CHIEF UJILE DOGOOD NGERE & Ors v. CHIEF SILAS ENEYO (JP) & Ors
(2009)LCN/3123(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of February, 2009
CA/PH/13/2007
RATIO
JURISDICTION: IMPLICATIONS OF A CHALLENGE TO THE COMPETENCE OF A TRIAL COURT
It is the law that when there is challenge to the competence of the trial court to exercise judicial powers of adjudication the court’s jurisdiction at this stage is restricted to its ascertaining whether or not it has jurisdiction to entertain the matter. It is when the trial judge is satisfied that he has jurisdiction that he may proceed to hear evidence and adjudicate on the matter: Okoye v. NIGERIAN CONSTRUCTION (1991) 7 SCNJ (2) 365 at page 382.
At this stage where there is a challenge to the court’s jurisdiction on the ground that the suit, as presented by the plaintiff or claimant, does not disclose the necessary locus standi of the plaintiff or claimant to maintain the suit it is into the processes, including the statement of claim, filed by the plaintiff or claimant that the trial court pries into in order to ascertain whether the plaintiff or claimant has disclosed his locus standi to maintain the suit:
BABATUNDE ADENUGA v. J.K. ODUMENA (2002) 8 NWLR [PT.821] 163 at 189 G – H. In ABRAHAM ADESANYA v. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA [1981] 2 NCLR 358 at 393 it was held that when an issue of locus standi of the claimant or plaintiff is raised one has to look at the cause of action as pleaded for the ascertainment or disclosure of the standing of the plaintiff to bring and maintain the suit. When a party is standing to sue is in issue the question is whether the party whose standing is in issue is the proper party to request an adjudication of the particular issue and not whether the plaintiff’s case has or has no merits A.G. FEDERATTON v. A.G. ABIA STATE (2001) 11 NWLR [pt.725] 689. Per EJEMBI EKO, J.C.A.
FUNDAMENTALITY OF JURISDICTION
The law is settled that the issue of jurisdiction is fundamental to any competent adjudication. It is the lifeblood of a cause or matters where it is racking, the proceedings, no matter how well conducted, are a nullity.
See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Mark v. Eke (2004) 5 NWLR (865) 54; Sokoto State v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (1034)466. (1 SCNLR 341:
It is for this reason that the issue of jurisdiction could be raised at any stage of the proceedings, including for the first time on appeal to the Supreme Court. Once raised the issue must be determined before any further step is taken in the proceedings. See: Madukolu v. Nkemdilim (supra); N.D.I.C. v. C.B.N. (2002) 7 NWLR (766) 272; Afro-Continental (Nig.) Ltd. & Anor. v. Co-Operative Association of Professionals Ltd. (2003) 1 SCNJ 530; First Fuels Ltd. v. N.N.P.C. (2007) 2 NWLR (1018) 276 @ 300 E-G. Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
CONDITIONS TO BE SATISFIED TO GRANT A COURT JURISDICTION ON A MATTER
A court of law has a duty to cherish and its jurisdiction jealously and courageously. However, in view of the far-reaching and fundamental nature of jurisdiction, certain very stringent conditions must co-exist before a court of law or tribunal can assume jurisdiction in any matter, to wit:
(a) the court must first and foremost, be properly constituted by the right members of the bench and no member must be disqualified for any reason;
(b) the subject, matter of the case must be within the jurisdiction of the court and there must be no feature therein inhibiting the exercise of the jurisdiction;
(c) the case must come before the court by due process of law.
Per Saulawa, JCA.
See also MADUKOLU v. NKEMDILIM (supra) 341; WESTERN STEEL WORKS LTD VS IRON & STEEL WORKERS UNION (NO.1) (1936) 3 NWLR (part 30) 617; ALAMIEYESEIGHA v. IGONIWARI (No.2) (2007) 7 NWLR (part 1034) 524, respectively. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
EIEMBI EKO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF UJILE DOGOOD NGERE
2. CHIEF K.U. ASUK
3. CHIEF (SIR) A.M. EDEH-OGWUILE
4. CHIEF I.U. OTUO
(For themselves and as Representing the Andoni Chiefs Council in Andoni L. G. A., All State.) Appellant(s)
AND
1. CHIEF SILAS ENEYO (JP)
2. CHIEF FRIDAY NTEIRIEN
3. CHIEF P.U. I. MBORH
4. CHIEF M.W. OMAYI
(For themselves and as Representing the Andoni Chiefs Council in Andoi L.G.A. Rivers State.
5. RIVERS STATE COUNCIL OF TRADITIONAL RULERS
6. TRADE BANK PLC, NO.1.4 AZIKWE ROAD PORT HARCOURT. Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the All State High Court holden at Port Harcourt, All State which was delivered by Enebeli, J; on 09/10/06 in suit No PHC/2060/2005 relating to the present parties.
On19/12/2005, the 1st – 4th Respondents herein had instituted the said suit vide a writ of summons and statement of claim thereof seeking various declarations and orders of perpetual injunctions against the 1st – 4th Appellants and 5th & 6th Respondents, respectively thus:
1. A DECLARATION that by the Omagwa peace Accord as contained in a document titled COMMUNIQUE RELEASED DURING THE OBOLO NATIONAL RETREAT FOR ANDONI CHIEFS HELD AT THE INTERNATIONALAIRPORT HOTEL OMAGWA, PORT HARCOURT FROM 10TH – 13TH NOVEMBER, 2004 the apex ruling Chieftaincy body or council in Andoni Local Government Area of All State is the ANDONI CHIEFS COUNCIL.
