CHIEF JAMES DAN UKPONG & ORS V. THE TRADITIONAL RULERS COUNCIL INI LOCAL GOVERNMENT AREA
(2012)LCN/5592(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of July, 2012
CA/C/158/2010
RATIO
“Black’s Law Dictionary 8th edition, page 502 defines the word “dismiss” as to send something away; specifically, to terminate an action or claim) without further hearing especially before the trial of the issues involved. “Dismissal” as a noun means termination of an action or claim without further hearing, especially before the trial of the issues involved.” Per TUR J.C.A.
“Jurisdiction must be vested in a Court of law before the rights of the parties can be determined. See Kalu v. Odili (1992) 6 SCNJ (Pt.1) 76. Where the Court has no jurisdiction it cannot make binding orders. See Nyarko v. Akowuah 14 WACA 426. In the course of trial a Court may have the jurisdiction or competence to adjudicate over a particular subject-matter yet, commit irregularities which would not affect its jurisdiction.” Per TUR J.C.A.
“In Adeigbe & Anor v. Kusimo & ors. (1965) NMLR 284 Ademola CJN explained the difference between jurisdiction and irregularity in the following language at page 287: “There seems to be a confusion of thought between jurisdiction and regularity; between the competence of the court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case. This matter was aptly put in a judgment of this Court in the Appeal Gabriel Madukolu v. Johnson Nkemdilim (6) where Bairamian; put it thus: F.J. put it thus: ‘A Court is competent when – (1) It is properly constituted as regards members of the bench, and no member is disqualified for one reason or another; and (2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) The case comes before the court initiated by due process of law, and upon fulfillment, of any condition precedent to the exercise of jurisdiction. He continues: ‘Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial.” Per TUR J.C.A.
“A court may dismiss a suit or motion for many reasons. A dismissal for want of prosecution occurs because the plaintiff had failed to pursue the case diligently towards completion. There is dismissal without prejudice which does not bar the Plaintiff from refilling the law suit within the applicable limitation period. A dismissal with prejudice usually occurs after adjudication on the merit(s). This debars the plaintiff from prosecuting any later suit on the same claim. A dismissal on grounds of want of jurisdiction for example through ouster clause by statute is a final judgment. See Agbaje v. Attorney-General of (1986) 2 NWLR (PT.23) 528; Western Steel Works Ltd. v. Iron & Steel workers union (1986) 3 NWLR (pt.30) 617 at 627. When an appeal is heard and dismissed on the merit the Court of Appeal becomes functus officio. See Iro Ogbu v. Arum (1981) 4 SC 1; Eronini v. Ihenko (1989) 2 NWLR (Pt.101) 46 at 60 and Okpala v. Ibeneme (1989) 2 NWLR (Pt.102) 208 at 223. An appeal cannot be re-entered after a dismissal and the order has been drawn up for failure of a party to appear at the hearing. See W.H. Bockeimann v. Thompson Nwaeni (1965) NMLR 252; Yonwuren v. Modern Signs (1985) 1 NWLR (pt.2) 244; Ikeakwu v. Nwamkpa (1976) NMLR 224 at 227; Olu of Warri v. Esi (1958) 3 FSC 94 and New Insurance v. Uchay (1973) 1 NMLR 170. If after the dismissal with prejudice the plaintiff files a later suit on the same claim, the defendant in the later suit can plead res judicata. Involuntary dismissal takes place where the plaintiff failed to prosecute or to comply with a procedural rule of Court. A voluntary dismissal occurs where the plaintiff himself asked for such prayers or by stipulation of the parties. In the event of either case happening the plaintiff’s claim