HIS ROYAL MAJESTY IGWE L.G.U. ODUKWE v. NNANYELUGO ALFRED NNAEMEKA UGOCHUKWU ACHEBE Mni (Alias Obi of Onitsha) & ORS
(2007)LCN/2392(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2007
CA/E/108/2006
RATIO
WHETHER IN ASCERTAINING THE APPELLANT’S COMPLAINT AGAINST THE LOWER COURT, THE GROUND OF APPEAL(S) AS FORMULATED AND ALL THE PARTICULARS THERETO MUST BE READ AND CONSTRUED TOGETHER
It is trite that a ground of appeal as formulated and all the particulars thereto are to be read and construed together in order to ascertain the appellant’s complaint against the lower court. See Osahon v. F.R.N. (2003) 16 NWLR (Pt. 845) 89. PER BADA, J.C.A.
WHETHER A COMPLAINT AGAINST WRONGFUL ASSUMPTION OF JURISDICTION CAN BE RAISED FOR THE FIRST TIME AN APPEAL
And a complaint against wrongful assumption of jurisdiction can be raised for the first time an appeal. See – – Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296. – Barclays Bank (Nig.) Ltd. v. Central Bank of Nigeria (1976) 6 SC 175. PER BADA, J.C.A.
DEINITION OF THE WORD “JURISDICTION”
Jurisdiction is defined as the power of the court to hear and determine the subject-matter in controversy between the parties. See – Bronik Motors Ltd. v. Wema Bank Ltd. (supra). PER BADA, J.C.A.
IMPORTANCE OF THE ISSUE OF JURISDICTION
Jurisdiction is very fundamental in the realm of the administration of justice. Any form of pronouncement by a court or tribunal without jurisdiction is an exercise in futility hence the issue of jurisdiction can be raised at any stage of the proceedings, before a court of first instance or even at the Supreme Court. The issue can be raised by any of the parties or by the court suo motu. Whenever it is raised, it has to be dealt with timeously. See:- – Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116;
– Okonkwo v. INEC (2004) 1 NWLR (pt. 854) 242; – Federal Government of Nigeria v. Oshiomhole (2004) 3 NWLR (Pt. 860) 305. PER BADA, J.C.A.
PROVISION OF ORDER 5 RULE 3 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 1988, CAP.66, VOL. 5, THE REVISED LAWS OF ANAMBRA STATE, 1991 AS TO SUITS THAT CAN BE COMMENCED BY AN ORIGINATING SUMMONS
It is not in dispute that jurisdiction in civil causes and matters which is conferred on the High Court of a State by sections 272 & 274 of the 1999 Constitution is exerciseable subject to the provisions of the law made by the House of Assembly of the State regulating the practice and procedure of the High Court of the State. The Rules of court binding upon the lower Court as at 29/4/2005 when the action in the above suit was commenced is Order 5 rule 3 of the High Court (Civil Procedure) Rules, 1988, Cap.66, Vol. 5, The Revised Laws of Anambra State, 1991, which provided thus:- “…the following suits shall be commenced by an originating summons, that is to say, where:- (a) the sole or principal question at issue is, or is likely to be, one of the construction of… any instrument … or other document. (b) there is unlikely to be any substantial dispute of fact.” PER BADA, J.C.A.
INSTANCES WHERE A TRIAL JUDGE SHOULD MAKE AN ORDER FOR PLEADINGS
In National Bank of Nigeria v. Alakija (supra) at page 78 line 32 to page 79 line 8 where Kayode Esq, J.S.C. delivering the lead judgment of the Supreme Court held thus:- “In our view, and all the authorities reviewed (supra), this is not a case where it could be said that there is unlikely to be any substantial dispute … nor that the facts are even undisputed … nor that they are uncontentious … they are, in fact hostile pleadings … where pleadings must be ordered. To proceed merely by originating summons would not meet the justice of the case … The learned trial Judge should have made an order for pleadings.” PER BADA, J.C.A.
