-Affidavit of the Respondents containing evidence of their defence to the action, came to the irresistible conclusion that having regard to the nature of the claims of the Appellant, his action ought not to have been brought by way of Originating Summons and consequently refused to go into the merit of the case by striking the same out. Part of that judgment at pages 32 – 33 of the Record reads-
“This type of action is best commenced by way of Writ of Summons which will enable this Court order parties to file Pleadings for proper resolution of issues of dispute. Order 1 Rule 2 provides that a proceeding shall began by writ where the Plaintiffs claim is for relief or remedy for any tort or other civil wrong.
In the circumstances this court does not find it proper for the Plaintiff to come by way of Originating Summons, when it is not solely for determining issue for construction of a written law, or of any instrument made under any written law, and it is not construction of any deed or contract.
I therefore, do not find it necessary to go into the arguments of learned Counsel as the whole action was commenced on wrong footing.”
The Plaintiff now the Appellant, who was not happy with this Judgment had appealed to this court by a Notice of Appeal dated 16/9/94 and filed at the lower court the same day containing two Grounds of Appeal. However, the Appeal appeared to have been abandoned as since the filing of the Notice of Appeal in 1994, no steps were taken by the Appellant to file his Brief of Argument, until after 6 years, when on 28/6/2001, on the application of the Appellant for extension of time to file his Brief of Argument, this Court extended the time for him to file his Brief of Argument, which was deemed filed the same day. Although this Brief was served on the Respondents through their counsel at the Katsina State Ministry of Justice, up to the time this Appeal came up for hearing on 16/4/2002, no Respondents’ Brief of Argument was filed and served on behalf of the Respondents.
Consequently this Appeal was heard on the Appellant’s Brief of Argument alone in the absence of the Respondents who were also duly served for the hearing of the Appeal that day in line with Order 6 Rule 10 of the Court of Appeal Rules, Cap. 62, of the 1990 Laws of the Federation of Nigeria. The two Issues identified in the Appellant’s Brief of Argument for the determination of this appeal are :-
1. Was it proper for the learned trial Judge to proceed to deliver his Judgment, basing same on an issue he raised suo motu without firstly, hearing or affording parties any opportunity to be heard on the issue?
2. Was there any substantial dispute of facts, between the content of the Affidavit in support of the Originating Summons and the Defendants’ joint Counter-Affidavit as to enable the learned trial Judge reasonably or safely conclude that the suit was wrongly commenced?
Relying on the cases of Brown v. Adebanjo (1986) 1 NWLR (Pt.16) 383 at 388 and Sachia v. Kwande Local Government (1990) 5 NWLR (Pt.152) 555, learned Counsel to the Appellant submitted that the lower court acted in error in raising the issue of the wrong procedure adopted in commencing the suit suo motu without affording the parties a hearing before basing its judgment on it. That since the Respondents did not complain on the wrong procedure, they are deemed to have acquiesced to it by virtue of the case of Noibi v. Fikolati (1987) 1 NWLR (Pt.52) 619 at 621.
It seems to me that there is substance in the submission of the Appellant’s counsel on this issue. It is quite clear from the Record of this Appeal that the issue relating to the procedure adopted by the Appellant in commencing his suit by Originating Summons was not raised by the parties in their Affidavit, Further Affidavit, Counter Affidavit or submissions of their learned Counsel before the lower court. The issue emerged for first time in the Judgment of the lower court and was therein raised suo-motu without affording the parties any opportunity of being heard by the court on the issue.
In the first place, it cannot be over-emphasised that this Court and the Supreme Court had times without number, laid it down that when a court raises a point suo-motu as happened in the instant case, the parties must be given an opportunity to be heard on such a point, particularly the party that may suffer some disadvantage or disability as a result of such a point raised suo-motu. See Ajao v. Ashiru (1973) 11 SC 23 at 39 – 40; Kuti v.Balogun (1978) 1 SC 53; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) 1 and Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 at 420. This approach will ensure not only that the parties are given a fair hearing, but that justice is seen to haveb been done in accordance with the principle of audi alteram partem rule.