or appeal is removed from the Court’s cause list for hearing and determination. Generally a “dismissal” has the normal effect of putting an end to the case dismissed’ per Elias C.J.N. in Orewere & Ors. v. Abiegbe & ors. (1973) 8 NSCC 479 at 482. To strikeout or off a suit, an application, or an appeal is to order that it be removed from the Court’s cause list for hearing and determination. Where an appropriate application is brought within the ambit of the law and good reasons exist, the suit, application or appeal can be relisted. When relisted it is not a new suit; it is the old suit, application or appeal that was restored to the Cause List of the Court for hearing and determination. See Kassim v. Ebert (1966) NNLR 75.” Per TUR J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. CHIEF JAMES DAN UKPONG
(For himself and representing Ikot Uko family and Ikot Uko Village)
2. CHIEF MICHAEL OTU AKPAN
(Obong Ubon Ikot Uko Group of families for himself and as representative of Ikot Uko Village)
3. CHIEF PATRICK AKPAN EKEBE
(Obong Ubon Ikot Uko Okpoho Group of families for himself and as representative of Ikot Uko village)
4. CHIEF EDET ISEYEN AMASI
(Obong Ubon Ikot Uko Mkpa Eyop Group of families for himself and as representative of Ikot Uko Village)
5. CHIEF AKPAN EKEBE
(Village Council Secretary of Ikot Uko Village for himself and as representative of Ikot Uko Village)
– Applicant/Appellants (For themselves and all representatives of the people of Ikot Uko Family and Ikot Uko Village, Nkari Clan, Ini Local Government Area) – Appellant(s)
AND
THE TRADITIONAL RULERS COUNCIL INI LOCAL GOVERNMENT AREA – Respondent(s)
JOSEPH TINE TUR J.C.A (Delivering the Leading Judgment): The Appellants’ brief was served on the Respondent but no brief of argument was filed. Again though served appellants, motion that the appeal be heard only on appellants, brief there was no response from the Respondent. On the 12th April, 2011 this Court granted the prayers of the appellants that this appeal be heard and determined on the appellants’ brief alone.
The appellants’ appeal is against the ruling delivered by His Lordship Hon. Justice Charles Ikpe sitting in the High Court of Justice, Ikoho, Akwa Ibom State on 16th June, 2010.
The facts before the lower court were as follows:
The appellants brought an application in the lower court seeking leave to apply for an order of mandamus to compel the Respondent council to recommend chief James Dan Ukpong (1st appellant) to the Commissioner for Local Government and Chieftaincy Affairs for appointment as the village Head of Ikot Uko Village, Nkari Clan in Ini Local Government Area of Akwa Ibom State. On the 23rd day of February, 2010 Honourable Justice Charles Ikpe refused the application in the following language:
“In the result, I find no basis for granting leave to the applicants to apply for an order of mandamus to compel the Respondent to do the very thing which an order of court in Suit No. HT/59/98 had ordered it not to do and which order is not shown to have either lapsed or is no longer operative.
The relief sought for by the applicants is unavailable and the application for leave is hereby refused.
And this shall be this Court’s Ruling.”
(See page 15 lines 8-14 of the printed record).
On the 15th day of March, 2010 the appellants’ learned counsel brought an ex-parte application
No. AKN/MISC.9/2010 praying for the following reliefs:
“(1) An order extending time to bring this application.
(2) An order relisting the suit No. HKN/MISC/87/2009 in which the application was refused and case removed from the cause list on the 23rd February, 2010.
(3) An order setting aside and varying the order/decision made in the suit above on the 23rd February, 2010.”
