IFEANYICHUKWI OKONKWO v. FEDERAL REPUBLIC OF NIGERIA & ANOR
(2011)LCN/4381(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of March, 2011
CA/A/158/2009
RATIO
RESPONDENTS’ BRIEF : WHERE A RESPONDENT FAILS OR NEGLECTS TO FILE A RESPONDENTS’ BRIEF , WHETHER THE APPELLANT AUTOMATICALLY WINS OR SUCCEEDS IN THE APPEAL
…the law in its wisdom is that the fact that a Respondent had opted not to contest an appeal by failure, neglect or deliberate decision not to file a Respondents’ brief does not translate to an automatic success of the appeal for the Appellant. Even in such a situation, the law requires the Court to still consider and determine if the appeal is sustainable in law since the appeal is to succeed only on the strength and potency of the issues canvassed in accordance with established principles of law and not merely on the ground of the absence of Respondent’s brief. The Supreme Court in the case of ECHERE v. EZERIKE (2000) ALL FWLR (323) 1597 at 1608, also reported in (2006) 12 NWLR (994) 386 had succinctly stated the position where a Respondent failed to file a brief of argument in an appeal. The apex Court had said:- “A respondent who fails to file a respondent’s brief is deemed not to contest the appeal of the appellant and have therefore conceded the issues raised and argued in the appellant’s brief of argument. Yet the appeal must succeed or fail on the strength of the appellant’s case. It is not automatic that once a respondent fails to file his brief, the appellant automatically wins or succeeds in the appeal.” See also: AKAS v. MANAGER (2001) 8 NWLR (715) 436 at 442. EBE v. EBE (2004) 3 NWLR (860) 215. FBN PLC v. AKINYOSOYE (2005) 5 NWLR (918) 340, JOHN HOLT VENTURES v. OPUTA (96) 9 NWLR (470) 101. PER MOHAMMED LAWAL GARBA, J.C.A.
UNCHALLENGED AFFIDAVIT: WHETHER WHERE A DEFENDANT FAILS TO FILE A COUNTER AFFIDAVIT IF HE DISPUTES THE FACTS AVERRED IN THE PLAINTIFF’S AFFIDAVIT, THE COURT WILL BE ENTITLED TO DEEM AND REGARD THE FACTS DEPOSED TO, AS DULY ESTABLISHED
…it is common place in law that in proceedings or actions in which affidavit evidence is used as a means of proof such as in the proceedings commenced or initiated by way of originating summons, where the plaintiff swears to an affidavit in support of the reliefs he seeks, the Defendant has a legal duty to depose to a counter affidavit if he disputes the facts averred in the plaintiff’s affidavit. Affidavit evidence qualifies as documentary evidence and where it is not challenged it is usually accepted unless the facts deposed therein are so notoriously wrong as a matter of common public knowledge and experience. See:- BUSARI v. OSENI (1992) 4 NWLR (237) 55 at 581. ADEDEJI v. TINA GEORGE (1998) 6 NWLR (554) 483 at 490.
BADEJO v. MINISTER (1996) 9-10 M.A.C. 118 at 129. Where a Defendant failed, neglected or chose not to file a counter affidavit to challenge the averments of facts deposed to in the plaintiff s affidavit, the court is entitled to and has the power to deem and regard the facts deposed to as duly established. See: AJOMALE v. YARDUAT (1991) 5 SCNJ, 172 at 178.
ODOGWU v. ODOGWU (1992) 7 NWLR (253) 344. ADESINA v. COMMISSIONER (1996) 4 SCNJ. 112 at 119. REGISTERED TRUSTEE OF N.A.C.H.P.N. v. MINNISTRY OF HOUSING & WORKS (2008) ALL FWLR (412) 1013 at 1053 in addition to the cases cited by the Appellant on the point. I am also aware of the decision by this Court in the case of OLORI MOTORS v. UBN (1998) 6 NWLR (554) 493 where it was held at page 506-7 that the court must accept uncontroverted averments in an affidavit as true and proved without hesitation. By the operation of the principle of stare decisis which is applicable in our judicial system, a lower court is bound by the decision of a higher Court in the judicial hierarchy, on established principles of law such as the one under consideration. It should however be noted that the principle laid down in all the aforenamed cases is that the court has the power and authority to accept unchallenged and uncontroverted averments in an affidavit as correct, true and admitted by the adverse party. The principle did not lay a hard and fast rule that once accepted, the affidavit evidence irrespective of its weight and sufficiency, should be relied or acted on to grant reliefs sought blindfoldedly by the court. The Supreme Court in the case of OKOYE v. CENTRE POINT MERCHHANT BANK (2008) ALL FWLR (441) 810 at 834 per Ogbuagu J.S.C. had held that:- “Affidavit evidence is not sacrosanct It is not above evaluation by the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and/or authenticity.” So even if the court accepts unchallenged averments of an affidavit as admitted by an adverse party, it still retains the power and is entitled to evaluate it in relation to the reliefs they seek to support in order to be satisfied of the veracity and sufficiency to warrant the grant of the reliefs sought. In that con, a court is not bound to ‘as a matter of course, to grant reliefs sought in an application simply because the affidavit in support was not challenged or contoverted in a counter affidavit. PER MOHAMMED LAWAL GARBA, J.C.A.
