LASSA & ORS v. GOV, BORNO STATE & ANOR
(2020)LCN/14726(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Thursday, November 12, 2020
CA/G/154/2019
RATIO
APPEAL: WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED FOR THE FIRST TIME ON APPEAL WITHOUT THE LEAVE OF COURT
The settled position of the law is that the issue of jurisdiction of the Court can be properly raised for the first time in the appellate Court without the leave of the Court. See Efiok & Ors vs. Ani & Ors (2013) LPELR-21400 (CA), Adegbite & Anor vs. Amosu (2016) LPELR-40655 (SC) per Rhodes-Vivour JSC (P.25, Paras B – C), National Bank & Anor vs. Shoyoye & Anor (1977) LPELR-1948 (SC) per Obaseki, JSC (P.9, Paras B – D), Agbaje & Ors vs. Adelekan & Ors (1990) LPELR-228 (SC) per Olatawura, JSC (Pp. 28 – 29, Paras A – C), Olutola vs. Unilorin (2004) LPELR-2632 (SC) per Ejiwunmi, JSC (Pp. 9 -10, Paras A – F). PER ABUNDAGA, J.C.A.
APPEAL: WHEN CAN INCOMPETENCE OF AN APEAL BE RAISED
For a proper understanding of the law on when incompetence of an appeal can be raised, the case of Lemna Energy Resources Limited vs. Engr. Mukaila Musa (2013) LPELR-20367 (CA) is a useful guide. In that case, it was held inter alia: –
“… when an action suit (an appeal inclusive) is incompetent or not properly instituted, the Court is devoid of the necessary vires, or jurisdictional competence to entertain and determine same. Undoubtedly, the locus classicus that is more often than not, cited regarding the ever-lingering fundamental issue of jurisdiction is no other than Madukolu vs. Nkemdilim (supra). Instructively the dictum cherishingly profounded by the Supreme Court in that case is to the effect that: –
A Court is competent when: –
(1) It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another;
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law, and upon the fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however will be conducted: The defect is extrinsic to the adjudication. Per Bairamain, FJ at 348, Paras E – G.” Per Saulawa, JCA (Pp. 31 – 32, Paras F – E). See the following cases on the point – Shankyula & Anor vs. Iorjime (2004) LPELR-12598 (CA) per Sanusi, JCA (as he then was) (Pp. 8 – 9 Paras B – A), Enechukwu vs. Nnamani (2008) LPELR-4111 (CA), per Ariwoola, JCA (as he then was) (Pp. 41 – 42, Paras F – E); Ireneaus vs. FRN (2018) LPELR-43890 (CA) per Otisi, JCA (Pp. 14 – 15, Paras F – D), Cascade Controls Ltd & Anor vs. The Port Harcourt Chambers of Commerce & Ors (2018) LPELR-44186 (CA) per Sanga, JCa (Pp. 32 – 33, Para C). PER ABUNDAGA, J.C.A.
CONSTITUTIONAL LAW: THE PRINCIPLE OF SEPARATION
As to what the principle of separation of powers under the Constitution entails, I find the pronouncement of my learned brother in the case of Governor of Ekiti State & Ors vs. Samuel Ajide Olayemi (supra) very important and instructive. Therein, my learned brother stated:
“…The amended 1999 Constitution despite its recognition of the doctrine of separation of powers has expressly made provisions for the legislature to exercise limited oversight functions in relation to the executive at both the Federal and State levels; while the same Constitution also expressly, provides in Section 4(8) that: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law, and accordingly, the National Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a Court of law or of a judicial tribunal established by law.” It is to be noted that the provision of the amended 1999 Constitution reproduced above, is in pari materia with that of Section 4(8) of the 1979 Constitution of the Federal Republic of Nigeria and which his lordship Bello, JSC; (as he then was) dwelled on in the UNONGO case (supra). Re-produced hereunder is what his lordship stated on pages 38 – 40 in relation to the provision: – “….. Now, the principle of separation of the powers of the Federal Republic of Nigeria was well entrenched in our Constitution which under Section 4 vests the legislative powers of the Federation in the National Assembly and under Section 6 vests the judicial powers of the Federation in the Courts specified therein. It is pertinent to state that the National Assembly is not a sovereign Parliament. Its legislative powers are limited by express provisions of the Constitution. Sections 1(3), 4(8), 6(6)(a), 6(6)(b) and 33(1) of the Constitution are germane to the issue on appeal… This Court had occasion to consider the scope of the first limb of Section 4(8) of the Constitutionin Attorney-General of Bendel State v. Attorney-General of the Federation & 22 Ors. (1982) 3 N.C.L.R. 1 at p.4D wherein Fatai-Williams, C.J.N. as he was then said: “By virtue of the provisions of Section 4(8) of the Constitution, the Courts of law in Nigeria have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is infraction, the Courts will declare any legislation passed pursuant to it unconstitutional and invalid.” I may, for the purpose of emphasis, reiterate the opinion I expressed in that case to the effect that the Courts ought not to entertain and must not entertain their jurisdiction under Section 4(8) over the conduct of the internal proceedings of the National Assembly unless the Constitution makes provisions to that effect. I said at p.46: “I would endorse the general principle of constitutional law that one of the consequences of the separation of powers, which we adopted in our Constitution, is that the Court would respect the independence of the legislature in the exercise of its legislative powers and would refrain from pronouncing or determining the validity of the internal proceedings of the legislature or the mode of exercising its legislative powers. However, lf the Constitution makes provisions as to how the legislature should conduct its internal affairs or as to the mode of exercising its legislative powers, then the Court is in duty bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements….” Per LOKULO-SODIPE, JCA (Pp. 53-57, paras. F-A).
This pronouncement completely accords with the generally accepted view that the Court cannot interfere with the legislature’s exercise of their legislative function unless there is a serious infraction with a stipulation in the Constitution. Any party challenging that exercise must wait until it is completed and the bill being legislated upon is assented to and becomes a law. This is exactly what played out in the case of A.G Bendel State vs. AG of the Federation & Ors (1981) LPELR-605 (SC). In that case, the President of the Federal Republic of Nigeria on 28th October, 1980 forwarded to the National Assembly a bill entitled “Allocation of Revenue (Federation Account etc) bill, 1980 setting out a new formula for the distribution of the amount standing to the credit of their Federation Account between the Federal and State Governments and the Local Government Councils in each state for the consideration and enactment by the National Assembly. It was passed by the joint Committee of the National Assembly and sent to the President for assent which assent was given on 3rd February, 1981. Not satisfied with the manner by which the National Assembly had exercised its legislative power in respect of the bill, the Government of Bendel State as plaintiff commenced proceedings in the Supreme Court by originating summons against the Government of the Federation and Government of each of the 18 State Government.”
The Supreme Court upon consideration of the germane issues for consideration reached the conclusion that the Act was not passed in accordance with the legislative process laid down by the Constitution and therefore same was declared unconstitutional and void. The point to note is that the Government of Bendel State was aware of the irregular process perpetrated in the exercise of its legislative power by the National Assembly but did not interfere by going to Court until the bill became an Act of the National Assembly following its assent by the President.
It is therefore clearly the law that the duty of the Court is to interpret laws enacted by the legislature and until the stages of law making are complete, the judiciary cannot interfere as its Constitutional duty begins after the law is made. PER ABUNDAGA, J.C.A.
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
- PROF. PETER NTASIRI LASSA 2. PROF. JOSEPH PUR 3. LAMAR MUSA 4. BARRISTER MADU BUKAR DIMAS 5. JOHN JASINI 6. DR. JOSEPH JATAU 7. RICHARD THLAFA 8. SIMON NYELASIKIDA (For And On Behalf Of The Marghi People Of Uba Emirate) APPELANT(S)
And
1. GOVERNOR OF BORNO STATE 2. BORNO STATE HOUSE OF ASSEMBLY RESPONDENT(S)
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Borno State in Suit No. BOHC/GZ/CU/004/2018 delivered on the 28th day of February, 2019 by Hon. Justice M. M. Benisheikh.
