IRRUMDU JAMARI & ORS. v. IJABANI YAGA
(2012)LCN/5492(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of June, 2012
CA/J/190/08
RATIO
APPEAL: EFFECT OF A GROUND OF APPEAL FROM WHICH NO ISSUE IS FORMULATED FROM
In this amended process, the appellants formulated only one issue as shown above. In other words, they did not formulate any issue from the said grounds two and three. This, in effect, means that they had abandoned the said grounds in the amended process. PER CHIMA CENTUS NWEZE, J.C.A.
PROCEDURE: ATTITUDE OF THE COURT TOWARDS ACADEMIC ISSUES
As is well known, courts of law are not the proper fora for the ventilation of academic issues, Lawal v Morohunfola [1998] 1 NWLR (pt 532) 111; Badejo v Federal Minister of Education [1996] 9-10 SC 51; [1996] 8 NWLR (pt 464) 15; Olateju v Sanni (2011) 31 WRN 83, 118. PER CHIMA CENTUS NWEZE, J.C.A.
JURISDICTION: FUNDAMENTAL ISSUE OF JURISDICTION
The issue of jurisdiction, as has been held, over and over in many decided cases, is fundamental and it, squarely, touches on the competence of the court to entertain or adjudicate on same, Ogbechie v Onochie [1986] 1 NSCC 443; Ogidi v Egba [1999] 9 NWLR (pt 621) 42; Odofin v Agu [1984] 11 SC 72; [1984] 1 SCNLR 372; Tarhule v Ikyombe [1998] 13 NWLR (pt 581) 293; Mosoba v Abubakar [2005] 6 NWLR (pt 922) 460. PER CHIMA CENTUS NWEZE, J.C.A.
JURISDICTION: DUTY OF A COURT BEFORE ASSUMING JURISDICTION
It has always been the practice that before assuming jurisdiction, a Court must ensure that the process placed before it has been brought in due process without a disabling feature which is to rob the Court of its Jurisdiction. Without the requisite jurisdiction, a process cannot be heard and if heard cannot be dismissed as such incompetent process is incapable of conferring any right or benefit on either party. In the case of B.A.S.F. Nigeria Ltd v. Faith Enterprises Ltd, the Supreme Court held that a Court’s competence is dependent on the filling by due process; upon the fulfillment of any condition precedent to the exercise of its jurisdiction. PER M. B. DONGBAN-MENSEM, J.C.A.
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
1. IRRUMDU JAMARI
2. BATA DABAL
3. JOHN KAFARI
4. TANKO WAINDU Appellant(s)
AND
IJABANI YAGA Respondent(s)
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): At the High Court of Adamawa State, Michika Judicial Division [hereinafter referred to as the lower court], the appellants, through their counsel, by a motion on notice dated and filed on July 13, 2007, entreated the court, inter alia, for an order for extension of time within which to appeal. Although, the judgment being appealed against was not exhibited in the affidavit accompanying the application, when it came up for hearing, the appellant’s counsel proceeded and argued the motion extensively. The respondent’s counsel replied, accordingly, and urged the court to refuse the application. After the arguments by both counsel and the application was about to be adjourned for ruling, counsel for the appellant applied to withdraw the motion.
His reason was that he wanted “to come properly.” Counsel for the respondent opposed the application and urged the court to rule on the merit or otherwise of the application, arguments having been canvassed. The lower court rendered its ruling, dismissing the motion. This appeal is against that decision. The appellants formulated only one issue for the determination of this appeal, thus:
Whether under the circumstances of this matter it was right for the High Court of Justice of Adamawa State, Michika judicial division, to make an order of dismissal of the application for extension of time within which to appeal as against an order striking same out.
Learned counsel for the appellant submitted that under the circumstances of this matter, it was not right for the lower court to make an order of dismissal of the application for extension of time within which to appeal as against an order striking out the application.