REVIEW OF THE DECISION OF THE COURT: PRINCIPLE GUIDING THE REVIEW OF A DECISION OF A COURT
…a declaration on the validity of a decision by a court of competent jurisdiction can be properly made, a review of the said decision must necessarily be undertaken by the court to which the application for the relief was made. The review of the decision for the purposes of determining its validity on any ground whatsoever can only be effectively done where the reviewing court had the requisite authority, power and jurisdiction vested by the Statute or as the case may be, the Constitution which created it. Specifically the decision of a competent superior court of record in Nigeria created under the 1999 Constitution can only be reviewed in accordance with the provisions of the Constitution, by the courts specifically vested or conferred with the power, authority and jurisdiction to do so by the Constitution itself. Where a court created under the Constitution was not vested with the required power, authority and/or jurisdiction to review the decision of another court, also created by the Constitution, then the necessary precondition for the valid exercise of the review would be absent or non-existent. In common parlance the jurisdiction to undertake the review would be absent if not specifically vested by the Constitution on such a particular court. The law has been settled and is now elementary that in the absence of jurisdiction on the part of a court of law, whatever proceedings it conducted in any given case, matter or suit would be an exercise in futility, complete waste of valuable judicial time, intellect and resources because they would or are void, null and of no legal effect, ab initio. No matter how otherwise so well conducted, the proceedings without jurisdiction would only be purported and not have validity from start to finish. See:- MADUKOLU v. NKEMDILIM (1962) ALL NLR 587 at 596, PEENOK LTD. v. PRESIDENTIAL HOTEL (1982) 12 SC. 1 at 68-9, ADEWUNMI v. A.G. ONDO STATE (1996) 8 NWLR (464) 73, ARAKA v. EJEAGWU (2000) 15 NWLR (692) 684, OFIA v. EJEM (2006) 11 NWLR (992) 652, JAMES v. OKEREKE (2008) 13 NWLR (1105) 544. PER MOHAMMED LAWAL GARBA, J.C.A.
ISSUE OF JURISDICTION: WHEN IS A COURT EMPOWERED TO SUO MOTU RAISE THE ISSUE OF ITS JURISDICTION TO ENTERTAIN A SUIT PENDING BEFORE IT
…it is expedient to emphasise that in law, a court has the jurisdiction and authority to suo motu raise the issue of its jurisdiction to entertain a suit pending before it at any stage of the proceedings if and when it appears to it that its jurisdiction may be lacking in the suit. It is never too early or too late to raise a genuine issue of jurisdiction because of its intrinsic nature in judicial proceedings as the consequence of any defect in it shows in the cases cited above. See:-
STATE v. ONAGORUWA (1992) 2 SCNJ. 1, AKEGBE v. ATAGA (1998) 1 NWLR (534) 459 at 465. A.G. LAGOS v. DOSUNMU (1989) 3 NWLR (111) 552, 3RD EYE COMM. V. ISHOLA (1999) 2 NWLR (582) 549 at 57. PER MOHAMMED LAWAL GARBA, J.C.A.
ISSUE OF JURISDICTION: DUTY OF THE COURT TO DETERMINE THE ISSUE OF JURISDICTION, ONCE RAISED, FIRST BEFORE ANY FURTHER STEP IS TAKEN IN THE PROCEEDINGS
…once the issue of jurisdiction arises or is raised in judicial proceedings, it should be determined first before any further step is taken in the proceedings in order to avoid what might turn out to be a futile exercise in the event that a court had no jurisdiction to entertain a suit. COMMISSIONER FOR LOCAL GOVERNMENT v. EZE MUOKWE (1991) 3 NWLR (181) 615. STATE v. ONAGORUWA (supra). GOMBE v. P.W.O. (NIG.) LTD. (1995) 7 SCNJ, 19 AKEGBE v. ATAGA (1998) 1 NWLR (534) 459 at 468-9. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
IFEANYICHUKWI OKONKWO Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. ATTORNEY-GENERAL OF THE FEDERATION Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): In an originating summons dated and filed on 20/2/08 at the Registry of the Federal High Court, Abuja, the Appellant had submitted the following questions for determination by that Court:-
“1. Whether in purview of the cases of: OGUGU vs. STATE (1994) 9 NWLR (port 366) 1 and F.R.N. vs. IFEGWU (2003) 15 NWLR (part 842t 113, the proceeding of the Supreme Court in suit No. SC/12/2007 dated 29/1/2008 Exhibit ‘1’ decided without offering the Applicant (the 8th Respondent/Applicant in the suit) opportunity to be heard is not a flagrant violation of his fundamental rights secured and guaranteed in section 36(1),(2)(a) and 294(1) of the 1999 Constitution; and Articles 2,3, 7(1) & 19 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. A9 L.F.N. 2004. Therefore null and void?
2. Whether having due regards to the pronouncements and unfounded condemnation of the person of the Applicant by the agents of the Respondents Coram:
ALOYSIUS IYORGYER KATSINA-ALU J. S. C. (PRESIDING), GEORGE ADESOLA OGUNTADE – J.S.C., MAHMUD MOHAMMED – J.S.C., FRANCIS FEDODE TABAI – J.S.C., IBRAHIM TANKO MUHAMMAD – J.S.C., PIUS OLAYIWOLA ADEREMI – J.S.C., CHRISTOPHER MITCHEL CHUKWUIIM-ENEH – J.S.C., daring the proceeding of 29/1/2008, in suit No. SC/123/2007, extensively published by the media represented in Exhibits 3,4,5,6,7, 8,9 and 10 and the evidence in support of this Application, are not in violation of the Applicant’s fundamental human rights provided in sections 36(1), 34(1)(a), 36(5),(6)(a),(b),(c ) & (d), (7),(8) & (12) of the 1999 Constitution; and Articles 2, 3,4,7(1)(a),(b), (c ), (2), 26 & 28 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap A9 L.F.N. 2004?’
The Appellant then sought for reliefs as follows from the Federal High Court in the same summons:-
“1. A DECLARATION that the proceedings by the Supreme Court in suit No. SCC/123/2007 dated 29/1/2008, Exhibit ‘2’ conducted without offering the Applicant (the 8th Respondent/Applicant therein) a hearing as borne out in the said ruling, which did not contain any iota of evidence of the submissions by the Applicant The ruling dated 29/1/2008 without hearing the Applicant are illegal and unconstitutional as it contravened the Applicant’s fundamental rights to fair hearing guaranteed by section 36(1),(2)(a) & 294(1) of the Constitution of the Federal Republic of Nigeria 1999, and Articles 2,3,7(1) & 19 of The African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9 L.F.N. 2004.