WHEN AN ORIGINATING SUMMONS PROCEDURE IS TO BE EMPLOYED
It is trite that originating summons procedure is usually employed where the question to be determined is or is likely to be one of construction of a written law or any other instrument made under any written law, or of any Deed, Will, contract or other document, or where there is unlikely to be any substantial dispute as to facts. The general principle of the law was stated in Ajagungbade III. Adeyelu II (2001) 16 NWLR (Pt. 738) 126. Whether or not facts are in dispute or are likely to be in dispute is an issue to be determined from the process before the court. PER BADA, J.C.A.
JUSTICES
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
HIS ROYAL MAJESTY IGWE L.G.U. ODUKWE Appellant(s)
AND
1. NNANYELUGO ALFRED NNAEMEKA UGOCHUKWU ACHEBE Mni (Alias Obi of Onitsha)
2. INSPECTOR GENERAL OF POLICE
3. COMMISSIONER OF POLICE, ANAMBRA STATE
4. DENNIS ANYAGAFU
(Area Commander, Onitsha Police Area Command) Respondent(s)
BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of an Onitsha High Court in Anambra State of Nigeria which was delivered on the 3rd day of February, 2006 in suit No. 0/237/2005: His Royal Majesty, Igwe L.G.U. Odukwe And Nnanyelugo Alfred Nnaemeka Ugochukwu Achebe Mni (Alias Obi of Onitsha) & 3 others.
By a claim endorsed on the originating summons, the appellant claimed against the defendants jointly and severally as follows:-
(a) A declaration that the only means and way of according recognition of the Government of Anambra State of Nigeria to a Traditional Ruler within the meaning and con of the Traditional Ruler’s Law of Anambra State, 1981 as amended up to 1994, is by first and foremost publishing such fact in the Gazette of the Government of Anambra State of Nigeria and thereafter the issuance of a certificate.
(b) A declaration that the 1st defendant has not been accorded recognition by the Anambra State Government of Nigeria in line and within the con and meaning of the Traditional Ruler’s Law of Anambra State, 1981, as amended up to 1994.
(c) A declaration that the document dated 7/10/2002 titled GOVERNMENT STATEMENT ON THE OBISHIP OF ONITSHA signed by the then Deputy governor Anambra State of Nigeria, does not accord Recognition of the Anambra State Government on the 1st defendant within the con and meaning of the Traditional Ruler’s Law of Anambra State, 1981 as amended up to 1994.
(d) Injunction restraining the 1st defendant from parading himself as the Obi of Onitsha, from carrying on any of the functions of Obi of Onitsha, from occupying any of the palaces of the Obi of Onitsha without having first obtained the requisite Recognition of the Government of Anambra State within the meaning and con of the Traditional Ruler’s Law, 1981 of Anambra State, as amended up to 1994.
(e) Injunction restraining the 2nd, 3rd and 4th defendants, their agents, privies, assigns and workmen, from in any way or manner whatsoever intimidating, harassing and attempting to arrest and/or arresting the plaintiff.
(f) An order directing the 2nd to 4th defendants to stop the 1st defendant from parading himself as the Obi of Onitsha in contravention of sections 19 and 20 of the Traditional Ruler’s Law, 1981 of Anambra State as amended up to 1994 and to prosecute the 1st defendant for having committed an offence.
At the conclusion of hearing, the learned trial Judge dismissed all the reliefs sought by the plaintiff/appellant.
The appellant being dissatisfied with the judgment of the lower court now appealed to this Court.
The appellant formulated two issues for determination as follows:-
“(1) Whether the trial court acted without competent jurisdiction by entertaining and determining the case by way of originating summons procedure in view of the facts alleged in the claim and supporting affidavit vis-‘a-vis the counter affidavit in opposition thereto.
(2) Assuming (without conceding) that the trial Proceedings was intra vires, whether the verdict has occasioned serious miscarriage of justice.”
