MADAKI AKINTSE ANGWE v. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA & ORS. (2012)

MADAKI AKINTSE ANGWE v. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA & ORS.

(2012)LCN/5171(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of February, 2012

CA/A/262/05

RATIO

THE POSITION OF THE LAW WHERE A COURT HAS NO JURISDICTION TO HEAR AND DETERMINE A CASE

Jurisdiction is the limit imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of relief sought. And if a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be because jurisdiction is considered to be the nerve centre of adjudication, the blood that gives life to an action in a Court of law in the very same way that blood gives life to the human being. See the following cases:- A.G. Lagos State vs. Dosumu (1989) 3 NWLR Part III Page 552; Daplanlonq vs. Dariye (2007) 8 NWLR Part 1036 Page 332. PER. JIMI OLUKAYODE BADA, J.C.A.

THE DUTY OF THE COURT TO RAISE THE ISSUE OF JURISDICTION SUO MOTO

THE FUNDANENTAL RIGHT to be heard AND EFFECT OF ITS VIOLATION

The right to be heard is fundamental and the breach of which renders a judicial proceeding null and void. See the case of:- – Otapo vs. Sunmonu (1987) 2 NWLR Part 58 Page 587. In the case of Samson Ochonma vs. Asirin Unosi (1965) NMLR Page 321 it was held among others that the Judge was wrong to have based his Judgment on an interpretation of the transaction between the parties therein which neither of them had pleaded or testified to in evidence. PER. JIMI OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

REGINA OBIGELI NWODO Justice of The Court of Appeal of Nigeria

Between

MADAKI AKINTSE ANGWE
(Suing for himself and on behalf of Kwambai Community) Appellant(s)