The facts of the case in brief are that the 2nd Respondent passed and forwarded to the 1st Respondent for assent, a bill for the amendment of the Appointment of Emir of Uba Order, 1997, known as the Appointment of Emir of Uba Order, 1997 (Amendment) Bill, 2018. The Appellants were aggrieved with the procedure adopted for the passage of the bill and certain provisions therein, and accordingly in a representative capacity took out a writ of summons to challenge same. In the said writ, they claimed jointly and severally the following reliefs: –
1. A declaration that the amendment of Section 4(1) of the Appointment of Emir of Uba Order 1997 by the 2nd defendant as contained in the Appointment of the Emir of Uba Order 1997 (Amendment) Bill, 2008, is illegal, null and void same being an infringement of the eligibility rights of the claimants to contest the vacant stool of the Emir of Uba, and an affront
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on the norms and Traditions of the people of the Emirate.
2. An Order that the Appointment of the Emir of Uba Order, 1997 (Amendment) Bill, 2018 is illegal, null and void.
3. An Order of injunction restraining the 1st Defendant from appending his signature or assent to make the Bill into Law.
4. An Order of injunction restraining the 2nd Defendant from overriding the 1st Defendant in passing into Law the Appointment of Emir of Uba Order 1997 (Amendment) Bill 2018.
5. The cost of this suit.
In reaction to the claim of the Appellants, the 1st Respondent filed a Notice of Preliminary Objection while the 2nd Respondent filed a Motion on Notice, wherein they challenged the jurisdiction of the Court, and the locus standi of the Appellants to maintain the action in representative capacity. Following the filing and exchange of written addresses on the preliminary objection and the motion on notice, arguments were taken on the preliminary objection and the motion on notice.
In a considered ruling, the lower Court struck out the suit on the ground of lack of jurisdiction.
The Appellants are aggrieved with this decision, and therefore
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approached this Court for redress vide notice of appeal which was filed on 12th March, 2019. The notice of appeal contains four (4) grounds of appeal. The grounds of appeal shorn of their particulars are hereunder reproduced for ease of reference:
GROUND NUMBER ONE
The Learned Trial Judge erred when, without considering the case and submissions of the Appellant held thus:
“I agree, because of the authorization to sue on behalf of others must be given by the other persons or community interested in suing.”
GROUND NUMBER TWO
The Learned Trial Judge erred when, while considering the arguments of the Appellants as to their Locus Standi, he held thus:
“Yes, in so far as the 8 claimants are concerned, they are. But as earlier stated, the Marghi people of Uba Emirate, I am not convinced …… that they are representing the entire Marghi people of Uba Emirate.”
GROUND NUMBER THREE
The Learned Trial Judge erred in Law when he held that the Appellants action dwells on a legislative process thereby depriving the Court of Jurisdiction.
GROUND NUMBER FOUR
The learned Trial Judge erred in
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law when he held that the Appellants needed the consent of the District heads of the Emirate to be able to sue in a representative capacity.
GROUND NUMBER FIVE
The learned Trial Judge erred in law when he held that he lacks the jurisdiction to hear the matter.
GROUND NUMBER SIX
The judgment is against the weight of evidence.
The record of appeal was compiled and transmitted on 23rd April, 2019.
Upon the transmission of the record of appeal aforesaid, the Appellants filed their brief of argument, settled by Nankham Ayuba Dammo on 24th May, 2019. With leave of this Court sought and granted, the said Appellants’ brief of argument was amended. The said appellants’ amended brief of argument, filed on 13th June, 2019, was deemed properly filed and served on 28th October, 2019.
In response to the Appellants’ brief of argument, the 1st Respondent filed his brief of argument, settled by his Counsel, A. H. Izge, DSG, office of the Hon. Attorney-General’s Chambers Ministry of Justice, Maiduguri Borno State on 29th October, 2019.
On 21st June, 2019, the 1st Respondent filed a notice of preliminary objection
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to the competence of the appeal. The Notice of Preliminary objection is predicated on two grounds; grounds 1 and 2. Ground two (2) was subsequently withdrawn and struck out, leaving ground one, which for ease of reference is hereunder reproduced:
“1. Substratum in Appeal No. CA/J/154/2019 has become a completed act.
PARTICULARS
(a) After the date allowed for the 1st Respondent to give assent to the Bill passed by the 2nd Respondent (see page 27 of the Record of Appeal), subject matter of Suit No. BOHC/G2/CV/004/2018, had lapsed, the 1st Respondent made some observations for an amendments (sic) to be effected to the Bill passed.
(b) The 2nd Respondent upon receipt of the observations, passed the Bill into law and re-forwarded same to the 1st Respondent for assent.
(c) The 1st Respondent on his part assented to the Bill, which Bill as passed had become law and came into force on the 24th day of May, 2019 and same had been Gazetted.
(d) After the judgment of the trial Court in Suit No. BOHC/G2/CV/004/2018, subject matter of this Appeal, the Appellants failed to restrain the Respondents from taking steps pending the
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determination of this Appeal.
Argument on the 1st Respondent’s notice of preliminary objection was incorporated into the 1st Respondent’s brief of argument earlier on referred to at pages 3 – 7; paragraphs 3.01 – 4.08.
On the part of the 2nd Respondent, their brief of argument settled by their Counsel, G. M. Chibok, Esq. Deputy Director, Legal Services Borno State, House of Assembly Maiduguri, was filed on 2nd July, 2019. With leave of this Court sought and granted the said brief was amended. The said 2nd Respondent’s amended brief of argument was filed on 14th January, 2020, and deemed properly filed and served on 21st January, 2020.
On the same 14th January, 2020, the 2nd Respondent filed a notice of preliminary objection against the competence of the appeal. The notice of preliminary objection of the 2nd Respondent is predicted on three (3) grounds. The grounds are as hereunder stated:
1. That the 2nd Respondent passed the said amendment into Law in compliance with an exisiting Borno State Local Government law 2000 amendment Law (2010) that mandates all Emirates across the State to establish Emirate Council
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thereby making this Suit/Appeal incompetent.
2. That the amendment sought to be challenged has been abandoned by the Respondents, the time for assenting and returning same to the 2nd Respondent having elapsed. A new one was presented, passed into law, and assented to by the immediate past Executive Governor of Borno State which is gazetted.
3. That the subject matter of the appeal is nonexistent as it has been replaced by a new amendment which was passed into law and assented to on the 24th May, 2019.
Arguments on the notice of preliminary objection is contained at pages 7 – 11 (paragraphs 4.02 – 5.04) of the 2nd Respondent’s amended brief of argument.
The Appellants’ reaction to the notices of preliminary objection are contained in the Appellants’ reply briefs filed on 12th November, 2019 and 16th July, 2020 (deemed filed on 7/9/20) to the 1st and 2nd Respondent’s respective notices of preliminary objections.
At the hearing of the appeal on 7th September, 2020, Mssrs A. H. Izge and G. M. Chibok who respectively represented the 1st and 2nd Respondents adopted their notices of preliminary objection
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and the arguments in support of same contained in their respective briefs of argument earlier referred to; and urged the Court to strike out the Appellants’ appeal for incompetence
Mr. N. A. Dammo, representing the Appellants adopted the Appellants’ reply briefs earlier referred to in urging this Court to dismiss the Notices of Preliminary Objections as lacking in merit.
On the substantive appeal, N. A. Dammo adopted the Appellants’ amended brief of argument, and urged the Court to allow the appeal, set aside the ruling of the lower Court and remit the case back to the lower Court for trial before another Judge.
A. H. Izge and G. M. Chibok respectively adopted the 1st Respondents’ briefs of argument and 2nd Respondent’s amended brief of argument in urging this Court to dismiss the appeal and to affirm the ruling of the lower Court.
DETERMINATION OF PRELIMINARY OBJECTIONS
Submissions of Counsel
The two notices of preliminary objection seek to terminate the appeal in limine. Therefore, they must first be decided. I have in the course of the review of the processes for the determination of this appeal
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stated the grounds upon which the two notices of preliminary objections are predicated. I shall now consider the arguments proffered for and against the objections.