The 1st respondent on the other hand formulated three issues for determination as follows:
“(1) Whether the appellant is justified in contending that the learned trial Judge acted without jurisdiction in agreeing with the appellant to hear the matter under the originating summons procedure.
(2) Whether the learned trial Judge failed to resolve material disputed facts said to exist in the respective affidavit evidence of the parties.
(3) Whether the learned trial Judge was wrong in holding that exhibit GU01 duly conveyed recognition of the 1st respondent as the Traditional Ruler of Onitsha.”
At the hearing, learned counsel for both parties i.e. the appellant and the 1st respondent adopted and relied on their respective briefs of argument.
The learned senior counsel for the 1st respondent raised preliminary objection in his brief. He contended that ground 1 of the notice and grounds of appeal as well as issue No.1 distilled therefrom are incompetent and ought to be struck out.
He submitted that a court is only competent to exercise jurisdiction where it satisfies the conditions prescribed in Madukolu v. Nkemdilim (1962) 1 All NLR 587 that is to say:-
(1) Where the court is properly constituted as regards numbers and qualifications of members of the bench and no member is disqualified.
(2) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the court from exercising jurisdiction, and
(3) The case comes before the court initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction.
He stated that the court below was properly constituted and further that the court had both territorial and subject matter jurisdiction and as regards the third criteria that the originating summons process was duly initiated. An affidavit in support was filed. And the appellant proceeded to argue the case and did not either ask the court to order pleadings or complain to the court below why the court did not suo motu order pleadings. Learned Senior Counsel submitted that the appellant’s complaint in ground 1 that-
“The trial Judge acted without jurisdiction by purporting to hear and determine the action in the above suit commenced by way of originating summons and thereby failed to meet the justice of the case in view of the substantial dispute of fact manifest in the supporting and counter affidavit placed before the trial court.”
Cannot be bonafide complaint as to exercise of jurisdiction by the trial court and further that it is a fresh point now being sought to be canvassed. He stated that it is trite that a point not raised in the court below will not be allowed to be raised in the Court of Appeal. He relied on Order 5 rule 3 of the High Court Rules, Cap. 66, Laws of Anambra State, 1988 revised in 1991; and the following cases:-
– Shonekan v. Smith (1964) 1 All NLR 168 at 172;
– Djukpan v. Orovuyovbe (1967) 1 All NLR 134 at 139;
– North Staffordshire Railway Co. v. Edge (1920) AC 254 at 263-264.
He therefore urged that ground 1 of the grounds of appeal as well as issue No.1 distilled therefrom is struck out.
On the other hand, learned senior counsel for the appellant submitted that the preliminary objection is totally misconceived and ought to be dismissed for the following among other reasons:
(a) Ground 1 and the particulars thereto are complaint against the lower court for assuming jurisdiction to adjudicate on the originating process due to a feature in the case preventing the court from so doing.
(b) The application for an originating process and the issuance thereof in accordance with the rules of court do not ipso facto confer upon the court, the jurisdiction to adjudicate thereon.
(c) Jurisdiction is extrinsic to adjudication, a fortiori it is incumbent on the trial court to first examine the originating process and the law conferring jurisdiction and satisfy itself that there is no feature in the case preventing the court from exercising jurisdiction in the matter.
(d) A complaint against wrongful assumption of jurisdiction can be raised even for the first time on appeal because any defect in competence is fatal to the proceedings however well conducted.
The objection of learned senior counsel for the 1st respondent is that the complaint in Ground 1 cannot be bona fide as to exercise of jurisdiction by the trial court and further that it is a fresh point now being sought to be canvassed.
It is trite that a ground of appeal as formulated and all the particulars thereto are to be read and construed together in order to ascertain the appellant’s complaint against the lower court. See Osahon v. F.R.N. (2003) 16 NWLR (Pt. 845) 89.
On the above premise, a perusal of the said ground 1 with its particulars showed that the complaint is against the court for assuming jurisdiction in this matter. And a complaint against wrongful assumption of jurisdiction can be raised for the first time an appeal. See –
– Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296.