The learned trial Judge directed and the Respondent was put on Notice. Exhibit “AA” to the affidavit in support of the application was the ruling of 23rd February, 2010 refusing the application for leave to apply for the writ of mandamus. Exhibit “BB” is suit No. HKN/12/2003 dismissing a similar suit on 13th June, 2008. Learned counsel to the appellants’ argument in the lower court was that suit No. HKN/MISC/87/2009, though dismissed could be relisted under order 39 rule 1(1) of the High Court (Civil Procedure) Rules, 2009 applicable to Akwa Ibom State. This is because the only reason the learned trial Judge refused to grant relief was because the applicant did not state the outcome of a previous suit No. HKN/12/2003 which was dismissed on 13th June, 2009 after the death of the lone plaintiff. Counsel’s further argument before the lower Court was that having supplied this fresh fact, this should have persuaded the learned trial Judge to relist the suit and set aside the previous order of the Court. Counsel cited Ikomi v. Agbeyegbe 12 WACA 379 and ENDC V. Uwaechia 10 ENLR 9; UAC Ltd. v. A.P.Z. Umeugu (1959) 3 ENLR 30. Counsel further pointed out that it was the learned trial Judge that suo motu raised the issue without an input from the appellants’ learned counsel thus infringing the right to fair hearing. Counsel cited Vincent Standard Steel Nig. Ltd. v. Government of Anambra State (2001) FWLR (pt. 66) 697 and Prince Yahaya Adigun & 2 ors. v. Attorney-General, Oyo State & 8 Ors. (1987) 3 SC 250; Bidder v. Bridges (1984) 26 Ch. D. 1631 and Abraham Olabayi v. Udofin (1996) 2 SCNJ 242 as authorities to support his argument. On 16th June, 2010 his Lordship once again ruled that he found no merit in the application which he accordingly dismissed.
On 16th July, 2010 the appellants appealed against this ruling on three grounds of appeal. In the Appellants, brief of 6th December, 2010, adopted on 17th May, 2012 when the appeal came up for hearing, the following issues were set out for determination.
“1. In the circumstances of this case, can the trial Court under order 30 rule 4(3) of the High Court (Civil Procedure) Rules, 2009 extend the time to bring the application to set aside the Ruling of 23rd, February, 2010 and relist the suit HKN/MISC/87/2009.
2. Did the lack of fair hearing affect the Ruling of the trial court dated 23rd February, 2010, and if so could it not be set aside by the same trial Court?
3. Whether the suit No.HKN/MISC/87/2009 cannot be relisted for hearing and determination on the merit by the same trial High Court.”
ISSUES ONE AND THREE:
Issues one and three were argued together. The whole argument centred on whether the learned trial Judge was right in refusing to extend time for the appellant to bring an application to set aside the ruling of 23rd February, 2010 and to relist suit No.HKN/MISC/87/2009 so that the suit could be heard on the merit. Counsel relied on order 30 rule 4(3) of the High Court (Civil Procedure) Rules, 2009 applicable to Akwa Ibom State. The argument in support of issues one and three was a repetition of the argument proffered before the learned trial Judge except that the learned counsel cited additional authorities, namely, Mabinuori v. Ogunleye (1970) 1 All NLR 17 at 20; Olu of Warri v. Chief Sam Warri Esi & Anor. (1958) 5 FSC 94 at 97. Learned Counsel urged that this appeal should be allowed and suit No.HKN/MISC/87/2009 be relisted.
ISSUE TWO:
On issue two learned counsel argued that the ruling of 23rd February, 2010 was bedeviled with facts infringing fair a hearing in that it was the learned trial Judge that suo motu raised the issue of the fate of suit No.HKN/12/2003. At that stage the appellants’ counsel had no opportunity to reply. Accordingly, fair hearing been breached, it was argued that the decision and consequent orders made exparte by the court “in suit No.HKN/MISC/87/2009 on 23rd February, 2010 be set aside, citing Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566 held 8 and 18 and the authorities earlier referred to in issues one and two. Counsel further referred to Section 15 of the Court of Appeal Act, 2004; Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264 at 276 and Inakoju & ors. V. Adeleke & 3 ors. (2007) (Pt.353) 3 at 104-105 in support of the argument that this Court should make the necessary orders which the court below could have made in order to achieve justice by way of a rehearing.
REASONS FOR JUDGMENT
ISSUES ONE AND THREE:
From the arguments presented by the learned counsel to the appellants it is a fact that on the 13th June, 2008 the High Court dismissed suit NO. HKN/12/2003 (Exhibit “BB”). Exhibit “AA” is the ruling of the lower court, refusing to grant the appellants leave to apply for an order of mandamus against the Respondent. Under what circumstances can the lower court grant extension of time to relist suit No.HKN/12/2003 that had been dismissed on 13th June, 2008? Secondly, under what circumstances may the lower court have granted extension of time to relist suit No.HKN/MISC/87/2009 refused on 23rd February, 2010?