2. A DECLARATION that in the proceedings before the supreme court in appeal No. sc/123/2007 the hearing conducted on 29/1/2008 without offering the Plaintiff who is the 8th Respondent/Applicant in the said proceedings fair hearing by the Respondents agents PER CORAM: ALOYSIUS IYORGYER KATSINA-ALU J.S.C. (PRESIDING), GEORGE ADESOLA OGUNTADE – J.S.C., MAHMUD MOHAMMED – J.S.C., FRANCIS FEDODE TABAI – J.S.C., IBRAHIM TANKO MUHAMMAD – J.S.C., PIUS OLAYIWOLA ADEREMI – J.S.C., CHRISTOPHER MITCHEL CHUKWUMA-ENEH – J.S.C., is a clear manifestation of real likelihood of bias against the Applicant, by giving the impression that they wanted the Applicant convicted and sent to jail without due process of law.
A DECLARATION that the pronouncement of Justice ALOYSIUS IYORGYER KATSINA-ALA J. S. C. (Presiding) in suit No. SC/123/2007 on 29/1/2008 to wit:
‘(a) Mr. Okonkwo you are not a fit and proper person to be in the comity of decent human being Jungle must be your place.
(b) Mr. Okonkwo you can now go and sit down, and say nothing again. All I wanted is that people should just know the type of person you are. I just called you out for everybody to see you for what you are.’
Constituted a gross violation of the twin pillars of natural justice, therefore, the words used are illegal and unconstitutional.
4. A DECLARATION that the pronouncement of justice George Adesola Oguntade J.S.C. in suit No. SC/123/2007 on 29/1/2008 to wit:
‘(a) We know your antecedent. Every election year, you contest election Every election you contest, you lose. Every election you lose, you go to Court And each time you go to Court you are settled by politicians.
(b) We want to maintain the highest standard of Justice.
The sum total of your position is that you accepted money to withdraw from the case, but later turned around to blackmail the Governor and say that you have been compromised and asking the Court to set aside the judgment I have a feeling that you are a crook and one of those exploiting politicians and making things difficult for them to rule this country and go about exploiting politicians.
(c) You ore most irresponsible citizen of this country going about to blackmail people. You are a common crook. You wrote a letter demanding a balance of the money and you were paid You are not a human being but a wild animal. You have proved yourself to be a crook.
(d) Shut up and listen. You are a common crook, I think very little of you I don’t know what my colleagues think of you, but you would be very lucky if you can go home from here today. I wonder where you derived the courage to come before us and ask us to set aside our judgment after you took brie to comprise yourself.’
All are a clear violation of the principles that a court exercising judicial powers must hear the two parties to the dispute und that no one should be condemned unheard. That the pronouncements are unconstitutional and’ a clear evidence of bias on the part of the justices called upon to adjudicate the suit.
5. A DECLARATION that the acts of the agents of the Respondents is unlawful, unconstitutional and a violation of the Applicant’s fundamental right to fair hearing, unjust and biased trial in clear breach of section 36(1),(2)(a) of the Constitution of the Federal Republic of Nigeria 1999 and Articles 3, 7(1), 19 & 26 of the African Charter on Human und Peoples’ Right (Ratification and Enforcement) Act Cap. A9 Laws of the Federation of Nigeria, 2004.
6. A DECLARATION that the unwarranted, vicious, and vile abuse, the threats of imprisonment, debasing, intimidation and mental torture perpetrated against the Applicant as represented in the evidence proffered and Exhibits ‘3’, ‘4’, 5,6,7,8,9 and ’10’ which were not borne out in the Ruling
of the Supreme Court in appeal No. SC/123/2007 on 29/1/2008 by the agents of the Respondents are illegal, unconstitutional and constituted a trial by ordeal and judicial exorcism.
7. A DECLARATION that the pronouncement of justice Pius Olayiwola Aderemi J.S.C. to wit:
‘You, Mr. Okonkwo are not fit for a decent society but the jungle among animals.’
Is a clear violation of the twin pillars of natural justice and therefore unconstitutional.
8. A DECLARATION that the pronouncement of justice Tanko Muhammad J.S.C. to wit:
‘You have just proved yourself to be a crook.
If I were alone I would have jailed you.’
Violated the Applicants fundamental right of fair hearing that there should be no evidence of bias in the person called upon to adjudicate a case, and no man should be condemned unheard. Therefore the pronouncements are unconstitutional
9. A DECLARATION that the agents of the Respondents PER CORAM: ALOYSIUS IYORGYER KATSINA-ALU J.S.C. (PRESIDING), GEORGE ADESOLA OGUNTADE – J.S.C., MAHMUD MOHAMMED – J.S.C., FRANCIS FEDODE TABAI – J.S.C., IBRAHIM TANKO MUHAMMAD – J.S.C. OLAYIWOLA ADEREMI – J.S.C., CHRTSTOPHER MITCHEL CHAKWUMAENEH – J.S.C., by their unguarded commentaries complained of by the Applicant, clearly contravened the fundamental rights of the Applicant secured and guaranteed in the combined provisions of sections:
34(1)(a), 36(5), (6)(a), (b), (c) & (d); (7), (8) & sub (12), and 294(1) of the Constitution of the Federal Republic of Nigeria 1999 and Articles 2,4,5,7(1)(b),(c),(2) & 28 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cop. A9 Laws of the Federation, 2004. They (the Hon, Justices) were the complainants, the prosecutors and at the same time the fudges, therefore the proceedings not borne out on the record are unconstitutional.