– Barclays Bank (Nig.) Ltd. v. Central Bank of Nigeria (1976) 6 SC 175.
Jurisdiction is defined as the power of the court to hear and determine the subject-matter in controversy between the parties. See
– Bronik Motors Ltd. v. Wema Bank Ltd. (supra). Jurisdiction is very fundamental in the realm of the administration of justice. Any form of pronouncement by a court or tribunal without jurisdiction is an exercise in futility hence the issue of jurisdiction can be raised at any stage of the proceedings, before a court of first instance or even at the Supreme Court. The issue can be raised by any of the parties or by the court suo motu. Whenever it is raised, it has to be dealt with timeously. See:-
– Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116;
– Okonkwo v. INEC (2004) 1 NWLR (pt. 854) 242;
– Federal Government of Nigeria v. Oshiomhole (2004) 3 NWLR (Pt. 860) 305.
In view of the foregoing, the preliminary objection fails and it is hereby dismissed.
In determining this appeal, I think it will suffice to consider the issues formulated in the appellant’s brief of argument in view of the fact that the issues are precise and tied to the grounds of appeal while the issues formulated on behalf of the 1st Respondent can not be said to be fully within the confines of the appellant’s grounds of appeal on record.
Issue 1:
The main complaint of the appellant brought out in issue No. 1 is that the trial court erred by invoking and exercising its jurisdiction to hear and determine the appellant’s claim on the footing of the originating summons procedure when according to the appellant on the face of the claim, the affidavits in support and the counter affidavit, the facts are in dispute.
Learned senior counsel for the appellant relied on the following cases:-
– National Bank of Nigeria & another v. Alakija and another (1978) 9-10 SC 59;
– Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; (2001) 9 SCNJ 1;
– Doherty v. Doherty (1968) NMLR 241;
– Olumide v. Ajayi (1997) 8 NWLR (Pt. 517) 433;
– Ajagungbade III v. Adeyelu (2001) 16 NWLR (Pt. 738) 126;
– Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 340;
– Ossai v. Wakwah & Others (2006) 4 NWLR (Pt. 969) 208.
Learned senior counsel for the appellant finally submitted that the trial Judge was in error by invoking and exercising jurisdiction when the claim and affidavit of the parties demonstrably established the existence of hostile proceedings.
He urged that Issue 1 be resolved in favour of the appellant and grant him the alternative relief.
The learned senior counsel for the 1st respondent contended that the learned trial Judge committed no error by hearing the suit as demanded by the appellant’s resort to the originating summons procedure.
It was also contended that a party is not at liberty to change his case at the appellate level. He relied on the following cases
– Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 266;
– Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at 269; Alubankudi v. Att. Gen. Federation (2002) 17 NWLR (Pt. 796) 338:
– Danesi v. Yerima (2003) to NWLR (Pt. 827) 165.
The learned senior counsel for 1st respondent conceded that though conflict existed, but that it certainly had nothing to do with the substance of the matters on which determination were sought.
It was submitted on behalf of the 1st respondent that there can only be jurisdiction in a court to grant a relief where such relief is one claimed by the plaintiff in his action or the applicant in the motion before the court. He relied on the following cases:-
– Ekpenyong v. Nyong (1975) 2 SC 71;
– Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652;
– Obajinmi v. A.-G., Western Nigeria (1967) 1 All NLR 31.
Learned senior counsel went further in his submission that it is inconceivable how the lower court could have resolved the issue of who between the applicant and the 1st respondent was selected by the Umuezechima Royal Kindred of Onitsha to be the Traditional Ruler of the town, when the court’s jurisdiction in that regard was not invoked.
He also contended that assuming but without conceding that the learned trial Judge committed an error in proceedings the way he did, that it is not every error that will lead to the setting aside of the decision of the trial Judge. He referred to:- Habib Nigeria Bank Ltd. v. Ochete (2001) 3 NWLR (Pt. 699) 114 at 135 paras. D to E.
