JOS ELECTRICITY DISTRIBUTION COMPANY PLC v. PWAJOK & ORS
(2021)LCN/15095(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, March 19, 2021
CA/J/326/2018
Before Our Lordships:
Adzira Gana Mshelia Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
JOS ELECTRICITY DISTRIBUTION COMPANY PLC APPELANT(S)
And
- MR BITRUS PWAJOK 2. MARKUS LINUS 3. J.A.OLOGUN 4. DASHEN ARTHANATIOUS NANLE 5. OBED KIRIWA JUBET 6. OKOYE 7. STEPHEN OTARU 8. SAMSON KARAMI 9. POLYCARP KAPCHAK 10. LADI T. DAKWO 11. HELEN S. DOH 12. HELEN JOHN CHAKA 13. SYLVESTER C. DAVOU 14. JOB D. DUNG 15. SAMUEL I. OBIAGWU 16. BAHAL PONFA 17. SYLVANUS DONGTOE 18. JOSEPH BATURE JUGU 19. FESTUS IGHODEFEYI 20. OTHNIEL H. BUHARSHAK 21. U. G. F. T. C. (CHURCH) 22. GROUP CAPT. KAMLA 23. MORGAN N. DABUP 24. HON. JULIUS PUSMUT 25. MARCUS E. TSOK 26. NAAZEN P. GOEWAM 27. LAMI E. BALAT HARUNA 28. JIM PAM WAYAS 29. JOEL DIMKA 30. VICTOR WESHUWAR 31. SAMSON JOSEPH 32. LONGKAT T. SUNDAY 33. GEORGE DUWOLA 34. SHOLA 35. MAMA OBED 36. SAMUEL PETSHAK 37. INNOCENT O. UJAH 38. VICTORIA YOHANNA 39. PATRI CIA BALA 40. CHIEF GIDEON MUSA KUTTU 41. JOB MONI EDOH 42. PROF. LAR URIAH A. 43. PAM SAMBO 44. TANKO NAAGWA 45. TSOK DUNG GWOM 46. SAMUEL GABRIEL 47. GYANG JAMES 48. MARY KELVIN 49. MANCHA DUNG 50. YAKUBU PAM 51. JOSEPH CHINDA 52. PAM MANCHA 53. JOHN DANJUMA 54. DANJUMA 55. PAUL VONDIP 56. PATRICK DAPIT 57. JOHN MANDONG 58. STEPHEN GOMOS 59. YAKUBU WUYEP LAR 60. VERAT HOTEL 61. MARGARET 62. PETER BISAT 63. AYUBA MUSA 64. BITRUS PAM 65. PASTOR CHRISTOPHER AJWANS 66. JAMES DUNG 67. PATRICK NYAM DALYOP 68. LAMI TALI 69. GAROS CHRISTY PAM 70. MIKE PAM 71. PAM MICHAEL 72. GODWIN OCHE 73. SUNDAY D. GYANG 74. PAM GYANG 75. SABO CHIDA 76. JAMES M. MUSA 77. E.M. DACHALSON 78. DADUNG PAM 79. AGATHA CHOLLOM 80. SOLOMON OLU 81. JULIET FANZHI (MRS) 82. SUNDAY AYUBA 83. DANIEL PAM 84. PASTOR 85. DANIEL PAM 86. PARMWES CECILIA 87. CHIBUEZE ANYAWU 88. JOEL GYEN 89. EMMANUEL NANLE 90. SOLOMON JAMGBADI 91. SOLOMON OCHEJA 92. MONDAY NWATU 93. SULEIMAN DAUDA 94. DAVID AJIBO 95. JAMES FUKUM 96. JAMES AKWU 97. JOSEPH BHARA 98. JUSTUS UYI 99. SUNDAY ATABOR 100. PAM EMMANUEL 101. DAUDA MAKUT 102. FELIS YAKUBU 103. JONATHAN DACHALLOM 104. RABI USMAN 105. ANTHONY GARBA 106. PETER ONEKURU 107. MAIMAKO UMAR 108. HARUNA 109. LINDA OJOH (MRS) 110. FRANCIS CHUKWUDI 111. YAKUBU PAM 112. PETER DAVOU 113. TITUS 114. ANGELINA D. NEHEMIAH (MRS) 115. HICENT EZEOBA 116. PETER OCHIGBO 117. PAM GYANG (WARD HEAD) 118. JOEL CHIRN 119. MARKUS MUSA 120. DAUDA MAKUT 121. COCIN KANGANG 122. COL. GARBA (RTD) 123. SUNDAY TSOK 124. MARK DADAH 125. BAYO KOLAWOLE 126. AKIM 127.IDRIS DANLADI 128. ELISHA ABBA 129. DANIEL ZANG 130. DIRIKEBAMAH SAMUEL 131. CHRISTOPHER FUKON 132. JOHNSON DATAL 133. JOSEPH ASUKUDU 134. MIRI SAKPO 135. CHRISTY SULE (MRS) 136. PASTOR YOHANNA 137. REMIGIUS UGWALA 138. JOSEPH ASUKUDU 139. SABINA DUNG VOU (MRS) 140. EJE JAMES 141. DR. PHILIPS LHABES 142. CHARITY GARBA (MRS) 143. UCHE CHUKWU 144. DR. FELIX DASAK 145. AMEH ETU (MRS) 146. AKOM VICTOR SIMON 147. CHALLOM GIDEON 148. JOS METROPOLITAN DEVELOPMENT, BOARD 149. RTD COLONEL BUTKO SALMWANG (CHAIRMAN TASKFORCE FOR DEMOLITION OF MARKED HOUSES WITHIN JOS METROPOLIS) 150. THE TASK FOR DEMOLITION OF MARKED PROPERTIES WITHIN JOS METROPOLIS 151. PLATEAU STATE MINISTRY OF WATER RESOURCES AND ENERGY 152. TRANSMISSION COMPANY OF NIGERIA (TCN) RESPONDENT(S)