10. An Order directing the Respondents to pay over to the Applicant an Exemplary Damages in the sum of 500 Million Naira, for the violation of the Applicant’s fundamental rights secured and guaranteed under sections 3 6 (1),(2) (a), 34 (1) (a), 3 6 (5),(6) (a),(b),(c) & (d) (7), (8), & sub (12), and 294(1) of the Constitution of the Federal Republic of Nigeria 1999, and Articles 2,3,4,5,7(1)(b),(c)(2), 19 & 28 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. A9 L.F.N. 2004, by the agents of the Respondents PER CORAM: ALOYSIUS IYORGYER KATSINA-ALU J. S. C. (PRESIDING), GEORGE ADESOLA OGUNTADE _ J.S.C., MAHMUD MOHAMMED – J.S.C., FRANCIS FEDODE TABAI- J.S.C., IBRAHIM TANKO MUHAMMAD – J.S.C., PIUS OLAYIWOLA ADEREMI – J.S.C., CHRISTOPHER MITCHEL CHAKWUMA-ENEH – J.S.C.”
A twenty-two (22) paragraphs affidavit sworn to by the Appellant to which several copies of court processes and newspapers pages were attached, accompanied the summons in support of the reliefs sought.
From the record of the appeal, the Respondents were duly served with the Appellant’s summons and a conditional appearance was entered on the 14/3/2008 by one S.C. Egede, Esq. who represented them. The notice of conditional appearance for the Respondents is at pages 54-55 of the record of the appeal.
There is no record that the Respondents had filed a reaction or response to the affidavit of the Appellant by way of a counter affidavit or had filed any other process in the matter apart from the conditional appearance.
Pursuant to the order of the Federal High Court made on the 4/6/08 that the parties in the matter file written addresses, the Appellant filed a written address on the 6/6/08 which appears at pages 56-75 of the record of appeal.
The said address was adopted on the 2/7/08 and the case adjourned to 30/9/08 for ruling.
The record of the appeal does not show that the ruling was delivered on the said 30/9/08 or any other date, but on the 12/11/08, the Federal High Court directed the Appellant to file a written address on its jurisdiction to hear and determine the matter. The Respondents were not represented on that day.
The Appellant’s written address on jurisdiction was filed on 17/11/08 and adopted on the 27/11/08. The matter was adjourned to 19/1/09 for ruling on which date the Federal High Court in a judgment which appears from pages 99-109 of the record of appeal decided thus at page 109:- “Accordingly, the questions asked are answered in the negative and the reliefs sought refused. This suit is accordingly dismissed for amongst (sic) other things, lack of jurisdiction in the court to hear and determine same.”
Being dissatisfied with above decision, a notice of appeal containing five grounds of appeal was dated and filed by the Appellant on the 23/3/09. It is at pages 110-116 of the record of appeal.
In line with the Rules of practice and procedure in this Court, the Appellant filed the Appellant’s brief which he settled, on the 10/6/09; two days after the record of the appeal was received in the Court.
Apparently, the respondents were duly served with all the necessary processes of the appeal, but in particular, the Appellant’s brief of argument.
There is however no record that the Respondents had filed the Respondent’s brief in response to the Appellant’s brief and so an application by the Appellant filed on the 20/1/10 seeking an order of the Court for the appeal to be heard on his brief alone, was granted on 5/7/10 and the appeal adjourned accordingly for hearing.
Eventually the appeal was heard on the 7/2/11 on which date though there was record from the report of service by the court’s Bailiff that the Respondents were duly served with hearing notice, they were not represented.
There was also no communication from them or Counsel for them to the court to excuse the absence from court on the said date.
Pursuant to the order of the court made on 5/7/10, the appeal was heard on the Appellant’s brief alone and the Appellant adopted the brief himself and urged us to allow the appeal and set aside the decision by the Federal High Court.
The Appellant has at page 5, paragraph 3 raised a lone issue “from the four (4) grounds contained in the Notice of Appeal” (there are however five (5) grounds of appeal as indicated earlier on). The issue distilled by the Appellant for determination in the appeal is as follows:-
“Having regards to the facts of this case commenced by Originating Summons supported by affidavit, wherein the Defendants/Respondents failed/refused to file any counter-affidavit, such that those facts were deemed admitted; Leaving the trial Court with the authority to pre-emptorily enter judgment for the Plaintiff/Appellant without hearing evidence. Whether the decision by the trial Court that the Plaintiff/Appellant’s fundamental rights to fair hearing was therefore not violated is right?”
The Appellant’s submissions are to the effect that the Federal High Court had failed in its duty to act on the unchallenged evidence before it as was required in the case of INAKOJU v. ADELEKE (2007) 4 NWLR (1035) 423 at 705, which decision it was bound to follow. That the Federal High Court assumed the position of advocate for the Respondents by supplying evidence not presented before it by them, citing the statement of that court at pages 105-6 of the record of appeal. It was the further contention of the Appellant that the Federal High Court misunderstood the decision in case of DIRECTOR. S.S.S. v. AGBAKOBA (1999) 3 NWLR (590 314 and that in action where the plaintiff commences an action by originating summons and the Defendants failed to file a counter affidavit in opposition, no issue is thereby joined in the case. In such a situation he said, a court will consider the case as an admission by the Defendants and so decree judgment for the plaintiff citing the case of NIGERIAN CUSTOMS SERVICE v. BAZUAYE (2000) FWLR (29) 2393 as authority. Appellant then submitted that the Federal High court acted wrongly in denying him judgment and urged us to hold that it had no reason whatsoever not to follow the decision in DIRECTOR. S.S.S. v. AGBAKOBA cited by him in his address to that court. Since the Defendants/Respondents did not file a counter affidavit or even an address in the case. He also relied on the statement by Galadima, JCA (now JSC) in the case of UDENIGW v. EMANALO (2009) ALL FWLR (454) 1544) at 1558 and insisted that the Federal High Court fell into great error when it failed to enter judgment for him. We were invited by the Appellant to invoke the provisions of Section 15 of the Court of Appeal Act, L.F.N. 2004 and enter judgment for him in terms of his summons. The case of ADELEKE v. O.S.H.A. (2000 16 NWLR (1006) 608 was commended to us and once more, the case of DIRECTOR. S.S.S. v. AGBAKOBA (supra). was cited on who bears the burden of proof in cases of fundamental rights claim.