2. A DECLARATION that the so called Andoni Traditional Rulers Council is not only moribund but also extinct by virtue of the peace accord reached at the Omagwa retreat for Andoni Chiefs held from the 10th to 13th November 2004, at the international Air-Port Hotel Omagwa, Port Harcourt.
3. AN ORDER of this Honourable Court direction or compelling the 1st, 2nd, 3rd and 4th Defendants to comply with the decision of the Andoni Chief Council contained in COMMUNIQUE RELEASED DURING THE OBOLO NATIONAL RETREAT FOR ANDONI CHIEF HELD AT THE INTERNATIONAL AIRPORT HOTEL OMAGWA, PORT HARCOURT FROM 10TH – 13TH NOVEMBER 2004.
4. AN ORDER directing or compelling the 1st, 2nd, 3rd, and 4th Defendants to- account for and transfer all monies accruing to the Andoni Chiefs Council vide the 5% Local Government allocation from November 2004 till date which the 1st, 2nd, 3rd, and 4th Defendants have had and received through account No. 116380001132 still being kept, maintained and operated by the 1st, 2nd, and 4th Defendants in Trade Bank PLC. Situated at No. 14 Azikiwe Road Port Harcourt in the name of Andoni traditional Rulers Council or any other name for management and disbursement to all Andoni Chiefs in line with the formula agreed upon by consensus in the following manner:
(i) All state Traditional Rulers Council (deducted at source)…5%
(ii) President of Andoni Chiefs Council i.e. 1st Defendant, 45%
(iii) Andoni Chief 50%.
5. An order of this Honourable court compelling the 1st to 4th Defendants to comply with the decisions reached at the Omagwa peace Retreat as contained in COMMUNIQUE RELEASED DURTNG THE OBOLO NATIONAT RETREAT FOR ANDONI CHIEF HELD AT THE INTERNATIONAL AIRPORT HOTEL OMAGWA, PORT HARCOURT FROM 10TH-13TH NOVEMBER 2004 by dissolving the former factional council called Andoni traditional Rulers Council.
6. An order of perpetual injunction restraining the all State Council of Traditional Rulers from transferring or remitting any money or cheque in respect of the 5% Local Government Allocation, accruing to Andoni chiefs to the 1st defendant or any other chief in Andoni LGA or the Andoni traditional Rulers Council or any other Chieftaincy Council established by the 1st to 4th Defendants in Andoni Local Government Area.
7. An order directing or compelling the 5th defendant to pay all monies accruing to Andoni Council of Traditional Rulers or the defendants on record personally from the 5% Local Government allocation fund due to Andoni Chief council into an interest-yielding account-in any reputable bank in State.
8. AN ORDER of perpetual injunction restraining the 6th Defendant or it Agents, Privies or servants from paying any money arising from the 5% allocation from the State Government to the 1st to 4th Defendants or any of their Agents, privies or servants or proxies aide account No. 11.63800061132 or any other account opened by 1st, 2nd and, 3rd and 4th Defendants in the 6th Defendant or any other bank in Rioers State.
9. AN ORDER OF perpetual injunction restraining the1lst to 4th Defendants from circulating any information intended to call for any meeting of the so-called Andoni Traditional Rulers Council or in the name of any other Chieftaincy institution in Ngo Town or any other Town or Community in Andoni LGA of -state or installing and or coronating any chief in Andoni L.G.A. under the aegis of the of the Andoni traditional Rulers Council or any other Chieftaincy name.
However, on their part, the 1st – 4th Respondents had in paragraph 23 of the Statement of Defence raised a preliminary objection challenging the competence of the 1st – 4th Respondents to institute the suit, on the ground that they lacked the locus standi to do so. The said paragraph 23 of the statement is to the following effect:
23. The Defendants shall further raise by way of preliminary point of law that in view of the combined effects of the provision of the Chieftaincy Edict 1978 the state Local Government (Amendment) Law No.3 of 2002 on the beneficiaries of the 5% revenues accruable to the Andoni Local Government Council and the existing final judgment of the State High Court of justice in suit No. PHC/1798/2003- His Highness Clinton N. Ogbolodom & Ors v. HRH Ujile Dogood Ngere which put and seal on adverse claims to the 5% Local Government fund, and established the sole rights of the Defendants thereto, the plaintiffs lack the standing to institute this action and or the plaintiffs claims do not disclose any reasonable or justiceable cause of action, and that the entire suit be dismissed.
By the statement of Defence thereof, the 1st- 4th Respondents equally counter-claimed and thereby praying the lower court for the following three reliefs:
(1) A DECLARATION that the persistent manipulative interference by the plaintiff under the umbrella of association called Andoni Council of Chiefs or Andoni Chief Council in the management and all matters relating to the statutory allocation to the Defendant of the Council is violating of the fundamental rights of the Defendants to Departments freedom of access to the fund.
(2) AN ORDER of perpetual injunction restraining the plaintiffs whether by themselves, agents or privies and collaborators howsoever from further interfering in all matters relating to or affecting the management, sharing or application for the Defendants statutory allocation of 5% of all revenues accruing to the Andoni Local Government Council.
(3) AN ORDER directing the plaintiffs jointing and severally to pay to the Defendants the sum of N200, 000,000.00 (Two Hundred Million Naira) only as specific and general damages.