RATIO
WHETHER AN APPELLANT CAN IN HIS NOTICE OF APPEAL EXCLUDE PARTIES TO AN ACTION IN THE LOWER COURT
… it is now settled that an appellant cannot in his notice of appeal exclude parties to an action in the lower Court as appellant did here. If he does that its notice of appeal is incompetent and liable to be struck out. That has been made quite clear in a number of cases including Obi v. Etiaba (2015) 6 NWLR (PT 1455) 377 @ 389-390;Total Upstream (Nig.) v. A.I.C. Ltd (2016) 2 NWLR (PT 1497) 377 and P.P.A. v. INEC (2012) 13 NWLR (PT 1317) 215 @ 237 (S.C.). PER BOLOUKUROMO MOSES UGO, J.C.A.
WHETHER APPEARANCE OF COUNSEL IS AN ISSUE TOUCHING THE JURISDICTION OF THE COURT
Appearance of counsel, contrary to the argument of Professor Shaakaa for appellant, has nothing to do with jurisdiction of the Court and at best only with adjudication: see Tukur v. Governor of Gongola State & Ors (1988) LPELR-22 (SC) p. 16-17; (1988) 1 NWLR (PT 68) 39; (1988) 1 S.C. 18; (1988) ALL N.L.R. 42 (SC). Jurisdiction is an issue of hard law donated by the Constitution and statutes: see Arjay Ltd v. A.M.S. Ltd (2003) 7 NWLR (PT 820) 577 @ 633 para B-C., Ajomale v. Yaduat (No 1) (1991) 5 NWLR (PT 191) 254 @ 263-264, Babalola v. Obaoku-Ote (2005) NWLR (PT 927) 386 @ 402. It is not an issue of conjecture. That appearance of a lawyer litigant in a case to represent others in the same case is merely an infraction of the rules of Professional Conduct for Lawyers for which the sanction is for the Court to exercise its inherent powers to stop him from further appearance, and not an issue touching the jurisdiction of the Court, is also implied in the Supreme Court’s decision in Chief Gani Fawehinmi v. Nigerian Bar Association (No. 1) (1989) LPELR-1260 (SC); (1989)2 NWLR (PT 105) 494; (1989) 4 S.C. (PT 11)1 which case seems to form the main plank of Professor Shaakaa’s argument of lack of jurisdiction in the lower Court by reason of Chief Gideon Kuttu purportedly signing the originating processes of the 1st to 147th Respondents/claimants (see page 711 of the records where he cited it in support of his argument of lack of jurisdiction in the lower Court). In that case Chief Fawehinmi objected to the appearance of Chiefs F.R.A. Williams, S.A.N., Kehinde Sofola, S.A.N., and Emmanuel Molajo, S.A.N., for the Nigerian Bar Association (N.B.A.) in his case against it, his argument being that it would be unprofessional and unethical for the three eminent Senior Advocates of Nigeria to appear for the Nigerian Bar Association, they having participated in settlement efforts and even shared his position on his dispute with the N.B.A. Despite that argument, it is instructive that the word ‘jurisdiction’ or lack of it in the Court by reason of the three senior lawyers’ appearance was never used by Chief Fawehinmi, by any of the eminent counsel in the case or even by the apex Court all through the argument and ruling of the Court in the case. PER BOLOUKUROMO MOSES UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal challenges the ruling of the Federal High Court, sitting at Jos and presided over by M. H. Kurya, J. and delivered on the 26th day of March 2018 wherein that Court heard and granted first to 147th respondents’ ex parte (without notice) application to strike out 40th Respondent Gideon Musa Kuttu and substituted him with his wife Mrs. Rahab Gideon Kuttu while also joining one Mogabs Nigeria Limited as 7th defendant.