In the second place, the law is well settled that decisions of courts must only be founded on Grounds raised by or for the parties or either of them and in respect of which it has received arguments from or on behalf of the litigants before them. For example in Shittabey v. Federal Public Service Commission (1981) 1 SC 40, Idigbe, JSC, succintly put this position as follows at page 59:
“This Court has on a number of occasions warned against decisions of court being founded on any ground in respect of which it has neither received argument from or on behalf of the litigants before them, nor even raised by or for the parties or neither of them.”
See also Saude v. Abdullahi (1989) 7 SCNJ 216 at 229; (1989) 4 NWLR (Pt. 86) 58.
Similarly, in Chief Ebba v. Chief Ogodo and Anor. (1984) 4 SC 84 at 112, (1984) 1 SCNLR 372 Eso, JSC (as he then was) in dealing with the same principle of law put the matter thus: –
“With utmost respect, it should be plain to the Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all about the place.”
In the light of all these decisions, I am satisfied that the lower court was indeed in error, in basing its judgment on an issue raised by it suo motu without affording the parties particularly the Appellant, the opportunity of being heard. The matter does not however, end there as there is the more important question of whether, or not a miscarriage of justice had been occasioned by the conduct of the lower court in this respect to justify setting aside its judgment. In this regard, it must be emphasized that it is not every error of law that is committed by a trial court or even appellate court that justifies the reversal of a Judgment. An Appellant, to secure the reversal of a judgment, must further establish that the error of law complained of did in fact, occasion a miscarriage of justice and/or substantially affected the result of the decision. See: Olubode v. Salami (1985) 2 NWLR (Pt.7) 282.
An error in law, which has occasioned no miscarriage of justice is immaterial and may not affect the final decision of a court. In the instant case, although the lower court heard the case brought by Originating Summons in full, it did not dismiss the Appellant’s case in its judgment. Rather, the Appellant’s case was merely struck out thereby, giving him the opportunity to properly come afresh before that court. As the Appellant himself had not complained of any miscarriage of justice in his arguments in support of this issue, I certainly cannot say there had been one as the Supreme Court said there was no such miscarriage of justice in Ajuwon v. Akanni (1983) 9 NWLR (Pt. 316) 182 at 205, where similar error of raising issue suo-motu was committed by this Court. The fact that the Respondents by not objecting to the wrong procedure are deemed to have acquiesced to it does not help the Appellant in validating the hearing of his claims by Originating Summons as those claims by their very nature cannot be heard by Originating Summons procedure but by way of filing a writ of summons for the claims to be heard on pleadings as required by law.
The second Issue for determination is whether the lower court was right that the Appellant’s action was not suitable for hearing on Originating Summons. Learned Counsel had argued for the Appellant that Originating Summons is a procedure which should be used in cases where the facts are not in substantial dispute or where there is no likelihood of their being in dispute as stated in Order 1 Rule 2(2) (a) and (b) of the High Court (Civil Procedure) Rules of Katsina State in Cap. 60, Laws of Katsina State of 1991 and the cases of Din v. A.-G. of the Fed. (1986) 1 NWLR (Pt.17) 471 at 474 and University of Lagos v. Aigoro (1991) 3 NWLR (Pt.179) 376 at 383-384. That the procedure adopted in the present case by the Appellant was proper as there was no substantial dispute in the contents of the parties’ Affidavits.
In the resolution of this Issue, the starting point is Order 1 Rule 2(2) of the Katsina State High Court (Civil Procedure) Rules, Cap. 60 of the Laws of Katsina State, 1991, which states the proceedings that may be begun by Originating Summons as follows:
“(2) proceedings may be began by Originating Summons where:-
(a) the sole or principal question at issue is, or is likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other question of law; or
(b) there is unlikely to be any substantial dispute of fact.”
It is quite clear from the above provisions that, an Originating Summons is only intended to be used in limited causes as outlined in the Rule. It is therefore, ideal for construction and interpretation of documents as explained by Kayode Eso, JSC (as he then was) in National Bank of Nigeria & Anor v. Lady Alakija & Anor (1978) 9-10 SC 59 at 71:-
“In other words, it is our considered view that Originating Summons should only be applicable in such circumstances as where there is no dispute or questions of facts or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the setting of pleading, Originating Summons could be applicable. For it is to be noted that Originating Summons is merely a method of proceedings and not one that is meant to enlarge the jurisdiction of the court.”
