GWAGWALADA SPECIALIST HOSPITAL v. KWADO
(2022)LCN/16767(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, May 25, 2022
CA/A/414/2017
Before Our Lordships:
Hamma Akawu Barka Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
GWAGWALADA SPECIALIST HOSPITAL APPELANT(S)
And
PIUS JOV KWADO RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE RULE GOVERNING PRACTICE AND PROCEDURE
The rudimentary principle of law is that the adjectival law governing proceedings is the rule of procedure in force at the time of the proceedings, unless there is a provision to the contrary. See OMIRINDE vs. FRN (2017) LPELR (44971) 1 at 39-40, IWUNZE vs. FRN (2014) LPELR (22254) 1 at 14, NWORA vs. NWABUEZE (2013) LPELR (20587) 1 at 18-19 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 20.
In explication of the legal position, Karibi-Whyte, JSC stated as follows in OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 13:
“It is similarly well settled that the rule governing practice and procedure is the rule in force at the time of the trial or the application is heard, unless there is any provision to the contrary. This is based on the principle that there is no vested right in any course of procedure … A litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.” PER OGAKWU, J.CA.
WHETHER OR NOT PARTIES ARE BOUND BY THE RECORD OF APPEAL
Let me start by saying that the parties and the Court are bound by the Record of Appeal and it is the Record of Appeal that the Court will rely upon in the determination of the appeal. The Court will not depart from the Records and any extraneous facts not contained in the Records would be mere conjecture and the Court cannot rely or act on the same: GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 38-39 and TRANSOCEAN SHIPPING VENTURES PRIVATE LTD vs. MT SEA STERLING (2018) LPELR (45108) 1 at 9. Hear the learned jurist, Augie, JSC in NNALIMO vs. ELODUMUO (2018) LPELR (43898) 1 at 22:
“This is a Court of law; a Court bound by the Record transmitted from the lower Courts, a Court that cannot be swayed by sentiments, a Court that must rise above the miasma of despair and act according to law, particularly when an issue touches on jurisdiction, as in this case.”
Paucis verbis, justice is even-handed and it is dispensed according to law. PER OGAKWU, J.CA.
THE POSITION OF LAW ON SIGNING OF ORIGINATING PROCESSES
Order 4 Rule 4 (3) of the National Industrial Court Rules, 2007 provides:
“An originating process shall be signed by the claimant or his or her Legal Practitioner where the claimant sues through a Legal Practitioner.”
The complaint at pages 1-3 of the Records was neither signed by the Respondent or his legal practitioner. It is an unsigned complaint as a result of which it has no efficacy or value in law: OMEGA BANK (NIG) PLC vs. O.B.C. LTD (2005) 8 NWLR (PT 928) 547 and KEYSTONE BANK vs. J.O. ADEBIYI & SONS LTD (2015) 1 NWLR (PT 1438) 98 at 111. What then is the effect on the action?
It is abecedarian law that an unsigned originating process renders the trial Court without jurisdiction to entertain the action. The unsigned originating process raises a fundamental question which impacts on the competence of the action and the jurisdiction of the Court to entertain the action. Such an unsigned originating process is void and the case in which it has acted as the originating process remains incompetent and deprives the Court of the jurisdiction to entertain the same. See KIDA vs. OGUNMOLA (2006) LPELR (1690) 1 at 16, MAINASARA vs. FBN (2021) LPELR (56612) 1 at 26-29, KENTE vs. ISHAKU (2019) ALL FWLR (PT 393) 477 and ADOMI vs. OKPA (2022) LPELR (56940) 1 at 12-15. PER OGAKWU, J.CA.
CONDITIONS BE SATISFIED FOR A COURT TO BE COMPETENT TO DETERMINE AN ISSUE
In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 at 595 the apex Court stated as follows:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.” PER OGAKWU, J.CA.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National Industrial Court of Nigeria, Holden at Abuja in SUIT NO. NICN/ABJ/18/2014: PIUS JOV KWADO vs. GWAGWALADA SPECIALIST HOSPITAL, delivered on 12th May 2017. The Respondent herein, who was the Claimant at the lower Court instituted the action against the Appellant as Defendant, wherein he claimed the following reliefs:
“1. A declaration that the claimant’s purported dismissal is illegal, unconstitutional, null and void and of no effect howsoever.