Appellant’s main grouse in this appeal is that the said ex parte order of the Court is null and void having been made when its motion on notice filed on 30/11/2017 praying the Court to strike out the entire action because of its incompetence and the trial Court’s consequent lack of jurisdiction to entertain it was pending. Its reason for that contention is that Chief Gideon Musa Kuttu (now Chief Gideon Musa Kuttu, S.A.N.) being a party to the action as co-plaintiff wrongly acted in dual capacity in the suit by, according to it, signing the originating processes and indeed all other processes in the suit as a legal practitioner even when he was a
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party to the suit. That, it argues, rendered the said processes and the action incompetent and left the trial Federal High Court without jurisdiction over the suit and incapable of making even its ex parte order of 26th March 2018 that is the subject of this appeal. Appellant filed a four-ground notice of appeal against that ruling but in it ignored the decision of that Court and simply left out Mrs. Rahab Gideon Kuttu and Morgabs Nigeria Ltd. It rather left intact in its notice of appeal the name of Chief Gideon Kuttu Musa already struck out by that lower Court.
First to 147th Respondents on their part are also up in arms with preliminary objection contending among others that by so tinkering with the names of parties in the suit the appeal is rendered incompetent and ought to be struck out. Appellant’s answer to that limb of the objection is that the action being incompetent and the lower Court bereft of jurisdiction to entertain it, that order of the lower Court striking out Chief Gideon Musa Kuttu and joining his wife Mrs. Rahab Kuttu and Morgab Nig. Ltd does not exist and so it is in order. Interesting argument no doubt. I shall soon consider
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its validity more closely. Suffice it to say for now that appellant in its brief of argument framed the following four issues from its four grounds of appeal:
1. Whether the lower Court whose jurisdiction had been challenged by appellant’s motion on notice on which issues had been joined by parties was nonetheless competent to hear respondent’s ex parte application on 14/3/2018 and grant the reliefs on same which seemingly overreached the objection to its jurisdiction.
2. Whether the proceedings conducted by the Court on the 14th and 26th March 2018 in respect of the ex parte application of 1st to 147th respondents to the exclusion of appellant, particularly in the light of appellant’s pending application before it challenging its jurisdiction, was not a violation of appellant’s right to fair hearing.