For the 1st Respondent it is submitted on his sole ground of objection that the substratum in this appeal was swept away by the coming into force of the amendment law which was assented to by the 1st Respondent on 24th May, 2019. It is argued that the substratum has become a completed act and therefore this appeal has become a mere academic exercise. The following cases are referred to:Olori Motors & Co. vs. UBN Plc (2006) 6 MJSC page 37 at page 50 Paras A – B & page 82 Para D – G, Olale vs. Ekwelendu (1989) 4 NWLR (Pt. 115) page 326 at page 349, Para G, Union Bank of Nigeria vs. Awmar Properties Nig. Ltd (2018) LPELR-44376 SC, ELF Petroleum (Nig.) Ltd vs. Daniel C. Umah & 4 Ors (2018) LPELR-43600 (SC).
Counsel points out that the decision appealed against was delivered on 28th February, 2019, and up till 24th May, 2019, when the law was passed and assented to, the Appellants did not deem it necessary to obtain an order to restrain the 1st Respondent from
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taking any further steps pending the determination of the appeal as required as stated in the case of Olori Motors & Co. vs. UBN Plc (supra) pages 56 – 59 and N.A.C.O.B Ltd vs. Ozoemelam (2016) 36 WNR 101 at 114 lines 5 – 15.
In reply to the submissions of the 1st Respondent’s Counsel, it is contended for the Appellants that the issue raised by the 1st Respondent was not canvassed or raised in the lower Court and cannot be raised in the Appellate Court without the leave of the Court being sought and obtained. On this, the following cases are cited: –
Osuji vs. Ekeocha (2009) All FWLR (Pt. 490) at 649, Oriori vs. Osain (2012) All FWLR (Pt. 636) 437 at 451, Onyemaize vs. Ojioko (2010) All FWLR (Pt. 523) page 1870 at 1886, OUR line Ltd vs. S.C.C. (Nig) Ltd (2009) All FWLR (Pt. 498) 210 at 250 – 252, Bichi vs. Shekarau (2009) All FWLR (Pt. 500) 682 at 708, and Netufo vs. Omuolorun (2005) All FWLR (Pt. 291) 1692 at 1711.
Counsel further points out that the 1st Respondent by his own admission in paragraphs 4.04 – 4.05 at pages 4 – 5 of his briefs of argument stated that this issue was never raised and
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canvassed before the lower Court. We are therefore urged to discountenance this argument as canvassed in the 1st Respondent’s preliminary objection.
The first point I need to make is that it is clear from the record of appeal that the issue canvassed on the 1st Respondent’s sole ground upon which his preliminary objection is predicated was not raised at the lower Court. It is an issue clearly extraneous to the subject of the suit, and Appellants’ claims. To my mind, it smacks of misapplication of common sense to suggest that such an issue could have been raised at the lower Court, because it is based on an event that took place after the ruling. Be that as it may, the germane issue for consideration is whether the 1st Respondent requires leave of Court to object to jurisdiction of the Court to entertain this appeal. The settled position of the law is that the issue of jurisdiction of the Court can be properly raised for the first time in the appellate Court without the leave of the Court. See Efiok & Ors vs. Ani & Ors (2013) LPELR-21400 (CA), Adegbite & Anor vs. Amosu (2016) LPELR-40655 (SC) per Rhodes-Vivour JSC (P.25, Paras
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B – C), National Bank & Anor vs. Shoyoye & Anor (1977) LPELR-1948 (SC) per Obaseki, JSC (P.9, Paras B – D), Agbaje & Ors vs. Adelekan & Ors (1990) LPELR-228 (SC) per Olatawura, JSC (Pp. 28 – 29, Paras A – C), Olutola vs. Unilorin (2004) LPELR-2632 (SC) per Ejiwunmi, JSC (Pp. 9 -10, Paras A – F).
The objection to jurisdiction by the 1st Respondent based on alleged incompetence of the appeal is properly raised, and cannot therefore be discountenanced.
I shall now consider the objection on its merits. The substratum of the appeal is the Appointment of the Emir of Uba Order, 1997 (Amendment) Bill, 2018, which the Appellants by their suit seek a declaration that the bill be declared null and void. I refer to Reliefs 1 and 2 of the Appellants’ claims. Reliefs 3 and 4 are ancillary to Reliefs 1 and 2. It is not the law that a bill assented to by the Chief Executive, or passed into law by the legislature by using its veto if declined assent by the Chief Executive cannot be challenged in Court. Therefore, in my humble view, the appellants’ appeal cannot be said to have been extinguished merely because
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the bill has been assented to by the 1st Respondent.
Additionally, from the processes as can be gleaned from the record of appeal, the lower Court’s decision was handed down on 28th February, 2019. The Appellants filed their Notice of Appeal on 12/03/2019. The appeal was entered on 23/04/2019, while the 1st Respondent gave his Assent to the bill on 24th May, 2019, about a month after the appeal had been entered. One might therefore ask whether the 1st Respondent was not aware of the pendency of the appeal when on 24th May, 2019, he gave his Assent? The Appellants proffered no argument on this, and the Respondents are also silent.
However, I take note of the fact that the 1st Respondent has not in the entirety of his argument disputed the correctness of the record, and that he played the role assigned to him in the Rules as a Respondent in the compilation and transmission of the record of appeal. It is therefore safe to presume that he played his role as provided in Order 8 Rule 2 of the Court of Appeal Rules 2016 which provides:
“2. In pursuit of Rule 1 above, the registrar shall within fourteen (14) days summon the parties before
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him to –
(a) Settle the documents to be included in the Record of Appeal; and
(b) Fix the amount to be deposited by the Appellant to cover estimated cost of making up and forwarding the Record of appeal.”
Therefore, the Respondents were aware of the pendency of the Appellants’ appeal on 24th May, 2019 when the 1st Respondent assented to the bill. However, as argued by the 1st Respondent, there was no restraint order against further work on the bill leading to its assent on 24th May, 2019. The 1st Respondent cannot therefore be faulted for assenting to the bill inspite of the pendency of the appeal especially that after the decision of the trial Court, there was no further pending matter before it, the Court having declined jurisdiction in the matter.
However, as earlier pointed elsewhere in this judgment, going by the totality of the claims of the appellants, the 1st Respondent’s assent to the bill could not have extinguished the cause of action, and by necessary implication, the appellants’ claims. It is therefore evident that the cases cited in support of the 1st Respondent’s arguments in support of
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his preliminary objection cannot avail him.
Therefore, I come to the conclusion that the 1st Respondent’s preliminary objection is without merit and is hereby dismissed.
I now come to the 2nd Respondent’s notice of preliminary objection. I have earlier in this judgment stated the grounds upon which their preliminary objection is predicated. The arguments in support of same are captured in pages 7 – 11 (paragraphs 4.02 – 5.04) of the 2nd Respondents amended brief of argument).
The submission made in support of the 2nd Respondent’s preliminary objection commenced with the point that the 2nd Respondent in 2010 amended Section 68 of the State Local Government Law 2000 by replacing the said Section 68 with Section 68(4). It is therefore contended for the 2nd Respondent that the cause of action arose in 2010 when the law was amended, and not when the law is to be complied with. Further submits for the 2nd Respondent that the amendment being challenged by the Appellants’ action has since 2010 ousted the powers of the Electoral College, reference made to Section 68(4) ante. It is also submitted that the amendment of
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Borno State Local Government Law 2000 (Amendment Law) 2010 didn’t clearly repeal Sections 3 and 4 of the Appointment of Emir of Uba Order, 1997, which therefore calls for another amendment to specifically repeal Sections 3 and 4 of the Appointment of Emir of Uba Order 1997 by substituting the erstwhile Electoral College with Emirate Council. Counsel concludes that having failed or neglected to challenge the amendment to the Borno State Local Government Law in 2010, the Appellants cannot now complain that their eligibility rights is sought to be taken away. It is submitted that this Court thus has no jurisdiction to entertain this matter. We are therefore urged to strike out this appeal.