The Appellants according filed a motion on notice dated 31/5/2006 seeking three reliefs, to wit-
1. AN ORDER setting down for determination, the preliminary point of law in paragraph 23 of the Statement of Defence filed on 13/1/2006;
2. Following upon relief 1, AN ORDER that these Honourable courts lack the jurisdiction to entertain this suit in view of the combined effects-of the provisions of the Chieftaincy Edict 1978, the state Local Government (Amendment) Law No.3 of 2002 and The Final judgment of the state High Court of justice in suit No. PHC/1798/2003- His Highness Clinton N. Ogbolodom & Ors v. HRH Ujilie Dogood Ngere.
3. AN ORDER that the Claimants/Respondents lack the locus standi to institute this suction, and or that this suit do not disclose any justiceable cause of action.
The said motion was predicted on the following seven grounds, viz:
1. That the State High Court of Justice in Suit No. PHC/1798/2003- HIS HIGHNESS CLINTON N. OGBOLODOM & 6 ORS v. HKH UJILE DOGOOD NGERE 2 ORS has interpreted the provisions of the State Chieftaincy Edict 1978 and the Rivers State Local (Amendment) Law 2002 and held that by these laws, it is only the Rivers State Government Recognised Traditional Rulers in each Local Government Area, in this case, Andoni Local Government Area are entitled to benefit from the 5% of all revenues accruable to the Local Government Council.
This judgment is in force and has not been set aside by any superior court of records in Nigeria.
2.That the said final judgment put to rest any question or issues on the beneficiaries of the 5% of all revenues accruable to the Andoni Local Government Council.
3. That the Claimants/Respondents who are public servants of the Rivers State Government are not recognised Traditional Rulers in xxxxxxxxx judgment in suit No PHC/1798/2003 as privies being parties or privies in the said suit.
4. Thnt the Claimants are not also co-opted members of the Andoni L.G.A. Council of Chiefs or the Andoni Area Council of Traditional Ruler/Chiefs.
5. That the question in this suit as per the writ of summons and statement of claim is the right of the claimants to benefit from the 5% of all revenues accruable to the Andoni Local Government council. This claim is a call on this Honourable court to sit on appeal or review the judgment of a court of co-ordinate jurisdiction.
6. That the alleged OMAGWA Retreat agreement touching on the beneficiaries of the 5% Andoni Local Government funds, is illegal, null and avoid and not enforceable as to create a right in that by such arrangement, the conveners usurp the law making power of the Rivers State legislature by attempting to amend section 20(1) of the Chieftaincy Edict 1978; section, 8 of the Rivers state Local Government (Amendment) Law No. 3 of 2002 and set aside the High Court Judgment in Suit NO. PHC/1798/2003.
7. That this Honourable court lack jurisdiction to entertain this suit in that the Claimants claims discloses no reasonable or justiceable cause of action.
At the conclusion of the hearing of the preliminary objection in question the lower court held, inter alia, thus:
The foregoing show that the fact of the existence and extent of the Omagwa Accord or its non-existence is strongly disputed and thus court can conveniently and conclusively any findings of fact upon which the settled issues of law could be predicated as to determine the rights of the parties in this case. This led to the questions of law, which appears to be in a fluid state, by the divergent submission of both counsel, inevitably calls for evidence from both sides at a plenary trial based on the pleadings settled by the parties.
It is for the above reasons that refuses this application and place the matter for hearing based on the pleading settled by the parties and written deposition of witnesses and list of documents as prescribed under order 3 Rule 2 and order 17 Rule 1, Rules of High Court 2006.
Thus, being dissatisfied with the above decision of the lower court, the Appellants filed the instant appeal, which is predicated on three grounds of appeal, thereby praying this court:
“To allow the appeal, set aside the decision of the lower court assuming jurisdiction to entertain this suit and substitute a verdict this suit for want of jurisdiction of the lower court in this suit.”
It’s instructive, that on 20/01/09, when this appeal last came up for hearing, both learned counsel adopted their respective briefs of argument, resulting in adjourning the appeal to today for delivery of judgment. The Appellants’ brief was filed on15/ 02/2007. Two issues have so far been formulated therein for determination to wit:
(1) Whether the learned Trial Judge was right in assuming jurisdiction to try this suit with out determining the issues of jurisdiction raised in the preliminary objection which issues were adopted by both counsel?
(2) WHETHER the Trial Judge was justified in relying on the case of OBIIURU V. OZIMS and came to the erroneous conclusion that once issues are not settled arising from conflict of facts in the pleadings and affidavit evidence, the duty of the court is to proceed to Trial with out considering the preliminary objection raised?
On his own part, the Respondents’ learned counsel, Chief G.O. Agbaraosimini, has formulated three issues for determination in the brief thereof thus:
1. WHETHER THE RULING OF THE LOWER COURT ON THE 9TH DAY OF OCTOBER, 2006 DISMISSING THE MOTION ON NOTICE FOR PRELIMINARY OBJECTION ON THE JURISDICTION OF THE TRIAL COURT AND LOCUS STANDI OF THE CLNMANTS WAS NOT PROPER IN LAW THE LOWER COURT HAVING EARLIER ASSUMED JURISDICTION IN THE RULING OF 18TH DAY OF MAY, 2006 BORDERING ON THE SAME ISSUES OF JURISDICTION AND LOCUS STANDI WHICH RULING WAS NOT APPEALED AGAINST BY THE 1ST – 4TH DEFENDANTS/APPELLANTS.
2. WHETHER BY THE VERY NATURE AND CIRCUMSTANCES OF THE CASE BEFORE THE COURT BELOW, THE LEARNED TRIAL JUDGE COULD HAVE BEEN JUSTIFIED IN DISMISSING THE CASE BEFORE HIM IN LIMINE WITHOUT HEARING EVIDENCE FROM BOTH PARTIES.
