CHIEF EFA EWA HENSHAW v. TRADITIONAL RULERS COUNCIL, CALABAR SOUTH LOCAL GOVERNMENT AREA & ORS
(2018)LCN/11818(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of July, 2018
CA/C/495/2014
RATIO
COURT AND PROCEDURE” WHERE TWO PRELIMINARY OBJECTIONS IS MADE
“It goes without saying that the two preliminary objections were not identical in any manner and the decision in the first one by Isoni J. had no impinging effect on the subsequent one taken by Ogar J. The two rulings are clearly distinct as they deal with different principles of law and were guided by different legislations.” PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
CHIEF EFA EWA HENSHAW
(FOR AND ON BEHALF OF NDON EKENG ITA VILLAGE COUNCIL) Appellant(s)
AND
1. TRADITIONAL RULERS COUNCIL, CALABAR SOUTH LOCAL GOVERNMENT AREA
2. THE SECRETARY, CALABAR SOUTH TRADITIONAL RULERS COUNCIL
3. THE SPECIAL ADVISER TO THE GOVERNOR, CHIEFTAINCY AFFAIRS, CROSS RIVER STATE
4. ETUBOM NYONG EFFIOM OKON Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar Judicial Division delivered on the 16th day of June, 2014 by OGAR J.
The Appellant and 4th Respondent contested for the then vacant position of Clan Head of Ewa Ekeng/Effiom Ewa Nsa Clan at an election moderated by the 2nd Respondent on 12/11/2010. Appellant felt the election was inconclusive as votes tied at 6 a-piece from the 12 available votes. He sent a petition to the 1st Respondent and was expecting a panel of inquiry but realized on 8/7/2011 that the 2nd Respondent had filed a report dated 14/11/2010 that the election exercise ended in favour of the 4th Respondent who was subsequently issued a certificate as the Clan Head.
Appellant filed an application for a writ of mandamus against the Respondent at the trial Court wherein he sought the following reliefs:
(1) An order compelling the 1st and 2nd respondents to set up a panel of inquiry to investigate and report to the 3rd respondent on the dispute of selecting of a clan head in Ewa Ekeng/Effiom Ewa Nsa Clan in Calabar South Local Government Area of Cross River State.
(2) An order setting aside any report or recommendation made by the 1st and 2nd respondents to the 3rd respondent during the pendency of the applicant?s petition dated 12/11/2010.
On coming into the matter, the 1st-3rd Respondents filed a Notice of Preliminary Objection on 14/11/2013 wherein they prayed for the suit to be struck out for being incompetent on the following grounds:
1. This suit, HC/MSC/62/2013 is statute barred having been instituted on the 10th May, 2013 more than 6 months after the cause of action arose, in contravention of Section 1 (a) of the Cross River State Public Officers Protection Law, 2007.
2. This Suit, HC/MSC/62/2013 as presently constituted is incompetent and this Court lacks jurisdiction to hear same.
The preliminary objection was duly argued by counsel for all the sides and in a considered ruling delivered as aforesaid on the 16th June, 2014 the learned trial Judge came to the conclusion that the Appellant’s action was indeed statute barred and accordingly struck it out.
Peeved at this turn of events, the Appellant invoked the appellate jurisdiction of this Court vide the Notice of Appeal filed on the 2nd September, 2014 containing 2 grounds.
At the hearing of the appeal, Mr. David adopted the Appellant’s brief filed on the 14th December, 2015 as the arguments of the Appellant in this appeal.
Mr. Ikona, the Director, Civil Litigations, Cross River State Ministry of Justice adopted the 1st-3rd Respondents’ brief filed on 16th June, 2017 but deemed properly filed and served on the 3rd May, 2018 as the arguments of the 1st-3rd Respondents in contesting this appeal.
Mr. Andrews the learned lead counsel for the 4th Respondent adopted his brief filed on the 15th January, 2016 as the arguments of the 4th Respondent in this Appeal.
The Appellant submitted 2 issues for determination as follows:
1. Whether the Respondent can vividly raise preliminary objection to the competent of a suit when it has not enter appearances as required by Order 13 R (1) of the High Court (Civil Procedure) Rules of Cross River State 2008.