Citing Order 43 rule 6 of the Adamawa State Civil Procedure Rules, he contended that whenever an appeal is to be filed out of the time, the appellant must do so by way of motion on notice seeking leave of the lower court or appellate court to do so. He noted further that for the application to be proper before the appellate court, the appellant must, among other things, annex the judgment being appealed against to the motion paper. In his submission, where the appellant does not comply with these provisions, the appellate court would strike it out as not being properly before it.
He submitted that the proper approach which the lower court ought to have adopted in the circumstance was to strike out the application and not to order its dismissal, citing page 36 of the record of proceedings. This, in his view, is so because the merit of the matter was not decided. Until a matter is decided on its merit it will be improper to dismiss it since a dismissal bars the parties from coming back to have the matter heard on its merit, citing Amoo v Alabi (2003) 12 NWLR (pt 835) 537, 553; Afolabi v Adekunle (1983) 2 SCNLR 141
Counsel contended that it is the appellant’s duty to file the motion and annex the relevant papers including the judgement of the lower court. He observed that the sin of counsel should not be visited on the party he represents, Adekeye & Ors v Akin-Olubade (1987) 3 NWLR (pt 60) 214; Ndika v Chiejina (2003) 1 NWLR (pt 802) 451, 483. Against this background, he submitted that when counsel, inadvertently, moved the application when the judgment of the lower court was not annexed, it was in the interest of justice to allow such an application to be heard on the merit by striking same out so that the party can come properly.
He submitted that dismissing the application means that the applicant was shut out completely and will no longer be heard on the merit on the application and even the proposed appeal. In his view, since the appellants’ counsel failed to exhibit the necessary documents to the motion paper due to either negligence or omission on his part, such negligence or omission should be treated as his fault and not that of the appellants.
He urged the court, having regard to the circumstances of the facts stated above, that is, the irregularity in the filling of the motion for extension of time to appeal, not be allow that irregularity to bar the appellants from exercising their constitutional right to be heard on the merit so that their grievances can be properly adjudicated.
The respondent distilled two issues for determination. They were framed thus:
(1) Whether the appellants can turn round thereafter and complain that the decision of their counsel to keep and not exhibit the proceedings and judgments of the courts against which they sought to appeal is a mistake or inadvertence, the consequence of which cannot be visited on them.
(2) Whether grounds 2, 3 and 4 contained in the appellant’s notice of appeal are competent and arguable before this Honourable Court?
On the first issue, counsel for the respondent submitted that the essential requirement of the law in an application for extension of time to appeal is that the proceedings and/or judgment of the court against which the appeal is to be entered must be exhibited to the motion paper, citing Afribank Nig. Ltd. v Awoyemi (1995) 2 NWLR (pt 375) 110, 111. He noted that the records were not attached so as to place them before the lower court. In his view, this was a factual blunder which the appellants thought was a mistake of their counsel but must accept full responsibility for, N. I. W. A. v Shell Petroleum Dev. Co. of Nig. Ltd. (2008) 6 SCM 127, 132.
He observed that placing the records of the Upper Area court, Michika, and that of the trial area court before this court is unavailing since they were not before the lower court. This court cannot act on them to grant the application of the appellant.
He, further, submitted that the appellant’s counsel had a distinct legal right which he had discretion to exercise in the discharge of his duty to his clients. According to him, the decision of the appellants’ counsel not to tender or exhibit the proceedings and/or judgment of the court against which the appellant sought to appeal was a distinct exercise of a legal right by the counsel not his inadvertence. The appellants having made that choice through their counsel and having argued the motion extensively, cannot turn round to complain, Akanbi v Alao (1989) 5 SCNJ 1, 13.
He cited Afegbai v A. G. Edo State (2001) 14 NWLR 427 as authority for the view that the scope and amplitude of the authority of counsel with regards to an action and all matters incidental to it extend to the conduct of trial such as withdrawing of records, calling and not calling of witnesses etc. and that the client’s consent is not needed for matters which are within the ordinary authority of the counsel. He, then, submitted that the appellants cannot now complain that the decision of their counsel cannot be visited on them. This is because they are bound by the consequence of that decision.