3. Whether from the facts of 1st to 147th Respondents’ case it can be said to be a class action.
First to 147th respondents being the only parties that responded to the appeal, adopted these three issues of appellant, but, as hinted earlier, first raised in their joint brief of argument a preliminary objection
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to the competence of the appeal and sought its striking out on the following grounds:
1. The wrongful inclusion of the name of Chief Gideon Musa Kuttu whose name had been substituted with Mrs. Rahab Gideon Kuttu by order of the trial Court of 26th March 2018, and the wrongful exclusion of Mrs. Rahab Gideon Kuttu in the appeal.
2. The non-inclusion of a necessary party and proper party as the 152nd Respondent in the Appeal – Morgab Nigeria Limited – who was lawfully joined by the trial Court on the 26th of March 2018 as the 7th defendant.
3. The order of 26th of March 2018 was made ex parte and cannot be appealed against by the tenor of Section 14(1) of the Court of Appeal Act 2004 without the leave of the Court, appellant having not been a party to the proceedings leading to the order challenged by it.
4. Appellant lacks the locus standi to exercise right of appeal without the leave of this Court first sought and obtained to appeal as an interested party in the proceedings leading to the grant of the order of 26th March 2018 now being challenged.
5. Appellant is seeking to appeal against an interlocutory decision and must
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seek and obtain leave of Court before filing a competent Notice of appeal pursuant to Sections 241(2) and 242 of the 1999 Constitution (as amended) of Nigeria. This leave has not been sought nor obtained before filing the Notice of Appeal dated 26th March 2018 but filed on 29th March 2018.
6. That the incompetence of the Appellant’s Notice of appeal has robbed this Court of the requisite jurisdiction to hear and determine the appeal.
From the six (in reality only five) grounds of their preliminary objection, 1st to 147th Respondents framed the following four issues for this Court to determine:
1. Whether it is not mandatory that an appellant in an appeal maintains the names of parties on record from the trial Court which decision appellant appeals.
2. Whether the appellate Court will have jurisdiction to hear and determine the appeal on the merit with a party who has become a non-party by reason of lawful substitution by the trial Court and whether the decision of the appellate Court can effectively affect a party who has since been substituted but whose names the appellant chose to retain.
3. Whether an aggrieved party in a
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decision arrived at ex parte before the Federal High Court sitting in its original jurisdiction could safely and competently file an interlocutory appeal without the leave of the Court.
4. Whether the challenge of the decision of 26th March 2018 was not challenge against the exercise of judicial discretion. If yes, are the four grounds of appellant not grounds of mixed law and fact requiring the leave of this Court first sought and obtained?
Since this preliminary objection attacks the very foundation and competence of the appeal, it has to be determined first: see Husseini v. Mohammed (2015) ALL F.W.L.R. (PT 768) 987 @ 1001, para D-F (S.C.), for it is only when the appeal survives that attack that the need to consider it on its merits will arise.
On issue 1 of the preliminary objection, 1st to 147th Respondents relying on Order 7 R. 2(1) of the Court of Appeal Rules 2016 and the cases of Obi v. Etiaba (2015) 6 NWLR (PT 1455) 377 @ 389-390, P.P.A. v. INEC (2012) 13 NWLR (PT 1317) 215 @ 237 (S.C.), Total Upstream (Nig.) v. A.I.C. Ltd (2016) 2 NWLR (PT 1497) 377 @ 467-489 submitted that it is mandatory that an appellant maintains the names of the
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parties at the lower Court whose decision is being appealed; that appellant by chosing to keep the name of Chief Gideon Musa Kuttu as the 40th Respondent and dropped Mrs. Rahab Gideon Kuttu Morgabs (Nig.) Ltd rendered its notice of appeal and every other process founded on it incompetent and liable to be struck out.
They repeated the same arguments in support of their issue 2 and cited Section 36(1) of the 1999 Constitution of this country to submit that parties against whose decision an appellant seeks to challenge must have equal opportunity of being heard by the Court; that appellant’s exclusion of Mrs. Rahab Gideon Kuttu and Morgabs (Nig.) Ltd has the effect of denying them fair hearing and renders any decision on the appeal a nullity.
