HON. JUSTICE JUBRIL IDRIS & ANOR v. HON. JUSTICE P. N. C. AGUMAGU & ORS
(2015)LCN/7807(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of March, 2015
CA/A/361B/2014
RATIO
APPEAL: PRELIMINARY OBJECTION; WHETHER A COURT OF LAW WILL SHUT ITS EYES AGAINST A PRELIMINARY OBJECTION THAT BORDERS ON JURISDICTION
Nonetheless, a clinical examination of the preliminary objection shows that it evinces a jurisdictional question. A court of law cannot shut its eyes against a preliminary objection that borders on jurisdiction. Put simply, it must be considered by the court, see Jev. v. Iyortyom (2014) 14 NWLR (Pt.1428) 575. The raison d’etre for this principle of law is, firmly, founded in the despicable province of nullity. No court desires to waste the scarce judicial time. For this reason, this court is compelled, under pain of nullity of its decision, to consider the preliminary objection even in the face of a remediable irregularity. On this score, I find no merit in the appellant’s objection. per. OBANDE FESTUS OGBUINYA, J.C.A.
APPEAL: GROUND OF APPEAL: HOW TO DIFFERENTIATE BETWEEN A GROUND OF LAW, AND A GROUND OF FACT OR MIXED LAW AND FACT
It is discernible, from loads of decided judicial authorities, that to differentiate between a ground of law, on the one hand, and a ground of fact or mixed law and fact, on the other hand, has been a stubborn and perennial judicial exercise. The dichotomy between them, though slim and subtle, has agitated the well-informed legal minds in this country and tons of ink expended on it. A ground of appeal does not translate into a ground of law or fact or mixed law and fact because it is so couched by the appellant. In other words, the manner an appellant has labelled a ground of appeal does not bring out the class of ground it belongs, id est, law, fact or mixed law and fact. To decipher whether a ground of appeal is of law or fact or mixed law and fact, a court has the bounden duty to, thoroughly and assiduously, examine the ground with its accompanying particulars. These cardinal principles on classification of grounds of appeal have been sanctified in an army of authorities, see Thor Ltd. v. FCMB Ltd. (2008) 4 SCNJ or (2002) 4 NWLR (Pt.757) 427; Akanbi v. Salawu (2003) 13 NWLR (Pt.838) 637; Garuba v. K. I. C. Ltd. (2005) 5 NWLR (Pt.917) 160; FBN Plc. v. TSA Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247; General Electric Co. v. Akande (2011) 18 NWLR (Pt.1225) 596; Abubakar v. Waziri (2008) 14 NWLR (Pt.1108) 507; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt.1113) 278; Ehinlanwo v. Oke (2008) 16 NWLR (Pt.1113) 357. In order to curb the incessant difficulties associated with drawing a distinction between a ground of law and a ground of fact or mixed law and fact, the Supreme Court, in myriads of decided cases, had evolved certain principles that would assist the courts, in a galaxy of authorities, see C.C.C.T.C.S. v. Ekpo (supra); Dairo v. UBN Plc. (2007) 16 NWLR (Pt.1059) 99; NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148; Akinyemi v. Odu’a Inv. Ltd. (2012) 17 NWLR (Pt.1329) 209; Atago v. Nwuche (2013) 3 NWLR (Pt.1341) 337; Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt.1225) 797; M.M.A. Inc. v. N.M.A. (2012) 18 NWLR (1333) 506.
A question of law connotes one of three meanings, to wit: (a) A question a court is bound to answer in accordance with a rule of law (b) A question which explains what the law is (c) A question which normally answers questions on law only and, invariably, falls within the judicial power of a Judex to answer. Contrariwise, a question of fact denotes one of three meanings, viz. (a) A question which is not determined by a rule of law. (b) Any question except one as to what the law is. (c) Any question which is to be answered by the Jury and not the Judge. These triumvirate meanings of questions of law and fact have received the approval of the apex court in an avalanche of cases, see C.C.C.T.C.S. v. Ekpo (supra); General Electric Co. v. Akande (supra); Ehinlanwo v. Oke (supra).
One of the paramount considerations, invented by the Supreme Court, to discover the nature of a ground of appeal, is that where a ground of appeal challenges an interlocutory decision of a court predicated on exercise of discretion, then it is, at best, ground of mixed law and fact, see FBN Plc. v. Abrahim (2008) 18 NWLR (Pt.1118) 172; Garuba v. Omokhodion (supra); Williams v. Mokwe (2005) 14 NWLR (Pt.945) 249. per. OBANDE FESTUS OGBUINYA, J.C.A.
PRACTICE AND PROCEDURE: THE DUTY OF A PARTY TO BE CONSISTENT IN THE PRESENTATION OF HIS CASE
The law, roundly, frowns on this chameleonic character of litigating parties. The law insists that a party must be consistent in the presentation of his case, see Garuba v. Omokhodion (supra); P.M. Ltd. v. The “MV Dancing Sister” (2012) 4 NWLR (Pt.1289) 169; Adeosun v. Gov. Ekiti State (2012) 4 NWLR (Pt.1291) 581; Obitude v. Onyesom Comm. Bank Ltd. (2014) 9 NWLR (Pt.1412) 352. A party, perhaps, in a bid to score victory or advantage is not allowed to change his case like the oscillating pendulum in a wall clock. It is a defilement of the law to indulge in such an unwholesome somersault practice. I hold, taking shelter under the law, solidified by Garuba case, that the decision of lower Court was interlocutory, not final as, vainly, pontificated by the appellant. per. OBANDE FESTUS OGBUINYA, J.C.A.
COURT: ABUSE OF COURT PROCESS; WHAT THE TERM ‘ABUSE OF COURT PROCESS’ INVOLVES
The term “abuse of court process” is an elusive and a polymorphous precept in the wide domain of litigation. It exhibits variegated forms and is disobedient to a single definition. It is a mantra in adjudication, usually mounted, as a shield, by defending parties to scuttle the life span of an action at its infancy. A law lord, Nnaemeka Agu, JSC, captured, graphically, the purport and hall marks of the term in the celebrated case of Saraki v. Kotoye (1992) 11/12 SCNJ (Pt.1) 26 at 48-49 in these illuminating words:
The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation…This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues…. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.