The Appellants’ response to the 2nd Respondent’s preliminary objection is contained in the Appellant’s reply brief to the 2nd Respondent’s amended brief of argument, wherein it is submitted that the 2nd Respondent’s submission is misconceived. It is further submitted that an appeal is a continuation of the action in the lower Court; that an appeal being a complaint against the trial Court’s decision, issues not decided by the lower
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Court cannot be raised on appeal without the leave of Court. In essence, Counsel submits that the 2nd Respondent’s arguments dwell on issues on which parties are yet to join issues. He thus submits that the contention of the 2nd Respondent is of no moment, and accordingly incompetent. Counsel urges us to discountenance the submissions of the 2nd Respondent.
In response to the contention of the 2nd Respondent that the subject matter of this appeal is non-existent with the purported signing of the bill into law, Appellants’ Counsel contends that a cause of action in law means inter alia: –
(a) A cause or complaint
(b) A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine.
(c) Aggregate of facts giving rise to a dispute a Court is called upon to resolve or determine. Cited in support are A.G Federation vs. Abubakar (2007) 10 NWLR (Pt. 1041) 1, A.G Federation vs. ANPP (2004) FWLR (Pt. 190) 1458, and Nwokedi vs. Egbe (2005) 9 NWLR (Pt. 930) 293.
Counsel points out that the subject matter or the cause of action of the Appellants’ claim arose from the passage of the Amendment
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Bill to the appointment of Emir of Uba Order 1997 known as the Appointment of the Emir of Uba Order 1997 (Amendment) Bill, 2018. That the instant appeal is against the decision of the lower Court declining jurisdiction. It is submitted that the cause of action, which is the determination of the question of jurisdiction still subsists. We are therefore urged to dismiss the 2nd Respondent’s preliminary objection.
Resolution
It is not in doubt that the first plank of the 2nd Respondent’s argument dwells on the substance of the Appellants’ claim. It does not in fact attack the competence of the appeal. For a proper understanding of the law on when incompetence of an appeal can be raised, the case of Lemna Energy Resources Limited vs. Engr. Mukaila Musa (2013) LPELR-20367 (CA) is a useful guide. In that case, it was held inter alia: –
“… when an action suit (an appeal inclusive) is incompetent or not properly instituted, the Court is devoid of the necessary vires, or jurisdictional competence to entertain and determine same. Undoubtedly, the locus classicus that is more often than not, cited regarding the
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ever-lingering fundamental issue of jurisdiction is no other than Madukolu vs. Nkemdilim (supra). Instructively the dictum cherishingly profounded by the Supreme Court in that case is to the effect that: –
A Court is competent when: –
(1) It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another;
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law, and upon the fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however will be conducted: The defect is extrinsic to the adjudication. Per Bairamain, FJ at 348, Paras E – G.” Per Saulawa, JCA (Pp. 31 – 32, Paras F – E). See the following cases on the point – Shankyula & Anor vs. Iorjime (2004) LPELR-12598 (CA) per Sanusi, JCA (as he then was) (Pp. 8 – 9 Paras B – A), Enechukwu vs. Nnamani (2008)
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LPELR-4111 (CA), per Ariwoola, JCA (as he then was) (Pp. 41 – 42, Paras F – E); Ireneaus vs. FRN (2018) LPELR-43890 (CA) per Otisi, JCA (Pp. 14 – 15, Paras F – D), Cascade Controls Ltd & Anor vs. The Port Harcourt Chambers of Commerce & Ors (2018) LPELR-44186 (CA) per Sanga, JCa (Pp. 32 – 33, Para C).
The objection of the 2nd Respondent does not fall within the ambit of any of the criteria stated in the aforestated cases. Neither is it based on the notice of appeal being filed out of time. Therefore, there is clearly no merit in the 2nd Respondent’s argument on this plank of the objection.
The second plank of the argument which deals with the 2nd Respondent’s contention that the subject matter of the appeal has become spent by the signing of the bill into law by the 1st Respondent is also the content of the 1st Respondent’s preliminary objection which I have already considered. I hereby adopt the same reasoning and conclusion I reached on the 1st Respondent’s preliminary objection in holding that the second plank of the 2nd Respondent’s preliminary objection also lacks merit.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The obvious conclusion is that the preliminary objections of the 1st and 2nd Respondents are all without merit, and are hereby dismissed.
DETERMINATION OF SUBSTANTIVE APPEAL
In their Amended brief of argument, the Appellants distilled two issues for determination. The two issues are:
(1) Whether the learned trial Judge was right when he held that the lower Court had no jurisdiction to entertain the Appellants’ suit (Grounds 3 and 5).
(2) Whether the learned Trial Judge was right that the Appellants had no authorisation to maintain the suit in representative capacity (Grounds 1, 2, 4 and 6).
The 1st Respondent adopted the issues formulated by the Appellants with slight modifications, to read as follows:
(i) Whether the Learned Trial Judge was right when he held that he had no jurisdiction to entertain the Appellants’ suit (Distilled from Grounds 3 and 5).
(ii) Whether the learned trial Judge was right when he held that the Appellants had no authorization to maintain the suit in a representative capacity (Distilled from Grounds 1, 2, 4 and 6).
For the 2nd Respondent, Appellants’ issue I only was
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adopted, and another additional issue formulated. The 2nd Respondent’s issues are thus;
(i) Whether the learned trial Judge was right when he held that the lower Court had no jurisdiction to entertain the Appellants’ suit.
(ii) Whether the lower Court have (sic) power to stop the Respondents from making this consequential amendment which is in compliance with mandatory provision of an existing statute.
Looking at the issues formulated by the parties and the arguments proffered on them in the light of the claims of the Appellants at the lower Court, and the ruling of the lower Court which is on appeal, I find the issues formulated by the Appellants and adopted by the 1st Respondent as apt and comprehensive to exhaustively determine this appeal. The two issues are wide enough to accommodate the additional issue 2 formulated by the 2nd Respondent. I have therefore decided to adopt the Appellants’ issues as adopted with slight modifications by the 1st Respondent. For avoidance of doubt, the two issues on which this appeal will be determined are as follows:
(i) Whether the learned trial Judge was right when he held that the
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lower Court had no jurisdiction to entertain the Appellants’ suit.
(ii) Whether the learned trial Judge was right when he held that the Appellants had no authorization to maintain the suit in a representative capacity.
I will deal with the issues seriatim, beginning with issue one:
Issue one
Whether the learned trial Judge was right when he held that the lower Court had no jurisdiction to entertain the Appellants’ suit.
(i) Submissions of Counsel
Counsel to the Appellants submits, with reference to Section 4(8) of Constitution of the Federal Republic of Nigeria, 1999 (as amended) that the judicial powers of this country is vested in the Courts and cannot be limited by any law enacted by the National Assembly or by a State House of Assembly except as provided by the Constitution. He further therefore submits that the legislative process of either the National Assembly or the State House of Assembly of a State is subject to the jurisdiction of Courts of law, and that the exercise of such powers can be challenged. Reliance is placed on the case of Inakoju vs. Adeleke (2007) All FWLR (Pt. 353) 3 at page 144, and the case
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of Ezeoke vs. Makarfi (1982) 3 NCLR. 663. The argument carried further; Counsel submits that the Amendment Bill passed by 2nd Respondent which is yet to be assented to by the 1st Respondent can be challenged in Court but that even if it has been assented to, the Court still has jurisdiction to entertain Appellants’ claim. Counsel therefore contended that the trial Court was in grave error when in clear disregard of the decisions of this Court and Section 4(8) of the 1999 Constitution (as amended) declined jurisdiction over the Appellants’ claim. We are thus urged to resolve the issue in favour of the Appellants.