Black’s Law Dictionary 8th edition, page 502 defines the word “dismiss” as to send something away; specifically, to terminate an action or claim) without further hearing especially before the trial of the issues involved. “Dismissal” as a noun means termination of an action or claim without further hearing, especially before the trial of the issues involved.
A court may dismiss a suit or motion for many reasons. A dismissal for want of prosecution occurs because the plaintiff had failed to pursue the case diligently towards completion. There is dismissal without prejudice which does not bar the Plaintiff from refilling the law suit within the applicable limitation period. A dismissal with prejudice usually occurs after adjudication on the merit(s). This debars the plaintiff from prosecuting any later suit on the same claim.
A dismissal on grounds of want of jurisdiction for example through ouster clause by statute is a final judgment. See Agbaje v. Attorney-General of (1986) 2 NWLR (PT.23) 528; Western Steel Works Ltd. v. Iron & Steel workers union (1986) 3 NWLR (pt.30) 617 at 627. When an appeal is heard and dismissed on the merit the Court of Appeal becomes functus officio. See Iro Ogbu v. Arum (1981) 4 SC 1; Eronini v. Ihenko (1989) 2 NWLR (Pt.101) 46 at 60 and Okpala v. Ibeneme (1989) 2 NWLR (Pt.102) 208 at 223. An appeal cannot be re-entered after a dismissal and the order has been drawn up for failure of a party to appear at the hearing. See W.H. Bockeimann v. Thompson Nwaeni (1965) NMLR 252; Yonwuren v. Modern Signs (1985) 1 NWLR (pt.2) 244; Ikeakwu v. Nwamkpa (1976) NMLR 224 at 227; Olu of Warri v. Esi (1958) 3 FSC 94 and New Insurance v. Uchay (1973) 1 NMLR 170. If after the dismissal with prejudice the plaintiff files a later suit on the same claim, the defendant in the later suit can plead res judicata.
Involuntary dismissal takes place where the plaintiff failed to prosecute or to comply with a procedural rule of Court. A voluntary dismissal occurs where the plaintiff himself asked for such prayers or by stipulation of the parties. In the event of either case happening the plaintiff’s claim or appeal is removed from the Court’s cause list for hearing and determination. Generally a “dismissal” has the normal effect of putting an end to the case dismissed, per Elias C.J.N. in Orewere & Ors. v. Abiegbe & ors. (1973) 8 NSCC 479 at 482.
To strikeout or off a suit, an application, or an appeal is to order that it be removed from the Court’s cause list for hearing and determination. Where an appropriate application is brought within the ambit of the law and good reasons exist, the suit, application or appeal can be relisted. When relisted it is not a new suit; it is the old suit, application or appeal that was restored to the Cause List of the Court for hearing and determination. See Kassim v. Ebert (1966) NNLR 75.
In dismissing suit No.HKN/12/2003 on 13th June, 2008 the learned trial Judge held thus:
“Court: There is an agreement on both sides – plaintiff’s Counsel side and the defendant’s Counsel side that the plaintiff in this case is dead. From the records this case had commenced and was part heard when the deceased Plaintiff died.
On 21st May, 2008 when this matter came up Chief Mfon Inam of Counsel was aware of the death of the plaintiff but that this case has a remedy which by law he would produce before the Court on the next adjourned date to convince the Court to sustain it. He promised therefore to apply to regularize and cure any defects in the present proceeding.
The defence Counsel on their part said they were eagerly awaiting the advocacy of the plaintiff’s Counsel for the curative value intended to be produced in respect of this case. However, today Chief Mfon Inam is not only absent but has failed to file or file any process that would seek to cure the defect in this procedure.