These all-encompassing features of abuse of court process have been, severally, re-echoed by the apex court in a slew of decided authorities, see CBN v. Ahmed (2001) 11 NWLR (Pt.724) 369; Ntuks v. NPA (2007) 13 NWLR (Pt.1051) 392; Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt.1224) 1; Dingyadi v. INEC (No.2) (2011) 10 NWLR (Pt.1255) 347; Ogboru v. Uduaghan (2011) 17 NWLR (Pt.1277) 727; Barigha v. PDP (2013) 6 NWLR (Pt.1360) 451; Igbeke v. Okadigbo (2013) 12 NWLR (Pt.1368) 225; Ogboru v. Uduaghan (2013) 12 NWLR (Pt.1370) 33; Denton-West v. Jack (2013) 15 NWLR (Pt.1377) 205. per. OBANDE FESTUS OGBUINYA, J.C.A.
COURT: POWER OF THE COURT; THE POWER OF THE COURT TO TRUNCATE ANY MATTER WHICH IS TAINTED WITH AN ABUSE OF JUDICIAL PROCESS
Interestingly, the law gives the courts the unbridled licence, under their wide inherent powers, to truncate any matter which is tainted with an abuse of judicial process, see O.S.S.I.E.C. v. NCP (supra). Where a court finds that there is an abuse, the last process vacates, see Dingyadi v. INEC (No.1) (supra). In the result, the application remains an abuse of court process and unwelcome to this appeal. per. OBANDE FESTUS OGBUINYA, J.C.A.
COURT: JURISDICTION; WHEN MUST HE ISSUE OF JURISDICTION BE TAKEN
It was further contended that the issue of jurisdiction must be taken first by the lower Court before proceeding any further in the matter. He referred to the cases of Tukur V. Govt. of Gongola State (supra); State V. Onagoruwa (supra); S.P.D.C. Ltd V. Isaiah (2001) FWLR (Pt.56) 608 on the point. He added that the cases of Senate President V. Nzeribe (2004) 9 NWR (Pt.878) 251; Olorunkunle V. Adigun (2012) 6 NWLR (Pt.1297) 407, which the lower Court relied on, could not stand against the decision in State V. Onagoruwa (supra). He further relied on Amadi V. NNPC (2000) 10 NWLR (Pt.674) 76; D.E.N.R. Ltd. V. Trans Int’l Bank Ltd. (2008) 18 NWLR (Pt.1119) 388; Garuba v. Omokhodion (supra); Ajayi v. Adebiyi (2012) 11 NWLR (Pt.1310) 137 as binding on the lower Court. per. OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. HON. JUSTICE JUBRIL IDRIS
2. HON. JUSTICE COMWELL IDAHOSA Appellant(s)
AND
1. HON. JUSTICE P.N.C. AGUMAGU
2. NATIONAL JUDICIAL COUNCIL
3. HON. JUSTICE BABATUNDE ADEJUMO Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering The Leading Judgment): This appeal probes into the correctness of the decision of the Federal High Court, holden at Abuja, coram judice A.F.A. Ademola, J., in suit No. FHC/ABJ/CS/253/2014, delivered on 26/05/2014. The appellant, second-fourth respondents and the first respondent were the respective respondents and applicant in the Federal High court, the lower Court.
The facts of the case, which transformed into this appeal, submit to brevity and easy appreciation. The first respondent is a serving judicial officer in the service of the Rivers State judiciary. On 07/05/2009, he was appointed the President of the Customary Court of Appeal of Rivers State by the Governor of the State. By a letter dated 18/03/2014, the Governor of Rivers state appointed the first respondent as the Chief Judge of the State. The House of Assembly of Rivers State confirmed the appointment and he was sworn-in as the Chief Judge of Rivers State.
Subsequently, the second respondent, an executive body charged with the responsibility of disciplining judicial officers, suspended the first respondent from office as a judicial officer on 26/03/2014. It further queried him on why he should not be removed from office for failure to abide by his oath of office to uphold the Constitution and Laws of the Federal Republic of Nigeria. Sequel to that, and in order to preserve his job, the first respondent beseeched the Lower Court by dint of a motion ex parte, filed on 31/03/2014, for an order for leave to apply for judicial review by way of certiorari, prohibition, declaration and injunction against the second respondent over its decision of 26/03/2014. The lower Court granted the leave on that same 31/03/2014 and fixed the return date on 10/04/2014. Pursuant to the leave, the first respondent, filed a motion on notice, on 01/04/2014, and replicated those outlined reliefs. On 10/04/2014, the appellants filed a motion on notice in which they prayed the lower Court to strike out the first respondent’s action for want of jurisdiction.
At a resumed sitting of the lower Court on 05/05/2014, the first respondent, qua counsel, urged it to take the appellants’ preliminary objection along with the substantive suit. The appellants objected to that line of procedure. After very dazzling and extensive arguments, for and against the procedure, the lower Court adjourned to 26/05/2014 for ruling. In a considered ruling, delivered on that 26/05/2014, the lower Court ordered, inter alia, that the appellants’ preliminary objection and the first respondent’s motion on notice, dated 01/04/2014, were fixed for 30/06/2014 for hearing.
The appellants were dissatisfied with the ruling. Hence, on 28/05/2014, they lodged a 4-ground notice of appeal, found between pages 591-596 of the printed record of appeal, and, ultimately, prayed this court as follows:-
An order setting aside the Orders/Ruling of the learned trial Judge dated the 26th day of May, 2014 and in its place enter an order striking out the Appellant’s suit in its entirety.
In the ALTERNATIVE, in the exercise of its powers under Section 15 of the Court of Appeal Act, for this Honourable Court to hear the 3rd and 4th respondents’ motions as if it is the court of first instance and to determine same accordingly.
Thereafter, the parties filed and exchanged their briefs of argument in line with the practice and procedure regulating hearing of interlocutory appeals in this court. The appeal was heard on 12/02/2015.
Preliminary Objection
Before the hearing of the appeal, learned counsel for the first respondent, Chief Akin Olujinmi, SAN, argued his preliminary objection filed on 10/02/2015. The preliminary objection prayed this court to strike out the appellants’ appeal on the ground that:
The decision appealed against was an interlocutory decision of the trial court based on the exercise of the trial court’s discretion which undoubtedly involved a consideration of mixed law and fact for which the appellant ought to have obtained the leave of either the trial court or this court having regard to the combined effect of the provisions of Sections 241 and 242 of the 1999 Constitution as amended.
In arguing the objection, learned senior counsel for the first respondent submitted that the appeal was incompetent because, it was against the exercise of discretion of the lower Court for which the appellant should have obtained leave of court. He noted that the decision to combine the actions was taken after a review of all the affidavits and other processes filed by the parties. He relied on sections 241 and 242 of the Constitution, as amended, UBA v. Stahlbau FMBH (1989) 6 SC (Pt.1) 22 at 34-36 and Garuba v. Omokhodion (2011) 14 NWLR (Pt.1269) 145 to support the submission.