2. On whether decision or Order of Court can be overruled or set aside by Court of co-ordinate jurisdiction.
These issues were adopted by the Respondents with the 4th Respondent fine tuning them and objecting to the first issue. It seems appropriate to start with the objection of the 4th Respondent to the said first issue.
The contention of the 4th Respondent here was that the said issue was not raised at trial and did not emanate from any of the grounds of appeal. Learned counsel referred to NYA VS EDEM (2005) ALL FWLR (PT 242) 576, OMOTOSHO VS OJO (2008) FWLR (PT 408) 389, OYENIYI VS ADELEKE (2009) ALL FWLR (PT 476) 1902 and INEC VS ADC (2009) ALL FWLR (PT 490) 668.
The Appellant did not file any Reply brief in response to this point.
The 2 grounds of appeal contained in the Notice of Appeal filed by the Appellant are as follows:
GROUND 1
The learned trial Judge erred in law when he held that the action was statute barred.
PARTICULARS OF ERROR:
(a) This suit was commenced after leave and order extending time within which the appellants could commence this proceeding was granted by Hon. Justice Francesca Nnang Isoni on 3/5/2013.
(b) The trial Court in a reserved ruling by Hon. Justice Francesca Nnang Isonihad dismissed similar application brought by the 4th respondent on the 19/6/2013.
(c) The determination of this issue upon commencing this action outside the period limited by law having been ruled upon by the same Court on 19/6/2013 amount to abuse of judicial process.
GROUND II
The learned trial Judge erred in law when he upheld the preliminary objection and struck out the suit.
PARTICULARS OF ERROR:
(a) The injury and damage caused to the Appellant by the act of the 2nd Respondent is a continuous one.
(b) The 2nd Respondent acted outside the colour of his office or outside the statutory duty.
Issues for determination must derive their existence from the grounds of appeal and any issue for determination formulated outside or without regards to the grounds of appeal is incompetent. See MUDASHIRU KOKORO OWO & ORS VS LAGOS STATE GOVT & ORS (2006) 6 NSCQR 615.
A perusal of the entire decision of the trial Court reveals that the issue in contention has no correlation with the decision, thereby further taking it off the mark.
OGUNBIYI, JSC most aptly captures the position of the law thus:
“The law is well established that an issue would be competent for determination only if it relates to and/or arise from any of the grounds of appeal. The failure to relate otherwise is to render the issue incompetent and liable to be struck out. See the views held by this Court in the cases of Kokoro-Owo V. Lagos State Government (2001) 5 SC Part 11 page 50, and Achiakpa V. Nduka (2001) 7 SC Part 111 page 125. An appeal must also be based on the decision or ratio decidendi of the lower Court and from which issues must directly flow and be formulated. See also the cases of A.G. Bendel State V. Aideyan (1989) 4 NWLR part (118) page 646; Buraimoh V. Bamgbose (1989) 3 NWLR (Pt. 109) page 352 and Biocon Agrochemicals Nigeria Limited V. Kudu Holding (PTY) Limited (2000) 12 SC part 1 page 139. From the totality of the entire affidavit evidence before the lower Court, I hasten to state that there was no evidence on the question of legal personality and the proof of existence of the Respondent Bank as alleged by the appellant. The record of appeal will bear evidence as rightly submitted on behalf of the respondent that the issue formulated did not either arise from ground one of the ground of appeal or from any of the other three grounds of appeal. There is therefore no nexus or correlation between question/issue one as formulated and the grounds of appeal filed. On the authorities of Osinupebi V. Saibu (1982) 7 SC page 104, Kari V. Ganaram (1997) 2 NWLR Part 488 page 380 and Araka V. Ejeagwu (2000) 12 SC Part 7 page 99 at 107 the issue no. 1 having not arisen from any of the grounds of appeal should and is accordingly struck out for incompetence.”
See CONTRACT RESOURCES NIGERIA LTD V. STANDARD TRUST BANK LTD (2013) LPELR-19934(SC) at 12-13.
In the circumstances, issue 1 is incompetent and it is accordingly struck out.