Lastly, the Appellant said that in situations where affidavit evidence was unchallenged, and therefore deemed admitted by a Defendant, a court of law must accept and act on it unless the averments are obviously false to the knowledge of the court. The cases of:-
HONDA PLACE LTD. V. GLOBE MOTORS LTD. (2005) 14 NWLR (945) 273 at 293.
I.B.WA. LTD. v. IMANO LTD. (2001) 1 SCNJ, 470 and DR. AKHIGBE V. OSONDU CO. LTD. (1999) 7 SCNJ, 1 were cited as authorities for the submission.
In conclusion, the Appellant urged the Court to allow the appeal, set aside the judgment of the Federal High Court and enter judgment in his favour for all the reasons he had set out in the brief summarized above.
Because the appeal was heard on the Appellant’s brief alone and since the Respondents did not file brief of argument to respond to the issue and points canvassed in the Appellant’s brief, only the submissions by the Appellant are available for consideration in the determination of the appeal.
In that regard, the Appellant’s appeal is uncontested in the absence of a brief of argument from the Respondents to the appeal who in law are deemed to have conceded to the appeal. See:-
SALAU v. PARA-KOYI (2001) 13 NWLR (731) 602.
UGBOAJA v. SOWEMIMO (2008) 10 MJSC, 105 SHONA-JASON v. OMEGA AIR (2006) 1 NWLR (960) 1 at 27.
However the law in its wisdom is that the fact that a Respondent had opted not to contest an appeal by failure, neglect or deliberate decision not to file a Respondents’ brief does not translate to an automatic success of the appeal for the Appellant. Even in such a situation, the law requires the Court to still consider and determine if the appeal is sustainable in law since the appeal is to succeed only on the strength and potency of the issues canvassed in accordance with established principles of law and not merely on the ground of the absence of Respondent’s brief.
The Supreme Court in the case of ECHERE v. EZERIKE (2000) ALL FWLR (323) 1597 at 1608, also reported in (2006) 12 NWLR (994) 386 had succinctly stated the position where a Respondent failed to file a brief of argument in an appeal. The apex Court had said:-
“A respondent who fails to file a respondent’s brief is deemed not to contest the appeal of the appellant and have therefore conceded the issues raised and argued in the appellant’s brief of argument. Yet the appeal must succeed or fail on the strength of the appellant’s case. It is not automatic that once a respondent fails to file his brief, the appellant automatically wins or succeeds in the appeal.”
See also: AKAS v. MANAGER (2001) 8 NWLR (715) 436 at 442.
EBE v. EBE (2004) 3 NWLR (860) 215.
FBN PLC v. AKINYOSOYE (2005) 5 NWLR (918) 340,
JOHN HOLT VENTURES v. OPUTA (96) 9 NWLR (470) 101.
So I would in the above premises determine whether or not the Appellant’s appeal is sustainable in law on the issue canvassed by him in the Appellant’s brief. As may have been observed, the meat of the Appellant’s issue is that the Federal High Court was wrong in law not to have entered judgment in his favour since the depositions in the 22 paragraphs affidavit sworn to by him in support of the summons were not challenged by the Respondents in a counter affidavit.
Now, it is common place in law that in proceedings or actions in which affidavit evidence is used as a means of proof such as in the proceedings commenced or initiated by way of originating summons, where the plaintiff swears to an affidavit in support of the reliefs he seeks, the Defendant has a legal duty to depose to a counter affidavit if he disputes the facts averred in the plaintiff’s affidavit. Affidavit evidence qualifies as documentary evidence and where it is not challenged it is usually accepted unless the facts deposed therein are so notoriously wrong as a matter of common public knowledge and experience. See:-
BUSARI v. OSENI (1992) 4 NWLR (237) 55 at 581.
ADEDEJI v. TINA GEORGE (1998) 6 NWLR (554) 483 at 490.
BADEJO v. MINISTER (1996) 9-10 M.A.C. 118 at 129. Where a Defendant failed, neglected or chose not to file a counter affidavit to challenge the averments of facts deposed to in the plaintiff s affidavit, the court is entitled to and has the power to deem and regard the facts deposed to as duly established. See:
AJOMALE v. YARDUAT (1991) 5 SCNJ, 172 at 178.
ODOGWU v. ODOGWU (1992) 7 NWLR (253) 344.
ADESINA v. COMMISSIONER (1996) 4 SCNJ. 112 at 119.
REGISTERED TRUSTEE OF N.A.C.H.P.N. v. MINNISTRY OF HOUSING & WORKS (2008) ALL FWLR (412) 1013 at 1053 in addition to the cases cited by the Appellant on the point. I am also aware of the decision by this Court in the case of OLORI MOTORS v. UBN (1998) 6 NWLR (554) 493 where it was held at page 506-7 that the court must accept uncontroverted averments in an affidavit as true and proved without hesitation. By the operation of the principle of stare decisis which is applicable in our judicial system, a lower court is bound by the decision of a higher Court in the judicial hierarchy, on established principles of law such as the one under consideration. It should however be noted that the principle laid down in all the aforenamed cases is that the court has the power and authority to accept unchallenged and uncontroverted averments in an affidavit as correct, true and admitted by the adverse party. The principle did not lay a hard and fast rule that once accepted, the affidavit evidence irrespective of its weight and sufficiency, should be relied or acted on to grant reliefs sought blindfoldedly by the court. The Supreme Court in the case of OKOYE v. CENTRE POINT MERCHHANT BANK (2008) ALL FWLR (441) 810 at 834 per Ogbuagu J.S.C. had held that:-
“Affidavit evidence is not sacrosanct It is not above evaluation by the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and/or authenticity.”
