CHIEF J. OKWU UGWU & ORS v. CHIEF J. ALAEKE ALAEBO & ORS (2016)

CHIEF J. OKWU UGWU & ORS v. CHIEF J. ALAEKE ALAEBO & ORS

(2016)LCN/8312(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/E/98B/2010

RATIO

APPEAL: WHETHER AN APPELLANT HAS THE RIGHT TO RAISE A FRESH ISSUE ON APPEAL WITH OBTAINING THE LEAVE OF THE COURT

The law is settled that an appellant has no right to raise a fresh issue not canvassed before the Court below in an appeal unless the leave of the Court is sought and obtained. See DANGACI OF DERE VS. DANGACI OF EBWA (2006) 7 NWLR (PT. 979) PAGE 382. The exception to the general rule is where the fresh issue being raised is an issue of jurisdiction. Where an issue of jurisdiction is raised as a fresh point in an appeal, the appellant need not obtain the leave of the Court. See MOSES VS. STATE (2006) 11 NWLR (PT. 992) PAGE 458. In AGBATI VS. NIG. NAVY (2011) 4 NWLR (PT. 1236) PAGE 175 at 207-208 (G-B) the Supreme Court stated thus: An appellant is allowed to raise the question of jurisdiction on appeal without the leave of Court whereas ordinarily a fresh issue can only be raised on appeal with the leave of Court sought and obtained hence the issue becomes incompetent and liable to be struck out. I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. The issue of jurisdiction or competence when raised must be one which must be capable of being disposed of without the need to call additional evidence. The issue of jurisdiction being radically fundamental to adjudication in the Nigerian legal system must be properly raised before the Court can rightly entertain that point. Where the question involves a substantial point of law, substantive or procedural and it is apparent that it will not be necessary to open up further evidence which would affect the decision, the Court has a duty to allow the question to be raised and points taken so as to prevent an obvious miscarriage of justice. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A

PRACTICE AND PROCEDURE; WHETHER FAILURE TO SIGN AND SEAL AN ORIGINATING SUMMONS IS AN IRREGULARITY

Therefore failure to sign and seal an originating summons is not an irregularity, it is a condition precedent to the exercise of jurisdiction by the Court. See NWABUEZE VS. OBI-OKOYE (1988) 3 NSCC PAGE 53, KIDA VS. OGUNMOLA (2006) ALL FWLR (PT. 327) PAGE 402, ONUN OTU ECHU IGIRIGA VS. ELDER EFFIONG OKON BASSEY & ORS. (2013) LPELR 20346 (CA). per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A

PRACTICE AND PROCEDURE: THE IMPLICATION OF SIGNING THE NAME OF A LAW FIRM ON ANY COURT PROCESS WITHOUT STATING THE NAME OF THE PARTICULAR LAW PRACTITIONER WHO SIGNED IT

Any Court process signed in the name of a law firm and without stating the name of the particular Legal Practitioner who signed it is invalid, incompetent and a nullity. The originating summons having been signed in the name of a law firm, Kehinde Sofola & Co. is a nullity. See HAMZAT VS. SANNI (2015) 5 NWLR (PT. 1453) PAGE 486. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A

STATUTORY INTERPRETATION; THE IMPORT OF THE WORD ‘”SHALL” IN A STATUTORY PROVISION

The law is settled that the use of the word shall in a statutory provision or rules of Court connotes a mandatory compliance with the provisions of the statute or rules of Court, it is not permissive. It gives no room for discretion unless the con suggests otherwise. See NWANKWO VS. YAR?ADUA (2010) 12 NWLR (PT. 1209) PAGE 518, ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975) PAGE 65. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A

CONSTITUTIONAL LAW; WHETHER THE PROVISION OF SECTION 36 OF THE CONSTITUTION ALSO APPLIES TO ANY PANEL OR BODY SET UP TO DETERMINE CIVIL RIGHT OR OBLIGATION OF A CITIZEN

It is certain that the provisions of Section 36 of the Constitution applies not only to a Court or a tribunal established by law but also to any panel or body set up to determine the civil right or obligation of a citizen whether administrative, judicial, quasi judicial or executive. See JUBRIL VS. MIL. ADMIN. KWARA STATE (2007) 3 NWLR (PT. 1021) PAGE 357, BAKARE VS. L.S.C.S.C. (1992) NWLR (PT. 262) PAGE 641. NJC VS. YARUMA (2014) LPELR ? 24208 (CA). per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A

CONSTITUTIONAL LAW: FAIR HEARING; WHAT THE REQUIREMENT OF FAIR HEARING INVOLVES

Thus, fair hearing in the con of Section 33 (1) of the Constitution of 1979 encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice audi alteram partem and nemo judex in causa sua ? as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. See also GARBA & ORS VS. THE UNIV. OF MADUGRI (1986) 1 NWLR (PT. 18) PAGE 550 AT 617. In order to comply with the requirement of fair hearing all the parties to a dispute must be heard at every material stage of the proceeding and on every material aspect of the dispute before the Court or the body adjudicating on or settling the dispute hands down a decision. While it is the law that fair hearing does not mean that it is mandatory for the panel to take oral evidence from a party especially where a party has presented documentary evidence in support of his case, it is also the law that the panel or the body investigating a matter or adjudicating on a dispute such as the Boundary Committee herein must not receive evidence or representation behind the back of any of the parties. See OLATUNBOSUN VS. NISER (1988) NWLR (PT. 80) PAGE 25, AGBAHOMOVO VS. EDUYEGBE (1999) 3 NWLR (PT. 594) PAGE 170. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