For the appellants, learned counsel, Emmanuel C. Ukala, SAN, raised objection to the preliminary objection on the ground that it was incompetent having been filed and served less than three days before the date of hearing. He relied on Order 10 of the Court of Appeal Rules, 2011.
In opposition to the preliminary objection, learned counsel for the appellant contended that the grounds of appeal were grounds of law touching on the crucial issue of jurisdiction of the lower Court and the interpretation of Order 29 rule 1 and Order 34 of the Rules. He posited that the appellants had the automatic right to appeal against the decision under Sections 241 and 242 of the Constitution, as amended. He asserted that those sections had clearly classified right of appeal in civil matters without including discretional judgment. He relied on the case of Timothy V. Fabusuyi (2013) 14 NWLR (Pt.1335) 379 to support the contention.
On points of law, learned counsel for the first respondent urged the court to reject the objection to the preliminary objection because it did not form part of the arguments against it and it denied the first respondent his right to fair hearing. He relied on the case of Dakolo v. Rewane Dakolo (2011) 16 NWLR (Pt.1272) 22 on the point. He postulated that the preliminary objection was jurisdictional which the court could take suo motu.
Resolution of the Preliminary Objection.
The foremost point is to settle the objection erected by the appellant against the competence of the preliminary objection – that it was filed less than three days to the date scheduled for hearing. The resolution of this tangential issue will foreshadow the competent existence or otherwise of the preliminary objection. It can be gleaned, from the endorsement on the front page of the notice of preliminary objection, that it was filed on 10/02/2015. The appeal was heard on 12/02/2015. By calenderic comparison, it is clear that the preliminary objection was filed less than three days to hearing date as ordained by the provision of Order 10 of the Court of Appeal Rules, 2011.
Nonetheless, a clinical examination of the preliminary objection shows that it evinces a jurisdictional question. A court of law cannot shut its eyes against a preliminary objection that borders on jurisdiction. Put simply, it must be considered by the court, see Jev. v. Iyortyom (2014) 14 NWLR (Pt.1428) 575. The raison d’etre for this principle of law is, firmly, founded in the despicable province of nullity. No court desires to waste the scarce judicial time. For this reason, this court is compelled, under pain of nullity of its decision, to consider the preliminary objection even in the face of a remediable irregularity. On this score, I find no merit in the appellant’s objection. It fails and, accordingly, I overrule it. I will proceed to consider the preliminary objection on its merits.
The first respondent’s preliminary objection, like every preliminary objection, is aimed at terminating the appeal in limine. Hence, the law mandates the court to hear preliminary objection first, see B.A.S.F. (Nig.) Ltd. v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt.1183) 104; SPDCN Ltd. v. Amadi (2011) 14 NWLR (Pt.1266) 157; FBN Plc. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247; Okereke v. James (2012) 16 NWLR (Pt.1326) 339. Incidentally, the preliminary objection rotates around a very narrow compass – that the appeal is incompetent because it is against an interlocutory decision of the lower Court based on exercise of discretion which, in turn, turned on mixed law and fact and filed without leave of court.
It is discernible, from loads of decided judicial authorities, that to differentiate between a ground of law, on the one hand, and a ground of fact or mixed law and fact, on the other hand, has been a stubborn and perennial judicial exercise. The dichotomy between them, though slim and subtle, has agitated the well-informed legal minds in this country and tons of ink expended on it. A ground of appeal does not translate into a ground of law or fact or mixed law and fact because it is so couched by the appellant. In other words, the manner an appellant has labelled a ground of appeal does not bring out the class of ground it belongs, id est, law, fact or mixed law and fact. To decipher whether a ground of appeal is of law or fact or mixed law and fact, a court has the bounden duty to, thoroughly and assiduously, examine the ground with its accompanying particulars. These cardinal principles on classification of grounds of appeal have been sanctified in an army of authorities, see Thor Ltd. v. FCMB Ltd. (2008) 4 SCNJ or (2002) 4 NWLR (Pt.757) 427; Akanbi v. Salawu (2003) 13 NWLR (Pt.838) 637; Garuba v. K. I. C. Ltd. (2005) 5 NWLR (Pt.917) 160; FBN Plc. v. TSA Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247; General Electric Co. v. Akande (2011) 18 NWLR (Pt.1225) 596; Abubakar v. Waziri (2008) 14 NWLR (Pt.1108) 507; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt.1113) 278; Ehinlanwo v. Oke (2008) 16 NWLR (Pt.1113) 357.
In order to curb the incessant difficulties associated with drawing a distinction between a ground of law and a ground of fact or mixed law and fact, the Supreme Court, in myriads of decided cases, had evolved certain principles that would assist the courts, in a galaxy of authorities, see C.C.C.T.C.S. v. Ekpo (supra); Dairo v. UBN Plc. (2007) 16 NWLR (Pt.1059) 99; NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148; Akinyemi v. Odu’a Inv. Ltd. (2012) 17 NWLR (Pt.1329) 209; Atago v. Nwuche (2013) 3 NWLR (Pt.1341) 337; Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt.1225) 797; M.M.A. Inc. v. N.M.A. (2012) 18 NWLR (1333) 506.
A question of law connotes one of three meanings, to wit: (a) A question a court is bound to answer in accordance with a rule of law (b) A question which explains what the law is (c) A question which normally answers questions on law only and, invariably, falls within the judicial power of a Judex to answer. Contrariwise, a question of fact denotes one of three meanings, viz. (a) A question which is not determined by a rule of law. (b) Any question except one as to what the law is. (c) Any question which is to be answered by the Jury and not the Judge. These triumvirate meanings of questions of law and fact have received the approval of the apex court in an avalanche of cases, see C.C.C.T.C.S. v. Ekpo (supra); General Electric Co. v. Akande (supra); Ehinlanwo v. Oke (supra).
One of the paramount considerations, invented by the Supreme Court, to discover the nature of a ground of appeal, is that where a ground of appeal challenges an interlocutory decision of a court predicated on exercise of discretion, then it is, at best, ground of mixed law and fact, see FBN Plc. v. Abrahim (2008) 18 NWLR (Pt.1118) 172; Garuba v. Omokhodion (supra); Williams v. Mokwe (2005) 14 NWLR (Pt.945) 249.