On issue 3, they relied on Section 14(1) of the Court of Appeal Act 2004 to submit that since appellant is appealing against an ex parte order, he could only do so upon the leave of Court first obtained and its failure to obtain that appeal also renders its appeal incompetent. That argument, they further submitted, is fortified by the fact that since the ruling now challenged by appellant was only made ex
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parte appellant is not even a party to it so it can only appeal to this Court as an interested party via Section 243(1) (a) of the 1999 Constitution of this country with the leave of this Court first obtained and leave having not been obtained, its appeal is again incompetent.
On the fourth limb of the objection, they cited the provisions of Order 9 Rules 4(3) & (4), 5 and 9 of the Federal High Court Rules dealing with class actions where it is provided that in a class proceeding a person, class or some members of the class may apply to the Court or a judge in chambers to opt in or out of the class action and the Court or judge in chambers may on good and justifiable cause permit any persons, class or members of the class represented in a class action to opt in or opt; any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, etc. They submitted that the lower Court by reason of those provisions exercised a discretion in its ruling joining Mrs. Kuttu and Morgab (Nig.) Limited and striking out Chief Kuttu so its decision was of mixed law and fact which can only be
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questioned in this Court upon leave of Court first obtained as stated in Section 242(1) of the 1999 Constitution of this country and appellant’s failure to obtain that leave again rendered its appeal incompetent.
Appellant responded to this objection on diverse fronts. First, it argued, by way of objection too, so to speak, that the objectors failed to comply with Order 10 Rule 1 and 3 of the Court of Appeal Rules stating that a respondent seeking to rely upon a preliminary objection shall give appellant three clear days notice of his objection setting out the grounds for the objection and also file 20 copies of the objection in the Registry of the Court within that same time. Professor Shaakaa on its behalf submitted that those provisions require the objectors to file the preliminary objection as a separate process and not simply raise it in their brief of argument as they did in this case. Rules of Court, counsel submitted, must be obeyed so the objectors’ failure to comply with Order 10 Rule 1 and 3 of the Court of Appeal Rules to its letters meant that this Court is robbed of jurisdiction to entertain their preliminary objection.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Assuming but without conceding that this Court has jurisdiction to hear the preliminary objection in its present form, it further submitted, since its application that was pending before the lower Court challenged its jurisdiction, that Court had no other jurisdiction than to decide whether it had jurisdiction, consequently, by entertaining the objectors’ motion ex parte and making orders amending parties, it acted in vain so any order emanating from such proceedings is a nullity and no one is bound by it. Its counsel placed further reliance on the Latin maxim of ex nihilo nihil fit (that something cannot be placed on nothing) and the dictum of Lord Denning M.R. in UAC v. Macfoy (1962) AC 158 to the effect that ‘If an act is void, then it is a nullity; it is not only bad but incurably bad’; there is no need for an order of the Court to set it aside, and submitted that it was right in failing to abide by the ruling of the lower Court altering parties. Complying with that order of the lower Court that is a nullity, it submitted, would amount to acquiescing with its ‘invalid’ order. It described its decision to maintain the names of
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parties in the record of the lower Court prior to the ruling appealed against as an ‘undiluted obedience to the law” so the cases of Obi v. Etiaba (2015) 6 NWLR (PT 1455) 377 @ 389-390, P.P.A. v. INEC (2012) 13 NWLR (PT 1317) 215 @ 237 (S.C.), Total Upstream (Nig.) v. A.I.C. Ltd (2016) 2 NWLR (PT 1497) 377 and Apeh v. PDP (2016) 7 NWLR (PT 1510) 153 @ 174-175 relied on by the objectors were inapplicable.
On the objectors’ further contention that it needed to obtain leave to appeal since its appeal was against an interlocutory decision, counsel on its behalf submitted that the decision of the lower Court challenged being an issue of jurisdiction, it is settled law that once the jurisdiction of a Court is challenged the Court must first decide whether it has jurisdiction; that besides question of jurisdiction is always one of pure law and not of mixed law; that the issue in this appeal being of jurisdiction, appeal lies to this Court as of right. It argued too, that in any case preliminary objection is not the proper process for the objection of the objectors; that a motion on notice is the right one so the procedure they adopted to
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terminate the appeal is also faulty.