1. CHIEF J. OKWU UGWU

2. MR. BENNETH UNAKWE

3. MR. GILBERT IKE

4. MR. ELIAS OBIAGWU

(For themselves and on behalf of the entire Umuomaku Community of Orumba South Local Government Area) – Appellant(s)

AND

1. CHIEF J. ALAEKE ALAEBO

2. CHIEF HENRY ILOKA

3. CHIEF I. I. UGORJI

4. CHIEF KENNETH ILO

5. MR. FELIX N. EKENE

6. MR. DENNIS NWANKWO

7. THE MILITARY ADMINISTRATOR OF ANAMBRA STATE

8. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE ANAMBRA STATE. – Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.(Delivering the Leading Judgment): By an originating summons filed on 16/10/94, at the Anambra State High Court, the 1st ? 6th respondents sought the following reliefs against the appellants and the 7th and 8th respondents:

?1. A declaration that the decision of the Anambra state Boundary Committee to which the Anambra State Government gave approval which was communicated to the plaintiff in the letter of the Secretary to the State Government dated November 11, 1997 is null and void and of no effect whatsoever.

2. An order setting aside the said decision of the Anambra State Boundary Committee and the approval thereon given by the Anambra State Government communicated in the said letter dated November 11, 1997.

3. A declaration that neither the said State Boundary Committee nor the said State Government has any power to set aside the decision of the Supreme Court of Nigeria (now the High Court) in Suit No. O/19/48 and the decision of the West African Court of Appeal in Appeal No. 3880.

?4. A perpetual injunction restraining the Defendants, their agents, privies, successors in title, and

any person claiming through them from interfering with the Plaintiffs? right of ownership and enjoyment of the landed property adjudged to be theirs in the Suit No. O/19/1948 and previous suits, and in particular from demarcating the Boundary of the said land by concrete pillars and other substances of a permanent nature.?

Parties filed and exchanged affidavits and written address. The Court in a considered judgment delivered on 7th May, 2009 entered judgment in favour of the 1st ? 6th respondents as follows:

(a) ?The decision of the Anambra State Boundary Committee to which the Anambra State Government gave approval which was communicated to the Plaintiffs in the letter of the Secretary to the State Government dated November 11 1997 is null and void and of no effect.

(b) The said decision of the Anambra State Boundary Committee and the approval thereon given by the State Government are hereby set aside.

I make no order as to cost.?

The appellants being dissatisfied with the judgment appealed to this Court on six (6) grounds of appeal via a notice of appeal filed on 30th July, 2009 containing Four (4)

grounds of appeal and two additional grounds of appeal filed on 3rd February, 2016 and deemed as properly filed and served the same day. The six grounds of appeal are as follows:

GROUND 1: ERROR IN LAW

The learned trial judge erred in law when

he held that it was appropriate to commence the proceedings before him by originating summons.

GROUND 2: ERROR IN LAW

The learned trial judge erred in law when he held that the State Boundary Committee did not accord fair hearing to the Plaintiffs/Respondents by the letter of the Secretary to the State Government dated November 11, 1997 and this occassioned a miscarriage of justice.

GROUND 3: ERROR IN LAW

The learned trial judge erred in law when he assumed jurisdiction to determine the suit contrary to Section 1 (2) (b) (i) of the Federal Military Government (Supremacy and Enforcement of Powers) Act and thereby occassioned a miscarriage of justice.

GROUND 4: ERROR IN LAW

The learned trial Judge erred in law when he failed to consider and resolve all the issues raised by the parties in the suit.

GROUND 5: ERROR IN LAW

The learned trial Judge erred in law by

hearing and determining suit No. AG/108/98 without jurisdiction, since the originating summons did not comply with Order 5 Rule 27 High Court Rules, 1988 of Anambra State applicable in 1998, which stipulates that ?issue of an originating summons takes place upon its being signed by the Registrar in the Court where the suit is being commenced?, and also did not comply with Order 5 Rules 12 (2), Order 5 Rule 23 of the High Court Rule of Anambra State 1988, and Order 5 Rule 25 (2).

GROUND 6 (Additional Ground) ERROR IN LAW

The learned Trial Judge erred in law by hearing and determining Suit No. AG/108/98 without jurisdiction, since the originating summons was only signed by Messrs Kehinde Sofola & Co. Who is not a Legal Practitioner known to law and not signed by the Registrar in the Court where the suit was commenced and other processes such as:-

(a) The notice to on the applicants? further affidavit in support of the originating summons dated 14th December, 1998

(b) Plaintiffs/Respondents Written Address, and

Affidavit.?

Counsel to both parties filed and exchanged briefs of argument. The appellants? amended brief of argument was filed on 19th November, 2013 and deemed properly filed and served on 3rd February, 2016. The appellants formulated the following issues for determination:

(1) ?Whether this suit could be properly initiated and resolved by originating summons rather than a writ of summons considering the complexities and conflicting affidavits and Counter-Affidavits with the Exhibits before the Court below? (Ground 1).

(2) Whether the failure of the State Boundary Committee to hear oral evidence of the disputing communities after receiving documentary evidence and a visit to the locus in quo amounted to a breach of the principle of fair hearing. Ground 2.

(3) Whether the lower Court was wrong to have assumed jurisdiction to determine the suit contrary to Section 1 (2) (b) (i) of the Federal Military Government (Supremacy and Enforcement of Powers) Act and thereby occassioned miscarriage of justice (Ground 3).

(4) whether the trial Court discharged his duty to consider and pronounce on all the issues submitted to

him for adjudication by the parties and if not, whether the Court of Appeal can look into it? (Ground 4).

(5) Whether the lower Court erred in law by hearing and determining Suit No. AG/108/98 without jurisdiction, since the originating summons did not comply with Order 5 Rule 27, Order 12 (2) and Order 5 Rule 23 of the High Court Rules of Anambra State, 1998. (Ground 5 ? additional Ground).