He finally urged this court to hold that the trial Judge acted well within the bounds of the law.
It is not in dispute that jurisdiction in civil causes and matters which is conferred on the High Court of a State by sections 272 & 274 of the 1999 Constitution is exerciseable subject to the provisions of the law made by the House of Assembly of the State regulating the practice and procedure of the High Court of the State.
The Rules of court binding upon the lower Court as at 29/4/2005 when the action in the above suit was commenced is Order 5 rule 3 of the High Court (Civil Procedure) Rules, 1988, Cap.66, Vol. 5, The Revised Laws of Anambra State, 1991, which provided thus:-
“…the following suits shall be commenced by an originating summons, that is to say, where:-
(a) the sole or principal question at issue is, or is likely to be, one of the construction of… any instrument … or other document.
(b) there is unlikely to be any substantial dispute of fact.”
The appellant through his counsel commenced this suit at the lower court by applying for originating summons to issue against the defendants when according to him on the face of the claim, the affidavits in support and the counter affidavit, the facts are in dispute.
The pertinent question at this juncture is whether the lower court had jurisdiction to proceed, hear and determine the case on merit by adopting origination summons procedure instead of ordering pleadings and taking evidence following writ of summons procedure.
In National Bank of Nigeria v. Alakija (supra) at page 78 line 32 to page 79 line 8 where Kayode Esq, J.S.C. delivering the lead judgment of the Supreme Court held thus:-
“In our view, and all the authorities reviewed (supra), this is not a case where it could be said that there is unlikely to be any substantial dispute … nor that the facts are even undisputed … nor that they are uncontentious … they are, in fact hostile pleadings … where pleadings must be ordered. To proceed merely by originating summons would not meet the justice of the case … The learned trial Judge should have made an order for pleadings.”
In the instant appeal, a perusal of the claim and affidavits in support of it vis-‘a-vis the counter affidavit showed that in actual fact the facts are in dispute. For example the averment in paragraph 4 of the supporting affidavit at page 6 of the record showed that “the appellant was duly selected and installed by the relevant authorities as the 21st Obi of Onitsha” and this was refuted in paragraph 5 of the counter affidavit at page 29 of the record where the 1st respondent maintained thus:-
“Plaintiff was never selected and could not thus have been validly installed as the Obi of Onitsha.”
Furthermore, the depositions in paragraphs 5, 6, 7, 12 etc in the supporting affidavit were refuted in paragraphs 9, 10, 11 and 12 of the counter affidavit at Page 30 of the record.
It is trite that originating summons procedure is usually employed where the question to be determined is or is likely to be one of construction of a written law or any other instrument made under any written law, or of any Deed, Will, contract or other document, or where there is unlikely to be any substantial dispute as to facts. The general principle of the law was stated in Ajagungbade III. Adeyelu II (2001) 16 NWLR (Pt. 738) 126. Whether or not facts are in dispute or are likely to be in dispute is an issue to be determined from the process before the court.
As shown earlier in this judgment, when the affidavit in support of the originating summons was placed side by side with the counter affidavit, it was clear that the conflict shown is tangible and fundamental to the live issues in the case, it cannot be said that the conflicts are peripheral, cosmetic or inarticulate.
In the case of Doherty v. Doherty (1968) NMLR 241 Ademola, CJN of blessed memory had warned against the use of originating summons in hostile proceedings at page 242 where he said:-
“We cannot help thinking that the confusion in the Court below was due to the procedure being used for beginning this case. It is said in Underhill’s Law Relating to Trust and Trustee (1959) at Page 537 that:-
“It is generally inadvisable, however, to employ an originating summons for hostile proceedings against a trustee, and this procedure is, of course quite unsuitable where the facts are in dispute, as the evidence is by way of affidavit.”
See also the case of: – Balonwu v. Peter Obi (2007) 5 NWLR (Pt. 1028) 488.