In opposition to the arguments canvassed for the Appellants, it is argued for the 1st Respondent that the Bill as passed did not contain any provision that attempts or purports to oust the jurisdiction of a Court of law or a Tribunal established by law as contemplated by Section 4(8) of the Constitution of Federal Republic of Nigeria. Counsel points out that their contention is that until the exercise of the legislative powers of the House of Assembly of Borno State (2nd Respondent) is completed as contemplated by
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Sections 4(7) and 100 (1) to (5) of the 1999 Constitution and becomes law, the legislative procedures/processes cannot be subject matter of litigation. Cited in support are the following cases: –
Ajilowura vs. Disu (2006) 10 MJSC 78 at Pp. 92 – 93 & Pp. 104 – 105, F.U.T.Y vs. ASUU (2011) 57 WRN 57 at 73 lines 5 – 10, Sunny Obi-Akejule & 5 Ors vs. Delta State Government & Anor (2008) 9 SCLR (Pt. 9) 227 at Pp. 238 – 239 Paras 25 – 35, Nyame vs. FRN (2010) 5 NCC 250 at Pp. 284 – 285; amongst others.
Counsel submits that while he agrees with the principles in the cases of Garba vs. Mohammed (supra), Governor of Ekiti State vs. Olayemi (supra) and Tijani vs. FBN Plc (supra) cited by the Appellants, the cases are not applicable to the appeal at hand. Counsel also submits that the cases of A.G, Bendel State vs. A.G of the Federation (supra), Inakoju vs. Adeleke (supra) and Ezeoke vs. Makarfi (supra) are distinguishable from the Appeal at hand on the following grounds:
(i) The parties in the cases above challenged existing legislation of the National Assembly and or the Constitution;
(ii) Some of the provisions were made
25
to operate retrospectively;
(iii) There is no Constitutional breach by the Respondent in the appeal at hand as was the case in the cases cited above.
In the alternative to the submissions above, Counsel submits that the 1st Respondent’s assent to the bill had swept away the substratum in this Appeal. Counsel relies on the case of Olori Motors & Co. vs. UBN (supra) Pp. 56 – 59, N.A.C.O.B Ltd vs. Ozoemelam (supra) at p. 114 lines 5 – 15 & Fatoyinbo vs. Osadeyi (2002) 10 MJSC 140 at Pp. 145 – 146 paras G – B and p. 147 para A. Further contention of 1st Respondent is that this appeal has become a completed act or a mere academic exercise which the Court cannot expend its time on. It is urged that this issue be resolved in favour of the 1st Respondent.
On the part of the 2nd Respondent, the argument in opposition to the appeal commences with the submission that the lower Court was right in declining jurisdiction to hear the Appellants’ claim. Counsel went on to submit that where a party alleges that he or she is interested in a chieftaincy stool and that his right to eligibility has been infringed upon he
26
ought to go further to state how that right is infringed upon. That it is not enough to merely state that he is from the ruling families of the Chieftaincy. That in this claim, the Appointment of Emir of Uba Order 1997 did not mention Marghi as the only ruling family entitled to contest should there exist a vacancy in Uba Emirate. The submission of 2nd Respondent’s Counsel in effect is that the Appellants have not disclosed sufficient interest to cloth them with locus standi to maintain the action.
It is further submitted for the 2nd Respondent that the Borno State Local Government Law 2000 (Amendment) Law 2010 in Gazette No. 4 Vol. 35, 6th February, 2010 states in Section 68(4) that all emirates in Borno State must establish emirate Council, hence the amendment of the Appointment of Emir of Uba Order 1997 which is a notice to the whole world. It is further submitted that the directive to all Emirates in Borno State could not be implemented without substituting the erstwhile Electoral College of Uba Emirate. On the above submission, we are urged to hold that the appeal lacks merit, and should be dismissed.
It is further contended for the 2nd
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Respondent that an injunction cannot be granted to stop a completed act. Counsel points out that on the striking out of this suit the 1st Respondent re-submitted the bill to the 2nd Respondent for further consideration; that on 23rd May, 2019 the 2nd Respondent passed it into law and sent it to the 1st Respondent for assent which Assent was given on 24th May, 2019 by signing it into law. Thus, the Appellants’ reliefs can no longer be granted, counsel further submits. In support of this submission, reliance is placed on the case of Iheanacho Ekpahuru Ideozu & Ors vs. Chief Frank Okpo Ochona & Ors (2006) 4 NWLR (Pt. 970) 364, (2006) 2 SC (Pt. II) 113.
After lengthy submissions on issues which do not address the issue of jurisdiction of the lower Court which is the object of this appeal, it is submitted for the 2nd Respondent at page 20, paragraph 5.33 of the 2nd Respondent’s amended brief of argument that the appeal is lacking in merit.
(ii) Resolution
It is common ground between the Appellants and the Respondents that at the time the Appellants filed their writ of summons the bill in contention, even though passed by the 2nd
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Respondent had not become law because neither was it assented to by the 1st Respondent, nor vetoed by the 2nd Respondent, and passed into law. Therefore the facts or state of affairs as they were on which the ruling of the lower Court was predicated is that the bill had not been passed into law by it being assented to by the 1st Respondent. Therefore any argument canvassed by any of the parties predicated on the bill being resent to the 1st Respondent, and being deliberated on, passed into law and thereafter assented to by the 1st Respondent on 24th May, 2019 is of no moment in this appeal. What is relevant and calls for the determination of this Court under the issue under consideration is whether the trial Court was right to decline jurisdiction on the basis that the bill having not been passed into law and assented to by the 1st Respondent cannot be subject of litigation. This is where the Appellants and the Respondents hold parallel views.
I share the views of the 1st Respondent’s Counsel that the cases cited by Appellants’ Counsel to support the position taken by him that a bill passed into law by the legislature can be challenged in
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Court even if it has not been assented to by the executive, and thus yet to be a law. For instance, the case of Garba vs. Mohammed (2016) 16 NWLR (Pt. 1537) page 114 at 154 – 155 also reported in (2016) LPELR-40612 (SC) did not deal with this issue; rather, matters decided in that case include, inter alia – proper Court with jurisdiction over pre-election matters; jurisdiction of the Federal High Court, importance of jurisdiction in the process of adjudication, etc. In the case ofInakoju vs. Adeleke (2007) All FWLR (Pt. 353) page 3, also reported in (2007) LPELR-1510 (SC), the Appellants purportedly issued a notice of impeachment against the Governor of Oyo State without following the laid down rules, regulations and the Constitution of the Federal Republic of Nigeria. The Respondents were aggrieved and challenged the Appellants’ action in Court. In the notice of preliminary objection filed by the Appellants they contended that the Court lacked jurisdiction to entertain the suit, and that the Respondents lacked the locus standi to institute the action. It was also contended that the Plaintiffs/Respondents did not disclose a reasonable cause
30
of action. The trial High Court upheld the preliminary objection. On appeal to the Court of Appeal the trial Court’s Ruling was set aside. The Supreme Court, on further appeal to it affirmed decision of the Court of Appeal. The case of Governor of Ekiti State & Ors vs. Samuel Ajide Olayemi (2016) 4 NWLR (Pt. 1501) page 1, also reported in (2014) LPELR-23477 (CA) is also not helpful to the Appellant’s case, it would seem. The principle in that case seem to emphasize the doctrine of separation of powers, and by reasonable inference reinforces the thin boundary within which the Court can interfere in the exercise of legislative function especially if such exercise is within the provisions of the Constitution. In that case, the claimant (Respondent) sought a declaration that the Ekiti State House of Assembly acted in flagrant breach of the 1999 Constitution of the Federal Republic of Nigeria (as amended) particularly, Section 7(1) thereof in passing into law the Local Government Administration (Amendment) Law, 2011 purporting to empower the Governor of Ekiti State to determine, appoint and remove the Secretary to each Local Government, Supervisors
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and Personal Staff of an elected Local Government Chairman, among other declarations. What is important in this case for the instant appeal is that the Local Government (Administration) Law, 2011 had become a law; and was not at its formative stage when the claimant sued; unlike in the instant appeal where the bill was still at its legislative process when the Appellants instituted their action to challenge it.