(6) Whether the lower Court heard and determined suit No. Ag/108/98 without jurisdiction since the originating summons and some other Court processes were signed by Messrs Kehinde Sofola & Co. Who is not a legal practitioner known to law? (Ground 6 ? Additional Ground).

The 1st ? 6th respondent?s brief of argument was filed on 11th October, 2011 and deemed as properly filed and served on 3rd February, 2016. The six issues formulated by the 1st ? 6th respondents are similar to the issues formulated by the appellants, I need not repeat them. The 7th and 8th respondents did not file any brief in this appeal because they filed their own separate appeal. The 1st ? 6th respondents raised a preliminary objection

to the additional grounds of appeal on the ground that those grounds of appeal raise new issues which were not canvassed in the Court below and no leave was obtained to raise the issues. In accordance with the principle guiding consideration and determination of such objection, the objection will be considered and determined before going into the substantive issues.

It is the contention of the 1st ? 6th respondents that the appellants having raised new issues of (i) non-compliance with the provisions of Order 5 Rules 12 (2), 25 (2) and 27 of the Anambra State High Court (Civil Procedure) Rules, 1988 and (ii) the issue of the originating summons not having been signed by a Legal Practitioner known to law which were not raised and canvassed before the Court below without the leave of this Court, grounds 5 and 6 of the appeal and issues 5 and 6 distilled there from are incompetent and should be struck out even if they are issues relating to jurisdiction. He referred to ADEGOKE MOTORS LTD V. ADESANYA (1989)3 NWLR (PT.109) PAGE 250 AT 266(H), NIGER PROGRESS LTD V. NORTH EAST LINE CORPORATION (1989) 3 NWLR (PT.107) PAGE 68 AT 100, AJUWON V. ADEOTI (1990) 2

NWLR (PT.132) PAGE 271, TANAREWA (NIG) LTD. V. ARZAI (2005) 5 NWLR (PT.919) PAGE 593 AT 624-625, ADAMS V. UMAR (2009) 5 NWLR (PT.1133) PAGE 41 AT 116, E.A.IND.LTD. V. NERFUND (2009) 8 NWLR (PT.1144) PAGE 535 AT 566 (D-E).

In his reply brief filed on 20th February, 2012 and also deemed as properly filed and served on 3rd February, 2016, the appellants submitted that where the issue being raised for the first time in an appeal is an issue of jurisdiction, the issue can be properly raised with or without the leave of the Court. He referred to OBIAKOR VS. THE STATE (2002) 10 NWLR (PT. 776) PAGE 612 AT 626 (F ? H), 627 (C ? D), NDIC VS. S.B.N. PLC (2003) 1 NWLR (PT. 801) PAGE 311 AT 399 (B ? H), AYINKE STORES LTD VS.ADEBOGUN (2008) 10 NWLR (PT. 1096) PAGE 612 AT 626 (C ? F), LAWRENCE VS. A. G. OF THE FEDERATION (2008) 6 NWLR (PT. 1084) PAGE 453 AT 467 ? 468 (F ? B).

exception to the general rule is where the fresh issue being raised is an issue of jurisdiction. Where an issue of jurisdiction is raised as a fresh point in an appeal, the appellant need not obtain the leave of the Court. See MOSES VS. STATE (2006) 11 NWLR (PT. 992) PAGE 458. In AGBATI VS. NIG. NAVY (2011) 4 NWLR (PT. 1236) PAGE 175 at 207-208 (G-B) the Supreme Court stated thus:

?An appellant is allowed to raise the question of jurisdiction on appeal without the leave of Court whereas ordinarily a fresh issue can only be raised on appeal with the leave of Court sought and obtained hence the issue becomes incompetent and liable to be struck out. I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. The issue of jurisdiction or competence when raised must be one which must be capable of being disposed of without the need to call additional evidence. The issue of jurisdiction being radically fundamental to adjudication in the Nigerian legal system must be properly raised before the Court can rightly entertain that point. Where

the question involves a substantial point of law, substantive or procedural and it is apparent that it will not be necessary to open up further evidence which would affect the decision, the Court has a duty to allow the question to be raised and points taken so as to prevent an obvious miscarriage of justice.?

The question here is whether grounds 5 and 6 of the appeal are raising issues of jurisdiction. My answer is in the positive. I shall shortly show why it is so.

The complaint in ground 5 of the appeal is predicated on Order 5 Rules 12, 23, 25 (2) and 27 of the High Court (Civil Procedure) Rules of Anambra State, 1988. It is settled by a plethora of cases that the following conditions must exist before a Court can exercise jurisdiction on a matter brought before it for adjudication:

(a) The Court must be properly constituted as regards the number and qualification of its members on 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

up before the Court was initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.?

A suit can be said to have come before the Court by a due process of law only when it is initiated by an originating process validly issued in accordance with the relevant laws and rules of Court. A valid originating process is a condition precedent to the assumption of jurisdiction by the Court. In the case on appeal, the case was initiated by an originating summons. By virtue of the provisions of Order 5 Rules 12(2) and 27 of Anambra State High Court (Civil Procedure) Rules, 1988, issue of an originating summons takes place upon its being signed by the Registrar in the Court where the suit is being commenced. Without the registrar?s signature and seal of the Court, there is no issuance of the originating summons. Where the registrar fails to sign and seal an originating summons, the Court?s jurisdiction is not activated. Therefore failure to sign and seal an originating summons is not an irregularity, it is a condition precedent to the exercise of jurisdiction by the Court. See NWABUEZE

VS. OBI-OKOYE (1988) 3 NSCC PAGE 53, KIDA VS. OGUNMOLA (2006) ALL FWLR (PT. 327) PAGE 402, ONUN OTU ECHU IGIRIGA VS. ELDER EFFIONG OKON BASSEY & ORS. (2013) LPELR ? 20346 (CA).