It appears to me that with the absence of Chief Inam we may have been served the legal fireworks that were reserved for today, No legal issues have now been canvassed. What we presently know as a fact about this Case which all sides concede to is that the plaintiff is dead. As far as that is concerned the position of the law is clear and as Obong Cletus Udoh put it we no longer share the same jurisdiction with the dead plaintiff – all respect to, his soul. Indeed in this proceed I find myself hesitating to address Chief Mfon Inam as counsel for the plaintiff or Counsel for the deceased plaintiff. That is how practical the issue goes.
Consequent upon the death of the plaintiff in this case and relisting (sic) that this case was part heard and can no longer be continued, this Court is left with no choice but to dismiss the suit.
This case is accordingly dismissed.”
The dismissal of the suit was not on the merit or with prejudice since the suit was only part heard when the plaintiff died. But since the plaintiff was dead what would be the use of relisting that suit? I see none. See Re Pedro (1950) 19 NLR 70; Nzom v. Jinadu (1987) 1 NWLR (pt.51) 533.
Then comes the application to relist suit No.HKN/MISC/87/2009 determined by the learned trial Judge on 23rd February, 2010. In this ruling the learned trial Judge refused the appellants’ application for leave to apply for an order of mandamus to compel the Respondent to do the very thing that was refused in suit No.HT/59/98.
To “refuse” for instance an application or prayer is to reject same as worthless; it is to deny that request or prayer. Where the application was heard on the evidence and argument of Counsel but refused, that is equivalent to a dismissal on the merit or a dismissal with prejudice in which case the plaintiff cannot ask the Court to relist same for hearing and determination.
Learned Counsel however referred to Order 30 rule 4(3) of the High Court (Civil Procedure) Rules, 2009 applicable to Akwa Ibom State which provides as follows:
“(3) An application to relist a cause struck out or to set aside a judgment shall be made within 6 days after the order or judgment or such longer period as the Judge may allow.”
Suit No.HKN/MISC/87/2009 was refused on 23rd February, 2010. Even if it could be relisted the 6 days for bringing an application to set aside the ruling and to relist same is to be computed from 24th February, 2010. The application to set aside the ruling was however filed on 15th March, 2010 well out of the statutory period prescribed under Order 30 rule 4(5) of the Rules supra. The appellant did not explain the long delay in bringing the application to the satisfaction of the learned trial Judge. See Sanusi v. Ayoola (1992) 9 NWLR (pt.265) 275; Williams v. Hope Rising Voluntary Funds society (1982) 1-2 SC 145. Being a discretionary power conferred on the learned trial Judge, I am unable to hold that the discretion was not exercised judicially or judiciously. I resolve this issue against the appellants.
ISSUE TWO:
If I understand the argument under issue two correctly, it is that where a trial Judge raises an issue(s) suo motu upon which he predicates his decision thereby infringing the principle of fair hearing under Section 36 (1) of the constitution of the Federal Republic of Nigeria, 1999 as altered the same judge should on application set aside that decision. My answer is no. Jurisdiction must be vested in a Court of law before the rights of the parties can be determined. See Kalu v. Odili (1992) 6 SCNJ (Pt.1) 76. Where the Court has no jurisdiction it cannot make binding orders. See Nyarko v. Akowuah 14 WACA 426. In the course of trial a Court may have the jurisdiction or competence to adjudicate over a particular subject-matter yet, commit irregularities which would not affect its jurisdiction. Nevertheless the irregularities may make the decision unsatisfactory so that such a judgment should not be allowed to stand. In Adeigbe & Anor v. Kusimo & ors. (1965) NMLR 284 Ademola CJN explained the difference between jurisdiction and irregularity in the following language at page 287:
“There seems to be a confusion of thought between jurisdiction and regularity; between the competence of the court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case.
This matter was aptly put in a judgment of this Court in the Appeal Gabriel Madukolu v. Johnson Nkemdilim (6) where Bairamian; put it thus: F.J. put it thus:
‘A Court is competent when –
(1) It is properly constituted as regards members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law, and upon fulfillment, of any condition precedent to the exercise of jurisdiction.