3. WHETHER THE JUDGMENT IN SUIT NO PHCT/1798/2003 HIS HIGHNESS C.N. OGOLODOME ORS V. HRH U.D. NGERE & ORS COULD OPERATE AS ESTOPPEL PER REM JUDICATAM AGAINST THE CLAIMANTS/RESPONDENTS IN SUIT NO. PHC/2060/2005.
In response to the Respondents’ brief, the Appellants’ learned counsel has deemed it expedient to file a reply brief on 14/ 5 / 07.
ON RESPONDENTS’ NOTICE VIS A VIS THE APPELLANTS REPLY BRIEF THERETO:
At page 3 of the brief thereof, the Respondents’ learned counsel has alluded to what he termed: “ARGUMENTS OF THE RESPONDENTS NOTICE. He then proceeded to make his submission thereon as follows:
The Court of Appeal granted the Respondent leave to argue grounds on the Respondent Notice. By way of Respondents Notice the Respondents formulate two issues for determination as follows:
1) Whether the trial court was not justified not to have gone beyond its earlier Ruling of 18/5/2006 on the same issue of jurisdiction and Locus standi, which said Ruling was not appealed against by the 1st – 4th Defendants/Appellants.
2) Whether Suit NO PHC/1798/2003 HIS HIGHNESS C.N. OGOLODOM & ORS V. HRH U.D. NGERE & ORS can in law constitute a bar to suit NO PHC/2060/2005 CHIEF (DR) SILAS ENEYO (JP) & ORS V. CHIEF U.D. NGERE & ORS as to warrant the application of the plea of Estoppel Per Rem judicatam.
In arguing the Respondents’ Notice, we hereby adopt our earlier arguments and submissions canvassed in the Respondents Brief of argument Mutatis mutandis so as to avoid repetitions, waste of time and energy and will further contend that the Ruling of 9th October 2006 by the Court below which is the subject of this appeal was proper in law. We therefore urge this Honourable Court of Appeal to dismiss this in its entirety with substantial costs as it is time wasting, unmeritorious and clearly intended to scuttle the proceedings at the Court below.
In response to the above submission the Appellant’s learned counsel contended in the brief thereof that the Respondents’ notice seeks to affirm the lower court’s decision on grounds other than those relied upon by the said court. That, the notice is therefore in violation of order 3 Rule 14(1) & (2) of the Court of Appeal Rules (2002); now Order 9 of the Court of Appeal Rules, 2007. See IBE VS ONUORAH (1999) 4 NWLR (Part 638) 340 at 350 D; WILLIAMS V. DAILY TIMES OF NIG. LTD (1990) 1 NWLR (part 124)1.
It was argued that since the Respondent by his notice wants the decision appealed against to be retained but on grounds other than those relied upon by the lower court, the only course open thereto is to cross appeal, which he failed to do. See ELIOCHIN NIG. LTD V. MBADIWE (1986) 1 NWLR 47; EDIAGBONYA V. DUMEZ NIG. LTD (1986) 6 SC 149 at 1, 64; WILLIAMS V. AKINTUNDE (1995) 3 NWLR (part 381) 101 at 110; BRIGGS V. BOB-MANUEL (1995) 2 NWLR (pt 409) 559 at 574 paragraphs 14 B-D. That the court’s power to re-hear and consider the issues of jurisdiction, as urged by the Appellants, can not be restricted by failure to appeal against the lower court’s decision of 18/5/2000. See Order 19 Rule 6 of the Court of Rules 2002. The court was urged to accordingly dismiss the Respondents’ notice.
Having amply considered the Respondents’ notice raised at page 30 of the brief thereof, the submission of the Appellants’ learned counsel, the reply brief, the authorities cited and relied upon vis-a-vis the record of the lower court as a whole, I can not, but totally agree with and uphold the Appellants’ contention that the said notice is [grossly] incompetent, and ought to thus be dismissed by this court, for some obvious reasons.
My first reason for saying so is that the notice inquestion is not in conformity with the well laid down principles, as contained in the Rules of this Court. It is a trite principle, that a respondent who, not having cross appealed against the decision of the court below, wishes to contend in the appeal that the decision be varied, either in the event of allowing the appeal in whole or in part, must give notice to that effect. He must, in addition thereto, specify the grounds of that contention and the order he proposes seeking the court to make. Where however, the respondent desires to contend on the appeal that the lower court’s decision should be affirmed on grounds other than those relied upon by the court, he must give notice to that effect specifying the grounds of that contention. See order 9 Rules 1 & 2 of the Court of Appeal Rules, 2007 (which is in pari materia with the said order 3 Rule 14 (1) & (2) of the defunct Court of Appeal Rules 2002). See IBE v. ONUORAH (supra) at 350 paragraphs D. per NIKI TOBL JCA (as he then was).
In the instant case, it’s rather indisputable, that the Respondents have not indicated the precise form of the order, which they required the court to make. Most certainly, the issues regarding the effect of the ruling of the lower court on the interlocutory injunction dated 18/5/06, and the issue estoppel Per rem judicata was not raised by the Respondents. What is more, all the issues and reliefs of the Appellants on the motion on notice were indicated to have been adopted by the Respondents on the pre-trial conference.
In the present circumstances, the only reasonable option open to the Respondents, was to have filed a cross-appeal against the lower court’s decision inquestion. This view is solidly predicated upon the principle that wherein an appeal, a respondent has in a notice prayed that the decision appealed against be affirmed albeit on grounds other than those relied upon by the court, the only course open thereto is to cross-appeal. See ELOCHIN NIG. LTD V. MBAOIWE (supra; 47; EDIAGBONYA V. DUMEZ NIG. LTD & ANOR (supra) at 64; WILLIAMS V. AKUNTUNDE (supra) at 110; BRIGGS V. BOB-MANUEL (supra) at 574, respectively.