Now, what transpired in the lower Court can be garnered from the printed supplementary record, the bible of the appeal. The first respondent, on 05/05/2014, had solicited the lower Court to fuse the hearing of his substantive application, on judicial review, with the appellants’ application against its jurisdiction. The supplication was, vehemently, opposed by the appellants. In a considered ruling, delivered on 26/05/2014, the lower Court granted the first respondent’s prayer. The status of the decision is located within the judicial milieu of case – law. In Garuba v. Omokhodion (supra), a scenario, which is congruent with the instant appeal, played out. The apex court, per Chukwuma-Eneh, JSC, at page 183, held:
The trial court opted to hear the preliminary objections first in exercise of its discretionary power. It is beyond argument that the appellants have questioned the trial court’s discretion in making the interlocutory order in other words, thus questioning the evaluation of facts…. I find that by examining the said 3 grounds of appeal will lead to further examining of the facts and circumstances on which the trial court’s exercise of its discretion in the matter of the directive it has given is premised….
It flows that this ex cathedra decision, which the feuding parties placed high premium on in their submissions, has, with finality, categorised the decision of the lower Court as an interlocutory decision grounded on an exercise of discretion and well-rooted in mixed law and facts. The decision, to all intents and purposes, demolishes the seemingly impregnable argument of the appellants that the decision of the lower Court was somewhat a final one. I brand it as a non sequitur.
It is even startling that the appellants could change its stand, a volte-face, on the nature of the order made by lower Court, in the midstream of the proceeding. They had previously stuck to the stance that the decision was an interlocutory one. The law, roundly, frowns on this chameleonic character of litigating parties. The law insists that a party must be consistent in the presentation of his case, see Garuba v. Omokhodion (supra); P.M. Ltd. v. The “MV Dancing Sister” (2012) 4 NWLR (Pt.1289) 169; Adeosun v. Gov. Ekiti State (2012) 4 NWLR (Pt.1291) 581; Obitude v. Onyesom Comm. Bank Ltd. (2014) 9 NWLR (Pt.1412) 352. A party, perhaps, in a bid to score victory or advantage is not allowed to change his case like the oscillating pendulum in a wall clock. It is a defilement of the law to indulge in such an unwholesome somersault practice. I hold, taking shelter under the law, solidified by Garuba case, that the decision of lower Court was interlocutory, not final as, vainly, pontificated by the appellant.
In an avowed bid to salvage the appeal, the appellants weaved the argument that the grounds raised issues of jurisdiction and fair hearing. It is doubtful if this sterling argument will infuse competence into the appeal. The issues of jurisdiction, fair hearing and right of appeal are all constitutional issues. The requirement of leave before appealing, provided in Section 242 of the Constitution, as amended, is not hostile to the jurisdiction of courts and right to fair hearing. An appeal on fair hearing which is spiced with mixed law and facts requires the leave of court, see Kahih v. PDP (2014) 15 NWLR (Pt.1430) 374. Access to court implies: “approach or means of approach to court without constraint”, see Amadi v. NNPC (supra), at 111, per Karibi-Whyte, JSC. The leave requirement is a mere condition precedent, “one which delays vesting of right until the happening of an event”, see Nigercare Dev. Co. Ltd. v. A.S.W.B. (2008) 9 NWLR (Pt.1093) 498 at 520, per Ogbuagu, JSC. The leave requirement is a prerequisite to the activation of jurisdiction of courts and fair hearing and not antithetical to them.
There is no saying the fact that, these anatomised issues of law, amply, demonstrate that the appellants’ grounds of appeal do not come within the purview of the provisions of the Section 241(1)(b) of the 1999 Constitution, as amended. They rather reside in the sacrosanct prescription of Section 242(1) of the Constitution, as amended, which ordains that this specie of appeal must be initiated with the leave of the lower Court or this court. In the eyes of the law, leave in this con signifies permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718/(1987) 2 NSCC, Vol. 18, 1219; Garuba v. Omokhodion (supra); Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt.1073) 179. Where leave of court is required for filing an appeal and an appellant ignores seeking and obtaining the requisite leave before filing same, the appeal is rendered incompetent, see UBN Plc. v. Songunro (2006) 16 NWLR (Pt.1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd. (supra); Ugboaja v. Akitoye-Sowemimo (supra); Akinyemi v. Odu’a Inv. Co. Ltd. (supra); Anaechebe v. Ijeoma (2014) 14 NWLR (Pt.1426) 168. The appellants filed their notice of appeal, which queried an interlocutory decision on exercise of discretion, without procuring the requisite leave of the lower Court or this court. The failure to obtain the mandatory leave is offensive to the provision of Section 242(1) of the Constitution, as amended. The dire consequence of that constitutional transgression is not a moot point. The appeal is stripped of competence which impinges on this court’s jurisdiction to entertain it. Jurisdiction, the authority of a court to entertain a matter before it, is the heartbeat of adjudication. In view of this kingly position, a court of law is, willy-nilly, bound to give it prime attention. Any decision, arrived at by a court drained of jurisdiction, no matter the quantum of industry, artistry, dexterity or objectivity invested in it, is marooned in the intractable vortex of nullity. That is the unfortunate fate of the appellants’ appeal.
This appeal brings to the fore the crying need for learned counsel and, by extension, litigants to always obtain leave of court, as a precautionary measure, in situations they are uncertain as to the status of their grounds of appeal. Had the appellants procured the leave of the Lower Court or this court ex abundanti cautela, their appeal would not have been caught in the inescapable den of incompetence and it would have been duly considered on its merits.
On the whole, on account of these reasons, arrived at after due consultation with the law, the respondent’s preliminary objection is imbued with merit. In the circumstance, I uphold the preliminary objection. Consequently, I strike out the appellants’ appeal, filed on 28/05/2014, for want of competence. The parties shall bear their respective costs of prosecuting and defending the doomed appeal.
Ordinarily, having struck out the appeal for being incompetent, that would have been the end of my arduous judicial assignment. However, it is not. This a penultimate court – next to the apex court on the judicial ladder. In view of this hierarchical position, the law insists that I showcase my view on the appeal for the benefit of the Supreme Court, on the likely event of appeal to it. This is to, ultimately, obviate the need for the apex court to remit the appeal to this court if it has a contrary view on the preliminary objection thereby saving judicial time and costs for the courts and the litigants alike, see Ada v. NYSC (2004) 13 NWLR (Pt.891) 639; Tanko v. UBA Plc. (2010) 17 NWLR (Pt.1221) 80; Obiuweubi v. CBN (2010) 17 NWLR (Pt.1247) 465; Stowe v. Benstowe (2012) 9 NWLR (Pt.1306) 450; Elelu-Habeeb v. A.-G., Fed. (2012) 13 NWLR (Pt.1318) 423. In due obedience to this current state of the law, I will proceed to consider the merit of the appeal in the alternative.