AND

1. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA
2. THE ATTORNEY GENERAL OF THE FEDEARATION OF NIGERIA
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE GOVERNOR OF TARABA STATE
5. THE TARABA STATE HOUSE OF ASSEMBLY
6. THE ATTORNEY GENERAL OF TARABA STATE
7. THE TARABA STATE INDEPENDENT ELECTORAL COMMISSION Respondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Abuja Court, Abuja FHC/ABJ/CS/271/02 between KWEARUMBEK KWETARY AND ANOTHER V. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & 6 OTHERS delivered on the 18th day of February 2005.
Briefly the facts of the case are that the Appellant who was one of the Plaintiffs before the death of the other plaintiff instituted an action for themselves and on behalf of the Kwambai Community in Takum Local Government Area of Taraba State against the Respondents and they sought for the following reliefs:-
“(1) A Declaration that under the then unrepealed and unsuspended provisions of S. 7(2) (a) & (b) of the 1979 Constitution read together with relevant provisions of the constitution (suspension and Modification) Decree No. 107 of 1993, and the State (Creation and Transitional Provisions) Decree No. 36 of 1996, it was constitutionally mandatory for the then Federal Military Government of Nigeria and/or the then Taraba State Government in prescribing the area over which a Local Government council is to exercise authority to, inter-alia;
(a) Define such area as clearly as practicable;
(b) Ensure, to a reasonably justifiable extent that in defining such area, regard is paid to:
(i) Common interest of the people in the area;
(ii) Traditional association of the community; and
(iii) Administrative convenience including contiguity.
(2) A Declaration that the composition of the area constituting the area of authority of Ussa Local Government Council in Taraba State by the Federal Government as conveyed to the Military Administrator of Taraba State by Federal Government Circular with Reference GHQ/228/PM dated 12th March, 1997 compiled or conformed with the aforestated mandatory provisions of S. 7(2) of the 1979 Constitution in so far as or to the extent that it did not place Kwambai Local Community in Ussa Local Government Area but left them in Takum Local Government Area while a subsequent Circular also with Reference No. GHQ/228/PM dated 28th April, 1998 on the same subject matter did not in so far as or to the extent that it placed Kwambai Community in Ussa Local Government Area instead of in Takum Local Government Area and is therefore illegal, unconstitutional null and void and of no effect whatsoever for contravening the aforementioned mandatory provisions of Section 7(2) (a) & (b) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993.
(3) A Declaration in the premises that KWAMBAI COMMUNITY is part of and belongs to TAKUM LOCAL GOVERNMENT AREA of Taraba State as conveyed by the aforementioned Circular of 12th March, 1997 and not Ussa Local Government Area of Taraba State as wrongly conveyed by the aforementioned Circular of 28th April, 1997.
(4) An Order in the foregoing premises, directing the Defendants, more particularly the 3rd-7th Defendants to allow and facilitate the exercise by the Plaintiff and the community they represent of their constitutional right to be registered to vote and be voted for in TAKUM Local Government Area of Taraba State instead of Ussa Local Government Area of Taraba State in all elections conducted or to be conducted by the 3rd and 7th Defendants into all elective offices in the Federal Republic of Nigeria.
(5) An Order directing the Defendants, their agents, functionaries, servants, officials or privies to henceforth regard and treat Kwambai Community as an integral part and parcel of Takum Local Government Area of Taraba State for all intends and purposes.
(6) An Injunction restraining the Defendants, all officers, servants, agents, privies and functionaries of the Defendants whosoever and howsoever otherwise from placing or treating the Kwambai Community in all respects and for all purposes of governance as if they belong to or are a part of Ussa Local Government Area of Taraba State instead of Takum Local Government Area of Taraba State where they validly and constitutionally belong.”
At the conclusion of hearing the trial Judge in a considered Judgment struck out the case on the ground that it had no jurisdiction to entertain the case.
Dissatisfied with the said Judgment, the Appellant now appealed to this Court.
The learned Counsel for the Appellant formulated three issues for the determination of the appeal. The issues are hereby set out as follows:-
“(1) Whether the lower Court was right when it raised the issue of jurisdiction suo motu without calling on the parties to address it (Ground 1).
(2) Whether the lower Court had jurisdiction to entertain the case. (Grounds 2, 3 and 4).
(3) Whether from evidence before the Court the Appellant had proved their case (Ground 5).”
The Respondents did not file any brief of argument and the appeal was taken based on the Appellant’s brief of argument alone.
ISSUE NO. 1
The learned Counsel for the Appellant submitted that the lower Court was in grave error when it raised the issue of jurisdiction suo motu and proceeded to base its Judgment on it. He argued that the case was tried by pleadings and none of the parties raised the issue of jurisdiction of the Court.
He submitted that pleadings does not only bind the parties but also the Court. He relied on the case of: Awara vs. Lalibo (2002) 12 SCNJ Page 62.
He went further in his submission that a Court of law has the power to raise an issue suo motu in respect of matters before it but that such powers must be exercised judiciously and judicially. He relied on the following cases:-
– ACB vs. Crestline Services Ltd (1991) 6 NWLR Part 197 Page 310 at 312;
– Commissioner for Works Benue State vs. Devcom Ltd (1988) 3 NWLR Part 83 Paqe 407;
– Korede vs. Adedokun (2001) 15 NWLR Part 736 Page 483.
The learned Counsel for the Appellant submitted further that even where a Court decides to exercise its power of raising an issue suo motu, the law requires that the parties in the case should be called upon to address the Court. He relied on the following cases:-
– Maiyaki vs. Maidoya (1988) 3 NWLR Part 81 Page 226;
– Brown vs. Adebanjo (1986) 1 NWLR Part 16 Page 383;
– Adejumo vs. Hughes & Co Ltd. (1989) 5 NWLR Part 120 Page 146.
He also submitted that there was nowhere in the proceedings where the trial Court raised the issue of jurisdiction and called upon the parties to address it.
The issue under consideration is whether the lower Court was right when it raised the issue of jurisdiction suo motu without calling upon the parties to address the Court.
Jurisdiction is the limit imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of relief sought. And if a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be because jurisdiction is considered to be the nerve centre of adjudication, the blood that gives life to an action in a Court of law in the very same way that blood gives life to the human being.
See the following cases:-
– A.G. Lagos State vs. Dosumu (1989) 3 NWLR Part III Page 552;
– Daplanlonq vs. Dariye (2007) 8 NWLR Part 1036 Page 332.