On the above issue two, he submitted that grounds 2, 3 and 4 contained in the appellant’s notice of appeal are not competent grounds to be argued before this court, citing section 240 of the Constitution of the Federal Republic of Nigeria 1999. He further submitted that grounds of appeal must relate to the judgment of the court appealed against. He maintained that this court has no jurisdiction to entertain an appeal directly from the Upper Area Court, Michika and the trial Area Court thus any ground of appeal formulated therefrom is not proper and/or competent and cannot be argued before it, citing Kele v Nwerekere (1998) 3 SCNJ 84, 89. He insisted that issue two formulated by the appellant is, therefore, also, incompetent. He urged the court to strike out grounds 2, 3 and 4 together with the issue and arguments therefrom.
RESOLUTION OF THE ISSUES
My Lords, before delving into the sole issue for determination set out in the appellant’s brief of argument, it would, perhaps, be more appropriate to dispose of the second issue in the respondent’s brief. As shown above, the respondent formulated two issues. The second issue was couched thus:
Whether grounds 2, 3 and 4 contained in the appellant’s notice of appeal are competent and arguable before this Honourable Court?
True, indeed, in the original appellants’ brief of argument dated July 18, 2008, but filed on July 21, 2008, the appellants formulated two issues for determination. The second issue which was “whether the decision of the Upper Area Court, Michika, can be sustained in law,” was concreted from grounds two and three of the Notice and Grounds of Appeal filed on June 5, 2008.
However, on March 1, 2012, the appellants, duly, applied for the amendment of their brief of argument. That application was granted as prayed on May 16, 2012. Accordingly, the “Amended Brief of Argument of All the Appellants” was deemed properly filed and served by an order of this court. In this amended process, the appellants formulated only one issue as shown above. In other words, they did not formulate any issue from the said grounds two and three. This, in effect, means that they had abandoned the said grounds in the amended process. To that end, the arguments in the amended process [paragraphs 4-6 thereof] were woven around the above first issue only.
Somewhat, surprisingly, the respondent did not take steps to effect consequential amendments to his brief. The result is that, as at the day when the briefs of the parties were deemed as having been argued pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011, whilst the appellants had abandoned their grounds two and three (supra), the respondent’s brief was still quibbling about the competence of those grounds that had been abandoned.
Having not formulated any issue from the said grounds, they were deemed abandoned, see, Tyoho v Effiong [2007] 11 NWLR (pt 1044) 31; Aro v Aro [2000] 3 NWLR (pt 649); J. E. Elukpo and Sons Ltd v F. H. A. [1991] 3 NWLR (Pt 179) 322; Ikpuku v Ikpuku [1991] 5 NWLR (Pt 193) 571. Thus, the arguments contained in paragraphs 5. 5-5-6 and paragraph (2) of page 6 of the respondent’s brief of argument had become otiose, or at least, academic.
As is well known, courts of law are not the proper fora for the ventilation of academic issues, Lawal v Morohunfola [1998] 1 NWLR (pt 532) 111; Badejo v Federal Minister of Education [1996] 9-10 SC 51; [1996] 8 NWLR (pt 464) 15; Olateju v Sanni (2011) 31 WRN 83, 118. In Consequence, we shall discountenance the arguments in the said paragraphs in the determination of this appeal. That leaves us with only the sole issue for determination: an issue to which we now turn.
Whether under the circumstances of this matter it was right for the High Court of Justice of Adamawa State, Michika judicial division, to make an order of dismissal of the application for extension of time within which to appeal as against an order striking same out.
As shown above, when this appeal came up for hearing, the briefs were deemed as having argued pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011. The court had no option than to invoke the above rule since this appeal was entered at the Jos Division of this court (from which the present Division was excised) since July 21, 2008, that is, about four years ago. More importantly, the briefs had been duly filed and served.
However, on the date slated for the hearing of the appeal, none of the counsel appeared. None deemed it appropriate to write to excuse their absence. In the circumstance, the court, in the interest of quick dispensation of justice, invoked the above order, A. T.(Nig) Ltd v UBN Plc (2010) 1 NWLR (pt 1175) 360, 370; Aigbobahi v Aifuwa [2006] 6 NWLR (pt 976) 270. Order 18 Rule 9 (4) (supra) provides:
(4) When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any Legal Practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.