The objection to Ground 6 of the appeal is also a complaint about the validity of the originating summons. The complaint in that ground of appeal is that the originating summons was not signed by a Legal Practitioner known to law. The law is settled that any Court process prepared by a Legal Practitioner must be signed by that Legal Practitioner and the name of the Legal Practitioner must be clearly stated. The law is also settled that any Court process signed in the name of a firm of Legal Practitioners is incompetent.

If an originating process is found to be incompetent, it is a fundamental issue which goes to the root of the case and ultimate the jurisdiction of the Court. In law, a challenge to the validity of an originating process is a challenge to the jurisdiction of the Court and the exercise of its adjudicatory power over a matter brought before it. Thus grounds 5 and 6 of the appeal are raising issues of jurisdiction. The appellants do not need the leave of this

Court to raise those issues. Based on the foregoing, the 1st?6th respondents? preliminary objection to the additional grounds of appeal fails and it is hereby overruled.

I will start the consideration of the substantive appeal by considering issue 6 first as it is fundamental to the entire case. The issue is whether the learned trial judge was not right or justified in holding that this suit was properly brought by way of originating summons.

On this issue the appellants? counsel submitted that the Court erred by hearing and determining the suit without jurisdiction in that the originating summons was signed by Messrs Kehinde Sofola & Co that is not a Legal Practitioner known to law and cannot practice as such. He referred to OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) PAGE 521 AT 531 (B ? E), 534 (D ? E) AND 533 (G ? H).

In response, the 1st ? 6th respondents? counsel submitted that the case of OKAFOR VS. NWEKE (supra) is not applicable in the instant case because there was the need to call evidence in that case to establish the identity of the person whose signature appeared on top of the

firm?s name and the Supreme Court could not be moved to start receiving evidence to establish the identity of the person who signed on top of the firm?s name. Counsel submitted that the name on top of Kehinde Sofola & Co is ?Kehinde sofola? and it is clearly readable. He enjoined the Court to take judicial notice of all Legal Practitioners authorized by law to appear before this Court. He stated that Kehinde Sofola is a Legal Practitioner authorized by law to appear before the Courts in Nigeria.

?I have earlier stated the importance of an originating process to the activation a Court?s jurisdiction. A fundamental defect in the validity of an originating process which affects its competence robs the Court of its jurisdiction to adjudicate on any matter brought before it.

In the case on appeal, Order 5 Rule 27 of the High Court (Civil Procedure) Rules of Anambra State, 1988 provides that an originating process shall be prepared by a party or his Legal Practitioner. Though it is not expressly stated but it is implied that originating summons shall be signed by whoever prepares it. The originating summons in the instant

appeal was prepared by the 1st ? 6th respondent?s Legal Practitioner. It is stated on the face of the summons that it was taken out by Messrs Kehinde Sofola & Co., Legal Practitioners. There is a signature on top of Messrs. Kehinde Sofola & Co., Legal Practitioners. It is now firmly established that a law firm is not a Legal Practitioner and a firm cannot sign any Court process. Any process prepared by a Legal Practitioner must be signed by the Legal Practitioner as known to law. That is a Legal Practitioner defined in Section 24 of the Legal Practitioner Act as ?a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.? Any Court process signed in the name of a law firm and without stating the name of the particular Legal Practitioner who signed it is invalid, incompetent and a nullity. The originating summons having been signed in the name of a law firm, Kehinde Sofola & Co. is a nullity. See HAMZAT VS. SANNI (2015) 5 NWLR (PT. 1453) PAGE 486.

The 1st ? 6th respondents? counsel

stated that the signature on top of Kehinde Sofola & Co. is ?Kehinde Sofola.? That statement in my view is tantamount to giving evidence from the bar and in an address. The law is settled that an address no matter how brilliant is not a substitute for credible, cogent and admissible evidence upon which any Court is entitle to act. I do not know how counsel arrived at the conclusion that the signature is that of ?Kehinde Sofola? and that he is a Legal Practitioner. By virtue of Section 2 (1) of the Legal Practitioners Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. Whether or not a person?s name is on the roll is a matter of fact which can only be established cogent and credible evidence. It is certainly not one of the matters listed under Section 122 (1) of the Evidence Act which any Court is entitle to take judicial notice of. Section 122 (4) of the Evidence Act, 2011 provides that ?if the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it

may consider necessary to enable it to do so. Section 94 (1) provides that ?evidence that a person exists having the same name, address, business or occupation as the maker of a document purports to have, is admissible to show that such document was written or signed by that person.? The effect of the provisions of Section 2 (1) and 24 of the Legal Practitioners Act, Section 94 (1) and 122 (1) of the Evidence Act, 2011 combined is that unless it is established that the name Kehinde Sofola? is on the roll of persons entitled to practice as a barrister and solicitor and that it is the person whose name is on the roll, that signed the originating summons, this Court will be engaging in speculation by concluding that on the face of the summons, it was signed by a Legal Practitioner known to law. In view of the settled position of the law, I hereby hold that the originating summons having been signed by a firm of Legal Practitioners contrary to the provisions of Order 5 Rule 27 of the High Court (Civil Procedure) Rules of Anambra State, 1988, the originating process is incompetent and the suit has not been initiated by due process of

law. The Court below had no jurisdiction to entertain the suit. Issue 6 is resolved in favour of the appellants.

In line with the firmly established principle that it is the duty of this Court as an intermediate appellate Court to consider and pronounce on all issues properly raised before it to give the final Court an idea of its reasoning and position on those issues, I will proceed with the consideration of other issues.