As to what the principle of separation of powers under the Constitution entails, I find the pronouncement of my learned brother in the case of Governor of Ekiti State & Ors vs. Samuel Ajide Olayemi (supra) very important and instructive. Therein, my learned brother stated:
“…The amended 1999 Constitution despite its recognition of the doctrine of separation of powers has expressly made provisions for the legislature to exercise limited oversight functions in relation to the executive at both the Federal and State levels; while the same Constitution also expressly, provides in Section 4(8) that: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly
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shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law, and accordingly, the National Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a Court of law or of a judicial tribunal established by law.” It is to be noted that the provision of the amended 1999 Constitution reproduced above, is in pari materia with that of Section 4(8) of the 1979 Constitution of the Federal Republic of Nigeria and which his lordship Bello, JSC; (as he then was) dwelled on in the UNONGO case (supra). Re-produced hereunder is what his lordship stated on pages 38 – 40 in relation to the provision: – “….. Now, the principle of separation of the powers of the Federal Republic of Nigeria was well entrenched in our Constitution which under Section 4 vests the legislative powers of the Federation in the National Assembly and under Section 6 vests the judicial powers of the Federation in the Courts specified therein. It is pertinent to state that the National Assembly is not a sovereign Parliament. Its legislative powers are limited by express provisions of the Constitution. Sections 1(3), 4(8), 6(6)(a), 6(6)(b)
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and 33(1) of the Constitution are germane to the issue on appeal… This Court had occasion to consider the scope of the first limb of Section 4(8) of the Constitutionin Attorney-General of Bendel State v. Attorney-General of the Federation & 22 Ors. (1982) 3 N.C.L.R. 1 at p.4D wherein Fatai-Williams, C.J.N. as he was then said: “By virtue of the provisions of Section 4(8) of the Constitution, the Courts of law in Nigeria have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is infraction, the Courts will declare any legislation passed pursuant to it unconstitutional and invalid.” I may, for the purpose of emphasis, reiterate the opinion I expressed in that case to the effect that the Courts ought not to entertain and must not entertain their jurisdiction under Section 4(8) over the conduct of the internal proceedings of the National Assembly unless the Constitution makes provisions to that effect. I said at p.46: “I would endorse the general principle of constitutional law
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that one of the consequences of the separation of powers, which we adopted in our Constitution, is that the Court would respect the independence of the legislature in the exercise of its legislative powers and would refrain from pronouncing or determining the validity of the internal proceedings of the legislature or the mode of exercising its legislative powers. However, lf the Constitution makes provisions as to how the legislature should conduct its internal affairs or as to the mode of exercising its legislative powers, then the Court is in duty bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements….” Per LOKULO-SODIPE, JCA (Pp. 53-57, paras. F-A).
This pronouncement completely accords with the generally accepted view that the Court cannot interfere with the legislature’s exercise of their legislative function unless there is a serious infraction with a stipulation in the Constitution. Any party challenging that exercise must wait until it is completed and the bill being legislated upon is assented to and becomes a law. This is exactly what played out in the case of
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A.G Bendel State vs. AG of the Federation & Ors (1981) LPELR-605 (SC). In that case, the President of the Federal Republic of Nigeria on 28th October, 1980 forwarded to the National Assembly a bill entitled “Allocation of Revenue (Federation Account etc) bill, 1980 setting out a new formula for the distribution of the amount standing to the credit of their Federation Account between the Federal and State Governments and the Local Government Councils in each state for the consideration and enactment by the National Assembly. It was passed by the joint Committee of the National Assembly and sent to the President for assent which assent was given on 3rd February, 1981. Not satisfied with the manner by which the National Assembly had exercised its legislative power in respect of the bill, the Government of Bendel State as plaintiff commenced proceedings in the Supreme Court by originating summons against the Government of the Federation and Government of each of the 18 State Government.”
The Supreme Court upon consideration of the germane issues for consideration reached the conclusion that the Act was not passed in accordance with the legislative
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process laid down by the Constitution and therefore same was declared unconstitutional and void. The point to note is that the Government of Bendel State was aware of the irregular process perpetrated in the exercise of its legislative power by the National Assembly but did not interfere by going to Court until the bill became an Act of the National Assembly following its assent by the President.
It is therefore clearly the law that the duty of the Court is to interpret laws enacted by the legislature and until the stages of law making are complete, the judiciary cannot interfere as its Constitutional duty begins after the law is made.
Issue one must and is hereby resolved against the Appellants and in favour of the Respondents.
Issue two
Whether the learned trial Judge was right when he held that the Appellants had no authorization to maintain the suit in a representative capacity.
Submissions of Counsel
It is submitted for the Appellants that for an action to lie in a representative capacity there must exist the following:
(i) a common interest
(ii) a common grievance,
(iii) The reliefs are beneficial to all.
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In fortification of this submission, counsel cites the cases of Adediran vs. Interland Transport Ltd (1991) 9 NWLR (Pt. 214) page 155 at 182 and Adeleke vs. Anike (2006) 16 NWLR (Pt. 1004) page 131 at 161 and 162.
Counsel also relies on Order 17 Rule 12(1) of Borno State High Court (Civil Procedure) Rules, 2017 which provides:
“(1) where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.”
It is further submitted that once a plaintiff expresses on a writ of summons or a statement of claim that the suit was brought in a representative capacity, that is sufficient proof of authority to commence the action in such capacity. That the only person or persons that can challenge such capacity or authority is a member of the group or family said to be represented. Reliance is placed on the case of Lawal vs. AG Kwara State (2012) All FWLR (Pt. 618) 958 at 991 – 992. Also cited are Anatogu & Ors vs. AG East Central State (1976) 11 SC 109 and Daniel Awudu & Anor vs. Rauthan Daniel & Anor (2005) 2 NWLR
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(Pt. 090) 199 at 222 – 223.
Counsel points out that the Respondents are not members of the Marghi people of Uba Emirate. Counsel further submits that no member of Marghi people of Uba Emirate has challenged the capacity of the Appellants, thus the Respondents had no locus standi to challenge the Appellants’ capacity. It is further submitted for the Appellants that the Appellants and the entire people of Uba Emirate are affected by the amendment made by the 2nd Respondent. That they, being the dominant tribe and whose tradition and cultures dictate the elections, and appointment of the Emir of Uba will be affected by the amendment. Further submission for the Appellants is that a clear appreciation of the statement claim would show that the Marghi people that the Appellants represent have a common grievance and reliefs which are beneficial to all of them, and therefore do not need any authorization to sue in a representative capacity. It is also submitted that the Appellants do not need any leave of Court to sue in a representative capacity. The Court is therefore urged to resolve issue two in favour of the Appellants.
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For the 1st Respondent it is submitted that there are 17 Districts and 53 Village Heads in Uba Emirate. That no single person was made claimant from the remaining 13 Districts. Further submits that the Appellants were not members of the 15 kingmakers in the 1997 Order which composition had been amended by the Local Government (Amendment) Law, 2010 and Section 4 of the Appointment of Emirs of Uba Order (Amendment) Law, 2019. Further submits that the Appellants cannot claim to have locus standi to sue in a representative capacity for and on behalf of the Marghi people of Uba Emirate more than the former kingmakers themselves who were the most affected by the bill. It is therefore submitted that the Appellants have no locus to maintain the subject matter of this appeal having not been authorized to sue for and on behalf of the people of Uba Emirate. That leave of Court was also not obtained to sue in a representative capacity pursuant to Order 17 Rule 13(1)(d) of the Borno State High Court (Civil Procedure) Rules, 2017.
In the alternative to the argument in the foregoing paragraph, it is submitted that the contention of the Appellants that they have common interest,
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common grievance and common reliefs is not tenable as the 1997 Order which gave the Appellants the right to contest the stool of Emir had been amended since 2010 and 2019 respectively. Counsel cites the case of Adesonaye vs. Adewale (2006) 7 SCNJ page 501 at 517 to buttress his point.
Let me quickly at this stage discountenance this argument as well as the immediately foregone argument because the arguments does not emanate from any of the Appellants’ grounds of appeal, and the Respondents did not file a cross appeal by which the issues were made ground of appeal, if indeed those issues emanated from the judgment of the lower Court.