The remaining issue before the Court is whether decision or Order of Court can be overruled or set aside by Court of co-ordinate jurisdiction.
The contention of the Appellant here is that the issue of jurisdiction had earlier been settled by the previous trial Court presided over by Isoni J. in an application brought by the 4th Respondent prior to the transfer of the case to Ogar J. and the issue could no longer be re-opened in the subsequent application of the 1st-3rd Respondents as the subsequent ruling amounts to overruling a Court of co-ordinate jurisdiction and should be set aside. Learned counsel referred to NWORGU VS NJOKU (2001) 14 NWLR 541 and PETERS VS ASHAMU (1995) 4 NWLR (PT 388) 206.
The position of the 1st-3rd Respondents was that two different objections on separate grounds from different parties attracted the two rulings in issue and that it was not a case of a Court of co-ordinate jurisdiction overruling the other.
This position was echoed by the 4th Appellants as well.
The record of appeal on pages 70-75 contains the first notice of preliminary objection which was filed by the 4th Respondent. The said objection brought pursuant to Order 17, Rule 18 of the Cross River State High Court (civil procedure) Rules, 2008 sought the following reliefs:
1. An order dismissing this suit for lack of jurisdiction, same having been brought outside the period limited by law for bringing applications for judicial review.
2. And for such further order(s) as the Court may deem fit to make.
The said objection attracted a ruling delivered by Isoni, J. wherein his Lordship stated as follows on lines 9-20 of page 160 of the record of appeal:
It is pertinent to note that while Order 40 Rule 4 of the High Court of Cross River State (Civil Procedure) Rules, 2008 provides that:
”An application for judicial review shall be brought within 3 months of the date of occurrence of the subject of application.”
Same can be brought by an application of extension of time under Order 5 Rule 4 of the same High Court Civil Procedure Rules, 2008.
I therefore hold that the Order of extension of time within which the Applicant can bring an application for leave to commence this proceeding was granted on 3/5/2013 by this Honourable Court.
In the light of the foregoing, the Preliminary Objection of the 4th Respondent/Applicant is hereby overruled and consequently this Notice of Preliminary is hereby struck out.
On coming into the matter, the 1st – 3rd Respondents filed its Notice of Preliminary Objection pursuant to Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria and Section 1 (a) of the Cross River State Public Officers Protection Law, 2007. The process is on pages 139-143 of the record of appeal.
Therein they prayed for the suit to be struck out for being incompetent on the following grounds:
1. This suit, HC/MSC/62/2013 is statute barred having been instituted on the 10th May, 2013 more than 6 months after the cause of action arose, in contravention of Section 1 (a) of the Cross River State Public Officers Protection Law, 2007.
2. This Suit, HC/MSC/62/2013 as presently constituted is incompetent and this Court lacks jurisdiction to hear same.
The ruling in this later application attracted this appeal.
It goes without saying that the two preliminary objections were not identical in any manner and the decision in the first one by Isoni J. had no impinging effect on the subsequent one taken by Ogar J. The two rulings are clearly distinct as they deal with different principles of law and were guided by different legislations.
I do not see any merit in the contention of the Appellant and I resolve this issue against the Appellant and in favour of the Respondents.
The overriding implication therefore is that this appeal is devoid of merit and it is accordingly dismissed.
Parties shall bear their respective costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have read before now the judgment just delivered by Oyewole, JCA. Having adopted the reasoning contained therein as mine, I too hereby dismiss the instant appeal for being devoid of merits.
STEPHEN JONAH ADAH, J.C.A.: I read in advance the copy of the judgment just delivered by my learned brother, J. O. K. Oyewole, JCA. I am in total agreement with his reasoning and conclusion that this appeal is lacking in merit.
I accordingly do dismiss this appeal. I abide by the consequential orders as made by my brother.
Appearances:
Emmanuel David, Esq.For Appellant(s)
Mr. I. E. Ikona with him, Mr. J. O. Ogban – for 1st-3rd Respondents
Mr. Essien. H. Andrew with him, Mr. Edem John – for 4th RespondentFor Respondent(s)