The Respondents failed to advance any cogent argument on the notice, but merely alluded to the fact that.
In arguing the Respondents Notice, we hereby adopt our earlier arguments and submissions canvassed in the Respondent Brief of argument mantatis mutandis so as to avoid repetitions, waste of time and energy and will further contend that the Ruling of 9th October 2006 by the court below which is the subject of this appeal was proper in law.
Ironically however, as pointed out above, the grounds referred to in the notice have no bearing whatsoever to the said ruling of the lower court, dated 09/10/06. Thus, this court can not validly affirm the decision that was not considered, one way or the other, by the lower court. See WILLIAMS V. AKINTUNDE (supra) at 574 paragraphs B-D.
In the light of the above reasoning, I hereby uphold the submission of the Appellants’ learned counsel, to the effect that the said Respondents notice is grossly incompetent and same is discountenanced.
Having amply considered the respective briefs of the learned counsel vis-a-vis the record of proceedings of the lower court as a whole, I am satisfied that this appeal can adequately be determined on the basis of the distilled from grounds 1 & 2 of the in the preliminary objection adopted by both counsel.
From the out set, it was submitted by the Appellants’ that the issue of jurisdiction is the learned counsel law. Anything done by the court without the requisite jurisdiction is an exercise in futility. That, once it is raised, the court is under a duty to consider same and come to a decision. See SYSTEM METAL LTD V. EHIZO (2003) 7 NWLR (Part 820) 460 at 477 paragraph E- F; LAUANMI V. ADENE (2003) 10 NWLR (Part 828) 353 at 367 Paragraph D @ 80″ F; ASOGWU V. CHUKWU (2003) 4 NWLR (Part 811) 540 at 588 paragraph A.
It was alleged that the learned trial judge glossed over the pertinent issues or law [raised] in the motion on notice, on the ground that the facts in the statement of claim, the statement of Defence and counter claim are in conflict. That, there were no admitted facts in either pleadings or arguments of counsel, thus the issues of law could not be determine without plenary trial, which would lead to considering the substantive matter.
It was submitted by the learned counsel that in determining the points of law raised in the preliminary objection, the learned trial judge was only required to consider the preliminary objection, the learned trial judge was only required to consider the claim in both the writ of summons and the statement of claim, and not the statement of defence or counter claim. See AG OGUN STATE & ANOR V. COKER (2002) 17 NWLR (Part 796) at 332 paragraph B; ADEWUMI V. AG EKITI STATE (2002) 2 NWLR (Part751) 474 at 509 paragraph F-H; NWOSU V. IMO STATE ENV. SANITATION AUTH. (1999) 9 NWLR (Part 618) 187.
It was further submitted, that for a cause of action to be justiceable, it must come within the ambit of the law conferring jurisdiction on the court to entertain the claim. This is because the jurisdiction of a court is a creation of lied by a litigant. See ZIZA V. MAMMAN (2002) 5 NWLR (Part 760) 243 at 266 paragraph H-B.
The provisions of sections 32(2) 3, 12 (1) & e), 20 (1) of River State Chieftaincy Edict 1978; section 8 (3) of the Local Government Law, as well as the final judgment (of the lower court) in suit No. PHC/1798/2003. On the interpretation of 5% of the Andoni Local Government council, were referred to and relied upon by the Appellants to question the competence of the suit, thereby raising cogent issues of jurisdiction.
It was further contended, that the decision by the learned trial judge to assume jurisdiction without determining the weighty issues of law on the ground of conflicting facts and /or unsettled facts, is not tenable in law. That, where there is no such rights conferred by the Rivers State Chieftaincy Edict 1978 and the State Local Government (Amendment) Law No. 3 of 2002, the Respondents can not be said to have a locus standi to institute the action. See ZANGINA V. COMM, FOR WORKS AND HOUSING SURVEY BORNO STATE (2001) 9 NWLR (part 718) 460 at 486 GLOBAL TRANSPORT OCEANIC CO. S. A V. FREE ENT. NIG LTD (2001) 5 NWLR (part 706) 426 at 443; PROF. TM YESUFU V. GOV. EDO STATE (2001) (part 31) 517 at 533 paragraphs E-H.
That, the learned trial judge can not rely on facts outside the statement of claim to determine the issue in the motion on notice. See BABATUNDE ADENUGA & ORS V. JK ODUMENA & ORS (2002)8 NWLR (part 861) 163 at 188 paragraph E-H.
Those, the learned trial judge can not only rely on facts outside the statement of claim to determine the issues in the motion on notice. See BABATUNDE ADENUGA & ORS V. JK ODUMENA & ORS (2002) 8 NWLR (Part 8 610, 163 at 188 Paragraphs G-H; et al. That, where objection is raised to the jurisdiction of the trial court based on the interpretation of statute on the claims as pleaded in the statement evidence. See ADUNUMI V. AG EKITI STATE (supra) 509 paragraphs F-H.
The court was finally urged to answer the 1st issue in the negative and accordingly set aside the ruling of the lower court. See OWOANMI V. PEC TRUSTEES OF CC (supra); IFEANYI CHUKWU (OSO NDU) LTD V. SOLEH BONNEH LTD (2000) 5 NWLR (part 656) 322; ONUNAYO V. STATE (1072) 8-9 SC 290.
