ALHAJI FARUKU NAJEGA v. ALHAJI FARURU SALIHU
(2018)LCN/12145(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/S/109/2017
RATIO
INTERPRETATION: THE MEANING OF ‘STRICTU SENSU’
“As can be seen, logically, a preliminary ‘strictu sensu’ runs counter in purpose to the intendment of an issue distilled for determination. A preliminary objection seeks to abort or terminate the appeal, an issue for determination seeks a consideration of the merit of the question of law or fact arising from the grounds of appeal. The two are at opposite ends. Where a preliminary objection is successful, that puts an end to the life of that appeal or the affected part but where it is unsuccessful and overruled by the Court, the Respondent if he desires to dispute or contest the appeal or the argument in support of the issue, must appropriately respond to the issue or be deemed to have admitted the correctness of the legal argument therein which though does not translate into automatic success of the appeal, because same has to be considered on its own merits nonetheless, leaves the other side of the scale empty.” PER AMINA AUDI WAMBAI, J.C.A.
JURISDICTION: THE POWER OF JURISDICTION
“Jurisdiction is the power from which Courts derive their authority to entertain matters placed before them for adjudication, and it is a matter that is statutorily based. The fundamental nature of jurisdiction, I must reiterate, cannot be overemphasized as it is the key to the competence of the Court adjudicating. So crucial is it that it is the body and soul of every judicial proceedings before any Court or Tribunal, and without it, all subsequent proceedings are fruitless, futile and a nullity because jurisdiction is fundamental to the proper hearing of a cause. This is why jurisdiction has been likened to blood that gives life to the survival of an action in Court and without which, the action will be like an animal drained of its blood. See CHIEF U. UTIH & ORS JACOB V. ONOYIVWE & ORS (1991) 1 SCNJ 25 @ 49, AFRO CONTINENTAL (NIG) LTD & ANOR V CO-O. ASSO. Of PROF. ING (2003) 5 NWLR (Pt 813) 303, NDAEYO V OLUNAYA (1977) 1 SC 11 @ 24 – 26.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
ALHAJI FARUKU NAJEGA Appellant(s)
AND
ALHAJI FARURU SALIHU Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
This appeal which arose from the judgment of HON JUSTICE NUSIRAT IBRAHIM UMAR of the Sokoto State High Court delivered on 19th April 2017, is in respect of landed property. The dispute is over the sale of two shops located at the entrance to the Jega motor park, Jega, Kebbi State. The properties were originally owned by Alhaji Najega, now deceased. Upon the demise of Alh Najega, his family in a sale agreement dated 13/10/2016 sold the shops to the Respondent at N8, 000, 000 (N8M) which was fully paid for. The Appellant was as at the time of the sale, a tenant at will. His refusal to vacate the shops despite service of notice on him to do so, precipitated the institution of the action by the Respondent, before the lower Court by means of Originating Summons supported by a 13 paragraph affidavit and 6 exhibits, praying the Court to determine the following questions:
1. A DETERMINATION of WHETHER the claimant is a bonafide purchaser for value or not.
2. A DETERMINATION of WHETHER a bonafide purchaser for value take good in good faith or not.
3. A DETERMINATION of WHETHER a bonafide purchaser for value can be prevented from enjoying his value by a third party or not.
Premised on these questions, the Respondent sought 5 reliefs from the Court namely;
A. A DECLARATION that by the combine effect of Sections 3(1), 25, 32 and 38 of the Sales of Goods Laws of Kebbi State 1996; the Claimant is a bonafide purchaser for value.
B. A DECLARATION that a third party who has no any legal interest in a purchased property cannot prevent a purchaser for value from enjoying his value from his purchase.
C. A DECLARATION that the defendants continual (sic) stay in the claimants purchased property is illegal.
D. AN ORDER directing the defendant to vacate the Claimants property fort with (sic).
E. AN ORDER directing the defendant to pay damages of Two Million Naira (N2, 000, 000) to the claimant for illegally remaining and entry in to the Claimants property.
In opposition, the Appellant as Defendant filed a 19 paragraphed counter affidavit and a written address having been granted extension of time to do so, to which the respondent filed a 22 paragraphed further and better affidavit.