Issue 5 is whether the learned trial judge was right when he held that the suit was properly brought in accordance with the law, and if not, whether it has occassioned a miscarriage of justice. On this issue, the appellants? counsel submitted that the provisions of Order 5 Rules 12 (2), 23 and 27 of the High Court (Civil Procedure) Rules of Anambra State, 1988 was not complied with because the originating summons was not signed or sealed by the Registrar and did not contain the statement or questions on which they seek the determination or direction of the Court. He further submitted that the failure to seal the originating summons renders it ineffective. He relied on L.E.D.B. VS. ADEWALE (1065) LLR PAGE 246.

?In response, the 1st ? 6th respondents? counsel submitted that if at all there was non-compliance with the above provisions of the rules of Court, the appellants are deemed to have acquiesced and waved their right to complain having not raised it before the trial Court. He referred to U.B.A.PLC.V. ADEMOLA (2009)8 NWLR (PT.1142) PAGE 113 AT 30-31, ANSA V.NTUK (2009) 9 NWLR (PT.1147) PAGE 557 AT 582, AJAYI V. A.G.OGUN STATE (2009) 9 NWLR (PT.1141) PAGE 443 AT 477, ADAMS V. UMAR (SUPRA). He further submitted that the rules were complied with because the Assistant Chief Registrar signed and affixed the seal of the Court on the summons as shown on page 3 of the record of appeal.

The law is settled that the use of the word ?shall? in a statutory provision or rules of Court connotes a mandatory compliance with the provisions of the statute or rules of Court, it is not permissive. It gives no room for discretion unless the con suggests otherwise. See NWANKWO VS. YAR?ADUA (2010) 12 NWLR (PT. 1209) PAGE 518, ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975) PAGE 65.

ORDER 5 Rule 12 (2) of the rules of Court provides that every originating

summons shall be signed, sealed and filed in the registry and when so sealed and filed shall be deemed to be issued. Put the other way, an originating summons is deemed not issued until it is sealed. Failure to seal an originating summons renders it invalid and incompetent. See IGIRIGA VS. BASSEY & ORS. (SUPRA). I have examined the originating summons on pages 3 and 81 of the record of appeal which are photocopies. It is signed and dated by the registrar but I cannot find any seal of the Court. There is nothing on the face of the summons to show that it was sealed. The defect is not an irregularity or a technicality which can be waived. It is fundamental to the suit and the jurisdiction of the Court. Where an originating process is incurably defective, there is no foundation upon which the Court can exercise its adjudicatory power. A party cannot by acquiescence or waiver confer jurisdiction on the Court where the jurisdiction has not been properly activated by an originating process validly issued in accordance with the relevant statute and rules of Court. The originating summons not having been sealed as stipulated by Order 5 Rule 12 (2) of the High

Court (Civil Procedure) Rules of Anambra State, 1988, the jurisdiction of the Court below was not properly activated and the Court below should not have adjudicated on the matter.

?There is also a complaint that the summons did not contain any question upon which the 1st ? 6th respondents sought the determination or direction of the Court. The provisions of the rule earlier reproduced in this judgment are clear and unambiguous. It is clear that the rule made provision for two alternatives. The plaintiff is required to state the question on which he seeks determination or directive or a concise statement of the relief or remedy claimed. The Word ?Or? when used in a statute is usually construed as disjunctive and as separating two distinct situations and or donating an alternative. Since the summons contained a clear and concise statement of the reliefs or remedies claimed at the Court below, there is a full compliance with the provisions of Order 5 Rule 23 of the High Court (Civil Procedure) Rules of Anambra State, 1988. Accordingly issue 5 is partly resolved in favour of the appellant. The learned trial judge rightly overruled the

objection on that aspect of non compliance.

I will now return to issues 1 ? 4. Issue 1 is whether the learned trial judge was not right or justified in holding that this suit was properly brought by way of originating summons. On this issue, appellants counsel submitted that the trial Court erred when he went ahead to determine the suit under the originating summons procedure despite serious and substantial issues of facts which were very much in contention. He referred to OYEWUMI VS. OSUNBADE (2001) FWLR (PT. 82) PAGE 1919 AT 1962, ADKINS SCIENTIFIC LTD. VS. ALADETOYINBO (1995) 7 NWLR (PT. 409) PAGE 526.

In response, the 1st ? 6th respondents? counsel submitted that by virtue of Order 5 Rule 3 (a) of the High Court (Civil Procedure) Rules of Anambra State, 1988, a suit can be commenced by an originating summons where the sole or principal question is likely to be one of construction of a written law or any deed, will, contract or other document. He further submitted that all the parties to the suit intended and indeed expected the trial Court to construe the contents of their respective documents in determining whether the 1st

? 6th respondents were afforded fair hearing by the State Boundary Committee and whether the Aghomili River as decided by the Anambra State Government is the correct boundary between the two communities. He referred to DAGOGO VS. A.G. OF THE RIVERS STATE (2002) FWLR (PT. 131) PAGE 1956, OSSAI VS WAWAH (2006) 4 NWLR (PT. 969) PAGE 208, NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) PAGE 718 (D ? F), EZEGBU VS. F.A.T.B LTD (1992) 1 NWLR (PT. 220) PAGE 699 AT 720.

Order 5 Rule 3 (a) and (b) of the Court (Civil Procedure) Rules of Anambra State which was in operation in 1988 when the originating summons was filed provides:

?Unless otherwise expressly provided by any written law from time to time in force in the State, the following suits shall be commenced by an originating summons, that is to say, 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;

(b) there is unlikely to be any substantial dispute of fact.?