2. A declaration that the claimant was not given a fair hearing by the defendant before he was dismissed.
3. An order of the Court reinstating the claimant back to his position and service.
4. A declaration that the claimant is and remains as an employee of the defendant and should be allowed to continue his service.
5. A declaration that the claimant is entitled to and should be paid his emoluments, salaries and all his entitlements due to him from November 2002 when his employment was unlawfully terminated till date of judgment and final liquidation of judgment.
6. A sum of 3 million as general damages for the hardship, embarrassments and inconveniences occasion [sic] the claimant by the action of the Respondent aforesaid.
7. N100,000.00 cost of litigation.”
The matter was subjected to a full dressed plenary hearing at the end of which the lower Court delivered its judgment, entering judgment in favour of the Respondent as follows:
“For the avoidance of doubt, this Honourable Court hereby declares/orders as follows:
1. THE COURT HEREBY DECLARES that the Claimant’s purported dismissal is illegal, unconstitutional, null, void and of no effect howsoever.
2. THE COURT HEREBY DECLARES that the Claimant was not given fair hearing by the Defendant before he was dismissed.
3. THE COURT HEREBY ORDERS the Defendant to reinstate the Claimant back to his position and service.
4. THE COURT HEREBY DECLARES that the Claimant is and remains an employee of the Defendant and should be allowed to continue his service.
5. THE COURT HEREBY DECLARES that The Claimant is entitled to and should be paid his emoluments, salaries and all his entitlements due to him from November, 2012 when his employment was unlawfully terminated till date of judgment and final liquidation of judgment and Defendant is hereby ordered to so do
6. THE COURT HEREBY ORDERS Defendant to pay Claimant the sum of N100,000.00 (One Hundred Thousand Naira) being cost awarded against the Defendant in favour of Claimant.
Judgment is hereby entered accordingly.”
The Appellant was dissatisfied with the judgment and it appealed against the same. It filed four Notices of Appeal, all filed within time. However, the Notice of Appeal on which it prosecuted its appeal is the Notice of Appeal filed on 8th August 2017. The Record of Appeal was compiled and transmitted on 16th June 2017 and a Supplementary (Additional) Record of Appeal was transmitted on 20th February, 2018. The Record of Appeal and the Supplementary (Additional) Record were regularised by order of the Court made on 26th February 2020. The scarified judgment of the lower Court is at pages 269-289 of the Record of Appeal, while the Notice of Appeal is contained in the Supplementary (Additional) Record of Appeal.
In the Appellant’s Brief which was filed on 30th March 2020, but deemed as properly filed on 2nd December 2021, six issues were distilled for determination, videlicet:
“1. Whether the judgment of the trial Court which nullified the dismissal of the Respondent is a nullity, having been given without jurisdiction? Ground 1.
2. Whether the trial Court was right when it nullified the dismissal of the Respondent from the Appellant’s employment on the ground of non-compliance with the Public Service Rules? Grounds 2, 3 & 5.
3. Whether the findings and conclusion of the trial Court that Respondent was tried for criminal offences by the Appellant’s Staff Disciplinary Committee are perverse and ought to be set aside? Grounds 6, 7, 9.
4. Whether the findings and conclusion of the trial Court that the Respondent’s right to fair hearing was breached by the Appellant’s Staff Disciplinary Committee are perverse and ought to be set aside? Grounds 8 & 10.
5. Whether the trial Court rightly ordered the reinstatement of the Respondent back to the Appellant’s employment? Ground 4.
6. Whether the trial Court rightly admitted Exhibits C1, C2, C3, C4, C5, E1, E2 & E3 in evidence, the documents having not complied with the requirements of law on admissibility? Ground 11.”
The Respondent’s Brief filed on 29th November 2021 was equally deemed as properly filed on 2nd December, 2021. The Respondent formulated four issues for determination, scilicet:
“1. Whether the employment of the Respondent by the Appellant was governed by statutory favour or not. If yes, was the Respondent entitled to the claims or not.