Both counsel filed written addresses in support of their respective positions. The learned trial judge considered all the affidavits, the relevant laws, as well as the counsel submissions and came to the conclusion that the respondent is a ‘bona fide purchaser for value’ and accordingly entered judgment for him and ordered the Appellant to vacate the shop.
It is against the said judgment that the Appellant being dissatisfied, appealed to this Court vide a notice of appeal filed on the 20/4/2017 predicated upon 2 grounds. Pursuant to an order of this Court, the said notice of appeal was amended to include an additional ground of appeal. The amended notice of appeal filed on 30/8/2017 was deemed properly filed and served on the 19/10/2017.
In the Appellant’s brief of argument filed on 30/11/2017 and settled by G .A .SHEHU, two issues were distilled from the three grounds of appeal, to wit;
1. Whether from the deposition of the respondent affidavit in support and the deposition of the Appellant counter affidavit, and the Respondent further and better affidavit the trial Court can competently hear and determine this case on originating summons without the need to call oral evidence (the issue is distilled from ground one).
2. Whether the trial Court was right when it applied the principle of sale of goods in the sale of goods law of Kebbi State in a sale of land as against the Islamic Law applicable to the parties and the Area where the land is situate or conveyancing Act. (This issue is distilled from ground two and three of the grounds of Appeal).
Learned HUSSAINI ZAKARIYAU who settled the respondent’s brief of argument filed on the 22/5/2018 and deemed on the 23/5/2018, adopted these two issues for determination.
At the hearing of the appeal on 26/9/2018, both counsel adopted their respective briefs including the Appellant’s reply brief filed on the 31/5/2018 and each counsel accordingly urged the Court in terms of their briefs.
Before proceeding to determine the issues placed before the Court for determination, it is apt to first consider the preliminary objection argued in the respondent’s brief of argument on the competence of ground one of the grounds of appeal and issue one distilled therefrom.
This is so because if successful, it will render a consideration of the argument canvassed in support of the issue unnecessary and preclude the Court from considering it’s merit. See Magit V University of Agriculture, Makurdi & ORS (2005) 19 NWLR (PT. 959) 211, EFET V INEC (2011) 7 NWLR (PT. 1247) 423.
The ground of objection as argued, is that the said ground offends Order 7 Rule 3 of the Court of Appeal Rules 2016 for being vague and general in that it contains no particulars specifying the details of the Appellant’s complaint therein. The case of OGUNSANWO VS OGUNTADE (2018) 8 WRN 95 @ 103 ratio 10 was cited in support urging us to strike out both ground one and issue one.
Responding, learned Appellant’s counsel submitted that failure to state particulars where the other party is put in the notice of the actual grievance and is not in doubt of the dispute, neither renders the ground vague nor incompetent since the ground on it’s own conveys the appellant’s grievance, citing in support the cases of OLEKSANDR & ORS VS LONESTAR DRIVING CO. & ANR (2015) LPELR 24614(SC), ALHAJI SADIT AMEEN &ORS V. AMAO &ORS (2013) 53 NSCQR 414 & 24.
Now, Ground 1 and its particulars provide:
GROUND ONE
The Kebbi State High Court erred in law when it held that the Originating summons is competent when there are dispute on facts hotly contested by the parties from their affidavit evidence that cannot be resolved by affidavit evidence alone.
PARTICULARS
1. Whereas it is the duty of an appellate Court to address all the issues raised before it in one way or the other.
2. Whereas the Appellants as respondents before it specifically complained of the incompetency of ground 1, 2 and 6 of the appellant’s grounds of appeal.
3. Whereas the Kebbi State High Court deliberately failed in its duty to address the complaint this causes serious miscarriage of justice to the appellant.
It is true that where a ground of appeal alleges misdirection or error in law Order 7 Rule 2 of the Rules of this Court 2016, requires that the particulars and the nature of the misdirection or error be clearly stated and Rule 3 prohibits and punishes a vague and general ground with a striking out. The purpose of Rule 2 is for the Appellant to adequately inform the respondent and the Court of the errors or misdirection alleged in the ground to enable the respondent meet the Appellant’s case and the Court to be aware of the nature of the error or misdirection complained of. See MONGUNO V. BLUEWHALES & CO. (2011) 2 NWLR (PT. 1231) 275.