?The

situations in which the procedure of an originating summons may be used have been fairly settled to warrant any long arguments or controversy. It is firmly established that the procedure should be used only where there is no dispute as to facts or there is not likely to be any dispute or hostility. It is not to be used for contentious or hostile matters or where facts are likely to be in dispute. Among the legion of authorities on this principle, See FAMFA OIL LTD. VS. A.G FEDERATION (2003) 18 NWLR (PT. 852) PAGE 453 AMASIKE VS. REG. GEN. VS C.A.C. (2010) 13 NWLR (PT. 1121) PAGE 337, PAM VS. MOHAMMED (2008) 16 NWLR (PT. 1112) 1. Can it be said that the facts in the case on appeal are not in dispute or that it is not a hostile action. My answer is a resounding NO. While the issue of lack of fair can be decided on the basis of the record of proceedings of the Boundary Committee, the issue of whether the Committee or the governor has power to overrule the decision of the High Court cannot be decided on the face of the record or the documents presented at the Court below. For instance, both parties were alleged to have submitted different versions of the judgment

of the Provincial Court delivered in 1928, without evidence from both parties to establish how they came about two versions of a judgment, the Court cannot decide which of the two versions is authentic. There is also the issue of whether the subject matter and the parties in the previous suits are the same as in the present suit. There is a serious dispute on the facts and it is certainly a hostile action. The learned trial judge was wrong when he held that the issues are issues of interpretation of law or instrument which requires no oral evidence. Issue 1 is resolved in favour of the appellant.

?Issue 2 is Whether, having regard to the documents and evidence before the trial Court, the learned trial judge was not right or justified in holding that the 1st to 6th Respondents were not given a fair hearing before the State Boundary Committee made its findings and recommendation. On this issue, the appellants? counsel submitted that the principle of fair hearing does not mean or demand that a case must be fought until oral evidence is given by the parties. He further submitted that since the Boundary Committee considered all the documents submitted to

it by the parties and visited the locus where the two contending parties gave oral evidence before the Committee, the absence of oral hearing thereafter cannot amount to a denial of fair hearing. He referred to C.R.P.D.I.C. LTD VS. OBONGHA (2001) FWLR (PT. 54) PAGE 353 AT 368, QUEEN VS. DIRECTOR OF AUDIT (W.R) & ORS. (1961) ALL NLR 687 AT 690, ADIGUN VS. A. G. OYO STATE (1987) 1 NWLR (PT. 53) PAGE 678, ADEDEJI VS. POLICE SERVICE COMMISSION (1968) NMLR.

The appropriate starting point for the consideration of the issue of fair hearing is the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is the Grund Norm and the source of the citizen?s right to fair hearing. No law or procedure which is inconsistent with its provisions can stand or override it. Section 36 (1) of the Constitution provides that:

?in the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and

impartiality.”

?The functions of the Committee shall be ?

(a) to intervene in, deal with and determine any boundary disputes that may arise between any two Local Government Areas or communities or among Local Government Areas or communities, in the State with a view to settling such dispute.

(b) to advise the Military Governor on issues affecting the boundary of any Local Government Area in the State;

advise the Military Government on such recommendations; and

(d) to do such other things connected with boundary matters as the Military Governor may, from time to time, direct.?

It is not open to an argument that in the performance of its duties and functions, the Committee irrespective of whether it is an administrative or quasi-judicial body is bound to act within the provisions of the Constitution and observe the age long principle of fair hearing which is now firmly entrenched in our Constitution.

Having stated the law regarding the functions of the Committee and its mandatory duty to observe the principle of fair hearing, the next thing is to find out whether the Committee observed that principle. In KOTOYE VS. C. B. N. (1989) 1 NWLR (PT. 98) PAGE 419 AT 444, The Supreme Court stated the attributes of fair hearing as follows:

?Clearly whenever the need arises for the determination of the civil rights and obligations of every Nigerian, this provision guarantees to such a person a fair hearing within a reasonable time. Fair hearing has been interpreted by the Courts to be synonymous with fair trial and as implying that every

reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the Court or other tribunal has been fair to all the parties concerned. See on this Mohammed v. Kano N. A (1968) 1 All N.L.R. 424, at p. 426. There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case. These include:

(i) that the Court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Broomfield Justices (1964) 1 Q. B. 578.

(ii) that the Court or tribunal shall give equal treatment, opportunity and consideration to all concerned. See Adigun v. Attorney-General, Oyo State & Ors. (1987) 1 NWLR (Pt. 53) 678.

(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing and

(iv) that having to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done: R. V. Sussex Justices, Exparte

McCarthy (1924) 1 K. B. 256, AT P. 256; Deduwa & Ors. v Okorodudu (1976) 10 S.C 329.

See also GARBA & ORS VS. THE UNIV. OF MADUGRI (1986) 1 NWLR (PT. 18) PAGE 550 AT 617. In order to comply with the requirement of fair hearing all the parties to a dispute must be heard at every material stage of the proceeding and on every material aspect of the dispute before the Court or the body adjudicating on or settling the dispute hands down a decision. While it is the law that fair hearing does not mean that it is mandatory for the panel to take oral evidence from a party especially where a party has presented documentary evidence in support of his case, it is also the law that the panel or the body investigating a matter or adjudicating on a dispute such as the Boundary Committee herein

must not receive evidence or representation behind the back of any of the parties. See OLATUNBOSUN VS. NISER (1988) NWLR (PT. 80) PAGE 25, AGBAHOMOVO VS. EDUYEGBE (1999) 3 NWLR (PT. 594) PAGE 170.