The application.
Prior to the hearing of the appeal, learned counsel for the first respondent, Chief Akin Olujinmi, SAN, moved his motion on notice filed on 10/02/2015. It prayed the court for an order striking out grounds 1, 2 and 4 of the appellants’ grounds of appeal.
Learned counsel informed the court that the application was based on 7 grounds and supported by a 6-paragraph affidavit deposed to by Richardo Ebikade, Esq. Learned counsel adopted the 7 grounds, upon which the application was based, as his argument in respect of it. Learned counsel contended that the appellants’ grounds 1, 2 and 4 were framed outside a decision appealed against. He relied on the case of Garuba v. Omokhodion (supra) for the point.
In opposition to the application, learned counsel for the appellants, Emmanuel C. Ukala, SAN, urged the court to dismiss the application for being incompetent. Learned counsel described it as an abuse of process of court. He referred to paragraph 5(a) and (b) of the Court of Appeal Practice Directions, 2013 (hereinafter called “the Directions”). He submitted that Order 10 of the Court of Appeal Rules, 2011, (hereinafter referred to as “the Court Rules”) provided for preliminary objection and the application ought to be part of it. He declared the case of Garuba v. Omokhodion (supra) as inapplicable.
On the merits of the application, learned counsel contended that grounds 1 and 2 referred to the lower Court’s assumption of jurisdiction and so within the scope of the decision appealed against. He referred to State V. Onagoruwa (1992) 2 NWLR (Pt.221) 33 for the point. He described ground 4 as a complaint on ground of law and no leave was required.
On points of law, learned counsel for the first respondent countered that it was not two clear days that was required to serve the motion. He referred to paragraph 5(a) of the Directions. He stated that the motion was served on 10/02/2015. He noted that the appellant agreed to go on and it was too late in the day to object to service.
Resolution of the application
In due fidelity to the dictate of the law, I will first handle the objection launched against the application by the appellants. The objection has two prongs. In the first prong, the appellants derided the application as incompetent for its infraction of the provision of paragraph 5(a) of the Directions. since the provision is pivotal, I will pluck it out, verbatim ac litteratim, thus:
5-(a) No party may serve an application or a Notice of Preliminary Objection on an adverse party on the date scheduled for hearing. Such application must be served not later than 2 (two) days prior to the date scheduled for hearing.
To begin with, the provision is plain, clear and unequivocal. It is comprehension-friendly. On account of this clarity, the law decrees that it must be given its ordinary and natural grammatical meaning without any embellishments, see Berliet v. Kachalla (1995) 12 SCNJ 147; Kraus Thompson org. Ltd. v. N.I.P.S.S. (2004) 17 NWLR (Pt.901) 44; Uwazurike v. A.G., Fed. (2007) 8 NWLR (Pt.1035) 1; Jolasun v. Bamgboye (2010) 18 NWLR (Pt.1225) 285; Olley v. Tunji (2013) 10 NWLR (Pt.1362) 275. I will respect this hallowed principle of law in the interpretation of the Provision.
Flowing from the registry endorsement on the face of the application, it was filed on 10/02/2015. The date scheduled for hearing was 12/02/2015. I have burrowed through the file, but I am unable to find, even with judicial lens, the affidavit of service indicating when the appellants were served with the application. Let me concede to the first respondent that he served the appellants on that same 10/02/2015. By lunar computation, the period between 10/02/2015 and 12/02/2015 is less than two days prescribed in the provision. The phrase “not later than”, employed in the provision, connotes “by a particular time and not after”, see Oxford Advance Learner’s Dictionary, International Student’s Edition, page 839. The term “prior to” means “in advance of, before”, see Webster’s New Explorer Encyclopedic Dictionary, page 1455. When the two phrases are joined together, they denote that the application should be served two days before the date scheduled for hearing. In essence, this imports two clear days before the hearing of the application.
By virtue of the provision of Section 15(2)(a) of the Interpretation Act, Cap. 123, Laws of Federation of Nigeria, 2004, where a period is reckoned from a particular event, the day on which the event occurred should be excluded. The provision has been decked with a stamp of authority in Akeredolu v. Akinremi (1985) 2 NWLR (Pt.10) 785; Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt.1183) 159. The obvious implication is that the date the application was filed, 10/02/2015, cannot be calculated in construing the provision. That means that the appellant had only one day before the date scheduled for hearing, 12/02/2015. The appellants were shortchanged on the two clear days donated to it by the provision for service of the application on it. That was against the letters and spirit of the provision. The shortfall in the days is a desecration of the provision and the law, see Etsako West L.G.C. v. Christopher (2014) 14 NWLR (Pt.1426) 73. Indubitably, the erosion of the two days allotted to the appellant, for service of the application on it, undercuts the jurisdiction of this court to entertain it. It, also, injures the appellant’s inviolable right to fair hearing within a reasonable time as enshrined in Section 36(1) of the Constitution, as amended. The consequence of the violation is far-reaching. These legal expositions, garnished with judicial authorities, deflate the argument of the first respondent against the objection. I, therefore, endorse in toto the submission of the appellants on this point. The noncompliance with the provision renders the application, wholly, incompetent.
That brings me to the other prong- that the application was an abuse of court process. The term “abuse of court process” is an elusive and a polymorphous precept in the wide domain of litigation. It exhibits variegated forms and is disobedient to a single definition. It is a mantra in adjudication, usually mounted, as a shield, by defending parties to scuttle the life span of an action at its infancy. A law lord, Nnaemeka Agu, JSC, captured, graphically, the purport and hall marks of the term in the celebrated case of Saraki v. Kotoye (1992) 11/12 SCNJ (Pt.1) 26 at 48-49 in these illuminating words:
The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation…This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues…. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.
These all-encompassing features of abuse of court process have been, severally, re-echoed by the apex court in a slew of decided authorities, see CBN v. Ahmed (2001) 11 NWLR (Pt.724) 369; Ntuks v. NPA (2007) 13 NWLR (Pt.1051) 392; Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt.1224) 1; Dingyadi v. INEC (No.2) (2011) 10 NWLR (Pt.1255) 347; Ogboru v. Uduaghan (2011) 17 NWLR (Pt.1277) 727; Barigha v. PDP (2013) 6 NWLR (Pt.1360) 451; Igbeke v. Okadigbo (2013) 12 NWLR (Pt.1368) 225; Ogboru v. Uduaghan (2013) 12 NWLR (Pt.1370) 33; Denton-West v. Jack (2013) 15 NWLR (Pt.1377) 205.