That being the purpose, a ground of appeal which clearly discloses the error of law or misdirection and leaves no room for any doubt of the Appellant’s complaint or dispute, methinks, has fulfilled the purpose of the requirement of stating particulars. The absence of or incompetent particulars to such a ground of appeal would not render the ground incompetent. This is now the settled position of the law, see AMEEN & ORS V. AMAO & ORS(SUPRA), ONAFOWOKAN V. WEMA BANK NSCQR. VOL. 45 (2011) 849.
The Courts as enjoined are now more keenly interested in the pursuit of substantial justice rather than technicalities the strict adherence of which in the past strangulated the attainment of the real justice of the matters. It is no longer justice prostrate and the picture of law and its technical rules triumph. Surely as the great jurist Oputa JSC stated in BELLO ORS V. A.G OYO STATE (1986) 5 NWLR (45) at 886, more than 3 decades ago, the spirit of justice does not reside in forms and technicalities nor is the triumph of the administration of justice to be found in successful picking of one’s way between pitfalls of technicalities.
This is why the Courts are encouraged to make the best out of an inelegant ground in the interest of justice as the same apex Court held in the case of DAKOLO & ORS V. DAKOLO & ORS (2011) LPELR 915 (SC) cited with approval in the OLEKSANDR’S case (supra). The decision in the case of AMEEN & ORS V. AMAO (Supra) is very apt to the case at hand where the error of law complained of in the said ground 1 is clear and leaves no doubt in the mind of the Court or the respondent as to the dispute and the issue in contention. Ground 1 even without any particulars, clearly conveys the Appellant’s complaint and adequately informs the respondent of the case to meet and the Court the argument to be canvassed. The objection therefore, cannot fly and it is accordingly discountenanced. Now to the issues for determination.
ISSUE NO. I
Arguing this issue, it was submitted that the depositions in the Respondent’s 13 paragraphed affidavit, the Appellant’s 19 paragraphed counter – affidavit and the further and better affidavit, show that certain facts are in dispute thereby rendering the originating summons inappropriate as held in the case of OSUNBADE V OYEWUNMI (2007) 30 NSCQR 434 at 449 ratio 1.
That the additional facts averred in the counter – affidavit such as the allegation of forgery of the vendors’ signatures and the denial of service of the quit notice can only be resolved by adducing oral evidence, thus, the learned trial judge ought to have ordered pleadings rather than proceeding to hear and determine the suit on the originating summons.
Additionally, it was submitted that the heirs of the late Alh. Najega who sold the property to the Respondent ought to have been joined since it is their duty to put the Respondent in possession a deed of conveyance having not been executed, as held in ONAFOWOKAN V SHOPITAN (2009) 1 WRN 141.
It was submitted that where a Court is faced with disputed facts notwithstanding that it was the same lower Court that ordered the initiation of the suit by originating summons, it (the lower Court) ought to have ordered pleadings and having not done so, this Court is empowered if it finds the procedure adopted by the lower Court wrong, to set aside the judgment and order a retrial as held in the case of OSUNBADE (Supra).
The learned counsel insisted that the lower Court was not competent to entertain the action having not been initiated by a due process of law which is a condition precedent to the assumption of jurisdiction. He cited in support the case of LADOJA V INEC & 3 ORS (2007) 31 NJCQR 243 urging us to so hold and resolve the issue in favour of the Appellant.
On his part, the learned respondent’s counsel proferred no argument on the merit of the issue, having urged us in his objection to the competence of ground 1 which he argued as issue No.1, to discountenance the Appellant’s issue No.1.
It is to be stated that though the objection has been considered and over-ruled, it still needs to be pointed out that the procedure adopted by the Respondent’s counsel is wrong. While a Respondent is permitted to argue a preliminary objection in his brief of argument without the necessity of filing a separate Notice of preliminary objection provided the brief is served on the Appellant at least 3 clear days before the hearing of the appeal, See OKEREKE V JAMES (2012) LPELR 9347, it is strange to the rules of brief writing and improper to argue a preliminary objection as an issue for determination.