There is no doubt that a Court can raise the issue of jurisdiction suo motu so long as the parties are accorded the opportunity to react to the issues by addressing the Court. See the following cases:-
– Amadi vs. NNPG (2000) 6 S.C. Part 1 Page 66:
– Galadima vs. Tambai (2000) 6 S. C. Part 1 Page 196 at 207.
In the instant case under consideration the trial Court at page 140 line 25-26 of the record stated that it raised the issue of jurisdiction and called on Counsel to address it.
I have meticulously gone through the record of appeal in this matter and there was no where the trial Court raised the issue of jurisdiction and called upon the parties to address it.
The learned trial Judge lacked the jurisdiction to raise an issue suo motu and proceed to make pronouncement on same without giving the parties an opportunity of being heard on the matter. See the case of:-
Fulani vs. Idi (1990) 5 NWLR Part 150 at Page 311;
Consequent upon the foregoing it is my view that what the learned trial Judge did was clearly a denial of fair hearing to the parties when he raised the issue of jurisdiction and he did not allow the parties to address the Court on the issue. The action of the trial Court has in my view occasioned a miscarriage of Justice.
The right to be heard is fundamental and the breach of which renders a judicial proceeding null and void. See the case of:-
– Otapo vs. Sunmonu (1987) 2 NWLR Part 58 Page 587.
In the case of Samson Ochonma vs. Asirin Unosi (1965) NMLR Page 321 it was held among others that the Judge was wrong to have based his Judgment on an interpretation of the transaction between the parties therein which neither of them had pleaded or testified to in evidence.
I am of the view that the lower Court was wrong when it raised the issue of Jurisdiction suo motu without allowing the parties in particular the Appellants in this case to address the Court on the said issue.
This issue No. 1 is therefore resolved in favour of the Appellant.
Concerning Issues 2 and 3, it my view that it would be necessary for the lower Court to give its opinion before this Court can delve into the said issues.
In the final analysis, it is my view that there is merit in the appeal and it is allowed by me.
The decision of the trial Court is hereby set aside and the case is remitted to the Hon. Chief Judge of the Federal High Court for trial on the merit by another Judge.
There shall be no order as to cost.

EJEMBI EKO, J.C.A.: Fair hearing, i.e. audi alteram partem, is the only life issue in this appeal. The issue is whether the trial court can suo motu raise an issue and resolve it to the detriment or in favour of either party without affording them an opportunity to be heard on the issue so crucial to the determination of the suit. The Judge, in his adjudicatory function, has powers to raise any issue suo motu that he considers germane to the just determination of the dispute. However, whenever he raises such an issue suo motu he owes the parties a duty to elicit their comments on that issue.
Section 35(1) of the 1999 Constitution is very clear; in the determination of his civil rights and obligations, a person is entitled to fair hearing within a reasonable time by a court of law constituted in such manner as to secure its independence and impartiality. The provision, insisting on the impartiality of the court of law, ensures that the Judge or court of law does not descend into the arena of dispute and act to the detriment of any of the parties without giving him or the parties before him an opportunity to be heard on any issue he or the court had raised suo motu.
The foregoing and the fuller reasons in the judgment of my learned brother, JIMI O. BADA, JCA, which judgment I hereby adopt, I also allow the appeal and set aside the judgment of the Federal High Court, Abuja in the suit No FHC/ABJ/CS/271/2002 delivered ON 18TH February, 2005. I also adopt all the consequential orders made by my learned brother in the lead judgment.

REGINA OBIAGELI NWODO, J.C.A.: I have read in draft the judgment of my learned brother, BADA JCA just delivered. I agree with the reasoning contained therein which I adopt as mine and his conclusion that there is merit in this appeal. The trial court has the power to raise an issue suo motu but once he raises the issue the parties must be given the opportunity to address the court on the point.
I therefore, allow the appeal and abide by the consequential order made in the lead judgment.

Appearances

MR. ROTIMI OGUNESO with him is Mr. Kunmi-Olayiwola for the AppellantFor Appellant

AND

No Legal Representation for the RespondentsFor Respondent