In the case on appeal, it is clear from the affidavits of both parties particularly Paragraphs 11, 12, 13 and 18 of the appellants? counter affidavit and Paragraphs 10- 17 and 31-34 of the 1st ? 6th respondents affidavit on pages 219-225 of the record of appeal that the dispute was transferred by the chairman, Orumba South Local Government to the State Boundary Committee. From the time of the transfer up till the time the Committee rendered its report, I cannot find anything on record to show that the parties were invited to either submit their memorandum or present their case orally. It is also clear that the Committee on its own went outside whatever documents were submitted by both parties which they allegedly deliberated upon to procure evidence in respect of the dispute and they did so without reference to the parties. For instance, the appellants stated in Paragraph 13 of their counter affidavit that the Committee took into consideration

the report of an independent investigation carried out by the State Police Command on the matter. There is nothing on record to show that the report was served on any of the parties particularly the 1st ? 6th respondents to enable them react either orally or in writing.

Apart from the above, both parties confirmed the fact that the Committee visited the locus in quo. However, there is a disagreement on whether the Committee that visited the locus in quo was properly constituted and whether parties were heard on the report of the visit. There is nothing on record to show that any of the parties were given a written report or observations of the Committee in respect of their visit or to show that both parties were represented during the visit. The appellants relied on Exhibit MJFC6 which is a newspaper publication. The State Boundary Committee is a body set up by law. Therefore the only authentic evidence of its proceedings is its own record of proceedings which ex-facie must show that in the performance of its functions and duties, it fully complied with the constitutional requirement of fair hearing. In the absence of such record, it is not open

to the Court to speculate that the requirement of fair hearing was fully complied with. The record of the proceedings of the Boundary Committee was not before the Court below. The only inference the Court below was bound to draw was that the tribunal did not comply with the requirement of fair hearing. The Court below was on a very firm ground when he held as follows:

?None of the exhibits relied upon by the defendants proved that the plaintiffs took part in whatever deliberations or meetings held by the Boundary Committee on the dispute between the parties. There is nothing to show that the committee called for memorandum from the parties. Rather the letter Exhibit AN7 written on November 7, 1997 shows the Exhibit 8F written by the 1st ? 6th Defendants on 2nd September 1996 is no defence that the plaintiffs were heard even though it referred to the visit of the Committee to the area in dispute on 12th October, 1995 nearly one year before. As at November 7, 1997 the committee still had the intention to invite the parties to a meeting to discuss their problems. But instead of holding the meeting on the specified date, a decision was handed

down to the Plaintiffs. Finally from all the documents in support and against which I have analyzed above, I hold that the Plaintiffs were not given a fair hearing before the State Boundary Committee reached its decision that the Aghomili River be the permanent boundary between the two communities.?

The finding of the Court cannot be faulted. Accordingly, issue 2 is resolved against the appellants.

Issue 3 is whether, having regard to the findings and recommendation of the State Boundary Committee and the Anambra State Government decision contained in Exhibit AN8, the learned trial judge was not right or justified in holding that the provisions of Section 1 (2) (b)(i) of the Military Government (Supremacy and Enforcement of Powers) Act did not include decisions in the body of the law and thus did not oust the jurisdiction of the trial Court to entertain this suit.

On this issue, the appellants? counsel submitted that the action of the Anambra State Government in placing or fixing the boundary between Umuomaku and Aghomili River pursuant to Section 5 (b) of the Anambra State Boundary Committee(Establishment) Edict,1989 falls within

the provisions of Section (2)(b)(i) of the Military Government (Supremacy and Enforcement of Powers) Act as “any act, matter or thing done or purported to be done under or pursuant to any Act or Law.” That being the case, it cannot be litigated or inquired into by way of any civil proceedings. The Act in question simply ousts the jurisdiction of the Court from looking into any act, matter or thing done or purported to be done under or pursuant to any Act or law. He referred to OSADEBAY VS. A.G. (BENDEL STATE) (1991) 1 NWLR (PT. 169) PAGE 522. Counsel further submitted that the Court has a legal duty to give full effect to the law by making an order to abate the proceedings.

In response, the 1st ? 6th respondents? counsel submitted that from the express wordings of Section 1 (2) (b) (i) of the Act, what it purports to prohibit is a civil suit brought for or on account of or in respect of any act, matter or thing done or purported to be done under any Edict or Decree, the Act is not concerned with judicial decisions or quasi-judicial decisions.

?The law is settled that in the interpretation of a statute where the

wordings used in the statute are clear and unambiguous, the words must be given their literal and ordinary meaning. The entire provisions of the statute must be read together to get the real intention of the law maker. It is also the law that the Court must confine itself to the provision of the statute; the Court must not add, delete or subtract any part of the law.

Section 1 (1) & (2) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1994 provides as follows:

(1)?the preamble hereto is affirmed and declared as forming part of this Decree.

(2) it is hereby declared also that :

(a) for the efficacy and stability of the Government of the Federal Republic of Nigeria; and

(b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, Order and good government of the Federal Republic of Nigeria:-

(i) no civil proceedings shall lie or be instituted in any Court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict and if such proceedings are instituted before, on or after

the commencement of this Decree the proceedings shall abate, the (sic) discharged and made void;

(ii) the question whether any provision of chapter IV of the Constitution of the Federal Republic of Nigeria 1979 has been, is being or would be contravened by anything done or purported to be done in pursuance of any Decree shall not be inquired into any Court of law and accordingly, no provision of the Constitution shall apply in respect of any such question.?