2. Whether the staff disciplinary committee/panel set up by the Appellant had the jurisdiction to try the Respondent on criminal acts or not. And if yes, was the Respondent given a fair trial and fair hearing by the staff disciplinary committee/panel?
3. Whether the Appellant presented acceptable evidence in law to support her pleaded facts/defense or her entire case/evidence were based on hearsay evidence and contradictions?
4. Whether the Respondent’s case was initiated without due process of the law or not.”
The Appellant filed a Reply Brief on 2nd December, 2021.
At the hearing of the appeal, the learned counsel for the parties, relying on their briefs urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellant’s issue number one, which corresponds with the Respondent’s issue number four, raises the issue of jurisdiction and competence of the lower Court to entertain the action. It is trite law that an issue of jurisdiction is to be first considered and resolved before anything else, since it is threshold in nature. Accordingly, I will embark on the consideration and resolution of this appeal with the Appellant’s issue number one.
ISSUE NUMBER ONE
Whether the judgment of the trial Court which nullified the dismissal of the Respondent is a nullity, having been given without jurisdiction?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that jurisdiction is the foundation of adjudication by a Court because without jurisdiction the Court cannot exercise its judicial powers vide SKYE BANK PLC vs. IWU (2017) LPELR-42595 (SC) at 78-79 and UTIH vs. ONOYIVWE (1991) 1 NWLR (PT 166) 166 at 206. The conditions for the competence of a Court to adjudicate as laid down in MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341 were referred to and it was stated that the lower Court lacked jurisdiction to entertain the Respondent’s action because the action was not initiated by due process of law. The originating process by which the action was commenced, was said to be defective in law.
It was contended that only a competent originating process can donate jurisdiction to a Court. The case of BRAITHWAITE vs. SKYE BANK PLC (2012) LPELR-15532 (SC) at 13-14 was relied upon. It was posited that the Complaint by which the Respondent commenced the action at the lower Court as provided in Order 3 Rule 1 (1) of the National Industrial Court Rules, 2017 was not signed by a legal practitioner as required by law; a defect which robbed the lower Court of jurisdiction to hear and determine the suit. Referring to the case of SLB CONSORTIUM LTD vs. NNPC (2011) 9 NWLR (PT 1252) 317 at 337-338, it was asserted that the complaint filed by the Respondent is invalid and did not activate the jurisdiction of the lower Court; and that the judgment based on the said originating process is not sustainable as you cannot put something on nothing and expect it to stand. The case of UAC vs. MACFOY (1961) 3 WLR 1405 was called in aid. It was conclusively submitted that an unsigned document is worthless and where it is an originating process, the entire proceedings founded on it and the judgment are a nullity. The cases of FASEHUN vs. A-G FEDERATION (2006) 6 NWLR (PT 975) 141 at 157 and EWUKOYA vs. BUARI (2016) LPELR-40492 (CA) at 14-15 were cited in support.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent proffered his submissions on this issue as his issue number four. The Respondent opined that the Appellant predicated his argument on a complaint which is not the original and main complaint of the Respondent. It was stated that the main complaint, as commented on in the judgment of the lower Court at page 269 of the Records, is that the suit was initially instituted at the Federal High Court by a Writ of Summons dated and filed on 7th February 2013, but that by a Memo dated 24th January 2014, the action was transferred from the Federal High Court to the lower Court. It was posited that the National Industrial Court Rules, 2017 relied upon by the Appellant is inapplicable as the said Rules which does not have retrospective effect came into force in 2017; while the action was filed in 2013.
The Respondent asserted that the authorities relied on by the Appellant were inapplicable as the main complaint of the Respondent was duly signed by the Respondent’s counsel. The complaint reproduced at pages 1-8 of the Records was said to be a surplusage. It was conclusively maintained that the complaint and Statement of Facts of the Respondent were duly signed by counsel to the Respondent.