See also University of Lagos v. Aigoro (1991) 3 NWLR (Pt.179) 376 at 383 – 384 and Doherty v. Doherty (1968) NMLR 144.
In the instant case obviously, on the face of the Originating Summons, the two questions for determination and the two reliefs being sought by the Appellant have nothing to do with the construction of a written law, or of any instrument made under any written law, or of any deed, will, contract or other document or some other questions of law. While the first question for determination was whether the Defendants now Respondents were right in forcing the Appellant to pay the sum of N97,731.25k to the 5th Respondent, being a refund of contract money paid to a limited liability company, the second question was whether the Respondents were right in refusing to refund to the Appellant the said sum of N97,731.25k. Clearly these questions have nothing to do with the construction of any written law, instrument or document.
On the reliefs being sought by Appellant, the first is an Order that the Respondents pay back to the Appellant the said sum of N97,731.25k, while the second relief is seeking an Order on the Respondents to apologise to the Appellant for having embarrassed him without any cause. There is no doubt at all that these two reliefs being sought by the Appellant sounds in tort or other civil wrong rather than construction of a written law, instrument or document. Therefore, the fact that these claims or reliefs ought not to have been brought by way of Originating Summons is obvious.
Going to the Appellant’s Affidavits in support of the Originating Summons and the Respondents’ Counter-Affidavit opposing it, it is quite plain that the central issue in dispute between the parties is the alleged payment of the sum of N97,731.25k by the Appellant to the 5th Respondent, which the Appellant said he was forced to pay by the 1st, 2nd, 3rd and 4th Respondents, while the Respondents in turn are saying that the Appellant on his own volition paid the said sum of money. Thus, as the facts are also in substantial dispute between the parties, the matter could not have been resolved by way of Originating Summons procedure. For this reason, I entirely, agree with the lower court that the disputes between the parties in this case are not appropriate for resolution by way of Originating Summons procedure. The lower court was therefore, right in refusing to go into the merit of the case in its judgment as it was impossible to resolve the issues argued by the parties on the Affidavit evidence. The law is now well settled that if a law or a rule of practice prescribes that proceedings in respect of a particular cause of action shall be commenced by one method, a litigant would be wrong to commence the proceedings in respect of that particular cause of action by any other method. See: Obajinmi v. A.-G. Western Nigeria (1967) 1 All NLR 31; (1968) NMLR 96. In the present case, having regard to the nature of the reliefs claimed by the Appellant, I entirely, agree with the learned trial Judge that the action ought to have been commenced by way of a Writ of Summons so that the claims could be heard on Pleadings and the issues resolved on the evidence that could be led in support of the pleaded facts.
Having regard to the circumstances of this case, it may also be said that the conduct of the learned trial Judge in striking out the Appellant’s case, after realising that it ought not to have been brought by way of Originating Summons, is in line with the duty of the court, to ensure compliance with its Rules by parties filing process. In other words, the Rules of Court must prima facie be obeyed, because the courts have inherent jurisdiction to ensure compliance with Rules of Courts by litigants and to strike out any process not filed in accordance or in compliance with the relevant Rules as happened in the present case. See Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at 166 – 167 and Union Bank of Nigeria Plc. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) 558 at 590.
For the foregoing reasons, this Appeal must fail and the same is accordingly, hereby dismissed.
I am not making any order, no costs.
SALAMI, J.C.A.: I read, in draft, the judgment just delivered, by my learned brother, Mahmud Mohammed, JCA, and I am completely in agreement with the reasoning contained therein and the conclusion arrived thereat.
I agree with my learned brother, that the decision of the learned trial Judge striking out the Appellant’s suit did not cause miscarriage of justice notwithstanding that the action might have been time barred by efflusion of time.