So even if the court accepts unchallenged averments of an affidavit as admitted by an adverse party, it still retains the power and is entitled to evaluate it in relation to the reliefs they seek to support in order to be satisfied of the veracity and sufficiency to warrant the grant of the reliefs sought. In that con, a court is not bound to ‘as a matter of course, to grant reliefs sought in an application simply because the affidavit in support was not challenged or contoverted in a counter affidavit.
That is not and cannot be the import of the decisions in the cases cited above.
Before the reliefs sought in an application in respect of which there was no counter affidavit to challenge the averments in the supporting affidavit, can be properly and judiciously granted, the court must be satisfied of their veracity and being sufficient to justify such reliefs. As a result even where the averments in an affidavit are not challenged if they are not credible and sufficient to warrant the reliefs in support of which they were deposed to, there would be no judicious basis for the grant of the reliefs.
Each case would have to be decided on its own peculiar facts and surrounding circumstances as disclosed in the unchallenged averments taken along any exhibits that may be attached to them in an application.
However before a consideration of the affidavit evidence in the Appellant’s suit since the Federal High Court had raised the issue of its jurisdiction to determine the suit and had given as the primary reason for the decision appealed against its lack of jurisdiction to entertain it, I find it necessary to decide the issue first.
In the present application, the Appellant in nine (9) out of the ten (10) reliefs he sought in the application before the Federal High Court, one thing that is common or derivable from them, is that the Appellant is in essence, seeking the declaration that the decision of the Supreme Court in Suit No. SC/123/07 dated the 29/1/2008 was a nullity on grounds inter alia that the Appellant was not afforded fair hearing and bias on the part of the Justices that delivered the decision. In other words the substance of the Appellant’s suit before the Federal High Court was for that court to nullify the named proceedings and decision by the Supreme Court on the grounds primarily that his right to fair hearing guaranteed by the 1999 Constitution as well as the African Charter on Human and Peoples Rights Act, Cap 49, Laws of the Federation of Nigeria, 2004 was breached and that the Hon. Justices were biased against him.
The two questions submitted to the Federal High Court in the suit of the Appellant upon which the declaratory’ reliefs were based are essentially on the alleged breach of the Appellant’s right to fair hearing and bias against the Hon. Justices of the Supreme Court.
Before a declaration on the validity of a decision by a court of competent jurisdiction can be properly made, a review of the said decision must necessarily be undertaken by the court to which the application for the relief was made. The review of the decision for the purposes of determining its validity on any ground whatsoever can only be effectively done where the reviewing court had the requisite authority, power and jurisdiction vested by the Statute or as the case may be, the Constitution which created it.
Specifically the decision of a competent superior court of record in Nigeria created under the 1999 Constitution can only be reviewed in accordance with the provisions of the Constitution, by the courts specifically vested or conferred with the power, authority and jurisdiction to do so by the Constitution itself. Where a court created under the Constitution was not vested with the required power, authority and/or jurisdiction to review the decision of another court, also created by the Constitution, then the necessary precondition for the valid exercise of the review would be absent or non-existent.
In common parlance the jurisdiction to undertake the review would be absent if not specifically vested by the Constitution on such a particular court. The law has been settled and is now elementary that in the absence of jurisdiction on the part of a court of law, whatever proceedings it conducted in any given case, matter or suit would be an exercise in futility, complete waste of valuable judicial time, intellect and resources because they would or are void, null and of no legal effect, ab initio. No matter how otherwise so well conducted, the proceedings without jurisdiction would only be purported and not have validity from start to finish. See:-
MADUKOLU v. NKEMDILIM (1962) ALL NLR 587 at 596, PEENOK LTD. v. PRESIDENTIAL HOTEL (1982) 12 SC. 1 at 68-9, ADEWUNMI v. A.G. ONDO STATE (1996) 8 NWLR (464) 73, ARAKA v. EJEAGWU (2000) 15 NWLR (692) 684, OFIA v. EJEM (2006) 11 NWLR (992) 652, JAMES v. OKEREKE (2008) 13 NWLR (1105) 544.
It was with the above principle of law in mind that the Federal High Court even after ordering the parties in the Appellant’s suit to file written addresses in support of their respective positions and adjourning the matter for ruling after the Appellant had adopted his address that it suo motu invited the parties to address it on the issue of its jurisdiction to entertain the Appellant’s suit. Though the authority of that court to suo motu raise the issue of its jurisdiction to entertain the Appellant’s suit has not been challenged in this appeal, it is expedient to emphasise that in law, a court has the jurisdiction and authority to suo motu raise the issue of its jurisdiction to entertain a suit pending before it at any stage of the proceedings if and when it appears to it that its jurisdiction may be lacking in the suit. It is never too early or too late to raise a genuine issue of jurisdiction because of its intrinsic nature in judicial proceedings as the consequence of any defect in it shows in the cases cited above. See:-
STATE v. ONAGORUWA (1992) 2 SCNJ. 1,
AKEGBE v. ATAGA (1998) 1 NWLR (534) 459 at 465.
A.G. LAGOS v. DOSUNMU (1989) 3 NWLR (111) 552, 3RD EYE COMM. V. ISHOLA (1999) 2 NWLR (582) 549 at 57. Another very well known principle of law is that once the issue of jurisdiction arises or is raised in judicial proceedings, it should be determined first before any further step is taken in the proceedings in order to avoid what might turn out to be a futile exercise in the event that a court had no jurisdiction to entertain a suit.
COMMISSIONER FOR LOCAL GOVERNMENT v. EZE MUOKWE (1991) 3 NWLR (181) 615.
STATE v. ONAGORUWA (supra).
GOMBE v. P.W.O. (NIG.) LTD. (1995) 7 SCNJ, 19
AKEGBE v. ATAGA (1998) 1 NWLR (534) 459 at 468-9.