APPELLANT’S REPLY ON LAW
The Appellant submits in its Reply Brief that the requirement for the signing of a Court process by a legal practitioner is a statutory requirement which takes priority and is superior to the Rules of Court vide UTA FRENCH AIRLINES vs. WILLIAMS (2000) 14 NWLR (PT 687) 271 at 281 and R.A. OLIYIDE AND SONS LTD vs. O. A. U. ILE-IFE (2018) 8 NWLR (PT 1622) 564 at 581. It was maintained that the non-signing of the complaint filed by the Respondent to initiate the action, ran foul of the provisions of the Legal Practitioners Act; and that the provisions of the Rules of the trial Court cannot override the Legal Practitioners Act.
RESOLUTION OF ISSUE NUMBER ONE
The basic facts on which this issue is predicated are not convoluted. It is simply that the originating process, the complaint filed by the Respondent and which is at pages 1-3 of the Records, was not signed and that the attendant debilitating and excruciating consequences attach thereto; therefore that the action was not initiated by due process of law and that the lower Court was not competent to entertain the action as its jurisdiction was not activated by the unsigned complaint.
The Respondent has not confuted the fact that the complaint at pages 1-3 of the Records is unsigned. He has however contended that the complaint reproduced at the said pages of the Records is a surplusage as it is not the original or main Complaint by which the action was commenced. The Appellant referred to a portion of the judgment where the lower Court stated, inter alia, that “… by a memo dated 24th January, 2014 addressed to the Chief Registrar of the Honourable Court by the Deputy Registrar of the Federal High Court, Abuja, this matter was transferred to this Honourable Court”. (See page 269 of the Records).
The Records of Appeal in this matter shows that the Respondent’s complaint was filed at the lower Court on 13th May 2014 (See page 1 of the Records). As at 13th May 2014, the applicable Rules of the lower Court was the National Industrial Court Rules, 2007. The Appellant had referred to the provisions of the National Industrial Court Rules, 2017. By Order 1 Rule 2 of the said 2017 Rules, the said Rules came into effect on 5th January, 2017. So the said Rules were not in force as at 13th May 2014 when the Respondent filed his complaint.
The rudimentary principle of law is that the adjectival law governing proceedings is the rule of procedure in force at the time of the proceedings, unless there is a provision to the contrary. See OMIRINDE vs. FRN (2017) LPELR (44971) 1 at 39-40, IWUNZE vs. FRN (2014) LPELR (22254) 1 at 14, NWORA vs. NWABUEZE (2013) LPELR (20587) 1 at 18-19 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 20.
In explication of the legal position, Karibi-Whyte, JSC stated as follows in OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 13:
“It is similarly well settled that the rule governing practice and procedure is the rule in force at the time of the trial or the application is heard, unless there is any provision to the contrary. This is based on the principle that there is no vested right in any course of procedure … A litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.”
So the approach to the resolution of this issue will be against the background of the stipulations of the National Industrial Court Rules, 2007 on the institution, form and commencement of action.
Let me start by saying that the parties and the Court are bound by the Record of Appeal and it is the Record of Appeal that the Court will rely upon in the determination of the appeal. The Court will not depart from the Records and any extraneous facts not contained in the Records would be mere conjecture and the Court cannot rely or act on the same: GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 38-39 and TRANSOCEAN SHIPPING VENTURES PRIVATE LTD vs. MT SEA STERLING (2018) LPELR (45108) 1 at 9. Hear the learned jurist, Augie, JSC in NNALIMUO vs. ELODUMUO (2018) LPELR (43898) 1 at 22:
“This is a Court of law; a Court bound by the Record transmitted from the lower Courts, a Court that cannot be swayed by sentiments, a Court that must rise above the miasma of despair and act according to law, particularly when an issue touches on jurisdiction, as in this case.”
Paucis verbis, justice is even-handed and it is dispensed according to law.
The Respondent’s contention is that the complaint in the Record of Appeal, which the Appellant has anchored its challenge to the competence of the action on, is not the original and main complaint of the Respondent and that the main complaint is as observed and commented on by the lower Court at page 269 of the Records. The Respondent then conclusively submitted in paragraph 4.4.8 of his brief that the complaint and Statement of Facts of the Respondent were duly signed by the counsel to the Respondent as required by law. I have gone through the Record of Appeal with the finery of a judicial toothcomb and I was not able to find this “Original and Main Complaint” of the Respondent that was duly signed by the Respondent’s counsel.