It is deducible from the elastic nature of abuse of judicial process, that there are no hard and fast rules in determining the absence or presence of it in any action. Put simply, a court is enjoined by law to examine each case, predicated on its facts and circumstances, in order to ascertain if it showcases an abuse of court process or not, see Waziri v. Gumel (2012) 9 NWLR (Pt.1304) 185. On this score, the factual antecedents of each case have to be married with the negative elements of abuse of court process.
I have juxtaposed the application with the negative elements of abuse of court process as encapsulated in the above displayed authorities. The first respondent’s preliminary objection, which had been determined in his favour, was filed contemporaneously with his application on 10/02/2015. The application is geared towards scuttling three of the appellants’ four grounds of appeal. The law gives the first respondent the nod to file this genre of application if he wanted to strike out some grounds of the appeal, see NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (Pt.1323) 148; General Electric Co. v. Akande (2010) 18 NWLR (Pt.1225) 596; Adejumo v. Oluwaiye (2014) 12 NWLR (Pt.1421) 252. The application exhibits all the characteristics of a preliminary objection. Indeed, the two terminal processes share a common target – to snuff life out of the appellants appeal at its embryo. The preliminary objection has even achieved the joint purpose. On this premise, the application is a classic exemplification of a multiplication of actions against the appellants with the unavoidable potential to irritate, harass and annoy it. Put starkly, the application has its value in irritation, vexation and annoyance vis-a-vis the appellants.
Unarguably, the first respondent possesses the unfettered constitutional right to ventilate his grievances in the court of law, but the right is violable as it is subject to proper use. In the view of the law, the first respondent’s intention/motive in proliferating the applications against the appellants is of no moment, see Saraki v. Kotoye (supra).
Interestingly, the law gives the courts the unbridled licence, under their wide inherent powers, to truncate any matter which is tainted with an abuse of judicial process, see O.S.S.I.E.C. v. NCP (supra). Where a court finds that there is an abuse, the last process vacates, see Dingyadi v. INEC (No.1) (supra). In the result, the application remains an abuse of court process and unwelcome to this appeal.
By way of summation, I have reached the findings that the first respondent’s application is an abuse of judicial process as well as marooned in the concept of incompetence. I am not oblivious of the end result of these two findings in terms of the consequential orders attendant to them. While an action enmeshed in an abuse of court process is penalised by order of dismissal, an order striking out is visited on one infested with incompetence. Be that as it may, here the two concepts overlap, the abuse dovetails with the incompetence. As a matter of fact, the incompetence reinforces the abuse in the sense that the former is one of abhorrent tentacles of the latter. In view of this intertwined compatible judicial relationship, with the abuse holding dominion, an order that, invariably, follows it, an abuse, will be sufficient.
Overall, having regards to these legal dissections, the appellants’ viva voce objection is imbued with merits. It succeeds and I uphold it. Consequently, the first respondent’s application is dismissed for being an abuse of court process.
Consideration of the Appeal.
During the hearing of the appeal on 12/02/2015, learned counsel for the appellants, Emmanuel C. Ukala, SAN, adopted the appellants’ brief of argument, filed on 17/06/2014, and the appellants’ reply brief, filed on 11/02/2015, but deemed properly filed on 12/02/2015, as representing his arguments for the appeal. He urged the court to allow the appeal.
Similarly, learned counsel for the first respondent, Chief Akin Olujinmi, SAN, adopted his brief, filed on 12/12/2014 but deemed properly filed on 12/02/2015, as forming his submissions against the appeal. He urged the court to dismiss the appeal.
The appellants, in their brief of argument, distilled three issues for determination to wit:
i. Whether the learned trial Judge was right when he proceeded to invoke the Provisions of Order 29 of the Federal High Court (Civil Procedure) Rules 2009 and to arrive at the conclusion that in circumstances of this case the motions challenging the jurisdiction of the court to entertain the suit and set aside or discharge the earlier orders made by the Court must be taken together with the substantive application in the suit.
ii. Whether the learned trial Judge was right in assuming jurisdiction in the circumstances of this case to continue to entertain the suit subject matter of this Appeal without first determining the issue of jurisdiction to entertain the suit which had been duly raised before him?
iii. Whether the learned trial Judge has jurisdiction to entertain or continue to entertain and determine this suit?
On the other hand, the first respondent, in his brief of argument, crafted a solitary issue for determination, viz:
Whether the trial court was right in its decision to hear the preliminary objection of the appellant along with the substantive suit.
The appellants’ issue one covers their issues two and three. The first respondent’s singular issue can be, conveniently, subsumed under the appellants’ issue one. For this reason, I will decide the appeal on the footing of issue one as framed by the appellants, the undoubted owners of the appeal.
Arguments on the issue.
Learned counsel for the appellants, after reproducing the provision of Order 29 rule 1 of the Rules, submitted that the issue of jurisdiction could not be defeated by rules of court. He posited that the rules of the court would not confer or remove jurisdiction of the court. He relied on the cases of Okoye V. N.C. & F.C. Ltd (1991) 6 NWLR (Pt.199) 501 and Ogunremi V. Dada (1962) ALLWLR 663 to support the submission. He explained that the exercise of judicial powers and exercise of jurisdiction were not the same. He referred to the cases of Tukur V. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 51 and Bronik Motors Ltd v. Wema Bank Ltd. (1983) 1 SCNLR 29C for the view. He postulated that the issue of jurisdiction, which could be properly raised under Section 6(6)(a) of the Constitution, as amended, could not be governed by the rules of court which themselves were subject to the Constitution. In support of the postulation, he cited the cases Okoye V. N.C. & F.C. Ltd (supra); Akegbeio V. Ataga (1998) 1 NWLR (Pt.534) 459; Ajavi v. Adebiyi (2012) 11 NWLR (Pt.1310) 137. He maintained that the lower Court was in grave error in consideration of the applications under order 29 of the Rules.