He continues:
‘Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.
If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial.
The complaint against a hearing that was not always before the same bench does not pertain to any matter that goes to the jurisdiction of the court. It is at bottom a complaint that the judgment cannot be satisfactory on the ground that as the persons who gave it had not seen and heard all the witness, they could not appraise the evidence as a whole and decide the facts properly. Thus it is a complaint on the soundness of the judgment itself, and not a complaint that is extrinsic to the adjudication, which is the test to apply when considering a submission on jurisdiction. We are therefore of the opinion that variations in the bench do not make the judgment a nullity; they may make it unsatisfactory, and it may have to be set aside for this reason, but whether they do or not depends on the particular circumstances of the case.
We have now to consider whether the proceedings in the Native or Customary Court were irregular or improper in a manner of degree which makes, it necessary to set aside the Judgment; and the question here is whether the challenges in the constitution of the bench effected the conduct of the trial itself and the soundness of the adjudication. See Madukolu v. Nkemdilim (supra).”
In the present appeal there is no argument that the learned trial Judge did not have jurisdiction nor the competence to adjudicate over the reliefs in motion No.AKN/MISC.9/2010 of 15th March, 2010 seeking to set aside and relist suit No.AKN/MISC/87/2009 delivered on 23rd February, 2010. The question of jurisdiction did not arise. But it is argued that the learned trial Judge should not have suo motu raised an issue and without hearing a counsel to the appellant, founded his ruling on that issue.
The raising of a matter suo motu and anchoring judgment on it has been deprecated by the Supreme Court in several decisions, example, Ike v. Ugboaja (1993) 6 NWLR (pt.301) 539; Oje v. Babalola (1991) 4 NWLR (Pt.185) 267; Ogiamen v. Ogiamen (1967) NMLR 245 at 248 and Okotie Eboh vs. Okotie-Eboh (1986) 1 SC 479.
But this has nothing to do with the jurisdiction of the Court. It is an irregularity which only an appellate Court. Jurisdiction to set aside a ruling by the trial Court is confined to orders or judgments that are nullities. See Akimbobola v. Plisson Fisko (1991) 1 NWLR (pt.167) 270 at 299; Nwosu v. Udeaja (1990) 1 SCNJ 152 at 167.
Apart from this, no trial Judge has the powers to set aside its own Judgment of orders once pronounced. See Alao v. ACB Ltd. (2000) 6 sc (pt.1) 27/50.
In Ugo v. Obiekwe & Anor. (1989) 1 NSCC 296 where the trial Judge raised certain issues suo motu on which he anchored his judgment without hearing learned counsel the judgment was set aside by the Supreme Court; not the trial court. At page 310 the Supreme Court held per Nnaemeka-Agu, JSC as follows:
“For what I have said, the appeal succeeds, and is allowed. The judgment of the Court of Appeal in Appeal No. CA/E/69/1979 is set aside. For the avoidance of doubt, the judgment of Okadigbo, J. is also set aside for offending against the rule of fair hearing…”
In my humble view where a judgment of a trial Court offends the rule of fair hearing it is to be set aside by an appeal court; not the trial court. I resolve this issue against the appellant.
On the whole this appeal lacks merit and is dismissed.
MOHAMMED LAWAL GARBA, J.C.A.: After reading the draft of the lead judgment written by my learned brother Joseph Tine Tur, JCA, in this appeal, I entirely agree with the reasoning that the appeal is devoid of merit.
For the reasons set out therein which I adopt, I join in dismissing the appeal with an order for N50, 000.00 costs in favour of the Respondent to be paid by the Appellants.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the ruling just delivered by my learned brother Joseph Tine Tur, JCA. I agree with his reasoning and conclusions. I agree that this appeal lacks merit. It is hereby dismissed.
Appearances
No Counsel Representative on 17th May, 2012For Appellant
AND
No Counsel Representative on 17th May, 2012For Respondent