The law remains that the parties and the Court are bound by the Records of Appeal; the Court will not depart from the Record and any extraneous facts not contained in the Records would be mere conjecture and the Court cannot rely or act on the same. The “original and main complaint” which the Respondent submits was signed by its Counsel and by which the action was commenced is a mirage. It is not in the Record of Appeal and it will be mere conjecture to hold that any such process exists.
I am not in oblivescence of the comment or observation made by the lower Court at page 269 of the Records that the case was transferred to the lower Court by a Memo addressed to the Chief Registrar of the lower Court by the Deputy Registrar of the Federal High Court Abuja. This presupposes that it was Deputy Registrar of the Federal High Court that transferred the matter to the lower Court by a MEMO! This is a procedure that is unknown to law. By all odds, there is a provision in the Federal High Court Act for a matter to be transferred from the Federal High Court to the appropriate Court where the matter ought to have been brought; but it is a power that is exercised by the Judge of the Federal High Court making an order for the transfer of the matter pursuant to Section 22 (2) of the Federal High Court Act. It is alien to all substantive and adjectival laws for a “Deputy Registrar” to transfer a matter from the Federal High Court to another Court by a MEMO! Be that as it may, the Writ and Memo which form the subject of the comment and observation of the lower Court at page 269 of the Records is not in the Record of Appeal transmitted by the lower Court, which Record is binding on this Court. The Court is not to make any presumptions, assumptions or conjecture as to the existence vel non of the said documents.
The matter does not end there. The further question that arises is whether the lower Court could have exercised jurisdiction to hear and determine the action based on the Memo from the Deputy Registrar of the Federal High Court. It does not seem to me that a Memo from the Deputy Registrar of the Federal High Court is a mode of institution of suits at the lower Court. Order 3 Rule 1 of the National Industrial Court Rules, 2007 provides as follows: “Any action for determination by the Court shall be commenced by way of complaint which shall be filed and sealed. The complaint shall be in Form 1 with such modifications or variations as circumstances may require.”
It is lucent that under the 2007 Rules of the lower Court, the form of commencement of an action at the lower Court is by complaint.
The only originating process in the Record of Appeal is the complaint at pages 1-3 of the Records. It is therefore the said complaint that is to be considered in order to ascertain if it initiated the action by due process of law in order to activate the jurisdiction of the lower Court.
Order 4 Rule 4 (3) of the National Industrial Court Rules, 2007 provides:
“An originating process shall be signed by the claimant or his or her Legal Practitioner where the claimant sues through a Legal Practitioner.”
The complaint at pages 1-3 of the Records was neither signed by the Respondent or his legal practitioner. It is an unsigned complaint as a result of which it has no efficacy or value in law: OMEGA BANK (NIG) PLC vs. O.B.C. LTD (2005) 8 NWLR (PT 928) 547 and KEYSTONE BANK vs. J.O. ADEBIYI & SONS LTD (2015) 1 NWLR (PT 1438) 98 at 111. What then is the effect on the action?
It is abecedarian law that an unsigned originating process renders the trial Court without jurisdiction to entertain the action. The unsigned originating process raises a fundamental question which impacts on the competence of the action and the jurisdiction of the Court to entertain the action. Such an unsigned originating process is void and the case in which it has acted as the originating process remains incompetent and deprives the Court of the jurisdiction to entertain the same. See KIDA vs. OGUNMOLA (2006) LPELR (1690) 1 at 16, MAINASARA vs. FBN (2021) LPELR (56612) 1 at 26-29, KENTE vs. ISHAKU (2019) ALL FWLR (PT 393) 477 and ADOMI vs. OKPA (2022) LPELR (56940) 1 at 12-15.