The conduct of the learned Counsel for the Appellant left the trial court with no alternative to striking out the action brought by Originating Summons in its judgment, delivered on 14th July, 1994, after hearing parties, argument, rather than ordering pleadings. The learned trial Judge properly, in my respectful view, refused to exercise his discretion in favour of the Appellant apparently because of his refusal or failure to comply with the court’s earlier order for pleadings made on 2nd December, 1993, on that day, the court below ordered as follows:
“I hereby, order pleadings to be filed by the Plaintiff within 30 days and therefore, 30 days for the Defendant/ Respondent to file…”
Thereafter, the matter was adjourned to 17th January, 1993, for mention. The action was, however, not mentioned until almost a year later, on 20th December, 1993, when the learned Counsel for Appellant, without complying with the order for pleadings, asked for a date for hearing and was obliged by the learned trial Judge. To order otherwise, would be rewarding for encouraging the Appellant’s disobedience of the court’s order, which are meant to be obeyed and not flouted until set aside even if the order were bad.
I, too, for the reason contained in the lead judgment of my learned brother, Mahmud Mohammed, JCA, dismiss the Appeal and affirm the decision of the learned trial Judge, striking out the suit. Moreover, I endorse all the consequential orders, including the order as to costs, proposed in the lead judgment of my learned brother, Mohammed, JCA.
OMAGE, J.C.A.: In this Appeal, only the Appellant has filed his Brief, the Appellant’s Brief was filed by the leave of court of 28th June, 2000, and was served on the Respondents as follows:
(i) The Commissioner of Police Katsina State
(ii) The Divisional Officer (CPS)
(iii) The Superintendent of Police Kande Bunatsan
(iv) Corporal Sanusi Ibrahim
(v) Katsina State Government, none of the Respondents filed any brief to the Appeal of the Appellant.
The Appellant’s counsel informed this Court that the period allowed to the Respondent to file his Brief has elapsed. The Appellant counsel urged the court to proceed with the Appeal only on the Appellant’s Brief. In consideration of Order 6, rule 19, of the Court of Appeal Rules, the Court of Appeal Act, 1981, as amended in 1984; the Appeal will therefore, be determined only on the Appellant’s Brief. The fact of the Appellant’s case in the court below is that, he commenced a claim in the court below against the Respondents by Originating Summons. In the affidavit, in support of the Summons, the Appellant deposed that he was arrested by the police on 20th April, 1993, and kept in detention by 1st Defendant now 1st Respondent, that the expressed reason for his arrest was the allegation made against him by the 5th Defendant’s functionary that he conspired with others to cheat the Katsina State Government, when he presented an LPO to the State Ministry of Health, and obtained a cheque of one hundred thousand naira issued to him.
That on the 22nd April, 1993, the Appellant was threatened with sticks, canes etc. to produce the money he allegedly received from the Katsina State ministry of Health. That at about 12 noon, on the same day 22nd April, 1993, the second, third, and fourth Defendants, made him go barefooted and with only a singlet on his body, in a Police van; to his house and subsequently to the Union Bank at Nagogo Street, Katsina, and forced him there to cash a cheque for the sum of N97.731.25K from his personal account. The 2nd – 4th Defendants, demanded and he gave the said sum on the cheque to them. The Affidavit showed further, that the Ministry of Health had advanced the sum of N97,731.25k for the supply of drugs and for laboratory reagents, and the money was paid into the company’s account.
That the drugs and reagents requested for by the Ministry of Health could not be supplied to the Ministry of Health because of the intervening public holidays. The Appellant attached annexures to the Summons in the court below. After hearing the submission of both counsel, the court adjourned Ruling on the Originating Summons to 21/12/93. In the Ruling, the court below refused the Plaintiff’s Application and directed the Plaintiff to file Pleadings. No evidence was shown in the printed Record that pleadings were filed, but on page 30 of the printed Record, the following appeared in the Judgment which is concluded on page 33 as follows:
“In the circumstances, this court does not find it proper for the Plaintiff to come by Originating Summons, when it is not for solely for determining issue for contribution of document, etc. I therefore, do not find it necessary to go into the argument of learned Counsel, as whole action was commenced on the wrong footing etc. I hereby, struck out this action, as it is wrongly commence before the court. I make no order as to costs.”
The Plaintiff has appealed against this decision he filed, two Grounds of Appeal and he sought an Order “to set aside the decision of the High Court Katsina State and grant the reliefs sought by this Appellant.”
The Appellant formulated two Issues for determination of the Appeal. They are;
(i) “Whether it was proper for the learned trial Judge to proceed to deliver his judgment, basing same on an issue he raised suo motu without firstly hearing or affording parties any opportunity to be heard on the issue?