On the other hand, the submission of the Respondents on issue No.1 is to the effect, inter alia, that:
“The issue of jurisdiction “locus standi of the claimants and lack of cause of action are grave issues that the court can use to set aside or discharge its own interim order yet they were dismissed by the trial court in the Ruling of 18/5/2006,
It was alleged, that those issues were considered in the composite ruling of the lower court inquestion.
That, there being no appeal against the said ruling, the issues could not form the basis of a subsequent motion for preliminary objection in the same court. See INTERNATIONAL MERCHANT BANK PLC V. SAMBA PETROLEUM LTD (2000) FWLR (part 19) 472 at 483 ratio 2; REUBEN V. EKWUIFE V. BENJAMIN NGENE (2000) 2 NWLR (part 646) 615 at 663 ratio 10. On the whole, the court was urged to hold that the Appellants have not made out any good case to justify a reversal of the lower courts ruling made on 09/10/2006.
I think, it would not be out of jurisdiction has remained a complete enigmatic, albeit an indispensable albatross or clog in the wheel of the adjudication process. The controversies surrounding the issue of jurisdiction competence of a court have undoubtedly contributed in no small measure to the culture of delay that dreadfully pervades the administration of justice system in this country.
And judges, lawyers and litigants alike have protested at the laws delay and counted it a grievous and most unbearable albatross. Shakespeare, rather lyrically, ranks it among the, whips, and scorns of time. See HAMLETT ACT III SCENE I.
The term ‘jurisdiction’ denotes the power or authority which resides in a court or tribunal to adjudicate upon matters or issues before it. Jurisdiction is a power conferred upon a court or tribunal by the constitution or statute, to decide or take cognizance of matters before it. See AG FED. V. GUARDIAN NEWS PAPERS LTD (1999) 9 NWLR (Part 618) 187; SPDC NIG. LTD V. SIRPI ALUSTEEL CONST. LTD (2007) 1 NWLR (Part 1067) 128 at 158 paragraph D-E.
It is a well settled principle of law, that the issue of jurisdiction is not merely an important question. It is a fundamental question. It may be likened to a life-wire or life blood of an action or matter. This is so, because where a court lacks a jurisdictional competence to decide a matter or issue, it is basically devoid or deprived of the vires to adjudicate upon any issue therein. And the issue of jurisdiction can be raised at any stage of the proceedings in the trial courts, the Court of Appeal or even the Supreme Curt; either by the parties, or suo motu, by the court itself. See LABIYI V. ANRETIOLA (1992) 8 NWLR (Part 258) 139; OBADA V. MIL. GOV. KWARA STATE (1990) 6 NWLR (Part 1570 482; KOTOYE V. SARAKI (1994) 7 NWLR (Part 357) 414; SPD (NIG.) LTD V. SIRPI-ALUSTEEL CONST LTD (supra) at 257; 158 paragraph H-C; MADUKOLU V. NKEDILIM (1962) 2 SCNLR 341.
It is indeed axiomatic, that in determining whether or not a court has jurisdiction to entertain any matter or cause, it is the claim of the plaintiff, as contained in the writ of summons or the statement of claim (where filed), that should ordinarily be considered. This is because it is the plaintiff who invokes the constitution for determination of his fundamental right to fair hearing, especially under section 36(1). However, the above general principle notwithstanding, the court may, in some deserving exceptional cases, need to consider the entire pleading vis-a-vis the circumstances surrounding the case as a whole it is only then that the complex nature of the case or dispute between the parties will become clearer. See ADEYEMI v. OPEYORI (1976) 9-10 SC 31; AG FED V.GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (Part 618) 187.
In the instant case, the learned trial judge declined to determine the vexed issue of whether or not he had jurisdiction to entertain the suit on the following supposition:
The foregoing show that the fact of the existence and extent of the Omagwa Accord or its non-existence is strongly disputed and this court cannot conveniently and conclusively make any findings of fact upon which the settled issues of law could be predicated as to determine the rights of the parties in this case. This, added to the question of law, which appears to be in a fluid state, by the divergent submission of the both counsel, inevitably calls for evidence from both sides at a plenary trial based on the pleadings settled by the parties.
Ironically however, the learned trial judge’s supposition, as quoted above, is rather preposterous in view of the circumstances surrounding the case as a whole.
There is no reasonable ground for me to appreciate, let alone, uphold or condone abdication of his onerous duty to determine the fundamental question of jurisdiction one way or the other. His object, as a judge, is undoubtedly to simply find out the truth, and to dispense or administer justice to the parties according to law. And it is trite, that truth is best discovered by powerful, albeit opposing, statements of counsel on both sides. As once aptly remarked by Lord Denning, MR that-
It is all very well to paint justice blind she does better without bondage round her eyes. She should be blind indeed to favour prejudice, but clear to see which ways the truth and the less dust there is doubt the better. Let the advocates one after the other put the weights into the scales the nicely calculated less and more but the judge at the end decides which way the balance tilts, be ever so slightly. See Due Process of Law Butter’ Worths 1980 at 60.
The learned trial judge ought to have favourably disposed himself to the eloquent and far-reaching dictum enunciated by Bairamian, FJ; in the notorious case of MADOUKOLU V. NKEMDILIM (supra) at 348 to the effect that-
Any defect in competence (of a court) is fatal, for the proceedings are a nullity however well conducted and decided; the effect is extrinsic to the adjudication.Brackets added.