Learned silk contended that the provision of Order 29 of the Rules was not applicable to justify the lower Court’s decision. He stated that some motions sought to set aside or discharge the order made by the lower Court on 31/03/2014 under Order 26 of the Rules. He reasoned that the provision of Order 26 did not fall within the provision of Order 29 of the Rules. He described the lower Court’s finding that the parties had filed their processes and the matter did not involve taking of evidence as perverse. He insisted that the taking of oral evidence was inevitable because of the status of the appellants in the relation to the second respondent and the conclusion of investigation. He explained the contents of the affidavits, filed by the parties, and persisted that they were violent conflicts in them that would lead to taking oral evidence. He referred to the case of Akinsete v. Akindutire (1966) All NLR 147 and F.S.B. International Bank Ltd V. Imano (Nig) Ltd (2000) FWLR (Pt.19) 392 for the contention.
Learned counsel further submitted that the lower Court’s interpretation of the word “may” as mandatory, based on the number of times it was used in Order 29 of the Rules, was wrong. He relied on the Black’s Dictionary, 5th Edition and Enakhimion V. Edo Transport Services (2006) All FWLR (Pt.334) 1882 for the point. He persisted that the word “may” in the provision was directory.
It was further contended that the issue of jurisdiction must be taken first by the lower Court before proceeding any further in the matter. He referred to the cases of Tukur V. Govt. of Gongola State (supra); State V. Onagoruwa (supra); S.P.D.C. Ltd V. Isaiah (2001) FWLR (Pt.56) 608 on the point. He added that the cases of Senate President V. Nzeribe (2004) 9 NWR (Pt.878) 251; Olorunkunle V. Adigun (2012) 6 NWLR (Pt.1297) 407, which the lower Court relied on, could not stand against the decision in State V. Onagoruwa (supra). He further relied on Amadi V. NNPC (2000) 10 NWLR (Pt.674) 76; D.E.N.R. Ltd. V. Trans Int’l Bank Ltd. (2008) 18 NWLR (Pt.1119) 388; Garuba v. Omokhodion (supra); Ajayi v. Adebiyi (2012) 11 NWLR (Pt.1310) 137 as binding on the lower Court.
Learned counsel argued that the National Industrial Court had the jurisdiction to hear the action under section 254 (C) (1) of the Constitution, as amended. He analysed the provision and relied on the cases of NNPC V. Lutin (Pt.301) (sic) 1760; NDIC V. Oken Ent. Ltd. (2004) All FWLR (Pt.210) 1176 and NURTW V. Ogbodo (1998) 2 NWLR (Pt.537) 189 for the analyses.
On behalf of the first respondent, learned counsel submitted that it had become settled within the discretion of a trial court to combine hearing a preliminary objection challenging its jurisdiction with a substantive matter. He cited AP Plc. v. Adeniyi (2011) 15 NWLR (Pt.1271) 560 and Chukwu v. Amadi (2012) 4 NWLR (Pt.1289) 136 to buttress the submission. He posited that the cases of Garuba v. Omokhodion (supra) and Ajayi v. Adebiyi (supra) did not decide anything different. He asserted that the appellant could not show that the lower Court’s exercise of discretion, in the consolidation, was tainted with illegality or substantial irregularity. He explained that a judicial review application, usually commenced by originating motion, shared affinity with originating summons – both forms of procedure relied on affidavit evidence. He noted that the principle of combination could even be applied in cases commenced by writ of summons. He relied on Chukwu v. Amadi (supra) for the point. Learned silk postulated that the lower Court rightly relied on Order 29 of the Rules after it had found that the trial would be on affidavit evidence and would not involve the taking of oral evidence.
Learned counsel contended that in the unlikely event that the appeal succeeded, no occasion would arise for the invocation of Section 15 of the court of Appeal Act. He posited that the lower Court had not pronounced on the issues in contention in the substantive case or on the preliminary objection. He noted that the appellant argued issues outside the ruling of the Lower Court and same raised in its motion of 17/04/2014. Learned counsel relied on the case of Enekwe v. I.M.B. (Nig.) Ltd. (2006) 19 NWLR (Pt.1013) 146 on the inapplicability of section 15 of the Act to the appeal.
Resolution of the issue.
An indepth study of the issue reveals that it quarrels with the decision of the lower Court to consolidate the appellants’ application against its jurisdiction with the first respondent’s substantive application on judicial review filed on 10/04/2014 and 01/04/2014 respectively.
Before I delve into the nucleus of the issue, I observe that lots of the appellant’s arguments on issue one are directed against the decision of the lower Court made on 31/03/2014. The law gives me the latitude to take judicial notice of it without proof, see Section 122(1) and (2)(m) of the Evidence Act, 2011, then section 74(m) of the defunct Evidence Act, 2004; Aiyeola v. Pedro (2014) 14 NWLR (Pt.1424) 409. It is axiomatic that the decision of 31/03/2014 is not a subject of appeal before this court. At the cradle of the appellants’ notice of appeal, found at page 591 of the record, they specifically identified the decision of the lower Court, delivered on 26/05/2014, as the one under attack in this appeal. It follows that the appellant’s scintillating submissions made on the impropriety of the decision of 31/03/2014 fly in the face of the law. The reason is not far-fetched. There is no ground of appeal that challenged the decision. The arguments were made in nubibus. Indeed, they bear the appellation of orphan in the sense that no ground of appeal gave birth to them. In the sight of the law, they are infested with incompetence. In due obedience to the law, those idle submissions are struck out.
A resume’ of the appellants’ grouse in the issue falls within a slim scope, id est, that the lower Court erred in law when it decided to consolidate the two applications. To do justice to this knotty point, the provision of Order 29 rule 1 of the Rules is handy. I, therefore, invite it for assistance. It reads:
1. When a defendant wishes to –
(a) Dispute the Court’s jurisdiction to try the claim; or
(b) argue that the Court should not exercise its jurisdiction,
he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the Plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
In the first place, the wordings of the provisions are plain and unequivocal. According to the law, they must be accorded their ordinary meanings without any interpolations or distortions, see Berliet v. Kachalla (supra); Jolasun v. Bamgboye (supra); Olley v. Tunji (supra). Incontestably, the parties complied with the preconditions for the invocation of the provision by filing the applications. The provision allocates to the lower Court, the power to exercise its discretion on whether or not to consolidate the applications. This is confirmed by its deployment of the phrase “and the court may take such application together” in its (1)(b). In this con, the word “may” , a modal verb, is directory as opposed to mandatory, see Ugwanyi v. FRN (2012) 8 NWLR (Pt.1302) 384. The heart of the appellant’s grievance is the rightness of the lower Court’s exercise of its discretion in favour of consolidating the two applications.