Appellant also argued that that Order 9 Rules 4(3) & (4), 5 and 9 of the Federal High Rules dealing with class actions referenced by the objectors does not apply in this case because the objectors’ action was not a class action. Class action, it was submitted, is an action in which a person, class of persons or some members of the class interested in the action cannot be ascertained. That is not the case with the objectors’ action in the lower Court, it argued, as all the plaintiffs are identified with certainty and their names copiously outlined in their action. Flowing from the fact, it further argued, parties ought to have been put on notice of the objectors’ motion to alter parties; that hearing and granting the motion ex parte, they complained and citedJonathan v. F.R.N. (2019) 10 NWLR (PT 1681) 553 @ 568-569, their right to fair hearing was breached.
Decision on the preliminary objection:
I deem it necessary to first overrule peremptorily the argument of the preliminary objectors that this appeal being against a decision made ex parte by this Court no right of appeal exists
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against it by virtue of Section 14(1) of the Court of Appeal Act 2004 stating that “where in the exercise by the High Court of a State, or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order is made in the cause of any suit or matter, an appeal shall by leave of that Court or the Court of Appeal, lie to the Court of Appeal, but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs. It is my humble opinion that Section 14 of the Court of Appeal Act 2004, in so far as it purports to limit the right of appeal conferred on litigants by Sections 241(1) and 242 of the 1999 Constitution of the Federal Republic of Nigeria to appeal against any decision of the High Court on which they are aggrieved, will be in conflict with those provisions of the Constitutions and will be voided by Section 1 (3) of the same 1999 Constitution. That much is also confirmed by Saraki & Anor v. Kotoye (1992) LPELR-3016 (SC) p. 24-31, 61-63, 70.
I also overrule the argument of appellant on the failure of the preliminary objectors to first file a separate notice of their
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preliminary objection in line with Order 10 Rule 1 of the Court of Appeal Rules 2016, which omission it contends rendered the preliminary objection incompetent. With all due respect to their counsel Professor Shaakaa, the preliminary objection, of which he was given sufficient notice of in the Respondent’s brief of argument, sufficiently meets the objectives of Order 10 Rule 1 of the Court of Appeal Rules 2016 and so valid as a preliminary objection. That is well settled. See Ajide v. Kelani (1985) 3 NWLR (PT 12) 248.
Coming now to the merits of the said preliminary objection, Order 7 R. 2(1) of the Rules of the Court of Appeal 2016 states that:
All appeals shall be brought by way of rehearing and shall be brought by Notice (hereinafter called the Notice of Appeal) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or only part of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied
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by a sufficient number of copies for service on such parties. (Italics mine)
One can hardly conceive of a better occasion for strict compliance with this rule, particularly its italicized portions, than this appeal where appellant’s complaint borders directly on alleged ‘wrongful’ order of the lower Court substituting Mrs. Rahab Gideon Kuttu for her husband Chief Gideon Kuttu. In those circumstances it is only natural to expect, even without Order 7 R. 2(1) of the Rules of the Court of Appeal 2016, that Mrs. Kuttu would be made a party to an appeal questioning the correctness of an order joining her to the case; after all it is not out of place to expect that Mrs. Kuttu might have something to say in the appeal. The same thing goes for Morgab (Nig.) Limited too. Anything else will border on breach of the same fair hearing rights which appellant complains loudly in this appeal it suffered in the way the lower Court went about handling the ex parte application of the objectors. At any rate, it is now settled that an appellant cannot in his notice of appeal exclude parties to an action in the lower Court as appellant did here. If he does
