CONOIL PLC v. INDUSTRIALTRAINING FUND GOVERNING COUNCIL & ANOR
(2013)LCN/6671(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of December, 2013
CA/L/738/2008
RATIO
WHETHER A COURT CAN RAISE THE ISSUE OF JURISDICTION SUO MOTU
The importance of jurisdiction is why the issue can be raised at any stage of a case, be it at the trial, or on appeal; a Court can even raise the issue suo motu – see Ijebu-Ode L.G. V. Adedeji (1991) 1 NWLR (Pt. 166) 136, P.E. Ltd. & Anor V. Leventis Tech. Co. Ltd. (1992) NWLR (Pt. 244) 675 SC, wherein it was held –
‘It is desirable that Preliminary Objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity”. Per AMINA ADAMU AUGIE, J.C.A.
JUSTICES:
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
CONOIL PLC – Appellant(s)
AND
1. INDUSTRIALTRAINING FUND GOVERNING COUNCIL
2. DIRECTOR-GENERAL, INDUSTRIAL TRAINING FUND – Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): By an Originating Summons dated 28/11/2006; filed at the Federal High Court, Lagos, the Respondents as Plaintiffs, prayed the Court for the following reliefs –
(a) A DECLARATION that the Defendant has defaulted in complying with the Plaintiffs’ enabling statues by not contributing to the Plaintiffs, the total mandatory 1% of the aforesaid Defendant’s gross pay-roll for the year 2001 – 2004 and 5% monthly penalty for such default.
(b) AN ORDER for immediate payment or remittance by the Defendant of the outstanding sum of N101, 536,761.00 to the Plaintiff.
(c) 5% statutory pre-judgment monthly interest on the debt arising from the Defendant’s default from May 2004 till date of judgment
(d) 10% interest on the judgment sum from date of Judgment until the sum is finally liquidated.
(e) The cost of this action.
The Appellant entered a Conditional Appearance on 1/6/2007, without more. The Respondents later filed an Application dated 28/9/2007, praying for an Order entering final Judgment in this matter as per the Originating Summons. The Appellant then filed a Motion on Notice dated 8/10/2007, praying for an Order striking out the instant suit for want of jurisdiction and competence, and for constituting an abuse of the judicial process, on the following Grounds –
(i) The Plaintiffs commenced an action through a wrong mode being an Originating Summons instead of a Writ of Summons considering the fact that the amount claimed is highly disputed and that the action is of a contentious nature.
(ii) The Parties need to file Pleadings to the action and there will be need to call witnesses to arrive at a fair, just and final adjudication.
The Application is supported by an 8-paragraph Affidavit, and the Deponent – Macmillan Kidochukwu Odoe, a Legal Practitioner, averred therein as follows –
3. I know that the Defendant pursuant to Sections 6 and 14 of the ITF Act is mandated to make contributions of some amounts of money to the Plaintiffs based on certain facts and circumstances, which are seriously controversial.
4. Further to the above, the amount claimed by the Plaintiff herein is being disputed by the Defendant hence the need to have Pleadings and credible evidence.
5. Pursuant to the above, the Defendant will need to file a proper defence to the action and prosecute same to a logical conclusion in order to ascertain the exact amount it is required to pay as contribution to the Plaintiffs.
6. I know that by virtue of the provisions of the Rules of this Hon. Court the Plaintiffs’ action as presently constituted ought to have been commenced by way of Writ of Summons and not Originating Summons as presently adopted.
7. I verily believe that this suit having been commenced by Originating summons is incompetent, constitutes an abuse of Court process and should be accordingly struck out with cost.
The Respondents objected and filed a 13-paragraph Counter Affidavit wherein the Deponent – Gbenro Gbadamosi, also a Legal Practitioner, averred that –
4. Contrary to the – – deposition in paragraph 3 of his Affidavit in support of the Motion, there is no controversy in the amount to be contributed by the Defendant.
5. In addition to the foregoing paragraph, the Defendant’s Counsel has admitted that pursuant to Sections 6 and 14 of the establishing Act, the Defendant/Applicant is bound by Statute to make contributions and/or payment to the Plaintiffs.
6. Paragraph 4 of the Affidavit in support of Defendant’s Motion is false.
7. Pursuant to the foregoing, the Defendant/Applicant is now fully seized of the exact amount due to be paid to the Plaintiff.
8. The Defendant/Applicant has written the Plaintiffs/Respondent’s Counsel DEJI GBADEYAN & CO., to the effect that they wish to pay but this was conditioned upon a total waiver of the penalties.
9. Paragraphs 5, 6 and 7 of the Affidavit in support of the Defendant’s Motion are totally misconceived and constitute nothing but a time-wasting composition.
10. The Plaintiffs/Respondents are a creation of Statute and saddled with responsibility of recovery of any outstanding contributions from Corporate and Industrial bodies of which Defendant/Applicant is one.
11. The Defendant/Applicant is advised in the interest of justice to enter a defence rather than wasting the time of the Court.
12. It is in the interest of justice to dismiss the Defendant/Applicant’s Preliminary Objection to this suit as it constitutes an abuse of due process and proceedings.
After hearing arguments from counsel, the learned trial Judge, D.D. Abutu, J. (as he then was) delivered his Ruling on 8/5/2008, wherein he concluded that –
“Having regard to the question for determination set-out in the present Originating Summons and the Affidavit evidence, it seems to me that the liability of the Defendant to contribute to the fund is dependent on the existence of certain facts. The Plaintiff appears to have assumed the existence of the facts in this case. The Defendant has not filed a Counter Affidavit in opposition to the Originating Summons. Therefore it cannot at this stage be said that the facts are substantially in dispute. This Application presented when there is no Counter-Affidavit filed in opposition to the Originating Summons which shows that the facts are substantially in dispute appears to me to be premature. The materials on basis of which the issue raised in this application can be decided are not before the Court.”