The two are diametrically different and incongruant, as one cannot sit in, so to say, for the other. As Eneh JSC describe the incongruency in the case of ODUNZE V NWOSU (2007) 13 NWLR (Pt 1050)1, the two are ‘strange bedfellows’. While a preliminary objection is an initial opposition or disagreement taken to the hearing of an appeal or some part of it for the purpose of terminating the appeal at its infancy in liminine and to foreclose its hearing on merits, see EFET V. INEC (Supra) also reported as (2011) 1 SCNJ 179, 1194, UBA V ACB (2005) 12 NWLR (Pt 939) 232, an issue for determination on the other hand is a substantial or weighty preposition of law, or fact, or of both arising from the grounds of appeal put forward for consideration of the Court on its merits which when resolved in favour of a party to the appeal, will entitle that party to the judgment of the Court. See CONSORTIUM M.C. (NIG) V NEPA (1992) 6 NWLR (Pt 2460) 132, OKUDILI UGO V A. OBIEKULE & Anor. (1989) NWLR (Pt 99) 566.
As can be seen, logically, a preliminary ‘strictu sensu’ runs counter in purpose to the intendment of an issue distilled for determination. A preliminary objection seeks to abort or terminate the appeal, an issue for determination seeks a consideration of the merit of the question of law or fact arising from the grounds of appeal. The two are at opposite ends. Where a preliminary objection is successful, that puts an end to the life of that appeal or the affected part but where it is unsuccessful and overruled by the Court, the Respondent if he desires to dispute or contest the appeal or the argument in support of the issue, must appropriately respond to the issue or be deemed to have admitted the correctness of the legal argument therein which though does not translate into automatic success of the appeal, because same has to be considered on its own merits nonetheless, leaves the other side of the scale empty.
The simple and slim question in focus here is the propriety or otherwise of entertaining the action by the originating summons procedure, the Appellant?s contention being that certain facts are in dispute. In other words, whether the procedure of originating summons was the appropriate mode of instituting or commencing the action at the lower Court considering the state of the affidavit evidence on both sides.
The originating summons as a process is a mode of commencing actions statutorily provided for in the High Court Rules in respect of disputes concerned with matters of law in which there is unlikely to be any substantial dispute of facts. It is ideal only for actions where the facts are not in dispute or are not likely to be in dispute. See DOHERTY V DOHERTY (1986) NMLR 241. It is therefore not for use by parties in hostile action or for matters of controversy that would require settling of pleadings and tested oral evidence. Its great advantages which are its striking features are that the procedure obviates the necessity of filing pleadings and is targeted at expeditious disposal of actions or matters. But then, herein lies the need to ensure that an action commenced by Originating Summons ought to be so commenced in order not to deny a defendant his right of contesting disputed facts. Thus, its scope, is mainly limited to certain actions involving construction of written law, the Constitution, contract or other document or question of law in which there is no controversy. In PAM & ANOR V NASIRU MOHAMMED & ANR (2008) 16 NWLR (Pt.1112) 1 Oguntade JSC gave the scope of originating summons in these words:
“The procedure of originating summons ought not to be used where the facts are likely to be in dispute .. the procedure of originating summons is the appropriate one to be used in a dispute as this where what is in dispute is the simple construction or interpretation of documents in respect of which pleadings are unnecessary.” See Joseph DIN V A.G.F (1986) 1 NWLR (Pt 17) 471.
The law is therefore trite that the originating summons procedure is adopted where the sole or principle question at issue is, or is likely to be that of construction of a written law, statute, or any instrument made under any written law; or where there is likely to be no substantial dispute of any fact or any serious controversy. It is inappropriate and ought not to be used where facts are or are likely to be in dispute. See ALFA V ATTAI & ORS (2017) LPELR 42597 (SC) and OSUAGWU V EMEZI (1998) 12 NWLR (Pt 579) 640, cited in the ALFA?S case (Supra), DOHERTY V DOHERTY (Supra) and NBN V ALAKIJA (1978) 9 10 SC (REPRINT) 59.
The procedure will definitely not lie in favour of a plaintiff where the facts are riotously in dispute or the proceedings are hostile with contentious facts. As Rhodes Vivor JCA, (as he then was) held in the case of EJURA V IDRIS (2006) ALL FWLR (Pt 318) 633 – 646:
“Where it is obvious from the state of affidavit that there would be an aid of friction in the proceedings than an originating summons is no longer appropriate
Let me however quickly say that the mere fact that a Respondent files a counter-affidavit to oppose the commencement of an action by the originating summons procedure does not ipso facto make the action contentious to warrant oral evidence to resolve.”