Now, in the appellants’ brief, it was contended that at the lower court, counsel for the appellant [applicant in that court], inadvertently, moved the application when the judgment being appealed against was not annexed. For their bearing on the sole issue for determination, we reproduce the proceedings of the lower court dated May 5, 2008 in extenso:
J. S. Wafinzida Esq (appears with D. B. Ndangra Esq) for the applicants/appellants.
I. S. Adamu Esq appears for the respondent.
Wafinzida: We have a motion before this court dated the 13th day of July, 2007 and brought under (the) inherent powers of this Hon. Court. It prays for the following orders:
The application is supported by an 8 paragraph affidavit. There are also exhibits ‘A’1 and ‘A’2 attached. We rely on all the paragraphs of the affidavit particularly paragraphs 3-7 and the exhibits. We submit that the depositions in the affidavit disclose good reasons why the application should be allowed. Exhibits A1 and A2 contain arguable reasons for the appeal. We refer to the case of Olawokoro v Akinsiku (2004) All FWLR (pt 1970) 1975, 1976. Also refers to Order 43 Rules 16 and 17 of the High Court (Civil Procedure) Rules, Cap 63, Laws of Adamawa State, 1997, Volume 2. On the whole, we urge the court to grant our application.
[pages 32-33 of the record]
Having thus argued his application, counsel for the respondent in the said application, I. S. Adamu, vehemently, opposed the application in these terms:
I submit that the motion paper does not contain all the essentials required to warrant the granting of this application. This is [an] application for extension of time against a judgement of a court. I submit that the motion paper does not disclose the court against which decision the appeal is sought to be filed.
Secondly, the judgement sought to be appealed against is not exhibited to the motion paper. The court has nothing to rely on. The grounds of appeal cannot be argued without the record sought to be appealed against. I submit that the case of Olawokoro (supra) is in aid of the respondent. I submit that Order 43 Rules 16 and 17 cited by counsel is not helpful to his case; it is a fundamental defect. I refer to the case of Afribank of Nigeria Ltd v Owoseni [1995) 12 NWLR (Pt 375) 110….In the absence of the judgement sought to be appealed against, I urge the court not to grant the application
[page 34 of the record]
Following these submissions, Wafinzida, for the applicant, applied to withdraw his application. Listen to his plea:
Wafinzida: At this stage I apply to withdraw the motion having discovered our lapses in order to come properly
[page 34 of the record]
Expectedly, Adamu, counsel for the respondent, was not persuaded by this sudden volte face. He resisted the application for the withdrawal of the application. Hear him:
Adamu: I submit that the motion cannot be withdrawn at this stage since arguments have been canvassed. The proper thing is for the court to rule on the merit or otherwise of the application
After, patiently, listening to all the above submissions, the court made a bench ruling. On the application by the applicants’ counsel to withdraw the application that had been fully argued, the court ruled thus:
On the issue of withdrawing the motion sought by the learned J. S. Wafinzida, Esq., we agree entirely with the learned I. S. Adamu, Esq. that it cannot be withdrawn at this stage, arguments [s] having been canvassed by counsel. It behoves on the court to rule on the merit or otherwise of the application
[page 35 of the record]
Turning to the main application, the court ruled that:
On the propriety or otherwise of the application, we are unable to find anywhere in the application where the judgement against which the appeal is sought has been exhibited. This is a fundamental requirement otherwise the application lacks any basis. Since the judgement against which the appeal is sought has not been exhibited, we are of the view that this is a fundamental defect which cannot be cured and the application ought to fail as a consequence. Accordingly the motion is hereby dismissed.
[page 36 of the record]
Counsel for the parties were ad idem on one point. They agreed that in an application for extension of time within which to appeal, the proceedings and/or judgement of the lower court must be exhibited, [see, paragraph 5. 8, page 3 of the appellant’s brief and paragraph 5.1, page 3 of the respondent’s brief, citing Afribank Nig Ltd v Owoseni (supra)]. However, the arguments which they proffered in their briefs begged this main question. Instead, they dissipated so much energy on the argument that, at the lower court, counsel for the appellant [applicant in that court], inadvertently, moved the application when the judgment being appealed against was not annexed.