For a dispassionate consideration of the vexed complaint, the case-law will be of immense help. In the celebrated cases of Amadi v. INEC (supra); Inakoju v. Adeleke (supra); Dapianlong v. Dariye (2007) 8 NWLR (Pt.1036) 332; Garuba v. Omokhodion (supra); Ajayi v. Adebiyi (supra), the Supreme Court, wholeheartedly, sanctioned the procedure of consolidation of such applications as enunciated by this court in the case of Senate President v. Nzeribe (supra). Hence, the law allows a court to combine the hearing of such applications save the substantive matter involves the taking of evidence. It is crystal clear, the lower Court toed the line of the decisions in these judicial authorities. I have my doubts if its decision insulted the law.
One of the appellant’s complaints, indeed its trump card, is that the consolidation of such applications is limited to actions commenced by dint of originating summons. The procedure of trial in actions begun by originating summons and that commenced under judicial review are coterminous in two ways. The proceedings of the two are conducted by means of affidavit evidence. Again, where their proceedings will involve calling of evidence, then they repel combination of preliminary objections with them. None of those guiding authorities, x-rayed above, proscribed the consolidation of such proceedings in matters of judicial review. Not even the case of Ajayi v. Adebiyi (supra) on which the appellants pegged their argument. Contrariwise, the provision of Order 29 rule 1 of the Rules has accommodated the procedure, perhaps, in the interest of quick dispensation of justice. Rules of courts, such as the lower Court’s, are made to be obeyed in deserving circumstances such as the situation that confronted the lower Court. To my mind, any procedural difference between the two proceedings is infinitesimal and impotent as to defeat the invocation of consolidation of applications in judicial review proceedings.
Another stricture which the appellants unleashed against the lower Court’s decision was that it refused to follow the decision of this court in Manuwa v. N.J.C. (supra). It cannot be gainsaid that the lower Court, being at the lower rung of the judicial ladder than this court, is bound to follow the decision of the latter on the ancient doctrine of stare decisis, see Osakwe v. FCE, Asaba (2010) 10 NWLR (Pt.1201) 1. Nevertheless, I have read the case of Manuwa v. N.J.C. (supra) with the finery of a toothcomb. Truly, it involved the dismissal of the appellant, a judicial officer, by the respondent. The appellant’s suit was filed under judicial review as in this appeal. However, there was no application for consolidation of applications as envisaged by Order 29 rule 1 of the Rules for exercise of the lower Court’s discretion. As a matter of fact, the provision was not construed in that case nor in the case of State v. Onagoruwa (supra). In a word, the facts of those cases are distinguishable from the one in hand. The doctrine of stare decisis, which ensures certainty in any legal system, thrives where facts of cases are on all fours. It is lame where the facts of cases are irreconcilable. Facts are the arrowhead of the law. In the absence of closeness/oneness of facts in the two cases, I must dishonour the enticing invitation of the appellant to crucify the lower Court’s decision on the altar of stare decisis.
The appellants castigated the decision of the lower Court on consolidation as perverse. A verdict of court is perverse when it runs counter to the pleadings and evidence before it, a court takes into account extraneous and irrelevant matters, a court shuts its eyes to the evidence, a court goes outside the issues canvassed by the parties or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt.378) 448; Lagga v. Sarhuna (2008) 16 NWLR (Pt.1114) 427; Onyekwelu v. Elfpet. (Nig.) Ltd. (2009) 5 NWLR (Pt.1133) 181; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt.1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt.1384) 477.
I have given an intimate reading to the lower Court’s decision, sought to be impugned, and situated it with the adumbrated vices of perversion. The lower Court merely outlined the affidavits filed by the parties, which was, totally, divorced from the assessment/evaluation of their contents. This means that the issue of its overlooking evidence did not arise. It premised the consolidation on the available affidavit processes filed by parties. It must be placed on record that the decision was a mere forerunner to the determination of the consolidated applications. It is, therefore, not eclipsed by perversity to warrant intervention by this court.
For completeness, the importance of the provision of Order 29 rule 1 of the Rules cannot be overemphasised in our adjectival law. The provision is meant to fast track and jump-start the administration of justice which is dotted with unwarranted delays in our legal system. In the word of the oracular Oputa, JSC, “Rules of Court…are rules established for attaining justice with ease, certainty and dispatch,” Unilag v. Aigoro (1984) 15 NSCC 745 at 782. The millipede speed at which proceedings move in courts has been decried as a dent on the administration of justice in the Nigerian legal system. The consolidation safeguard in the provision is one of the key ways to speed up the hearing of matters. It will, therefore, be an affront to the law and justice to nullify a decision aimed at quick dispensation of justice, without substantial reasons. Such will be a judicial sacrilege!
In the light of the foregoing legal expositions, done with the law as beacons, it is obvious that the Lower Court was firma terra, in law, when it consolidated the applications of the parties. The decision is unassailable. It repels any interference by this court. In the result, I have no option than to resolve the singular issue against the appellants and in favour of the first respondent.
On the whole, having resolved the mono issue against the appellants, the destiny of the appeal is obvious. It is bereft of merit and deserves dismissal. Consequently, I dismiss the appeal. Accordingly, the decision of the Lower Court is affirmed. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal. This would have been my view point if this court were clothed with the jurisdiction to entertain the appeal. Nevertheless, my earlier finding, under the preliminary objection, that the appeal is incompetent still haunts it as it remains struck out.
SIDI DAUDA BAGE, J.C.A.: I agree
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I agree.
ONYEKACHI A. OTISI, J.C.A.: I agree.
Appearances
E.C. Ukala, SAN (with him, O.A. Omonuwa, SAN, Udu Diegbe, Esq. and O.J. Iheko, Esq.)For Appellant
AND
Chief Akin Olujinmi, SAN (with him, O.I. Olorundare, SAN, Mrs. Anne Achu, Ayodele Akinsanya, Esq., Olajide Loye Esq., Miss A.N. Oguchienti, Mrs. A.O. Balogun, Miss I.Y. Esan, Miss A. Balogun and E.G. Shaibu, Esq.) for the 1st respondent.
Chief Wole Olanipekun, SAN (with him, P. Lasisi, SAN, S.A. Mustapha, Esq., T. Alabi, Esq., Mrs. B. Aroromi and I. Akintunde, Esq.) for the 2nd respondent.
Chief G.A. Adekola-Kaseem, SAN (with him, S.T. Sonibare, Esq., J. Balogun, Esq., S.A. Oladipo, Esq. and J.T. Komolafe, Esq.) for the 3rd respondent.For Respondent