The depositions in the counter – affidavit must disclose not only a mere dispute on facts but the dispute must be substantial on the live issue for consideration or interpretation. In AMANDA PETER PAM V NASIRU MOHAMMED (2008) 16 NWLR (Pt 1112) 1 @ 88, the apex Court stated the correct position of the law thus:-
“It is not the law that once there is dispute on facts the matter should be commenced writ of summons. No. this is not the law. The law is that the dispute on facts must be substantial and material affecting the issues in the matter. Where disputes are pheripheral, not material to the live issues, an action can be sustained by originating summons.”
From the 3 questions stated for interpretation, what the lower Court was asked to interpret, principally, is whether the respondent is indeed a bona fide purchaser for value. The question involves a factual determination of the Respondent being in fact a bona fide purchaser for value and not the construction of Sections 3 (1), 25, 32 and 38 of the Kebbi State Sale of Goods Law 1996, simpliciter. First and foremost, the Court was asked to interpret the status of the Respondent as a bone fide purchaser for value and if so, whether a 3rd party can prevent him from enjoying his value. It is only after the Court has determined these factual questions can it then turn to the reliefs, to interpret the provisions of the law to the determined status of the Respondent as a bone fide purchaser for value within the meaning of the said law.
Put differently and in simple terms, the question for interpretation before the lower Court was not for the construction of the provisions of the Kebbi State Sale of Goods Laws, 1996, simpliciter. The question for determination clearly involves a question of fact, whether the Respondent is in fact a bone fide purchaser for value and if so whether, he falls within the ambit of the said law. If parties are agreed on the validity of the sale but disagree on the interpretation of the provisions of the said law, then the question is strictly that of construction of the law. If on the other hand parties are not agreed on the validity of the sale, then the question involves a determination of a factual situation, of the validity of the sale itself, and this is a question of fact.
1It is therefore necessary to look at the affidavit evidence to see if they raise serious or substantial dispute of facts on the live question(s) for interpretation.
The Respondent’s case in paragraphs 6, 8, 9 and Exhibits A, A1, B, B1, C & C1 is that he bought the said shops from the family of late Alh. Najega at N8, 000, 000 (N8M) as evidenced by a sale agreement, Exhibit B & B1 and the purchase price, Exhibit A. That the Defendant/Appellant who was then a tenant in the shops was notified by the sellers vide Exhibit C & C1 to vacate the shops but has refused to do so thereby necessitating the institution of the action by originating summons against the Appellant to recover possession through the Court’s intervention by interpreting Sections 3 (1) , 25, 32 and 38 of the Kebbi State Sale of Goods Law 1996.
The Appellant in his counter – affidavit denied these facts and at paragraphs 7, 8, 9 & 16 deposed that the sale agreement, Exhibits B & B1 were forged as the consent of the family members was not obtained before the purported sale to the Respondent; that the unanimous agreement of the majority members of the family was to sale the shop to him; that there has been no communication to him verbal, or by written Notice, from the family members to vacate the shop and that the Respondent has no locus to sue him for the recovery of the shop.
The Appellant, in his further and better affidavit denied the facts and in paragraphs 7, 8, 9, 10, 14, 16, 17, 18, 19, 21 deposed that the order of the lower Court made on 24/1/2017 that the action be commenced by originating summons upon upholding the Appellant’s preliminary objection and striking out the Respondent’s suit, has not been appealed against; that since the purchase of the property by the respondent nobody including the Appellant has challenged the sale; that the Appellant admitted that there was a sale of the disputed shop to the Respondent and refused to challenge the sale; that Appellant knows he has no document to allow him remain in the shop and has not presented any; that the other tenant has since vacated the shop leaving only the Appellant who has refused to, insisting that he would use the instrument of the law and his connection with politicians to prevent the Respondent from taking possession.