Although the procedure of commencing suits by originating summons ensures a quick disposal of suits, it may also unfairly inhibit the parties from fully ventilating what is in controversy in a contentious matter. Therefore care must be taken to ensure that the procedure is used only when appropriate.
I also have to add that the cases relied upon by the learned senior counsel for the 1st respondent are not relevant in the instant appeal under consideration.
The only snag in the present appeal is that the appellant waited until judgment was delivered at the lower court before he now raised the issue of jurisdiction.
In view of the foregoing, it is my view that the proceedings and Judgment of the lower court ought to be set aside and they are hereby set aside. See the following cases:
– Ossai v. I. F Wakwah (2006) 4 NWLR (Pt.969) 208 at 212.
– Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; (2001) 9 SCNJ 1.
This appeal therefore succeeds and it is allowed.
That being so. I need not go into the other issue formulated before I conclude this judgment.
In the result, the case of the appellant at the court below is hereby struck out.
In view of the circumstances surrounding the case, I will not make any order as to costs.
OGEBE, J.C.A.: I had a preview of the lead judgment of my learned brother, Bada, J.C.A. just delivered and I agree with his reasoning and conclusion.
The learned senior counsel for the appellant approached the court below with a wrong process and now turned round to blame the court after losing the suit. However, since the action is incompetent, I allow the appeal, set aside the proceedings and judgment of the lower court and strike out the appellant’s suit therein. I make no order as to costs.
DENTON-WEST, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, Bada, J.C.A. The judgment had adequately addressed the main issue of whether the trial court acted without competent jurisdiction by entertaining and determining the case by way of originating summons proceedings in view of the facts alleged in the claim and supporting affidavit vis-‘a-vis the affidavit of the opposition thereto.
Without proceeding to answer the issues which had been dealt within the lead judgment to my satisfaction, I however wish to note that it is quite disturbing although it seems proper in view of the findings in this lead judgment as to the procedural defect in the action before the lower court that was brought by way of originating summons procedure instead of writ of summons by the plaintiff/appellant. Assuming the trial had gone in their favour would the appellant be challenging this originating summons procedure, which was actually initiated by him? It is like blowing hot and cold. Justice does not proceed like that and miscarriage of justice would only occur when parties do not abide by their actions. Litigation is not a game of chess. A party should not be made to go through the harrowing experience of a case initiated by the plaintiff and the same plaintiff turns around challenging the court on appeal as to the procedure adopted in the commencement of his action that led to the appeal. For it is usually the adverse party that challenges the procedure. Originating summons is adopted in an action when the parties are mainly ad idem and may not need pleadings to orchestrate their view points. Parties in a seeming hostile situation, as in the instant case, could not have fully contested the action except they tendered evidence on oath to resolve the affidavits. See PDP v. Abubakar (2007) 3 NWLR (Pt. 1022) 515 at 544-545; Balonwu v. Peter Obi (2007) 5 NWLR (Pt. 1028) 488; Ogunsola v. APP (2003) 9 NWLR (Pt. 826) 462.
The appellant must have realized that originating summons procedure may not effectively determine the controversy between the appellant and the respondent without the settlement of pleadings. Therefore, recourse to the use of originating summons in this action is inappropriate in view of the numerous affidavits and counter affidavits. See Unilag v. Aigoro (1991) 3 NWLR (Pt. 179) 376; Governor, Kogi State v. Yakubu (2001) 6 NWLR (Pt. 710) 521.
Therefore, in view of the reason given in the lead judgment, I also strike out the case of the appellant at the court below.
I also abide by the “no costs order” made by Bada, J.C.A. in the leading judgment.
Appeal allowed.
Appearances
Dr. J. O. Ibik, SAN
Chief O. Aniweta, C. Obieze,
Esq., L G. Ibik [Mrs.] and C. C. Echetebu [Miss]For Appellant
AND
Dr. O. Ikpeazu, SAN
Ben Osaka, Esq.For Respondent