In the recent case of ANPP v. R.E.C. AKWA IB.M STATE & ORS (2008) 8 NWLR (Part 1090) 453 at 523 524 paragraphs E – & this court had taken the liberty to once again pontificate on the enigmatic and rather recurring issue of jurisdiction thus:
A court of law has a duty to cherish and its jurisdiction jealously and courageously. However, in view of the far-reaching and fundamental nature of jurisdiction, certain very stringent conditions must co-exist before a court of law or tribunal can assume jurisdiction in any matter, to wit:
(a) the court must first and foremost, be properly constituted by the right members of the bench and no member must be disqualified for any reason;
(b) the subject, matter of the case must be within the jurisdiction of the court and there must be no feature therein inhibiting the exercise of the jurisdiction;
(c) the case must come before the court by due process of law.
Per Saulawa, JCA.
See also MADUKOLU v. NKEMDILIM (supra) 341; WESTERN STEEL WORKS LTD VS IRON & STEEL WORKERS UNION (NO.1) (1936) 3 NWLR (part 30) 617; ALAMIEYESEIGHA v. IGONIWARI (No.2) (2007) 7 NWLR (part 1034) 524, respectively.
In the light of the foregoing postulations, I have no doubt in my mind that the answer to issue No.1 is most inevitably in the positive and same is hereby resolved in favour of the Appellants. It goes without saying that having resolved the 1st issue in the Appellants’ favour, it would tantamount to a sheer academic, thus futile, exercise for this court to proceed to discus the issue No.2 of the Appellants , or any other issue for that matter. And I so hold.
Hence, having convinced my self that the instant appeal is meritorious, it’s hereby allowed by me. The ruling of the lower court delivered on 09/10/2006 thereby declining to determine the fundamental issue of jurisdiction inquestion one way or the other is hereby set aside. In the present circumstances, the justice of the case passionately demands that the matter be remitted to lower court for hearing, denovo, by another judge of the said court. Consequently, the case is accordingly hereby remitted to the High Court of All State, for hearing denovo by another judge thereof.
Parties shall bear their respective costs of litigation.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading before now a copy of the judgment of my learned brother, Saulawa, JGA just delivered. I agree with his reasoning and the conclusion reached therein.
The law is settled that the issue of jurisdiction is fundamental to any competent adjudication. It is the lifeblood of a cause or matters where it is racking, the proceedings, no matter how well conducted, are a nullity.
See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Mark v. Eke (2004) 5 NWLR (865) 54; Sokoto State v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (1034)466. (1 SCNLR 341:
It is for this reason that the issue of jurisdiction could be raised at any stage of the proceedings, including for the first time on appeal to the Supreme Court. Once raised the issue must be determined before any further step is taken in the proceedings. See: Madukolu v. Nkemdilim (supra); N.D.I.C. v. C.B.N. (2002) 7 NWLR (766) 272; Afro-Continental (Nig.) Ltd. & Anor. v. Co-Operative Association of Professionals Ltd. (2003) 1 SCNJ 530; First Fuels Ltd. v. N.N.P.C. (2007) 2 NWLR (1018) 276 @ 300 E-G.
By their motion on notice dated 30/5/06 at pages 416 – 418 of the record, the appellants herein as defendants, raised a preliminary objection to the jurisdiction of the court to entertain the suit on two grounds:
i. On the basis of the provisions of the chieftaincy Edict 1979; the All state Local Government (Amendment) Law No. 3 of 2002; and the judgment of the High court of All state in suit No. PHC/1798/2003: His Highness Clinton N. Ogbolodom & Ors. v. HRH Ujile Dogood Ngere.
ii. That the respondents lack locus standi to institute the action and/or that the suit does not disclose a justifiable cause of action.
The learned trial Judge, after considering the various affidavits fired in respect of the application, the pleadings of the parties and the submissions of learned counsel concluded thus at page 603 of the record:
“The foregoing show that the fact of the existence and extent of the Omagwa Accord or its non- existence is strongly disputed and this court cannot conveniently make any findings of fact upon which the settled issues of law could be predicated as to determine the rights of the parties in this case.
This added to the question of law, which appears to be in a fluid state, by the divergent submissions of both counsel inevitably calls for evidence from both sides at plenary trial based on the pleadings settled by the parties.
He accordingly refused the application and set the matter down for hearing on its merits. With due respect to the learned trial Judge, he appeared to labour under the misconception that he was called upon, at that stage, to determine the rights of the parties. What His Lordship was required to do was to reach a determination, one way or the other, as to whether or not the court had jurisdiction to entertain the suit and/or whether a justifiable cause of action was disclosed therein. For that exercise it was only the statement of claim of the plaintiffs that had to be examined. He was not called upon to determine issues of fact at that stage. See: Capital Bancorp Ltd. v. S.S.L. Ltd. (2007) 2 NWLR (1020) 148 @ 170-171 G-H; Tukur v. Government of Gongola State (1989) 4 NWLR (117) 517; Emeka v. Emodi (2004) 16 NWLR (900) 433.
I therefore agree with learned counsel for the appellants that the learned trial Judge erred in failing to consider and resolve the issue of jurisdiction and/or locus standi of the plaintiffs to institute the action before delving into the substantive matter.
For these and the more detailed reasons contained in the lead judgment, I also allow the appeal. I abide by the consequential order including the order on costs.
EJEMBI EKO, J.C.A.: This is an interlocutory appeal from the ruling on the Defendants/Appelrants’ preliminary objection to the suit of the Respondents who were the claimants at the High court of All state. The lead judgment just delivered by my learned Brother, SAULAWAT JCA has exhaustively dealt with the salient issues in the appeal. In my concurring judgment I will only add a few words in the area of the trial court’s jurisdiction predicated on the claimants/Respondents, locus standi.