The fallout of these affidavits is that there are riotous disputes on the validity of the sale of the property to the Respondent and on the service of any Notice from the sellers, to the Appellant to vacate the shop. These disputed facts are substantial & material to the question for determination, namely, whether the Respondent is a bone fide purchaser for value of the property. They strike at the heart of the questions for determination and render the action very contentious. The clear discordant nature of the affidavits ought, therefore, to have informed the learned trial judge that the proceedings would be hostile. The allegation of forgery of the signatures of the purported sellers on Exhibits B & B1 can only be resolved by evidence. The claim of non-service of the ‘Notice to vacate’ the shop, which is hotly contested is also a question of fact to be proved by the Respondent alleging the service of the Notice. See OKOYE V C.P.M.B LTD (2008) 15 NWLR (Pt. 110) 335. A look at the Exhibit C shows that there is no endorsement on it to show that it was served on the Appellant. Proof of service of a quit Notice or Notice to vacate where it is claimed to have been served, is an important fact to be determined before the tenant can be said to have refused to vacate the premises.
Obviously, considering the avalanche of conflicting affidavit evidence on substantial and material facts, the action was rendered inappropriate for determination on the originating summons procedure. It has concordantly been held time without number in a plenitude of cases that the originating summons procedure is not for matters of controversy that would require settling of pleadings and oral evidence. It is not ideal for use by parties in hostile actions, such as the one at hand. Where facts are or are likely, to be in dispute, the originating summons procedure ought not to be used. See ALFA V ATTAI & ORS (Supra).
It has been submitted for the Appellant that the commencement of the suit by originating summons was on the order of the lower Court made on 24/1/2017. Unfortunately, the proceedings of the said 24/1/2017 does not form part of the record of appeal before us. The Appellant who has the duty to ensure the comprehensiveness of the compiled and transmitted record did not take it upon himself to ensure that the proceedings of the said 24/1/17 which he wishes to rely upon, form part of the record of appeal before us nor did he file a supplementary record incorporating the said order. The law is elementary and trite that both the Court and parties are bound by the certified record of appeal which is presumed correct and cannot go outside it in search of any evidence. See LARMIE V DATA PROCESSING MAINTAINANCE & SERVICES LTD (2005) 18 NWLR (Pt 958) 438, GONZEE (NIG) LTD V NIG. EDUCATIONAL RESEACH & DEVELOPMENT COUNCIL & ORS (2005) 13 NWLR (Pt. 943) 634.
That aside, for whatever reason the learned trial judge ordered the commencement of this contentious action by originating summons, the law is that once a suit has been filed and I would add, or ordered to be filed by originating summons and it becomes obvious that facts are in dispute, or proceedings are likely to be or are hostile, a writ of summons would and should be ordered because pleadings rather than affidavit evidence, should take the pride of place. See EZE V UNIJOS (2017) LPELR – 42345 (SC). It matters not that the trial judge, if he did, ordered the commencement of the suit by an originating summons. What is paramount is whether considering the conflicting affidavit evidence, the action was suitable to be determined by that procedure. The obvious answer, is a resounding ‘NO’.
The legal and factual conclusion I have reached therefore is that this action ought not to have been commenced by an originating summons and been so wrongly commenced, ought not to have been heard and determined on the originating summons procedure. Having being so wrongly commenced and determined on a wrong procedure, I cannot agree more with the learned Appellant?s counsel that the lower Court lacked jurisdiction to entertain the action having not being initiated by due process of law. The law is settled that for a Court to have jurisdiction in a matter, it must be commenced by due process of law and upon the fulfilment of any condition precedent to assumption of jurisdiction. See the locus clasicus case of MADUKOLU & ORS NKEMDILIM & ORS (1962) 2 SCNLR 341, see also TSOKWA MOTORS (NIG) LTD V U.B.A. PLC (2008) 2 NWLR (Pt 1071) 347 @ 361, UGWUANYI V NICON INSURANCE PLC (2013) 11 NWLR (Pt 11366) 546.
Jurisdiction is the power from which Courts derive their authority to entertain matters placed before them for adjudication, and it is a matter that is statutorily based. The fundamental nature of jurisdiction, I must reiterate, cannot be overemphasized as it is the key to the competence of the Court adjudicating. So crucial is it that it is the body and soul of every judicial proceedings before any Court or Tribunal, and without it, all subsequent proceedings are fruitless, futile and a nullity because jurisdiction is fundamental to the proper hearing of a cause. This is why jurisdiction has been likened to blood that gives life to the survival of an action in Court and without which, the action will be like an animal drained of its blood. See CHIEF U. UTIH & ORS JACOB V. ONOYIVWE & ORS (1991) 1 SCNJ 25 @ 49, AFRO CONTINENTAL (NIG) LTD & ANOR V CO-O. ASSO. Of PROF. ING (2003) 5 NWLR (Pt 813) 303, NDAEYO V OLUNAYA (1977) 1 SC 11 @ 24 – 26.