Dissatisfied, the Appellant filed a Notice of Appeal in this Court containing 3 Grounds of Appeal that are being challenged by the Respondents, and they filed a Preliminary Objection to that effect. The Grounds of the Objection are –
1. This Appeal is against the Interlocutory Ruling of the Federal High Court of Nigeria, Lagos judicial Division delivered on the 8th day of May, 2008 in respect of the Plaintiffs/Respondents’ action.
2. Appeals lie from decision of High Court to the Court of Appeal by leave of the High Court or of the Court of Appeal under Section 242 of the 1999 Constitution; where inter alia, the Ground(s) of Appeal involves issue of fact or mixed law and fact. Ground 1, 2 and 3 of the Appellant’s Notice of Appeal are ground of mixed law and facts filed without any leave of court having been sought for and had.
3. A Notice of Appeal which is filed before obtaining leave to appeal where leave is required as a matter of law is null and void. In any case in which leave to appeal is necessary, the failure to obtain such leave, as it happens in this case, makes any appeal filed to be incompetent. See (1) Orakosim V. Menkiti (2001) 5 S.C. (Pt. 1) 72 at 82 (2) Erisi V. Idika (1987) 4 NWLR (Pt. 66) 503.
4. Grounds 1, 2 and 3 of the Notice of Appeal raise new issues without seeking for the leave of this Honourable Court to so raise. See (1) Adake V. Akun (2003) 7 S.C 26 at 30 (2) Incar Nig. Plc. V. Bolex Ent. Nig. (2001) 5 S.C (Pt. 2) 224 at 234.
5. The Grounds ..are on wild goose chase as they are not on terra firma against the ratio decidendi of the lower Court’s Ruling which is the premature nature of the Defendant/Appellant’s Application based on non-supply of relevant facts to justify it.
The said Grounds of Appeal with their Particulars, complain as follows –
1. The learned trial Judge erred in law in not considering that the Motion on Notice raised the issue of jurisdiction bordering on his competence to hear and determine this suit, which issue of jurisdiction is threshold and fundamental and could be raised at any stage of the proceedings and thereby filed to determine the issue.
PARTICULARS OF ERROR
(a) Since the issue of Jurisdiction can be raised at any stage of the proceedings, the Appellant properly raised it by a Motion on Notice before it had filed its Counter-Affidavit to the Respondent’s Originating Summons dated November 28, 2006.
(b) It is an established principle of law that where the Jurisdiction of the Court is challenged, the Court only looks at the Writ of Summons and Statement of Claim (in the instant case the Originating Summons together with the supporting Affidavit) in order to determine whether or not it has jurisdiction.
(c) The learned trial Judge based his Ruling on the non-filing of Counter-Affidavit by the Appellant to the Originating Summons when [he] should have considered the substance of the Motion on Notice challenging his Jurisdiction notwithstanding that the Appellant has not filed a Counter-Affidavit to the Originating Summons.
2. The learned trial Judge erred in law when it failed to consider the Originating Summons which seeks a declaratory relief which relief requires oral evidence in proof of same but instead held that the material on the basis for which the issues raised in the Appellant’s Motion on Notice can be decided are not before the Court.
PARTICULARS OF ERROR
(a) The learned trial Judge ought to have considered the nature of relief sought by the Respondents in their Originating Summons, the supporting Affidavit together with other Court’s processes to determine whether the suit was proper before the Court before reaching its decision.
(b) It is settled principle of law where there is likely to be any substantial dispute of fact or where there is a prayer for declaration based on disputed facts or facts requiring oral evidence (as contained in paragraph 3(a) of the Originating Summons in this Suit), an Originating Summons would be inappropriate.
(c) The learned trial Judge glossed over the important ratio of the Supreme Court in the case of Ogolo V. Ogolo (2006) 5 NWLR (Pt. 972) page 163 at page 184, Para. C – E, where it was held that a declaratory relief cannot be granted without oral evidence by the Plaintiff even where the Defendant even where the Defendant expressly admits some in the Pleadings, the relief being equitable in nature.
3. The learned trial Judge erred in law when [he] failed to consider and determine the issue of jurisdiction raised by the Appellant in its Motion on Notice …on the ground that the Application presented when there is no Counter affidavit which shows that the facts are substantially in dispute, is premature thereby denying the Defendant the right to fair hearing.. contrary to Section 36 of the Constitution…
PARTICULARS OF ERROR
(a) On the face of the Affidavit filed by the Respondent in support of its Originating Summons at the lower Court and the Affidavit filed by the Appellant in support of its Motion on Notice dated October 8, 2007, the learned trial judge ought to have seen that the issue of quantum of debt was disputed.
(b) The reliefs claimed in the Originating summons show that the action is one for recovery of debt and not for construction of statue.
The Respondents cited the following authorities on the position of the law
– Garuba & 8 Ors. V. Omokhodion & 13 Ors. (2011) 6 – 7 SC (Pt. V) 89, Ejiwunmi v. Costain (W.A) Plc. (1988) 12 NWLR (Pt. 576) 149, Ohiwele v. L.S.D.P.C. (1983) SC (sic); Olojuon V. Ozima (1985) 2 NWLR (Pt. 6) 167, Section 242 of the Constitution, Okwuagbala & 3 Ors. V. Ikueme & 2 Ors. (2010) 12 SC (Pt.4) 1.