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that its notice of appeal is incompetent and liable to be struck out. That has been made quite clear in a number of cases including Obi v. Etiaba (2015) 6 NWLR (PT 1455) 377 @ 389-390;Total Upstream (Nig.) v. A.I.C. Ltd (2016) 2 NWLR (PT 1497) 377 and P.P.A. v. INEC (2012) 13 NWLR (PT 1317) 215 @ 237 (S.C.). Appellant here justified its decision deviating from this well-settled position by saying that since at the time the ruling of the lower Court in issue was handed down that Court had before it its application challenging its jurisdiction, its ruling joining and striking out parties is invalid and is like placing something on nothing so it was not bound to countenance it in drafting its notice. As shown earlier, it referenced the now famous dictum of Lord Denning, M.R., in MacFoy v. U.A.C. Ltd (1961) 3 ALL ER 1169, 1172; (1962) A.C. 152 for its position. Incidentally, by that argument appellant practically constituted itself into a Court of law of sorts with the right to decide which order of Court is valid and deserves obedience from it and which is not. It is dead wrong. It is bound by that ruling and obligated to obey it until it proves its
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wrongness/nullity in a Court of law. It is not something it has a choice. Their Lordships Ogundare and Bello, JJ.S.C., made that point clearly in Rossek & Ors. v. African Continental Bank Ltd & Ors. (1993) LPELR-2955 (SC), (1993) NWLR (PT 312) 382, (1993) 10 SCNJ 20, with Ogundare, J.S.C., in lead judgment first saying at p.23 – 24 thus:
“.. a judgment remains binding until it is set aside by a competent Court: Hodskinson v. Hodskinson (1952) P. 285, 288; (1952) 2 ALL ER 567, 569. To hold otherwise is to clothe a party against whom a judgment has been obtained with the discretion to decide, in his wisdom, that the judgment is invalid and not binding on him. This, to my mind, is an invitation to anarchy. I do not understand the law to be so. And the oft quoted dictum of Lord Denning in MacFoy v. U.A.C. Ltd (1961) 3 ALL ER 1169, 1172; (1962) A.C. 152 to the effect that: ‘If an act is void, then it is a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be
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so.” is no more than an obiter given per incuriam – see Isaacs v. Robertson (1984) 3 ALL ER 140, 143 per Lord Diplock. While I agree with the noble Master of the Rolls in his exposition of the distinction between acts that are void and those that are voidable, it is my humble view that his pronouncement (if it was meant to extend to a judgment or order of Court) that there would be no need for an order of Court to set aside a void judgment cannot be correct; it is against the weight of judicial opinion. With profound respect, I do not subscribe to such view.”
Bello, J.S.C. (Later CJN) drove the point even further home when he said in the same judgment at p. 103 -104 (LPELR) that:
“…. a judgment of a Court is presumed valid and the parties concerned are not only bound to obey it but the authorities charged with responsibility for the enforcement of judgments are also obliged to enforce it unless it is declared a nullity or set aside by a Court of competent jurisdiction. It has never been the laws of Nigeria as some judges, like judicial robots, have been parroting the dicta of Lord Denning in MacFoy v. UAC (supra) that
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there is no need for an order of which is void to be set aside by a Court and there implies that all and sundry have the right to disobey the order. It is not the law of England: Isaacs v. Robertson (supra). It has never been the law that a party may review a judgment, regard it a nullity and disobey it. A prisoner who thinks that his conviction was a nullity cannot with impunity walk out of prison. Similarly, a judgment debtor cannot lawfully resist execution because he considers the judgment against him was null and void. Thus, a judgment of Court of law remains valid and effective unless it is set aside by an appeal Court or by the lower Court itself if it acted without jurisdiction or in the absence of an aggrieved party.”