Where, therefore, a Court adjudicates on a matter without or in excess of jurisdiction, the adjudication amounts to a nullity. It is an exercise in futility and amounts to nothingness.
Once a Court has no jurisdiction to adjudicate on a matter, even where it had done so, such adjudication amounts to a nullity; it has no legal force whatsoever and it is as if it never took place because of the incompetence of the Court to have entertained the case ab initio. Such a null decision of the lower Court is entitled, as a matter of course, to be set aside as it binds no one and has no utilitarian value. See OKOYE V NIG. CONSTRUCTION & FURNITURE CO. LTD. (1991) 6 NWLR (Pt 199) 501 – 539. Accordingly, same is set aside.
Where an appellate Court sets aside the judgment of the lower Court on ground of nullity of the judgment, the proper order to make which I hereby make, is that of a re-trial of the case on its merits. See OSUNBADE V OYEWUNMI (Supra). Resultantly this issue I is resolved in favour of the Appellant and against the Respondent.
I am aware that this Court not being the final Court, has the duty to consider and pronounce on all issues properly placed before it for determination in the event that in a further sojourn to the apex Court, it’s conclusion and decision may be set aside by that Court.
This is why the same Apex Court handed down the following exhortation per UWAIFO JSC in the case of BRAWAL SHIPING (NIG) LTD V ONWADIKE CO. LTD & ANOR (2000) 6 SCNJ 508 thus;
“It is no longer in doubt that this Court demands of, and admonishes the lower Courts to pronounce; as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing not to risk the possibility that only issue or issues decided by them could be faulted on appeal.”
See alsoKATTO V CBN (1991) 9 NWLR (Pt 214) 126 @ 149, Elelu Habeeb & Anor v A.G.F. & 2 ORS (2012) MR SCJ. (Pt 1013) 1 @ 10.
However, there are exceptions to this general rule. One of such exceptions is where the judgment of the lower Court is a nullity or the Appellate Court orders a re-trial of the action ?de novo?; then there will be no need to pronounce on the other issues which could arise at the re-trial or in a fresh trial of the action. The Court should, in such situation, refrain from considering the merit of the other issues as doing so would prejudice a fair determination of the issues at the re-hearing. See EAGLE SUPER PACK (NIG) LTD V A.C.B. PLC (2006) 19 NWLR (Pt. 1013) 20, SPRING BANK PLC V DOKKIN VENTURES (NIG) LTD (2012) LPELR 7983 (CA).
Having therefore reached a conclusion to order a retrial in this case, I restrain myself from a consideration of the 2nd issue. On the whole therefore, this appeal succeeds and it is ordered as follows:
(1) The appeal is allowed.
(2) The decision of the lower Court delivered on the 19th April, 2017 is set aside; and
(3) This matter, suit No. KB/HC/JC/2/2017 is remitted to the Hon. Chief Judge of Kebbi State for retrial on pleadings before another judge.
(4) Parties shall bear their cost.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the judgment of my learned brother Amina Audi Wambai, JCA and I fully agree with all the reasons therein and the conclusion that the appeal has merit as the suit culminating in to this appeal was wrongly commenced by originating summons.
An originating summons is aimed at providing a simpler procedure for hearing and is available to a litigant claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights. Thus, if there are serious disputes as to facts, as in the instant case, a normal writ of summons must be taken out and not originating summons. See Doherty v Doherty (1968) NMLR 241.
Without more ado, the appeal must be and is hereby allowed. I subscribe to all the orders made in the judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft the lead Judgment just delivered by my learned Brother Justice Amina Audi Wambai JCA. I agree with the reasoning and conclusion therein. The Appeal succeeds and is hereby allowed. The matter is hereby remitted to the Chief Judge of Kebbi State for a retrial on pleadings before another Judge. Parties should bear their cost.
Appearances:
G. A Shehu, Esq.For Appellant(s)
Hussaini Zakariyau, Esq.For Respondent(s)