They argued that the said Grounds are of mixed law and fact because the lower Court “had pointedly noted” that its Motion was premature as the facts upon which it was to decide the Application were not placed before it; that absence of necessary materials means lack of sufficient facts; that the Grounds need leave of the lower Court or Court before it can be competent; that since the said Grounds are Issues of mixed law and facts or fact simpliciter, and the prior leave has not been sought nor obtained, they are incompetent and the Notice of Appeal a nullity and must be struck out; and that the issues distilled therefrom are incompetent and, therefore, amounts to a nullity and should be struck out, citing Okonija V. Ikengah (2001) 2 NWLR (Pt.697) 336.
The Appellant conceded in its Reply Brief settled by V. Uche Obi, Esq., and Anthony U. Uwakwe, Esq., that where a party intends to raise issues of mixed law and facts, prior leave of the Court must be first sought. But argued that the Respondents showed gross misunderstanding and misapplication of the law because its Ground 1 complains that the lower Court erred when it failed to consider its Application, which raised the issue of its jurisdiction, and the issue of jurisdiction being a threshold and fundamental issue could be raised at any stage of the proceedings, and so the said Ground 1 is purely a ground of law; that Ground 2 questions the lower Court’s failure to consider the Originating Summons on the ground that the material on which the issues raised in its Application can be decided are not before it, which amounts to a misapplication of law to an established fact, and is, thus, a ground of law; that it is only where the Ground questions evaluation of facts before application of the law that the Ground will amount to a question of mixed law and fact; that the Originating Summons seeks for a declaratory relief and the lower Court erred when it held that the material upon which its Application can be heard is not before the Court, citing Ossai V. Wakwah (2006) 4 NWLR (Pt. 969) 208.
The Appellant further argued in its Reply Brief that the Issues it raised were properly raised and argued and the lower Court’s failure to discharge its duty of considering and pronouncing on the said issues before it is a ground of law, citing F.B.N. Plc. V. T.S.A Ind. Ltd (2010) 15 NWLR (Pt. 1216) 291; and that a declaratory relief cannot be granted without oral evidence, even where the Defendant expressly admits same since it is equitable in nature, citing Ogolo V. Ogolo (2006) 5 NWLR (Pt.972) 163, and so Ground 2 is also a ground of law.
It further submitted that Ground 3 complains of the lower Court’s failure to determine the issue of jurisdiction raised in its Application, thereby denying it of its right to fair hearing of the prayers contained therein, which is contrary to Section 36 of the 1999 Constitution, and is, therefore, a ground of law, citing General Electric Co. V. Akande (2010) 18 NWLR (Pt. 1225) 613. It also argued that even if Ground 2 is of mixed law and fact, Ground 1 and 3 are of pure law, and a ground of appeal can sustain an appeal, citing Nwaolisah V. Nwabufoh (2011) 6-7 SC (Pt. II) 164, Dairo V. U.B.N. (2007) 16 NWLR (Pt. 1059) 99 and Mohammed V. Olawunmi (1990) 2 NWLR (Pt. 1330) 485. The Appellant contends that the Respondents’ submissions and the authorities relied thereon are grossly misconceived, and we were urged to discountenance the same.
The Respondents are spot-on about the law. To determine whether a Ground of Appeal is a ground of law or of fact, requires examining it in terms of its Particulars so as to determine the nature of question the Ground raised is complaining about – see Garuba V. Omokhodon (supra); that the mere fact that a Ground of Appeal is described as one of fact or law will not stop a Court from looking into whether the Ground is actually one of law or of mixed law and fact and/or of facts alone – see Ejiwunmi V. Costain (W.A) Plc. (supra) and Olojoun V. Ozima (supra); and that where a party intends to raised issues of mixed law and fact, leave of the Court must be first sought for and obtained –
See Garuba V. Omokhodon (supra), where Rhodes-Vivour, JSC, explained that –
“Leave means permission. Before an Appeal on ground of mixed fact and law or on facts can be entertained by this Honourable Court, the Applicant must first seek and obtain leave from the Court of Appeal or this Court. Failure to obtain leave render the appeal incompetent and it will be thrown out – – “.
And Okwuagbala V. Ikueme & Ors (supra), also cited by the Respondents, where the Supreme Court per Mukhtar JSC (as he then was), held as follows –
“It is on record that the Appellant did not seek and obtain leave to argue the Grounds as required by law. The law is trite that Grounds of Appeal that are of facts or mixed law and fact required the leave of either the Court of Appeal or this Court before it can be argued in this Court. In the absence of such leave, the Grounds are incompetent and must be struck-out”.
The Respondents may have stated the correct position of the law but I agree with the Appellant that their objection on this ground lacks merit. It is trite law that where a Ground of Appeal reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, it would be a question of law; where it requires questioning the evaluation of facts before the application of the law, it would amount to a question of mixed law and fact -See Ononuju V. AG Anambra State (2009) 10 NWLR (Pt. 1148) 182, SC and Ogbechi V. Onochie (1986) 2 NWLR (Pt. 23) 484 at 491 SC.
In this case, there can be no question of any of the Grounds of Appeal being a ground of fact or of mixed law and facts because the lower Court did not “evaluate” any facts before it dismissed the Appellant’s Motion on Notice. Besides, in an action like this commenced by Originating Summons, the issue of evaluation of facts does not arise as the process only applies where there is no dispute of fact. Order 2 rule 2 of the applicable Civil Procedure Rules says that-
(2) Proceedings may be begun by Originating Summons 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 deed, will, contract or other document or some other question of law or;
(b) There is unlikely to be any substantial dispute of fact.