The 2nd Respondent did not proffer any clearly coherent argument on issue two. In relation to the said issue 2, the only argument proffered is contained at page 19, paragraph 5.28 of the 2nd Respondent’s amended brief of argument in which he argued thus:
“We submit with humility that submission of learned Appellant (sic) Counsel in his amended paragraph 4.11 – 4.13 on representative action is misplaced in that having lost the case at the lower Court, the amendment challenged was redrafted and
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re-presented to the 2nd Respondent as a new Executive bill for amendment. The amendment, initially challenged was abandoned and replaced with a new bill, passed into law and assented to by the then Executive Governor of Borno State on the 24th May, 2019.”
This submission is grossly misconceived. An appeal is a continuation of the case decided at the lower Court. A party cannot on appeal introduce matters related to the case which took place after the case at the lower Court was decided. This is exactly what the 2nd Respondent is doing by their argument in paragraph 5.28 of their brief. The Respondents raised preliminary objection to the competence of the Court to hear the Appellants’ claim based on the bill as passed and sent to the Governor for assent. The lower Court upheld the preliminary objection, and hence the appeal. Whatever the Respondents did to the bill after the ruling of the lower Court cannot be a subject of argument in this appeal. Moreover, there is no ground of appeal on that issue because it could not have arisen out of the lower Court’s ruling. Equally, there is no cross appeal on it (of course, there couldn’t be
42
any because it did not arise from the ruling). Therefore, where did the 2nd Respondent’s argument spring from?
In my view issue two can only appropriately address the following: –
(i) Whether the Appellants needed authorization in writing or leave to sue in a representative capacity.
(ii) Whether the Appellants had locus standi to institute and maintain the action.
Resolution
I choose to first address the finding of the trial Court that the Appellants had no authorization to sue.
It is my considered view that on the facts on record and the settled position of the law on when a representative action can be said to be competent or not, the trial Court grossly erred. It is settled law that once a plaintiff expresses on a writ of summons or statement of claim that the suit was brought in a representative capacity, that is sufficient proof of authority to commence the action in such capacity. The only person or persons that can challenge such capacity or authority is a member of the group or family said to be represented. On this, I rely on the case of Alh. (Hon) Ishola Lawal & Ors vs. AG Kwara State & Anor (2010)
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LPELR-4425 (CA) in which this Court held:
“In S.P.D.C.N LTD VS EDAMKUE (2009) 14 NWLR (PT.1160), PAGE 1 (OF PG.27-28, PARAS H-E) OGBUAGU JSC observed thus “as regards evidence of any authorization from the two families or communities of the 1st and 3rd sets of plaintiffs/respondents to initiate the two suits on their behalves/behalf, I hold that the appellant has no locus standi, to object to the said representation not being a member of those families or communities. It is settled that once the plaintiff/plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or community to sue in that capacity. It is only a member of that group, family or community, who can dispute, intervene or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile for a defendant who is not one of those the Plaintiff/plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win,
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the losing defendant, cannot share in the victory and if the plaintiff/plaintiff’s case be dismissed, such dismissal can never affect the defendant adversely. See the case of CHIEF P. C. ANATOGU & ORS VS. ATTORNEY-GENERAL OF EAST-CENTRAL STATE (1974) 4 ECSLR 36; (1976) 11 SC 109, ONYEMUZE & ORS v. OKOLI & ORS (1973) 3 ECSLR 150; ALHAJI CHIEF OTAPO & ORS vs. CHIEF SUNMONU & ORS (1987) 2 NWLR (PT.58) @ 603; (1987) S SCJN S7; (1987)2 N 5CC VOL 18 P. 677 and DANIEL AWUDU & ANOR v. RAUTHAN DANIEL & ANOR (2005) 2 NWLR (Pt. 909) 199 @ 222-223 C.A. citing the cases of ANATOGU vs. ATTORNEY-GENERAL OF EAST-CENTRAL STATE; CHIEF OTAPO vs. CHIEF SUNMONU (SUPRA); BUSARI vs. OSENI (1992) 4 NWLR (Pt. 237) 557.” Per DENTON-WEST, JCA (Pp. 42-44, paras. D-A)
See also the following cases:
Omokayode & Ors vs. Lawal (2011) LPELR-9268 (CA) per Ikyegh, JCA (Pp. 29 – 31, Paras D – A), Mobil Producing (Nig) Un-Ltd vs. KOFA & Ors (2018) LPELR-46709 (CA) per Obaseki-Adejemo, JCA (Pp. 11 – 13, Paras C – D).
The requirements of the law to bring an action in a representative capacity are:-
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(i) There must be numerous persons interested in the case, or the side to be represented,
(ii) All those interested must have the same interest in the suit, i.e, their interest must be joint and several,
(iii) All of them must have the same grievance
(iv) The proposed representative must be one of them, and
(v) The relief sought must in its nature be beneficial to all the persons being represented.
See the case of Alh. (Hon) Ishola Lawal v. AG. Kwara State & Anor (supra) per Denton West, JCA (page 42, Paras A – D).
The Appellant’s statement of claim contains all these requirements.
In its judgment, the trial Court at page 172 lines 21 – 24, and page 174 lines 1 – 2 stated:
“On the side of locus standi, while I agree with the learned Counsel to the claimants that the 8 claimants have locus standi to sue and have established sufficient interest by the fact (sic) before the Court to institute the suit in their individual capacities, I do not agree with him as regards them suing on behalf of the Marghi people of Uba Emirate. I do not see sufficient authorization by Marghi people of Uba Emirate for them
46
to sue on their behalf.”
Now, there is no process on record indicating the resistance of any person from the Marghi people of not having consented to the Appellants suing on their behalf. The basis of the trial Court’s statement that it does not agree with the Appellants having sued on behalf of the Marghi people of Uba Emirate is unfounded. The Court appears to me to have acted on speculation, and this to me appears to be a betrayal of the trial Judge’s ignorance of the law that Courts of law are precluded from acting on speculation; and that suspicion no matter how strong cannot take the place of legal proof.
In the 1st Respondent’s brief of argument, it is contended that the Appellants obtained no leave to sue in a representative capacity; and reliance placed on Order 17 Rule 13(1)(d) of the Borno State High Court (Civil Procedure) Rules 2017 for this contention.
I am unable to see the relevance of Order 17 Rule (13)(1)(d) of Borno State High Court (Civil Procedure) Rules 2017 to counsel’s submission, or the provision for requirement of leave to be sought and had for a representative action to be filed. However,
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Order 17 Rule 12(1) of the said Rules provides:
“Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.”
This provision is unambiguous and must be interpreted and understood in its simple and ordinary language.
The foregoing takes me to the conclusion, that Appellants’ action was rightly commenced in a representative capacity.
I shall proceed to consider the question of Appellants’ locus standi to institute the action.
I had earlier referred to and reproduced the trial Judges finding/holding on Appellants’ locus standi. See page 172 lines 20 – 24 of the record of appeal. Therein, the trial Judge found that he agreed with the Appellants’ Counsel that the 8 claimants have the locus standi to sue and have established sufficient interest by the facts before the Court to institute the suit in their individual capacities. What the trial Court did not agree with is the authorization to sue on behalf of Marghi people of Uba Emirate which is the appellants’ complaint in ground two of
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the grounds of appeal. Sensu stricto, it must be appreciated that there is no dispute as to the Appellants’ locus standi to maintain the action from the judgment of the trial Court. Since the trial Court clearly stated in its judgment that the Appellants have the locus standi to sue and have established sufficient interest by the facts before the Court to institute the suit in their individual capacities, the Respondents cannot contend in this appeal that the Appellants lack the locus to institute the action without filing a cross – appeal. Having not filed a cross-appeal their argument must only be limited to the Appellants’ authorization to sue in a representative capacity which is the fulcrum of the Appellants’ complaints in grounds 1, 2 and 4 of the grounds of appeal.
Therefore, the Respondents submission tending to convince this Court that the Appellants lack the locus standi to institute the action lack the pedestal on which to stand and must be discountenanced.
On the whole, I can reach no conclusion other than that issue two is resolved in favour of the Appellants and against the Respondents.
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However, the resolution of issue one in favour of the Respondents determines this appeal in their favour.