?It is clear from the above that the decree was made for the purpose expressly stated therein which is to oust the jurisdiction of the Court on any suit filed to challenge the Decree or Edict made for the stability of the Government of the Federal Republic of Nigeria and effective maintenance of the territorial integrity of Nigeria, peace, order and good government of Nigeria. There is nothing in the claim of the 1st ? 6th respondents relating to any act or matter or anything done under any Decree or Edict made for the efficacy or stability of the Government of Nigeria or affecting maintenance of the territorial integrity of Nigeria, peace, order and good governance. The 1st ? 6th

respondents? claim is simply about ownership of land. The Decree does not apply or extend to an intervention and a decision of the Government to approve the recommendation of a Committee set up to determine any boundary dispute between Local Governments or Communities with a view to settling the dispute. See ABACHA VS FAWEHINMI (2000) 6 NWLR (PT. 660 Page 228.

On the interpretation of a statute ousting the jurisdiction of a Court, the Supreme Court stated thus in MILITARY GOV., ONDO VS. ADEWUMI (1988) 3 NWLR (PT. 82) PAGE 280 AT 295:

?As a general principle, even where there is a statute purporting to oust the jurisdiction of a Court, the language of any such statute will be jealously watched by the Court: See: Re Vexatious Actions Act 1969, R E Boaler (1915) 1 K.B.21,AT P.36;Pyx Granite Co.Ltd. v. Ministry of Housing & Local Government (1960) A.C.260, H.L.; Barclays Bank of Nigeria Ltd. V. Central Bank of Nigeria (1976) 6 SC.175, at p.170. H.,L., it was held that where a provision purporting to oust the jurisdiction of the Court is reasonably capable of having two meanings, that meaning shall be preferred which is capable of preserving the ordinary

jurisdiction of the Court.”

The learned trial judge was right when he held that the jurisdiction of the Court is not ousted by the said legislation. Issue 3 is resolved against the appellant.

Issue 4 is whether the trial Court discharged his duty to consider and pronounce on all the issues submitted to him for adjudication by the parties and if not, whether the Court of Appeal can look into it? It is apparent on the face of the record of appeal that the Court below did not consider the second issue identified for determination. The learned trial judge categorically stated that the ?success of issue 1 makes a consideration of issue 11 unnecessary.? Issue 11 which was not considered by the learned trial judge is as follows:

?Whether the State Boundary Committee and the Anambra State Government have any right to set aside the decisions of the Supreme Court of Nigeria (now High Court) in Suit No. O/19/48 and WACA in Appeal No. 3880.?

?Though it is the duty of the trial Court to consider and pronounce upon all the issues raised by parties, it can only decide the issues properly raised before it. In the

instant case, it is my view that the issue of whether the Committee has a right to overrule the decision of the Supreme Court was not properly raised before the Court in that all the materials necessary for the just and proper determination of that issue was not before the Court. Though the decision of the Court below not to consider the issue was based on a different reason, it is trite that an appellate Court will not set aside a correct decision of a trial Court because it is based on wrong reasons. An appellate Court is concerned with the correctness of a decision and not the reasons for the decision. See ILUBUYA V. DIKIBO (2010) 18 NWLR (PT.1225) PAGE 627.

The appellants? counsel urged the Court to exercise its powers under Section 15 of the Court of Appeal Act and determine the issue not considered by the Court below. Section 15 of the Court of Appeal Act provides as follows:

?The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings

on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim, order or grant any injunction which the Court direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court?s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.?

?In EZEIGWE V. NWAOWULU & ORS. (2010) 4 NWLR (PT.1183)PAGE 159 AT 203-204(G-B), the Supreme Court stated the conditions must be present before the Court of Appeal can exercise its power as stated above as follows:

?For the provision to apply, the following conditions must exist, to wit:

(a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before

the appellate Court can entertain it;

(b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;

(d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented: and

(e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.?

All the above conditions must co-exist before the Court can exercise its power. In the instant appeal, the jurisdiction of the Court below has not been properly activated. The need for an expeditious disposal or determination of a case is of no moment where the action was not brought before the Court by due process of law. Where all the necessary materials are not before the Court, as in this case, the Court is handicapped from exercising that power. For the foregoing reasons, issue 4 is resolved against the appellant.

For the foregoing reasons, this appeal has merit and

it is hereby allowed. The suit at the Court below was not properly instituted by due process of law. It is therefore incompetent and it is hereby struck out. Parties are to bear their own costs.

TOM SHAIBU YAKUBU, J.C.A.: The law has been well settled upon the authority of Okafor & 2 Ors v. Nweke & Ors (2007) 10 NWLR (pt. 1043) 521; (2007) 3 SCNJ 185; (2007) All FWLR (pt. 368) 1016, to the effect that Court processes must be signed by a Legal Practitioner who has been enrolled to practice law in Nigeria, by virtue of Section 2(1) of the Legal Practitioners’ Act, 1990. Further see Mrs. Olayinke Adewunmi & Ors v. Mr. Amos Oketade (2010) 3 SCNJ (pt. II) 368; SLB. Consortium v. Nigeria National Petroleum Corporation (2011) 4 SCNJ 211 at 221-223; Nigerian Army v. Samuel (2013) 7 SCNJ (pt. 1)161.

Therefore, in the circumstances of the present appeal, where the originating process at the trial High Court was signed by an unknown person, for the law firm of Kehinde Sofola & Co., such a process of Court, is unarguably, incompetent and liable to be struck out.

I have no difficulty in agreeing with the opinion of my Lord,

MISITURA OMODERE BOLAJI-YUSUFF JCA; in the lead judgment that the suit at the Court below was not initiated by due process of law. The same is incompetent and liable to be struck out. I, also strike it out, accordingly.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF JCA. I agree with reasoning, conclusions and orders therein.

Appearances

Nnamdi Ibegbu, SAN with him, P.O. Ogwudu, Esq.For Appellant

AND

Ben Osaka, Esq. for 1st – 6th Respondents.

Mrs. Ikwuazom U. with Nwora O. (Mrs) for 7th & 8th RespondentsFor Respondent