The Respondents’ objection is clearly misconceived; the issue of whether any Ground of Appeal is a ground of fact or of mixed law and fact is a non-starter.
The Respondents also contend that the Appellant raised new issues in its Grounds 2 and 3 that were not canvassed at the lower Court without the prior leave of this Court; that the issue of jurisdiction was initially raised but was later abandoned by it; that the denial of fair hearing, as canvassed in this appeal, is simply a new issue that is being canvassed for the first time; that it is trite law that where a party seeks to raise a new issue for the first time on Appeal, the leave of the Court must be first sought for and obtained before such party can so do, citing Incar Nig. Ltd v. Bolex Ent Nig. (2001) 5 SC (Pt. 2) 224, Adake V. Akun (2003) 7 SC 26; and that since the Appellant failed to seek the leave of this Court, the Grounds of Appeal are incompetent and should be struck out, citing Ohiwele v. L.S.D.P.C. (supra) and Olojoun v. Ozima (supra).
The Appellant countered in its Reply Brief that the said Grounds 2 and 3 arose from the lower Court’s Ruling. It argued that the issue of jurisdiction was never abandoned by it and lack of jurisdiction of the lower Court formed the crux of its Application; that the lower Court was of the view that its Application is premature as materials upon which it can determine same were not before it (even when the law enjoins it to look only at the Originating Summons), and as such, failed to determine the issues raised in its Application thereby denying it of the right to be heard in respect of the prayers sought in the said Application, citing S.C. Eng. Nig. V. Nwosu (2008) 3 NWLR (Pt. 1074) p.288 at pages 307.
The Appellant also referred us to Mobil Prod.(Nig) Unltd v. Monokpo (2003) 18 NWLR (Pt. 852) 346, where Uwaifo, JSC, cautioned as follows –
“A refusal of a Court to hear a Motion is a breach of the right to a fair hearing guaranteed under the Constitution and on essence of the audi alteram partem rule of natural justice. If a Judge or Court were at liberty to decide to ignore any Motion filed in Court it would raise a fundamental issue. There will be a danger that instead of allowing the administration of justice to be done upon a compulsory even keel, it may be left to the tyranny of the arbitrary or selective decision of a particular Judge or Court as to if and when any Motion will be considered at all. The consequences of this to the normal run of Court proceedings are disturbing to contemplate.”
Evidently, this objection cannot stand in front of jurisdiction with all its might. It is trite law that the Plaintiffs’ claim determines jurisdiction – see PDP & Anor v. Timipre Sylva & Ors (2012) LPELR-7814 SC where Rhodes-Vivour, JSC, held-
“Where the Originating Process is an Originating Summons, the Affidavit filed in support of the Originating Summons, serves as the Plaintiff’s Pleadings (Statement of Claim). Jurisdiction would be resolved by examining only the Originating Summons, the reliefs contained therein and the Affidavit filed in support”.
The importance of jurisdiction is why the issue can be raised at any stage of a case, be it at the trial, or on appeal; a Court can even raise the issue suo motu – see Ijebu-Ode L.G. V. Adedeji (1991) 1 NWLR (Pt. 166) 136, P.E. Ltd. & Anor V. Leventis Tech. Co. Ltd. (1992) NWLR (Pt. 244) 675 SC, wherein it was held –
‘It is desirable that Preliminary Objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity”.
In this case, the originating process is an Originating Summons supported by a 16-paragraph Affidavit. The Appellant did not file any Counter-Affidavit to the Originating Summons but it later filed a Motion on Notice praying that the suit be struck out “for want of jurisdiction and competence” because the action was commenced through an Originating Summons instead of a Writ of Summons “considering the fact that amount claimed is highly disputed and that the action is of a contentious nature”. The lower Court did not consider the said Motion on Notice on its merits before dismissing same on the ground that –
“The Defendant has not filed a Counter Affidavit in opposition to the Originating Summons. Therefore it cannot at this stage be said that the facts are substantially in dispute. This Application presented when there is no Counter-Affidavit filed in opposition to the Originating Summons which shows that the facts are substantially in dispute appears to me to be premature. The materials on basis of which the issue raised in this application can be decided are not before the Court.”
The Appellant complained in its Ground 2 that the lower Court erred in law when it failed to consider the Originating Summons, which seeks a declaratory relief that requires oral evidence in proof of same, but instead held that the material on which the issues it raised can be decided are not before the Court.
It complained in Ground 3 of its Grounds of Appeal that the lower Court erred in law when it failed to consider and determine the issue of jurisdiction raised in its Motion on Notice on the ground aforesaid, and thereby denied it of its right to fair hearing, which is contrary to Section 36 of the Constitution. These are not new issues that require leave of Court; the Appellant’s grouse is that the lower Court did not consider the issue of jurisdiction it had raised in its Motion before dismissing it, and thereby denied it a fair hearing of the prayers, and that is all there is to it. The law allows it to raise the issue of jurisdiction at anytime, anywhere and in whatever form. The second objection is overruled.
That is not all; the Respondents also contend that the Grounds of Appeal are not against the ratio decidendi. They referred us to Egbe V. Alhaji (1990) 1 NWLR (Pt. 128) 546, Odubeko V. Fowler (1993) 7 NWLR (Pt. 308) 637, Ikweki V. Ebele (2005) 2 SC (Pt. 2) 96, and argued that the said Grounds of Appeal “are merely on a wild goose chase and not on terra firma with the Ruling of the lower Court”; that the lower Court rightly observed that the Appellant’s motion is premature because there is no material fact placed before it that will assist it in making up its mind on whether the action is contentious or not; and that “instead of formulating its Grounds of Appeal on the fulcrum of the lower Court’s simple decision, [it] went ahead to berate the lower Court’s non-consideration of the Originating Summons, notwithstanding the fact that [it] had failed to come to equity with a clean hand by filing a Counter Affidavit”.