So after raising the issue of its jurisdiction to entertain the Appellant’s suit and even taking written address by the Appellant, the Federal High Court had a duty to determine that issue first before embarking on the consideration of the merit of the suit. It was only after that court had determined that it had the jurisdiction to entertain the Appellant’s suit that the duty to proceed to determine the merit of the suit would properly arise. If as it eventually decided in the judgment appealed against, it found that it lacked the requisite jurisdiction to try or entertain the Appellant’s suit, that would have ended the matter before it and the only duty that would arise thereafter was to enter an order striking out the Appellant’s suit for want of jurisdiction on its part.
See:-
CBN v. KATO (1994) 4 NWLR (339) 446.
DIN v. ATTORNEY GENERAL OF THE FEDERATION (1986) 1 NWLR (17) 471.
IWUABA v. NWAOSIGWELEM (1989) 5 NWLR (123) 623.
NDIC v. CBN (2002) 7 NWLR (706) 272 at 300.
It would be a wrong procedure and so an error in law for a court to determine the merit of a suit in which the issue of its jurisdiction to entertain the suit was raised by it before deciding the issue of jurisdiction as was done by the Federal High Court in the judgment appealed against. Like I had pointed out before now, the law and indeed prudence require that the issue of jurisdiction raised by the Federal High Court suo motu be decided first in order for that court to say in clear terms whether it had the necessary authority and power to undertake a consideration of the merit of the Appellant’s suit based on the affidavit and other documents filed in support of the reliefs sought by the Appellant in the case. There can be no adjudication of a suit on the merit where there is no jurisdiction or competence on the part of a trial court to entertain the suit. It was an error on the part of the Federal High Court not to have abided by the dictates of the law and prudence in the judgment appealed against.
Let me however say quickly that the error in the procedure adopted by the Federal High Court did not in my respectful view, affect the validity of its decision that it had no jurisdiction to entertain the Appellant’s suit, the primary reason given by that court for dismissing the suit in its judgment.
The only tangible effect of the wrong procedure is that by deciding that it had no jurisdiction to entertain the Appellant’s suit, the Federal High Court had itself in the same judgment rendered its determination of the merit of Appellant’s suit, a wasteful and useless exercise which was undertaken in futility. That court had “shot itself in the foot” by the decision on its jurisdiction over the Appellant’s suit which left it without the legal and judicial basis or standing to consider the merit of the said suit.
However while its procedure cannot be supported, its decision that it had no jurisdiction to entertain the Appellant’s suit which was an issue raised in the Appellant’s ground ‘C’ on the notice of appeal, would find support in law as would be demonstrated now. It may be recalled that I had stated earlier in this judgment that the essence of the Appellant’s suit was for the Federal High Court to review the decision by the Supreme Court in the suit No. SC/123/07 delivered on 29/1/2008 by declaring that the appellant’s right to fair hearing had been contravened in the proceedings leading to it.
By the provisions of Section 235 of the 1999 Constitution no other body or person has the jurisdiction or power to review, for the purpose of any relief claimed in respect thereof, a decision or determination by the Supreme Court of any issue in any case. The Section makes the following provisions:-
“235. Without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court” Put simply, there is no appeal from or against any decision or determination by the Supreme Court in any case under the above provisions.
The decision or determination by the Supreme Court of any issue in a given case is therefore final and not subject to an appeal to any other body or person. In this regard by the hierarchy of the courts created by or pursuant to the provisions of the Constitution, the Supreme Court is at the apex of all other courts in the Country and its decisions bind all other courts of subordinate jurisdiction. As a consequence, a court with sub-ordinate jurisdiction to that of the Supreme Court under the Constitution lacks the power, authority or jurisdiction to review a decision or determination by the Supreme Court on any pre whatsoever. Indeed, as a general statement of the position of the law, a lower court in the judicial hierarchy in the Country, has no power, authority or jurisdiction to review the decision or determination of a higher court in any case under any pre in a latter case.
This was the position stated by this Court at its Enugu Division in respect of a case which was filed by the same Appellant in the present appeal against the Federal Republic of Nigeria and Chief Registrar, Court of Appeal at Federal High Court, Enugu, which is substantially similar to the one he filed at the Federal High Court, Abuja, from which this appeal came. This Court had without mincing words in the case of OKONKWO v. FEDERAL REPUBLIC OF NIGERIA & ANOR (2006) 14 NWLR (1000) 518, at 581 held that:-
“The decision of a higher court cannot be reviewed by a lower court even under the guise of enforcement of human rights.
Therefore, the jurisdiction conferred on the State High Court and the Federal High Court under Section 46(1) of the 1999 Constitution in actions for the enforcement of fundamental rights under Chapter IV of the Constitution does not extend to reviewing the decision of appellate courts.”
In the above case, the Appellant had applied to the Federal High Court, Enugu vide an ex-parte motion, for leave for the enforcement of his fundamental right against the Respondents therein, an order restraining the Respondents and their agents from giving any effect to the Court of Appeal Proceedings/decisions in appeal No. CA/E/EPT/83/2003 dated the 7/7/2003 and an order removing the proceedings/decisions of the Court of Appeal for the purpose of being quashed. The motion was dismissed on the ground that a High Court cannot review or pronounce on the decision of a superior court.
The decision by the Enugu Division of this Court in the case is a subsisting decision which binds all other Divisions of the Court in the absence of record that it had been set aside either by the court or the apex Court; the Supreme Court. To the best of my knowledge, the said decision is not in conflict with any subsisting decision of the Supreme Court and so is binding in this appeal. See:
PETERS v. DAVID (1999) 8 NWLR (603) 486.
BRAITHWAITE v. M.S.A.L.S.A. (2001) 5 NWLR (707) 596.
CARRENA v. AKINLASE (2008) 14 NWLR (1107) 262.
It is beyond argument in this appeal that the jurisdiction vested or conferred on the Federal High Court by the 1999 Constitution before which the Appellant sought for the review of the Supreme Court decision and declaration that his fundamental right was contravened, has subordinate jurisdiction to that of the Supreme Court.
The Federal High Court in the circumstances lacks the authority and jurisdiction to entertain the Appellant’s suit which sought such a review of a decision by the Supreme Court.