Although the above submissions are, actually, mere digressions from the main issue for determination, we intend to make passing comments on them. We agree with the submission that the sins of counsel should not be visited on the litigants, Adekeye & Ors v Akin-Olubade (1987) 3 NWLR (pt 60) 214; Ndika v Chiejina (2003) 1 NWLR (pt 802) 451, 48; Alhamdu v Salawu (1974) 9 NSCC 538, 542; Bowaje v Adediwura (1976) 6 SC 143, 147; Ibodo v Enarofia (1980) 5-7 SC 42 and Akanbi v Alao (1987) 3 NWLR (pt 108) 143.
However, we have a duty to point out that there is authority for the view that the mistake of counsel should be differentiated from the incompetence of counsel because only the former avails the litigant, Oyewole v Lasisi (2000) FWLR (Pt 10) 1606. Indeed, mistake of counsel must be distinguished from the deliberate action or strategy of counsel. This is because deliberate action or strategy cannot excused or categorized as mistake of counsel, Ningi Services Ltd v Imaoye (2003) FWLR Pt 143) 341.
Thus, before the rule that the mistake of counsel should not be visited on the litigant can be invoked, the court must be satisfied that it was a genuine mistake, Akanbi v Alao (supra). The rule does not apply where counsel is tardy and incompetent, Kolawole v Pezzani Alberto [1989] All NLR 137, 151; [1989] 1 NWLR (pt 98) 382.
Above all, before an error of counsel can be called in aid of a litigant, an affidavit is required from counsel himself admitting the fault, JIC Ltd v R. L. Import and Export [1998] 7 SCNJ 98, 108.
In Akanbi v Alao (supra), the apex court dealt with the question of the usual concern about the plight of the “helpless litigant whose Counsel had made an error of judgment in his legal submissions, and consequently lost the case for his clients.” Craig JSC, speaking for the court, re-iterated the view of the court in such circumstances: a view which Eso JSC stated in this eloquent manner in Mosheshe General Merchant Ltd. v. Nigerian Steel Products Ltd:
Counsel who has been briefed and has accepted the brief and also has Indicated to the court that he has instructions to conduct a case has full ‘control’ of the case. He is to conduct the case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to Judgment. Sometimes, he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the Court. The only thing open to the client is to withdraw instructions from the counsel or, if the Counsel was negligent, sue in tort for professional negligence. Such are the powers but such are also the risks.
However, the main issue in this appeal is the propriety of the approach which the lower court adopted in dismissing the application when its jurisdiction had not been properly activated due to the incompetence of the processes that did not exhibit the judgement appealed against. As already shown above, the lower court ruled at page 36 that it was:
… unable to find anywhere in the application where the judgement against which the appeal is sought has been exhibited. This is a fundamental requirement otherwise the application lacks any basis.
Simply put, the above finding means that the application was incompetent before the court for non-compliance with Order 43 Rule 6 of the Adamawa State High Court (Civil Procedure) Rules. That rule is somewhat, similarly, worded like Order 7 Rule 7 of the Court of Appeal Rules, 2011. Under both rules, an application for leave to appeal from a decision of a lower court shall parade the following items, among others:
(a) Notice of Motion for leave to appeal;
(b) A certified true copy of the decision of the lower court being appealed against;
(c) A copy of the proposed grounds of appeal etc
These provisions are mandatory hence an application that does not comply with them is incompetent, Afribank Nig. Ltd. v Awoyemi (supra); S. G. (Nig) Ltd v Galmas Int’L Ltd (2010) 4 NWLR (pt 1184) 361, 379; Minister, P. M. R v E. L. (Nig) Ltd [2010] 12 NWLR (pt 1208) 261.