(ii) Whether there was any substantial dispute of facts between the contents of the Affidavit in support of the Originating Summons and the Defendant joint Counter Affidavit as to enable the learned trial Judge reasonably or safely conclude that the suit was wrongly commenced.”
The two Issues of the Appellant relate only to one Ground of Appeal. The learned trial court did not, in this Judgment of 22/6/94, pronounce on the facts of the Appellant’s claim and the facts deposed to in the joint Affidavit, there is therefore, no need at all to pronounce on the Appellant’s Issue two. My learned brother, M. Mohammed, JCA, has competently dealt with the issues in the Appeal, I merely here, emphasise the viability of the Appeal. The Appellant has asked if it is proper for the learned trial Judge to proceed to deliver his judgment basing same on an issue he raised suo motu without firstly hearing or affording parties any opportunity to be heard on the issue.
It is trite that a trial court is bound by the prayer of the Plaintiff before him; he cannot raise an issue suo motu and make it the basis of his decision. To do is to grant prayers not asked by the parties. See Oyediran v Amoo & Ors. (1970) 1 All NLR 313-387.
In a case where parties are not heard at all on an issue, it cannot be the basis of the judgment of the court. Nothing in my view can better deserve the epithet called fraud.
However, in this case in which the court ruled on, the irregularity of the procedure by the Plaintiff to commence his proceeding, I am of the view that the court as a “magister curiae” if you like dominus curiae, the master in the court, is entitled to point out the error committed by a party before him in commencing his action. The Judge is the custodian of the Rules of Court in a matter on which he presides, he is said to be dominus litis and he is entitled to ensure that any claimant before him complies with the rules of court for commencement of proceedings.
The rule audi alteram partem is established from common law which is new statement of law under our 1999 Constitution, that the other party to a litigation should be heard.
In this Appeal, has the court failed to hear the party? I think not. In fact in my view, the printed record in this Appeal does not support the complaint of the Appellant. In the Ruling of the court on 21/2/93, the trial court ruled on the complaint made by the Respondent on page 13 of the printed Record. It was made by Kurfi for the Respondent. The Respondent counsel objected thus;
“I wish to draw attention of this court to the serious issue of this summons and the contained in the affidavit of the applicant which is an issue of law” etc.
In fact, that is the basis of not challenging most of the paragraphs of the affidavit etc. Following the complaint above on the procedure adopted by the Appellant, the court below in his said Ruling vide. “In view of the foregoing and more because of the need to avoid going into substantive matter this application is refused, and I hereby, order pleading to be filed by the Plaintiff within 30 days and therefore, 30 days for the Defendant Respondent to file their own.
The action is dismissed.”
Despite the above Order of dismissal of the Originating Summons on 2/12/92, the same trial court allowed the Plaintiff/Appellant’s counsel, Umar of counsel to proceed with the hearing of the same Summons on 22/6/94. In response to the submission of the applicant in the court below, the Defendants counsel, Mr. Kurfi at page 26 of the printed record, opened defence of his client thus.
“We are objecting to the application per the Originating Summons of the Plaintiff…on a general premises that under this issue of law relating to contract, etc.”
On page 31 of the printed Record, the Judgment of the court shows that the court was still dealing with the Appellant’s Originating Summons. When therefore, the court referred in the conclusion of the judgment that he will not go into the substance of the case, because the whole action was commenced on wrong footing.” The learned trial Judge in the Katsina High Court was in my view right. Furthermore, I am satisfied that the learned trial court did not raise the issue suo motu. The court had ruled before on the issue on 12/5/93. The Respondent counsel had raised the issue, when he objected to the summons in his response to the Plaintiff’s submission. The learned trial court did not go into the substance of the facts in its judgment, dated 14/7/94. I therefore do not find it necessary to go into the argument of learned Counsel as the whole action was commenced on a wrong footing, the learned Counsel cannot build something on nothing. I hereby, strike out the action and dismiss the Appeal. I abide by the order for costs in the lead judgment of my brother, M. Mohammed, JCA.
- Abdullahi, Esq. (Holding the brief of A. D. Umar, Esq.)For Appellant
Respondents absent and unrepresentedFor RespondeNT