The Appellant countered that their argument is grossly misconceived as the Grounds arose from the ratio decidendi of the lower Court’s decision.
It cited Dairo V. UBN Plc. (2007) 16 NWLR (Pt. 1059) 99, where Ogbuagu, JSC, stated-
“The Judgment of a Court, the legal principle formulated by that Court which is necessary in the determination of the issues raised in the case, that is to say, the binding part of the decision, is its ratio decidendi as against the remaining parts of the Judgment which merely constitute obiter dicta; that is to say, what is not necessary for the decision”.
Also citing Amuzie V. Asonye (2011) 6 NWLR (Pt. 1242) 19, it submitted that the legal principle formulated by the lower Court that was necessary to determine the issues it raised, is that its Motion is premature and the materials upon which it can be determined was not before it, which is the ratio decidendi in this case, and it formulated Grounds of Appeal from this ratio decidendi; that the said grounds question the decision on the ground that it was made in error since the materials for determining the Motion (Respondents’ Originating Summons together with the supporting Affidavit) were before the lower Court; and that the lower Court’s decision was made under the erroneous belief that it had to file a Counter Affidavit against the Originating Summons for the Court to determine whether the case presented by the Respondents was contentious but the Supreme Court’s decision in Ossai V. Wakwah (supra) says otherwise.
Again, I will have to say that there is no bite to this ground of objection.
“Ratio Decidendi” is Latin for “the reason for deciding”, and it is trite law that an Appeal is usually against a ratio decidendi and not against an obiter dictum – see N.D.I.C. v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) 107 SC and A.I.C.  Ltd. v. NNPC (2005) 1 NWLR (Pt. 973) 563 SC, where Edozie, JSC, explained that –
“The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter simply means in passing, incidental, cursory, Obiter dicta reflect, inter alia, the opinions of the Judge, which do not embody the resolution of the Court. The expression of the Judge in a Judgment must be taken with reference to the facts of the case, which he is deciding, the issues calling for decision and answers to those issues. These are what should be looked for in a Judgment, The manner in which the Judge chooses to argue the case is not an important thing. Rather it is the principle he is deciding”.
In this case, the Respondents argued that instead of formulating its Grounds of Appeal on the “fulcrum” of the lower Court’s simple decision, the Appellant “berated the lower Court’s non-consideration of the Originating Summons” notwithstanding that it failed to file a Counter-Affidavit, but that in a nutshell is exactly the decision of the lower Court that the Appellant is appealing against.
The lower Court did not consider its Motion to have the suit struck out for want of jurisdiction because the Appellant did not file a Counter Affidavit to the Originating Summons, and the Appellant’s contention in this appeal is that the lower Court was wrong to have so decided because it did not have to file a Counter-Affidavit to the Originating Summons to have the Motion determined on its merit. Thus, the Appeal is against the lower Court’s reason for deciding. The Appellant is right; its Grounds of Appeal emanate from the ratio decidendi of the decision of the lower Court. This ground of objection is also overruled.
With the objections out of the way, we now come to the appeal proper.
The Appellant submitted in its main Brief prepared by Anthony Uwakwe, Esq., that the two Issues that arise for determination in this Appeal are as follows –
1. Whether the Plaintiffs’ action before the lower Court, which seeks amongst others for a declaratory relief, was rightly commenced by Originating Summons.
2. Whether the lower Court was right when it failed to consider and determine the Appellant’s Motion on Notice dated 8/10/2007 challenging its jurisdiction and competence to hear and determine the suit on the ground that the Appellant did not file a Counter-Affidavit to the Respondent’s Originating Summons dated 28/11/2006 and whether such failure was not a denial of the Appellant’s rights to fair hearing in respect to the prayers sought in the said Motion.
The Respondents’ Brief is settled by T.O.S. Gbadeyan, Esq., and they submitted in the alternative that the sole Issue for determination in this Appeal is –
“Whether the lower Court was wrong not to have found on the jurisdictional issue raised by the Appellant in her Motion paper and also, by its refusal to determine the competency of Plaintiff/Respondents’ Originating Summons based action, on the ground of lack of material facts and the Application’s prematurity”.
The Appellant’s Issue 1 and Respondent’s Issue are quite a mouthful and lack the three characteristics of an issue – “precision, brevity and clarity” – see Management Ent. Ltd. V. ABC Merchant Bank (1996) 6 NWLR (Pt.453) 249 – issues for determination have to be simply, concisely, and tersely formulated. In this case, I am of the view that this appeal turns on the issue of whether the Appellant needed to file a Counter-Affidavit to have its Motion determined, and whether the suit in question can be commenced by Originating Summons.