What is more, contrary to the thinking of appellant and its counsel, Chief Gideon Kuttu did not even sign the originating processes of suit No FHC/J/CS/53/2017. The originating processes in that suit bear the signature, stamp and seal of one S.J. (Suleiman John) Duguru, Esq., with only Duguru’s name also marked as their maker. Yes, Chief Gideon Kuttu’s name among other lawyers also appear on the list of counsel to
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1st to 147th Respondents/Plaintiffs listed there, but he did not sign the originating processes. In any event, even if Chief Kuttu had signed them it would not affect the jurisdiction of the lower Court or the said originating processes. At best that will only be an issue of the professional ethics and conduct of Chief Kuttu, for there is no statute, and none was cited to us, restraining a legal practitioner from signing originating processes in a matter in which he is a co-plaintiff or defendant. Appearance of counsel, contrary to the argument of Professor Shaakaa for appellant, has nothing to do with jurisdiction of the Court and at best only with adjudication: see Tukur v. Governor of Gongola State & Ors (1988) LPELR-22 (SC) p. 16-17; (1988) 1 NWLR (PT 68) 39; (1988) 1 S.C. 18; (1988) ALL N.L.R. 42 (SC). Jurisdiction is an issue of hard law donated by the Constitution and statutes: see Arjay Ltd v. A.M.S. Ltd (2003) 7 NWLR (PT 820) 577 @ 633 para B-C., Ajomale v. Yaduat (No 1) (1991) 5 NWLR (PT 191) 254 @ 263-264, Babalola v. Obaoku-Ote (2005) NWLR (PT 927) 386 @ 402. It is not an issue of conjecture.
That appearance of a lawyer litigant in a
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case to represent others in the same case is merely an infraction of the rules of Professional Conduct for Lawyers for which the sanction is for the Court to exercise its inherent powers to stop him from further appearance, and not an issue touching the jurisdiction of the Court, is also implied in the Supreme Court’s decision in Chief Gani Fawehinmi v. Nigerian Bar Association (No. 1) (1989) LPELR-1260 (SC); (1989)2 NWLR (PT 105) 494; (1989) 4 S.C. (PT 11)1 which case seems to form the main plank of Professor Shaakaa’s argument of lack of jurisdiction in the lower Court by reason of Chief Gideon Kuttu purportedly signing the originating processes of the 1st to 147th Respondents/claimants (see page 711 of the records where he cited it in support of his argument of lack of jurisdiction in the lower Court). In that case Chief Fawehinmi objected to the appearance of Chiefs F.R.A. Williams, S.A.N., Kehinde Sofola, S.A.N., and Emmanuel Molajo, S.A.N., for the Nigerian Bar Association (N.B.A.) in his case against it, his argument being that it would be unprofessional and unethical for the three eminent Senior Advocates of Nigeria to appear for the
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Nigerian Bar Association, they having participated in settlement efforts and even shared his position on his dispute with the N.B.A. Despite that argument, it is instructive that the word ‘jurisdiction’ or lack of it in the Court by reason of the three senior lawyers’ appearance was never used by Chief Fawehinmi, by any of the eminent counsel in the case or even by the apex Court all through the argument and ruling of the Court in the case.
In summary, the preliminary objection of 1st to 147th Respondents/claimants to the competence of the Notice of Appeal of appellants is meritorious and is here upheld and appellant’s Notice of Appeal/this appeal is struck out.
Costs follow the events; consequently, costs are assessed at ₦50,000.00 against appellant in favour of 1st to 147th respondents jointly.
ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in draft a copy of the lead Judgment of my learned brother Ugo, J.C.A just delivered. I agree with his reasoning and conclusion that the Preliminary Objection of 1st to 147th Respondents/Claimants to the competence of the Notice of Appeal as argued in ground
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one should be sustained. Accordingly I also hold that the Appellant’s Notice of Appeal is incompetent and same struck out. I abide with the order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of a preview of the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA. The facts are very clearly set out in the lead judgment. The legal issues involved are in the usual manner, exhaustively and admirably analysed, and hence I agree entirely with the reasoning and conclusion therein, that the appeal is incompetent and liable to be struck out.
I also strike out the appeal and I endorse the consequential orders made therein, including the order on cost.
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Appearances:
Professor K.S. Shaakaa with him, Chike Okocha, Esq. and J.M. Mapur Esq. For Appellant(s)
D.J. Gussen, Esq., with him,Sarah Farinto and C.R. Gomwalk Esq.- for 1st to 147th Respondents.
Mrs. Linda Goma, Principal State Counsel, Plateau State Ministry of Justice- for 148th – 151st Respondents.
A.N. Doegwai, Esq.- for 152nd Respondent. For Respondent(s)