The facts under consideration in this issue are on all fours with the decision of this Court in UBA vs. OJO (2021) LPELR (56357) 1 at 12-15 where the provisions of Order 4 Rule 4 (3) of the National Industrial Court Rules, 2007 were applied as it relates to an unsigned complaint and it was held, inter alia, that:
“The main grouse of the Appellant is that the complaint which originated the suit was not signed by the Respondent or his Counsel… once the initiating process … is not signed or authenticated either by the litigating party or the legal practitioner on his behalf then that process is invalid and the jurisdiction of the Court ousted. The defect is taken as incurable…The complaint… was neither signed by the Claimant (Respondent herein) nor by her legal practitioner as required by law… This Court cannot, in any event, ignore a situation in which the foundations of claim are based on a worthless ‘complaint’ neither signed by the Claimant nor her legal practitioner… The case was a complete nonstarter rendering the entire proceedings null and void. Basically, an unsigned or irregularly signed originating process is worthless… The Complaint is incompetent in that it was not signed by the Claimant or her legal practitioner and is accordingly struck out. Being the initiating process, the statement of claim and all other processes that swivel on the helpless complaint are correspondingly affected by the same virus and consequently rendered incompetent.”
I avow my concurrence with the above dictum. It is justice according to law, particularly when it is an issue that touches on jurisdiction: NNALIMUO vs. ELODUMUO (supra) at 22.
In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 at 595 the apex Court stated as follows:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”
The contention of the Appellant, as I understand it, is that the feature which exists in the case and which affected the jurisdictional competence of the lower Court, is that the Respondent’s case was not initiated by due process of law and the fulfilment of a condition precedent to the exercise of jurisdiction.
The competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction. Therefore since the complaint in this matter was not signed and it is consequently defective and incompetent, the lower Court did not have the jurisdiction to entertain the action since it was not initiated by due process of law, and the incompetent process was a feature that prevented the Court from exercising jurisdiction: MADUKOLU vs. NKEMDILIM (supra).
The issue of jurisdiction is very fundamental and goes to the competence of the Court. The importance of jurisdiction in the adjudicatory process cannot be over-emphasised. Jurisdiction is a fundamental prerequisite in the adjudication of any matter. It is the fons et origo, the threshold of judicial power and judicialism. It is the bloodline, lifeline, livewire and indeed the spinal cord of a Court of law: A-G OYO STATE vs. NLC (2003) 8 NWLR (PT 821) 1 at 26, ODEDO vs. INEC (2008) 17 NWLR (PT 1117) 544, OKOLO vs. UNION BANK (2004) 3 NWLR (PT 859) 87 at 108 and UTIH vs. ONOYIVWE (supra) at 206.
Where a Court does not have jurisdiction in a matter, its decision, no matter how brilliantly arrived at, and even if correct, is a nullity. See UNION BANK vs. BEAR MARINE LTD (2018) LPELR (43692) 1 at 24, FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 81-82, A-G LAGOS vs. DOSUNMU (1989) LPELR (3154) 1 at 10 and OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520. Where a Court is not competent, it is a waste of time to embark on a hearing and determination as whatever decision reached, no matter how brilliant, is a nullity since the defect is extrinsic to the adjudication. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (supra) at 520:
“If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.”
The defective complaint went to the root of the action and the conditions precedent to the exercise of the Court’s jurisdiction were not met: KIDA vs. OGUNMOLA (supra) and BRAITHWAITE vs. SKYE BANK (2012) LPELR (15532) 1 at 7-8. It was a waste of precious judicial time for the lower Court to have gone the whole hog in hearing the action initiated by the defective and incompetent complaint. The action is deserving of an order striking it out for being incompetent. In the circumstances, all the proceedings which rested on the incompetent complaint are deemed not to have taken place in law. The Latin maxim is ex nihilo, nihil fit: out of nothing, nothing comes. See MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) LPELR (1834) 1 at 74, IN RE: OTUEDON (1995) LPELR (1506) 1 at 16 and NZOM vs. JINADU (1987) LPELR (2143) 1 at 44. The incompetent complaint could not have spawned a competent trial.