As to the non-filing of a Counter-Affidavit, the Appellant submitted that the issue of jurisdiction can be raised at any stage and it properly raised it by its Motion before it had filed a Counter-Affidavit to the Originating Summons; that where its jurisdiction is challenged, the Court only looks at the Writ of Summons and Statement of Claim (in this case, Originating summons and supporting affidavit) to determine whether or not it has jurisdiction, and it referred us to Western Steel Works vs. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284, A.G. Anambra State vs. A-G. Fed. (2007) 12 NWLR (Pt. 1047) 4; that the lower Court should have considered the substance of its said Motion notwithstanding that it had not filed a Counter-Affidavit; that the lower Court seemingly glossed over the notorious legal principle of law that jurisdiction of court is very fundamental, and lack of jurisdiction robs a Court of the competence to hear and decide a matter and that the issue of jurisdiction can be raised at any stage of legal proceedings, be it at the Court of Appeal or at the Supreme Court, citing F.R.I.N. V. Gold (2007) 11 NWLR (Pt. 1044).1; that the lower Court ought to have considered its Motion challenging its jurisdiction on the merit instead of dismissing it as being premature and that the materials for the determination of same is not before it; that it is not legal requirement that it has to file a Counter-Affidavit to the Originating Summons before it can bring this Application; that the lower Court’s failure to consider and determine its Motion raising the issue of jurisdiction bordering on its competence to hear and determine the suit amounts to denial of fair hearing of its prayers therein, which is contrary to Section 36 of the Constitution, citing Ekpeto V. Wanogho (2004) 18 NWLR (Pt. 905) 394; and that the procedure adopted by the lower Court in dismissing the Motion on the ground that issues it raised is premature without giving it the opportunity of being heard, was a clear violation of its constitutional right to fair hearing, and we were urged to so hold in its favour.
The Respondents, however, argued that it is settled law that where a party to an action fails to file a Counter Affidavit he cannot contend that the action is contentious, citing Orji v. Dorji Textiles Mills & 3 Ors. (2009) 12 SC (Pt. 111) 73 at 122; that the lower Court rightly held that the Motion for striking out is premature as there was no material fact placed before it to help it decide on whether the action is actually contentious or not; that the lower Court was right to have dismissed the Motion on the ground that it was premature at that stage since no Counter-Affidavit had been filed; that the above notwithstanding it is commonsensical, logical and common law based that the Appellant’s failure to file a Counter-Affidavit is an admission of all the facts deposed to in their Affidavit in support of the Originating Summons, citing Nat Bank Plc. V. Afrimpex Enterprises (2007) All FWLR (Pt. 386) 767.
The Appellant, however, argued in its Reply Brief that the Respondents’ submission on the issue is not the position of the law; that the case they cited – Orji v. Dorji Textiles Mills & Ors. (supra) does not support their argument because in that case, the Court was of the view that the Affidavits filed were in conflict, so, commencing the suit by Originating Summons was inappropriate; that the lower Court’s decision and Respondents’ submissions are erroneous as it does not have to file a Counter-Affidavit for the lower Court to determine whether the case they presented in the Originating Summons was contentious or not, which is the position of the Supreme Court in Ossai V. Wakwah (supra).
This Issue is nothing but a storm in a teacup, and it is easily resolved because the Appellant is right; the Supreme Court categorically said in the case of Ossai V. Wakwah (supra) that it is not the filing of a Counter-Affidavit to oppose claims in an Originating Summons that makes such proceedings contentious or result in disputed facts, and that the nature of the claims and facts deposed in the supporting Affidavit are enough to disclose disputed facts.
In that case, Ossai V. Wakwah & Ors (supra), the Appellant commenced an action by way of Originating Summons against the Respondents, who were the tenants therein, to recover possession of the property and arrears of rent. Upon being served, the Respondents filed Counter-Affidavits and a Motion to dismiss the Appellant’s suit for being an abuse of the process of the Court.
The trial Court decided to ignore the Respondents’ Counter-Affidavits and the Motion to dismiss the suit and directed the Respondents to respond to the claims in the Appellant’s Originating Summons on grounds of law, and later found in favour of the Appellant. This Court allowed the appeal on the ground that the suit should not have been commenced by Originating Summons. On a further appeal to the Supreme Court, Mohammed, JSC, observed as follows –
“..Although the merits of the Originating Summons as a way of initiating actions lie in the fact that proceedings commenced thereby are very expeditiously determined, care must be taken to use such proceedings only in resolving questions of law or construction of instruments made in exercise of powers under the law or the construction and interpretations of documents. The dispute in the present case between the parties, which dispute centered on the payment of arrears of rents and mesne profits and in the alternative, the recovery of possession of the rented property also in dispute, is obviously not suitable to be initiated by means of originating summons. Not only that the facts in issue are highly in dispute, but that the nature of the Appellant’s claims for arrears of rents and mesne profit in respect of the property of which the tenants have refused to recognise him as their landlord, the proceedings are not only likely to be contentious but also extremely hostile. To this end, the Court below was quite right in holding that the proceedings ought not to have been initiated by Originating Summons. The setting aside of the judgment of the trial High Court which emerged at the end of the wrong or improper proceedings, coupled with the ordering of a fresh hearing of the matter on pleadings by another Judge of the Rivers State High Court, is quite in order. It must be emphasised that it is not the filing of a Counter-Affidavit to oppose claims in an Originating Summons that makes such proceedings contentious or result in disputed facts. Even where no Counter-Affidavit was filed or where Counter-Affidavit was filed but ignored by the trial Court, as in the lost out case, the nature of the claims and the facts deposed in the Affidavit in support of the claims in the Originating Summons are enough to disclose disputed facts and hostile nature of the proceedings.”
Thus, the lower Court erred by holding that because the Appellant did not file a Counter-Affidavit, it could not then attack the propriety of commencing the said proceeding by Originating Summons at that preliminary stage of the case.