All the parties are unanimous that the judgement sought to be appealed against at the lower court was not attached to the application. In effect, the application, in the first place, was incompetent before the court. The lower court, as shown above, indeed, made that specific finding at page 36 of the record (supra). Being incompetent, the jurisdiction of the lower court had not been properly activated by the time counsel for the parties argued the application.
A court is only competent to entertain a matter when the Trinitarian preconditions which Bairamain JSC, eloquently, enunciated in Madukolu v Nkemdilim [1962] 2 SCNLR 241 have been complied with. These preconditions are so well-known that it would serve no useful purpose dwelling on them here. Suffice it to state that they remain the inviolable desiderata for the activation of the competence of a court, Oloriode v Oyebi [1984] 1 SCNLR 390; Osafile v Odi (No 1) [1990] 3 NWLR (pt 137) 130; Nalsa and Team Associates v NNPC [1996] 3 NWLR (Pt 439) 621; Bronik Motors Ltd v Wema Bank Ltd [1983] 1 SCNLR 296; Obikoya v Registrar of Companies [1975] 4 SC 31; Nyame v FRN [2010] 7 NWLR (pt 1193) 344, 393-394; Funduk Engineering Ltd v McArthur [1995] 4 SCNJ 240; AG, Lagos v Dosumu [1991] 1 SCNJ 162; Barclays Bank v CBN [1976] 6 SC 175; Okonkwo v Okonkwo [2011] 1 WRN 1, 22-23.
It is in this con that we shall situate the order of the lower court dismissing the incompetent application before it. As shown above, it was contended for the appellants that where an application does not comply with the provisions of Order 43 Rule 6 of the Rules of the lower court (supra), the court would be entitled to strike it out as not being properly placed before it.
The view was expressed that the proper approach which the lower court ought to have adopted in the circumstance was to strike out the application and not to order its dismissal as the court did at page 36 of the record of proceedings, citing Amoo v Alabi (2003) 12 NWLR (pt 835) 537, 553; Afolabi v Adekunle (1983) 2 SCNLR 141.
We endorse this submission. The lower court proceeded to assume jurisdiction over an incompetent application. This was an exercise in futility. Having found that the application was incompetent for non-compliance with the preconditions ordained in the applicable rules, it should have declined jurisdiction to deal with it. The appropriate consequential order, in the circumstance, was an order striking out it for being incompetent. If it lacked the jurisdiction to deal with the said application, it, equally, lacked the jurisdiction to dismiss it, Oloriode v Oyebi (supra); Maduafokwa v Abia State Government and Ors (2010) All FWLR (pt 516) 563, 586. We, therefore, agree with the appellants’ submission that for non-compliance with Order 43 Rule 6 (supra), the application should have been struck out, S. G. (Nig) Ltd v Galmas Int’L Ltd (supra). This is because since the court found that the process was incompetent ab initio, it follows that it had no jurisdiction to entertain or determine it.
The issue of jurisdiction, as has been held, over and over in many decided cases, is fundamental and it, squarely, touches on the competence of the court to entertain or adjudicate on same, Ogbechie v Onochie [1986] 1 NSCC 443; Ogidi v Egba [1999] 9 NWLR (pt 621) 42; Odofin v Agu [1984] 11 SC 72; [1984] 1 SCNLR 372; Tarhule v Ikyombe [1998] 13 NWLR (pt 581) 293; Mosoba v Abubakar [2005] 6 NWLR (pt 922) 460.
Order 43 Rule 6 (supra), like all other rules of court, sets out items that must be, mandatorily, attached to an application for leave to appeal from a decision of a lower court, Adelekan v Ecu-line NV [2006] 12 NWLR (pt 993) 33; E. F. B. Co Ltd v NDIC [2007] 9 NWLR (pt 1039) 216; Oyegun v Nzeribe [2010] 16 NWLR (pt 1220) 568. Where the provisions are not complied with, as was the case with the application before the lower court, the application ought to be struck out, S. G. (Nig) Ltd v Galmas Int’L Ltd (supra).