The originating complaint being incompetent, the proceedings and all other processes flowing therefrom, are equally fundamentally defective, and they are hereby struck out as the complaint is incompetent and incapable of initiating the proceedings, thereby robbing the lower Court of the jurisdiction to hear and determine the action as initiated. See SLB CONSORTIUM vs. NNPC (supra) and ADEWUNMI vs. OKETADE (2010) 3 SCNJ 368.
Concomitantly, this issue number one must indubitably be resolved in favour of the Appellant. The judgment of the lower Court is a nullity, having been given without jurisdiction; since the Respondent’s action was not initiated by due process of law. In the light of all the above and since this Court does not act in vain, there is no further need to consider the other issues raised in the appeal as they have been rendered hypothetical and/or academic. See NIGERIAN ARMY vs. SAMUEL (2013) LPELR (20931) (SC) 1 at 16.
I am well aware of the postulation that this Court as an intermediate appellate Court has a duty to consider and determine all issues properly raised before it; however, in certain circumstances a consideration of all the issues may be dispensed with. This includes where an order for retrial is considered desirable or where the decision appealed against is declared a nullity, in which case there will be no need to pronounce on the other issues flowing from the trial declared a nullity, which issues could possibly arise at the retrial or fresh action. See BRAWAL SHIPPING (NIGERIA) LTD vs. F. I. ONWADIKE CO. LTD (2000) LPELR (802) 1 at 13-15, EDEM vs. CANON BALLS LTD (2005) 12 NWLR (PT 938) 27, SHASI vs. SMITH (2009) 18 NWLR (PT 1173) 330 at 356 and IFEKAUDU vs. IBEAGWA (2012) LPELR (14436) 1 at 19-20. I iterate that the manner of the resolution of the Appellant’s issue number one and the order made declaring the trial a nullity makes inutile the consideration of the other issues thrust up for determination in this matter. It has to be remembered that in SIFAX (NIG) LTD vs. MIGFO (NIG) LTD (2018) 9 NWLR (PT 1623) 138 at 182-183 and 185 or (2018) LPELR (49735) 1 at 76-80, the apex Court held that the limitation period does not count and is suspended during the period of proceedings that were declared a nullity. This underscores the need not to embark upon a resolution of the other issues, in order not to prejudice any fresh proceedings in the matter, which will be the likely consequence of expressing any opinion on the merits of the other issues raised for determination. In OSAREREN vs. FRN (2018) (43839) 1 at 12-13, Eko, JSC opined:
“As a general principle, the intermediate Court, as the Court below, is duty bound to consider all issues raised or placed before it. It does not have the liberty to decline a consideration of the issues before it, unless it intends to order a retrial and the further consideration of the issues in the case will prejudice the fresh hearing being ordered…”
See also SALU vs. EGEIBON (1994) 6 NWLR (PT 348) 23 at 44, LIFESIGN HEALTHCARE LTD vs. SYSMEX EUROPE GMBH (2020) LPELR (49591) 1 at 22-24 and AJAO vs. OGUNTOLU (2021) LPELR (56076) 1 at 28-29.
The concatenation and conflating of the foregoing is that this appeal succeeds. The judgment of the lower Court delivered on 12th May, 2017 is hereby set aside for being a nullity. The Respondent’s action in SUIT NO. NICN/ABJ/18/2014: PIUS JOV KWADO vs. GWAGWALADA SPECIALIST HOSPITAL is hereby struck out. The parties are to bear their respective costs of this appeal.
HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother Ugochukwu Anthony Ogakwu JCA, was made available to me in draft.
Having also read the records and the submissions of the learned counsel, I cannot but agree with the reasoning and the conclusion reached to the inevitable conclusion that the appeal succeeded and is thereby allowed by me. I also endorse all orders made including that made on costs.
MOHAMMED MUSTAPHA, J.C.A.: I read a draft copy of the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.
I adopt the reasons and conclusion therein as mine.
Appearances:
Audu Anuga, Esq., SAN, with him, Adewale Adegboyega, Esq. and Ms. Ginikachukwu Atakulu. For Appellant(s)
S. M. Attah, Esq., with him, Ms. N. C. Nwachukwu. For Respondent(s)