As to other issue, the Appellant argued that the Respondents sought a declaratory relief of the quantum of its contribution based on gross pay roll for the said period and penalty based on it without giving a breakdown of the principal debt and penalties; that Originating Summons is inappropriate for contentious issues that can only be resolved by oral evidence, citing Order 2 Rules 2(2) of the Federal High Court (Civil Procedure) Rules 2000; that this suit was wrongly commenced because Originating Summons does not ordinarily admit oral evidence and is unsuitable to contentious and hostile proceedings, citing Ekpuk V. Okon (2002) 5 NWLR (Pt. 760) 445 & Ogolo V. Ogolo (supra); that the lower Court ought to have gone through the Originating Summons and supporting Affidavit before reaching its decision in this suit; and that the lower Court ought to have directed parties to proceed with filing of pleadings or to strike out the suit, citing Emezi V. Osuagwu (2005) 12 NWLR (Pt.939) 340.
The Respondent argued that the action is not that contentious because the Appellant tacitly consented to the fact that they are liable to contribute to the I.T.F. fund and had initiated settlement moves through its Solicitors, which resulted in the payment of the sum of N5,488,050.00 to them; that it is its insistence on the waiver of over a hundred million Naira led to this action; and that since the facts are straight, undisputed and non-contentious, the proper procedure to be adopted is by Originating Summon, citing Ezeogwe & 2 Ors. V. Nwawulu & 2 Ors. (2010) 2-3 (Pt. 1) 23 Orji v. Dorji Textiles Mills & 3 Ors. (supra), F.G.N V. Zebra Energy Ltd. (2002) 12 S.C (Pt. 11) 136 and Nat Bank Plc. V. Afrimpex Enterprises (supra). They urged this Court to “dismiss this time wasting interlocutory appeal”, and left us with “the thought provoking obiter of Rhodes Vivour JSC, in Okwuagbala & Ors. vs. Ikwueme & Ors. (supra), thus – –
“I think it is time to stop these Interlocutory Appeals that do not determine the suit, but only serve to prolong proceedings entailing huge cost to clients and a waste of judicial time with nothing to show for it.”
The Appellant replied that going by the Respondents’ depositions in their supporting Affidavit and its Motion, the lower Court ought to have come to the conclusion that the issue of quantum of debt was disputed; that contrary to their submissions, the relief in the Originating Summons shows that the action is for recovery of debt and not for construction of statute; and that their claims inter alia for a declaratory relief, require oral evidence by the Respondents before same can be granted by the lower Court, citing Ogolo V. Ogolo (supra).
To resolve this issue, we have to understand the nature of an Originating Summons and its place in the scheme of things. The aim of an action being commenced by Originating Summons is to simplify and speed up procedure since it is envisaged that there is no serious dispute as to facts in the case because what is in dispute is the construction of an enactment or instrument made under any law upon which the Plaintiff is basing his right to a declaration or claim in his favour. Where there is serious dispute as to the facts, then a Writ of Summons must be issued – see A.G., Adamawa State V. A.G., Fed. (2005) 18 NWLR (Pt. 958) 581. In other words, the nature of an Originating Summons is to make things simpler. To that end – “where it is obvious or evident from the state of the Affidavit evidence that there would be an air of friction in the proceedings, an Originating summons is no longer appropriate” – see N.R.C. V. Cudjoe (2008) 10 NWLR (Pt. 1095) 329 and Famfa Oil Limited V. A.-G. Fed. (2003) 18 NWLR (Pt. 852) 453, where the Supreme Court held that –
“The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for a declaration of his interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights. If there are serious disputes as to facts then a normal Writ must be taken out not Originating summons – Doherty v. Doherty (1968) NMLR 241″ [Per Belgore, JSC (as he then was)
What is the situation in this case? The Deponent – Victoria Abutu (Miss), averred in the “Affidavit in support of the Originating Summons” that the 1st Respondent “is a Government parastatal established in 1971 under the Industrial training Fund Decree No. 47 of 1971 and as amended” and that –
7. The [Respondents] are statutorily mandated to collect 1% of the annual gross pay-roll from all the private and public sectors employees of labour, who are engaged in commerce and/or industry, and having 25 or more employees in their establishment.
8. The [Respondents] are obliged and mandated to train and develop indigenous manpower at all levels through training and ensure that all employers of labour train their employees and file the records with the Plaintiff showing the type and place of training embarked upon for each categories of employees.
9. The [Appellant] is an employer of labour in the aforementioned category and carries out various business activities and other allied commercial ventures..
10. The [Appellant] falls within the category of employers that are liable to contribute to the [Respondent] because of her involvement in commercial activities or ventures; and having more than 500 employees.
11. The [Appellant], in actual fact, is a registered body with the 1st [Respondent] in total compliance with the [Respondents]’ enabling statute.
12. Orifunmise & Co. a firm of Solicitors, and one of the [Respondents]’ retained legal firms was briefed to recover N101,536,761.00 for the year 2001-2004, on outstanding mandatory contribution to the 1st [Respondent] by the [Appellant].
13. The [Respondents through her firm of solicitors, Orifunmise & Co., had in the past made several demand notices for the payment of the outstanding sum, such as the ones dated 28/4/2004, 17/12/2004, 25/1/2005 and 16/5/2005 and all were discountenanced…
14. Notwithstanding Exhibits A – E, which are uncontested, not denied and affirmed by implication, the [Appellant] refused and/or neglected to pay the outstanding demanded sum in the Exhibits, and even when she knows that such neglect draws a 5% monthly statutory interest.
15. The [Appellant] has no defence to this action, as their refusal to pay the outstanding sum is unjustifiable and inexcusable.
By the Originating Summons, they prayed the lower Court to determine –
Whether the [Appellant], a registered Company with, and contributor to the 1st [Respondent] pursuant to Sections 6 and 24 respectively of ITF Act, [Industrial Training Fund Act] is liable to pay, remit or contribute an outstanding mandatory sum and/or statutory contribution of N101,536,761.00 – – and 5% statutory monthly interest thereon, for the year 2001 – 2004, to the [Respondents].”