The preliminary objection is predicated on the Appellants, contention that since the Respondents’ suit did not disclose their locus standi in the subject matter of their suit the trial High court therefore had no competence or jurisdiction to hear and determine the suit.
It is the law that when there is challenge to the competence of the trial court to exercise judicial powers of adjudication the court’s jurisdiction at this stage is restricted to its ascertaining whether or not it has jurisdiction to entertain the matter. It is when the trial judge is satisfied that he has jurisdiction that he may proceed to hear evidence and adjudicate on the matter: Okoye v. NIGERIAN CONSTRUCTION (1991) 7 SCNJ (2) 365 at page 382.
At this stage where there is a challenge to the court’s jurisdiction on the ground that the suit, as presented by the plaintiff or claimant, does not disclose the necessary locus standi of the plaintiff or claimant to maintain the suit it is into the processes, including the statement of claim, filed by the plaintiff or claimant that the trial court pries into in order to ascertain whether the plaintiff or claimant has disclosed his locus standi to maintain the suit:
BABATUNDE ADENUGA v. J.K. ODUMENA (2002) 8 NWLR [PT.821] 163 at 189 G – H. In ABRAHAM ADESANYA v. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA [1981] 2 NCLR 358 at 393 it was held that when an issue of locus standi of the claimant or plaintiff is raised one has to look at the cause of action as pleaded for the ascertainment or disclosure of the standing of the plaintiff to bring and maintain the suit. When a party is standing to sue is in issue the question is whether the party whose standing is in issue is the proper party to request an adjudication of the particular issue and not whether the plaintiff’s case has or has no merits A.G. FEDERATTON v. A.G. ABIA STATE (2001) 11 NWLR [pt.725] 689.
At the trial court the suit of the Respondents, as claimants, was predicated on Omagwa Peace Accord subsequent to the decision of the All State High Court in suit No. PH/1798/2003 that declared, upon interpretation of All state chieftaincy Edict, LTB and the Local Government [Amendment] Law No. 3 of 2002, that the 5% of accrued Local Government revenue was set aside by law for the maintenance of only government recognized traditional rulers. The Respondents in their suit, aver that the implementation of these laws, as declared by the Rivers State High court, has led to violent disputes leading to break down of raw and order in Andoni Local Government area, that the Omagwa Retreat of prominent indigenes of Andoni Local Government Area was convened to address the issue, and that the Omagwa Retreat resolved, as contained in the communique or omagwa peace Accord, that the Respondents, among other chiefs, should partake In the sharing of the 5% accrued revenue of Andoni Local Government. The Omagwa peace Accord is the main thrust of the Respondents’ claim at the trial court.
According to Respondents’ counsel the Omagwa peace Accord operates as estoppel by conduct and that it was the Appellants’ attempt to renege on or repudiate the Omagwa peace Accord that compelled the Respondents to take out the writ at the trial court.
Issues were duly joined on this Omagwa peace Accord. The Appellants insist that the Omagwa peace Accord was obtained by misrepresentation, deceit and fraud. The existence of the Omagwa Peace Accord was thus disputed. In the preliminary objection the parties fought over the existence or non-existence of the Omagwa Peace Accord to the detriment of the issue of the respondents locus standi.
Upon the preliminary objection of the Appellants the learned trial judge ruled that the fact of the existence and extent of the Omagwa Accord or its non-existence is strongly disputed and this court can not conveniently and conclusively make any fact upon which the settled issues of law could be predicated as to determine the rights of the parties in this case.
This, added to the questions of law, which appears to be a fluid state, by the divergent submission of both counsel, invariably calls for evidence from both sides at plenary trial based on the pleading settled by the parties.
I think this is where the learned trial got it wrong. At this stage of the preliminary objection he was not cared upon to determine the rights of the parties on the merits. The only issue before him was whether the Respondents, as claimants, had locus standi to maintain the suit. This he can do, without determining the rights of the parties, by looking at the pleadings of the Respondents, as claimants, in order to satisfy himself on whether or not they had disclosed their standing to sue: A.G. OGUN STATE v. COOKER (2002) 17 NWLR (pt.796) 304; NDIC v. CBN (2002) 7 NWLR [pt.766] 272.
At the stage of the preliminary objection and the hearing of the same the simple question is whether the claimants, now Respondents, had disclosed their locus standi in the suit from the processes filed. The learned trial judge did not answer the question or resolve that issue. That should not have been difficult. As heard by the supreme court in A.G. ENUGU STATE v. OMAHA [1998] 1 NWLR [pt.532] 93, by section 6 [6] [b] of the constitution there is locus standi wherever there is a justiceable dispute. Any person who brings any matter to court for determination of any question as to his civil right or obligation has a standing to sue. Once the statement of claim discloses a cause of action vested in the plaintiff and also establishes the rights and obligation or interests of the plaintiff which he alleges are being violated or about to be violated he ought to be heard in the suit: ADENUGA v. ODUMERU [supra].The learned trial judge was called upon only to determine if, from the pleadings, the Respondents, as claimants, had standing to sue or interest to protect in their seeking to enforce the terms of the Omagwa Peace Accord. He failed to discharge his office on this.
Agreeing with the read judgment just delivered by my learned brother, SAULAWA, JCA, I hereby allow the appeal I abide by all consequential orders so made in the read judgment.
Appearances
F. U. OkoroFor Appellant
AND
Chief G.O. Agbaraosimni with Chief F.D. Enewaji Icherene-Ugane
A. S. Irabor
O. M. AfolabiFor Respondent