The necessary vires is clearly and undoubtedly lacking in the Federal High Court to even attempt to entertain the Appellant’s suit for the purpose of reviewing the decision by the Supreme Court.
Since the Federal High Court found itself wanting in jurisdiction to entertain the Appellant’s suit, like I have stated earlier, the proper order for it to have made, was one striking the suit out for want of jurisdiction and not to dismiss it. Apparently the order for dismissal was based and predicated on the erroneous procedure adopted and the worthless consideration of the merit of the Appellant’s suit before the decision on the issue of its jurisdiction. To that extent, the order made by the Federal High Court in its judgment dismissing the Appellant’s suit cannot and should not be allowed to stand. That order is accordingly set aside and pursuant to Order 18, Rule 11 of the Court of Appeal Rules 2007, in its place, an Order striking out the Appellant’s suit on ground of want of jurisdiction on the part of that court, is hereby made.
Order 18 Rule 11 provides thus:-
“ORDER 18 JUDGMENT
11. (1) The Court shall have power to give any judgment or make any order that ought to have been made, and to make such farther order as the case may require including any order as to costs.
(2) The powers contained in paragraph (1) of this Rule may be exercised by the Court, notwithstanding that the appellant may have asked that part only of the decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”
Perhaps I should observe that since the Appellant was at the time he filed the originating summons before the Federal High Court, Abuja was fully aware of the decision by this Court in the earlier similar case he filed before the Federal High Court, Enugu, it was an abuse of the court process for him to have filed the suit in which he sought for the Federal High Court to review or make pronouncement on the decision by the Supreme Court. The law is that it is an abuse of the process of the court to bring an action before a court that has no jurisdiction. See NOAH v. HIGH COMMISSIONER (1980) 8- 11 SC. 100. It is also an abuse of court process for a party to litigate again over identical questions or issues which had already been decided against him earlier. See ONYEABUCHI v. INEC (2002) 8 NWLR (769) 417 at 443.
Where a court finds that a suit filed by a party amounts to an abuse of the process of the court, it has the duty to dismiss it to put a final stop at least as far as that court is concerned, to the abuse of its process.
This is the law enunciated by the Supreme Court in the case of ARUBO v. AIYELERU (1993) 3 NWLR (280) 126 where it held that once a court is satisfied that any proceeding before it is an abuse of court process, it has the power, indeed the duty, to dismiss it. That is to say that once a court is satisfied that the proceedings before it amount to abuse of process, it has the right in fact the duty, to invoke its coercive powers to punish the party which is in abuse of its process. Such power is often exercisable by a dismissal of the action which constituted the abuse. See also ONYEABUCHI v. INEC (supra) at page 441-2. Because this is an issue that did not arise in the appeal, the restatement of the established principle of law on it would suffice here.
In the final result, for the reasons set out earlier, the appeal succeeds in part on the order of dismissal ordered by the Federal High Court of the Appellant’s suit.
That order is set aside and in its place the Appellant’s suit is hereby struck out for reason of want of jurisdiction by that court to entertain it.
I make no order on costs.
PAUL ADAMU GALINJE, J.C.A.: I read in advance the judgment just delivered by my learned brother, Garba JCA and I entirely agree with reasoning contained therein and the conclusion arrived thereat.
My brother has exhaustively dealt with all the issues canvassed in this appeal. I have nothing useful to add except to emphasize the very elementary principle of stare decisis, which has imposed obligation on lower courts to be bound by the decisions of higher courts. This Court, per Muhammad (JCA, as he then was) in L.M.B. LTD VS P.T.F. (2006) 5 NWLR (PT.974) 463 observed as follows:-
“Deliberate refusal to be so bound amounts to judicial impertinence which is capable of enthroning judicial rascality and anarchy in the judicial hierarchy. This must be eschewed and discouraged by Judges.”
The claims of the Appellant at the lower court and the questions submitted for determination cannot be effectively determined without a review of the decision of the Supreme Court. Clearly this Court cannot sit on appeal over actions or inactions of the Supreme Court, as it lacks the jurisdiction to do so. The lower court should have struck out the suit instead of dismissing it as it had no jurisdiction to entertain the claims. I join my learned brother in setting aside the order of dismissal. In its place the suit of the Appellant is hereby struck out for want of jurisdiction.
I make no order as to cost.
REGINA OBIAGELI NWODO, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother Garba, JCA. I agree with the reasoning contained therein and the conclusion arrived thereat.
The Federal High Court is a creation of statute that enjoys specific jurisdiction conferred by the statute and the constitution. It cannot exercise unlimited jurisdiction. The nature of the relief sought by the Appellant in the Federal High Court is to review the proceedings in the Supreme Court. The constitutional provision is clear on the hierarchy of Courts and the subject matter of the jurisdiction of the Federal High Court. All Courts of law derive their power and authority under the constitution or under specific statutes.
The special jurisdiction enjoyed by the court below does not extend to a review of the proceedings or decision of the Supreme Court. The Court below rightly refused to entertain the reliefs sought on grounds of lack of jurisdiction. The Court of law is constrained to adjudicate over life issues when vested with jurisdiction. No Court can assume jurisdiction in the absence of having been constitutionally empowered to do so.
See Nuhu v. Ogele (2003) 18 NWLR (pt.852) 251.
Once a court holds that it lacks jurisdiction to entertain and determine a case it does not dismiss the action but to strike it out.
See Adetayo v. Ademola (2010) All FWLR (Pt.533) S.C. 1806. Owners of MV “Arabella v. Nigeria Agricultural insurance Corporation (2008) II NWLR (pt.1097) 182. The court below should have struck out the application.
For the forgoing and the fuller reason in the lead judgment, I hard the appeal succeeds in part and I abide by the order as to cost.
Appearances
Appeared in personFor Appellant
AND
Not represented, but served on 24/1/11.For Respondent