PARTICULARS
7. The [Appellant] falls within the category of employers that are liable to contribute to the [Respondents] pursuant to Section 14 of the – – ITF Act, 1990.
2. The [Appellant] is a registered contributor with the [Respondents] pursuant to the dictates of the ITF Act 1990.
3. The [Respondents] through her firm of solicitors, Orifunmise & Co., had in the past made several demands for the payments of the outstanding sum, such as – –
To all intents and purposes, the Respondents’ action is about recovery of debt. They were not just asking the lower Court to determine whether the Appellant “is liable to pay, remit or contribute” 1% of its annual gross pay-roll to them, they were convinced that backed by the law and from their own calculations, the Appellant owed an outstanding sum of N101,536.710, which it had refused to pay, and this is confirmed by the reliefs sought at the lower Court-
(a) A DECLARATION that the Defendant has defaulted in complying with the Plaintiffs’ enabling statues by not contributing to the Plaintiffs, the total mandatory 1% of the aforesaid Defendant’s gross pay-roll for the year 2001 – 2004 and 5% monthly penalty for such default.
(b) AN ORDER for immediate payment or remittance by the Defendant of the outstanding sum of N101, 536,761,00 to the Plaintiff.
In the Ruling complained against, the lower Court had observed as follows –
“Having regard to the question for determination set-out in the present Originating Summons and the Affidavit evidence, it seems to me that the liability of the Defendant to contribute to the fund is dependent on the existence of certain facts. The Plaintiff appears to have assumed the existence of the facts in this case”.
The word “assume” inter alia means “to take for granted or without proof”- see Dictionary.com. The lower Court did not elaborate on what it meant by “the Plaintiff appears to have assumed the existence of the facts in this case”, but from the meaning of the word “assume”, it is safe to say that it meant that the liability of the Appellant to contribute to the said Fund is dependent on the existence of certain facts, which were not made available by the Respondents. If we take away its reason for deciding not to consider the Appellants’ Motion, which is that it “has not filed a Counter-Affidavit” to the Originating Summons, and which we have found be an error on its part, we are left with its allusion that the Respondents had not laid all the necessary facts on the table before it. Besides, as the Appellant said, a declaratory relief cannot be granted without oral evidence – see Ogolo V. Ogolo (supra), where Onnoghen, JSC, held that –
“The reliefs claimed by the Respondent at the trial Court, and which were granted – included a declaratory relief. The law is settled that such a relief cannot be granted without oral evidence by the Plaintiff even where the Defendant expressly admitted same in the pleadings, the said relief being equitable in nature“.
The lower Court did not look beyond the fact that the Appellant did not file a Counter-Affidavit in opposition to the Originating Summons, and so, failed to look closely at “the Originating Summons, the reliefs contained therein, and the Affidavit filed in support”, to resolve the issue of whether it had jurisdiction – see PDP & Anor V. Sylva & Ors (supra). What do we do in the circumstances?
By Section 15 of the Court of Appeal Act, this Court is placed in the same position as the lower Court to look at the said process and take a decision on it. The first thing I will say is that the Appellant’s Application to strike out the said suit is misplaced and cannot be granted because the law makes room for the Court to order trial by pleadings. In effect, the Originating Summons can be treated as a Writ of Summons and parties would then file pleadings – see A.G. Adamawa State V. A.G. Fed. (Supra), N.R.C. V. Cudjoe (supra), and Ossai V. Uwakwe (supra). The Appellant’s Motion will, therefore, be discountenanced.
However, I agree with the Appellant that the Respondents’ action is one for a recovery of debt and not for construction of any provision of the ITF Act, as presented by the Respondents in the Originating Summons. They could easily have filed the suit under the Undefended List or filed a Writ of Summons that would have allowed the parties thrash out the issue of quantum of debt – who owed what and by what measure of calculation was the debt arrived at.
In the circumstances, the Appeal succeeds and is allowed. This matter is remitted to the Federal High Court for trial on Pleadings. No order as to Costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Amina Adamu Augie, J.C.A., (Hon. PJ) and I adopt it as my judgment with nothing useful to add.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, AMINA ADAMU AUGIE JCA. I agree with the reasoning and conclusions therein. The law is well settled that Originating Summons may be employed to commence an action where the issue involved is one of the construction of a written law, instrument, deed, will, or other document or some question of pure law is involved or where there is unlikely to be any substantial dispute on issues of fact between the parties. Keyamo v. House of Assembly (2002) 12 SC (Pt.1) 190. An examination of the reliefs sought by the Respondent shows that there is no document of any kind to construct; neither was any question of law involved. The court was not called upon to construct any of the provisions of the ITF Act. It was simply an action for recovery of debt. In determining whether or not a suit is suitable for commencement under Originating Summons, it is not necessary that the Respondent must have filed a Counter Affidavit as it is possible to determine the issue by reference to the Affidavit in support of the Originating Summons. As my learned brother rightly pointed out, the likelihood of dispute on issues of facts was obvious from the observation of the lower court that it seemed to it that the liability of the defendant to contribute to the fund was dependent on the existence of certain facts which the plaintiff appeared to have assumed. It was right in the circumstances that the case is sent back for trial on Pleadings. I agree that the Appeal has merit and should be allowed. I too allow the Appeal.
I abide by the consequential orders in the lead judgment.
Appearances
Uche V. Obi, Esq., with A. C. Uwakwe, Esq. For Appellant
AND
Gbenro Gbadamosi, Esq., For Respondent