The crux of my finding on issue one is that the trial Court lacked the jurisdiction to entertain the Appellants’ action, since as at the time it was filed the bill, they challenged in the said Bill had not crystallized into a law capable of being challenged in Court. Jurisdiction is the livewire of any action and where it is lacking, the Court cannot proceed with the case because any order made is void and invalid. My learned brother Tsamani, JCA was more detailed and elaborate on the importance of jurisdiction and effect where a Court lacks jurisdiction over a matter, when he held in the case of theGovernor of Oyo State & Ors vs. The Registered Trustees of Boys Scout of Nigeria (2020) LPELR-50279 (CA) thus:
“It should be noted that jurisdiction has been held to be the foundation upon which any adjudication can be built or predicated. Jurisdiction is the blood upon which every judicial proceeding thrives, so drained of jurisdiction no suit, action or proceeding can survive. Jurisdiction has been described as the threshold and livewire that
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determines the authority of a Court of law or other Tribunal to entertain a suit before it. Without jurisdiction, no Court will have the power or authority to hear and determine any cause or matter brought to it for adjudication. See Ehirim v. I.S.I.F.C. (2008) 15 NWLR (Pt.1111) 443 at 482 paragraphs D – E, Registered Trustees of Importers Association of Nigeria & Ors v. Dr. Emmanuel Okereke (OON); A.G. Kwara State & Anor v. Adeyemo & Ors (2017) NWLR (Pt.1546) 210 and Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & Ors (2010) LPELR – 40142 (SC). Thus, in Tiza & Anor v. Begha (2005) LPELR – 3251 (SC), Musdapher, JSC (as he then was) held that: “It is now settled law that the jurisdiction of a Court to adjudicate on a matter is a threshold issue. Consequently, without the necessary jurisdiction, a Court cannot make any valid order….” Per TSAMMANI, JCA (Pp. 29-30, para E).
The end result is that there is no merit in this appeal. Accordingly, it is hereby dismissed. In consequence, the ruling of the trial Court delivered by Hon. Justice Musa M. Benisheikh on 28th February, 2019 is hereby
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affirmed.
No order as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the lead Judgement of my learned brother, Abundaga, J.C.A.
His lordship has dealt meticulously with the issues in the Motion on notice and the Notice of preliminary objection filed by the 1st and 2nd Respondents which have in the main, contested the jurisdiction of the Court to entertain this Appeal and the competence of the suit brought by means of a representative action. Suffice it to say that I agree with his findings thereon and find no reason to re-hash them here.
I only wish to say a few words in respect of issue one considered in the substantive Appeal, which is whether the learned trial Judge was right when he held that the lower Court had no jurisdiction to entertain the Appellant’s suit.
It goes without saying that the jurisdiction of all Courts is as provided by the Constitution and/or other relevant legislation. Jurisdiction is a question of law and a necessary requirement in all proceedings. Therefore, whenever the jurisdiction of a Court is challenged, the law is that it is the plaintiff’s claim which determines
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the issue. Consequently, when an issue of jurisdiction is raised, the claim of the plaintiff must be examined to see if it comes within the jurisdiction conferred on the Court by the relevant Statute – AG Lagos State V AG Federation (2014) LPELR-22701(SC) 45, A-E, Muhammad, JSC; Amadi V INEC (2012) 2 SC (Pt. 1) 1.
The Plaintiff’s claim before the lower Court sought inter alia as follows:
1. “A declaration that an amendment of Section 4(1) of the appointment of Emir of Uba Order 1997 by the 2nd defendant as contained in the Appointment of the Emir of Uba Order 1999 (Amendment) Bill, 2008, is illegal, null and void same being an infringement of the eligibility rights of the claimants to contest the vacant stool of the Emir of Uba, and an affront on the norms and traditions of the people of the Emirate.
2. An Order that the Appointment of the Emir of Uba Order, 1997 (Amendment) Bill, 2018 is illegal, null and void.
3. An Order of injunction restraining the 1st Defendant from appending his signature or assent to make the Bill into Law.
4. An Order of injunction restraining the 2nd Defendant from overriding the 1st Defendant in
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passing into Law the Appointment of Emir of Uba Order 1997 (Amendment) Bill 2018.” (Emphasis supplied)
From a literal construction of this claim, it is manifest that the Appellants were seeking the intervention of the lower Court in the processes embarked upon towards the making of a legislation, or towards the passing of a Bill into Law. The Appellants hinged their right to do so on the provision of Section 4(8) of the 1999 Constitution, which provides –
(8) “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a Court of law or of a judicial tribunal established by law.”
By this provision, it is now settled law that while the passage of a law, (as opposed to a Bill), by the National Assembly or a House of Assembly shall be subject to the jurisdiction the Courts, the internal processes undertaken towards the
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passage of the Bill (before it becomes Law) as set out in Section 100(1), (2), (3) and (4) of the Constitution (supra), cannot be interfered with by the Court. Thus, until the exercise of the legislative powers of the House of Assembly of Borno State (in the instant case) is completed and becomes Law, the legislative procedures/processes cannot be the subject of litigation. Thus, the Court has no jurisdiction to interfere with the exercise of its legislative function. In the instant case, the Appellants filed this suit and sought to challenge the Bill while it was still going through the legislative processes and before same was concluded and it became Law.
This was the decision of the Supreme Court in Unongo V Aku (1983) LPELR-3422(SC) 38-40. Therein, Bello, JSC (as he then was) articulated the doctrine of separation of powers as stated in the 1979 Constitution, and in particular, pronounced on the Legislative powers as contained in Section 4(8) of the 1979 Constitution which is in pari materia with the same provision in the 1999 Constitution thus:
“Now the principle of separation of powers of the Federal Republic of Nigeria was well
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entrenched in our Constitution which under Section 4 vests the legislative powers of the Federation in the National Assembly and under Section 6 vests the judicial powers of the Federation in the Courts specified therein…
The Court has had occasion to consider the scope of the first limb of Section 4(8) of the Constitution in Attorney-General of Bendel State V Attorney-General of the Federation & 22 Ors (1982) 3 NCLR 1 at p. 40 wherein Fatai-Williams, CJN as he was then said:
“By virtue of the provisions of Section 4(8) of the Constitution, the Courts of law in Nigeria have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is infraction, the Courts will declare any legislation passed pursuant to it unconstitutional and invalid.”
I may, for the purpose of emphasis, reiterate the opinion I expressed in that case to the effect that the Courts ought not to entertain and must not entertain their jurisdiction under Section 4(8) over the conduct of the internal
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proceedings of the National Assembly unless the Constitution makes provisions to that effect.” (Emphasis supplied)
See also the decisions in AG Bendel State V AG Federation (1981) LPELR-605) SC; and Governor, Ekiti State V Olayemi (2016) LPELR-23477(CA) 53-57, F-A.
Consequently, while by the 1999 Constitution, Courts are vested with power to pronounce on the constitutionality of a Law/Legislation, the Constitution does not vest in Courts the power to pronounce on the internal processes of the Legislature towards the making of a Bill and the subsequent passing of the Bill into Law. For the sake of emphasis, unless and until a Bill is passed into Law, a Court making a pronouncement on the processes in between would be breaching or violating the doctrine of separation of powers and also Section 4(8) of the Constitution (supra).
It is therefore for this reason and the comprehensive reasons in the lead Judgement, that I find the Appeal devoid of merit. It fails and is dismissed. I abide by the consequential Order made therein.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered
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by my learned brother JAMES GAMBO ABUNDAGA JCA. He has painstakingly dealt with all the issues presented for determination. I have nothing more to add. I also hold that the preliminary objections are without merit and according dismissed. There is also no merit in the substantive appeal. It is hereby dismissed. The judgment of the lower court is hereby affirmed.
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Appearances:
Nankham Ayuba Dammo For Appellant(s)
H. Izge, DSG, Hon. Attorney General’s Chambers Ministry of Justice Maiduguri, Borno State – for the 1st Respondent.
G. M. Chibok, Esq, Deputy Director, Legal Services, Borno State House of Assembly Maiduguri – for the 2nd Respondent. For Respondent(s)