The lower court should have disposed of the issue of the incompetence of the application before the consideration of any subsequent question, Cotena International Ltd v Ivory Merchant Bank Ltd [2006] All FWLR (pt 315) 26; Wilbros (Nig) Ltd v AG, Akwa Ibom [2008] 5 NWLR (pt 1081) 484; Shelim v Gobang [2009] All FWLR (pt 496) 1866; Odessa v FRN (No 2) [2005] 10 NWLR (pt 934) 528.
It is only when the application scales this crucial hurdle that the question of the twin conditions, which must co-exist to warrant the grant of the relief for enlargement of time within to appeal, would, then, be considered. The twin conditions, which such an application must, conjunctively, surmount, have since been settled on the authorities, Alagbe v Abimbola (1978) 2 SC 89; Ibodo v
Enarofia (1980) 5- 7 SC 43; Williams v Hope Rising
Voluntary Funds Society (1982) 1 All NLR (pt.1) 1;
Doherty v. Doherty (1964) 1 All NLR 299;
Yonwuren v Modern Signs Ltd (1985)1 NWLR (pt.1) 143;
Mobil Oil (Nig) Ltd v Agadaigho (1988) 2 NWLR (pt 77) 385;
Okere v Nkem (1992) 4 NWLR (pt 234) 132;
Kotoye v Saraki (1995) 5 NWLR (pt 395) 256;
Balogun v Afokilu (1994) 7 NWLR (pt.355) 206;
F.H.A. v Abosede (1998) 2 NWLR (pt 537) 177;
Shanu v Afribank Nig Plc (2000) 13 NWLR (pt 684) 392;
Oloko v Ube (2001) 13 NWLR (pt 729) 161.
The two conditions are conjunctive and not disjunctive, Yonwuren v Modern Signs (Nig) Ltd (supra). They must be present in the affidavit, Ikenta Best (Nig) Ltd v AG, Rivers State (2008) All FWLR (pt 417) 1, 26.
In all, we hold that since the application was incompetent, and thus the jurisdiction of the lower court was not properly activated, the court, equally, lacked the jurisdiction to dismiss it. An order striking out the application would have been more appropriate in the circumstance, Oloriode v Oyebi (supra); Maduafokwa v Abia State Government and Ors (supra); S. G. (Nig) Ltd v Galmas Int’L Ltd (supra).
In consequence, we allow this appeal. We, hereby, enter an order setting aside the order of the lower court dismissing the said application. Instead, we enter an order striking it out.
M. B. DONGBAN-MENSEM, J.C.A.: It is that the learned Counsel for the Applicant before the trial Court realised too late in the day, that he had filed and argued an incompetent motion. His attempt is to arrest the Ruling of the learned trial Judge should have put His Lordship on notice that an incompetent process has been acted upon and the end result would be an order striking out the process as not been brought to court in accordance to law.
It has always been the practice that before assuming jurisdiction, a Court must ensure that the process placed before it has been brought in due process without a disabling feature which is to rob the Court of its Jurisdiction. Without the requisite jurisdiction, a process cannot be heard and if heard cannot be dismissed as such incompetent process is incapable of conferring any right or benefit on either party. In the case of B.A.S.F. Nigeria Ltd v. Faith Enterprises Ltd, the Supreme Court held that a Court’s competence is dependent on the filling by due process; upon the fulfillment of any condition precedent to the exercise of its jurisdiction. The learned trial Judge was therefore in error in returning an order of dismissal rather than an order striking out the process, having found that an essential ingredient was missing in the process filed under order 43 Rule 6 of the Adamawa State High Court (Civil Procedure) Rules of 2004.
I agree with the lead Judgment prepared by my learned brother C. C. Nweze (JCA) and I adopt the consequential orders made therein.
ABUBAKAR ALKALI ABBA, J.C.A.: I agree with the lead Judgment of my learned brother Hon. Justice C. C. Nweze, Justice Court of Appeal.
I also Anew this appeal and set aside the decision of the Lower Court. I enter order of striking out the suit not dismissal of the suit.
Appearances
NO APPEARANCE FOR THE PARTIESFor Appellant
AND
For Respondent
