MR. PATRICK DOMINIC OKON v. THE AKWA IBOM SECTOR COMMANDER, FEDERAL ROAD SAFETY COMMISSION UYO & ANOR (2017)

MR. PATRICK DOMINIC OKON v. THE AKWA IBOM SECTOR COMMANDER, FEDERAL ROAD SAFETY COMMISSION UYO & ANOR

(2017)LCN/10189(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of July, 2017

CA/C/94/2011

RATIO

JURISDICTION OF THE FEDERAL HIGH COURT: WHETHER THE JURISDICTION OF THE FEDERAL HIGH COURT IS CIRCUMSCRIBED BY THE PROVISIONS OF SECTION 251

It is trite, that the Federal High Court is a creation of the Constitution of the Federal Republic of Nigeria, 1999, as amended [See Section 249]. Invariably, the jurisdiction of the Federal High Court is circumscribed and limited by the far-reaching provisions of Section 251 of the said Constitution, as amended by Section 27 of the Constitution of the Federal Republic of Nigeria First Alteration] Act, 2010.

It should be reiterated, for the avoidance of any lingering doubt, that the jurisdiction of the Federal High Court is limited to the extent of the matters arising from any of the enumerated provisions under Section 251 of the 1999 Constitution (supra). See ADETONA VS. IGELE GENERAL ENT. LTD. (2011) All FWLR (pt. 569) 1025 @ 1052 paragraphs E _ D; OSUNDE VS. BABA (2015) All FWLR (pt. 781) 1482 @ 1502 paragraphs F – G and 1502 paragraphs F _ G. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

FUNDAMENTAL HUMAN RIGHTS AND ENFORCEMENT: THE DUTY OF THE COURT WHEN FACED WITH A FUNDAMENTAL HUMAN RIGHTS ENFORCEMENT ACTION

In the case of SEATRUCKS NIGERIA LTD Vs. ANIGBORO (2001) FWLR (Pt. 37) 1751, the Apex Court reiterated, that regardless of how eloquent a party categorises his complaint to resemble enforcement of fundamental right, the Court has an onerous responsibility to critically albeit dispassionately, examine the reliefs sought, the grounds upon which they are predicated, and the circumstances surrounding the claim with a view to making sure as to whether or not the matter is a fundamental rights enforcement one or merely ancillary or incidental thereto. See TUKUR VS. GOVT of TARABA STATE (1997) NWLR (Pt. 510); EGBUONU VS. BORNU TV. CORP. (1997) 12 NWLR (Pt. 200) 708 @ 717. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

COMMENCEMENT OF ACTION AGAINST THE FEDERAL ROAD SAFETY COMMISSION: THE POSITION OF THE LAW ON THE COMMENCEMENT OF ACTION AGAINST THE FEDERAL ROAD SAFETY COMMISSION

What’s more, by virtue of the provisions of Section 1(1) of the Federal Road Safety Commission Act, 2007 (supra), the commission shall be sued in the corporate name thereof. Ironically, however, the 1st Respondent is not a legal person known to law capable of being sued.

An issue has equally been joined by the parties regarding the requirement of the pre-action notice, and the Appellant’s failure to give such notice prior to instituting the action. Under Section 16(1) of the Federal Road Safety Commission (Establishment) Act, 2007, its provided thus:

No suit shall be commenced against the commission on or before the expiration of one month after written notice of intention to commence the suit shall have been served upon the commission or the corps by the intending plaintiff or his agent and the notice shall clearly and explicitly state:

a) The cause of action;

b) The particulars of the claim;

c) The name and place of abode of the intending plaintiff; and

d) The relief which he claims. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

PRE-ACTION NOTICE: THE EFFECT OF NON-COMPLIANCE WITH THE REQUIREMENT OF PRE-ACTION NOTICE

It must be reiterated that the requirement of the pre-action notice is mandatory. Thus failure to give such notice as required by law renders the action incompetent, and a nullity. See NDANJO vs. BENUE STATE GOVT. [2002] FWLR [Pt. 122] 158. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

RIGHT TO FAIR HEARING: THE PRINCIPLE OF FAIR HEARING

This audi alteram partem principle as guaranteed under Section 36(1) of the 1999 Constitution remains a binding and indispensable requirement of justice applicable to and enforceable by all Courts of law. The principle affords both sides to a dispute ample opportunity of presenting their case to enable the enthronement of justice and fairness, In the application of the principle, a hearing is said to be fair and in compliance with the dictates of the Constitute when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. ff one of the parties is refused or denied a hearing or the opportunity of being heard, the Court proceedings being perverse will be set aside on appeal.

See also ADIGUN vs. AG, OYO STATE [1977] 1 NWLR [pt. 53] 674 @ 707; GARBA v. UNIMAID [1987] 1 NSCC 255.

The foregoing authorities are to the resolute effect, that where there is a failure to accord hearing to all or any of the necessary parties to the dispute prior to the determination thereof, there is a fundamental breach of the provisions of Section 36(1) of the 1999 Constitution, as amended, thus, automatically rendering the entire proceedings in the case a nullity, void and of no effect whatsoever.

Most cherishingly, in ADIGUN vs. AG, OYO STATE [supra], the Apex Court aptly went to the extent of entrenching a divine flavour to the right of fair hearing:

Even God gave Adam an oral hearing despite the evidence supplied by his act of covering his nakedness before the case against his continued stay in the Garden[s] of Eden was determined against him… Once an appellant shows that there is an infringement of the principle of natural justice against him, it is my view that he need show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy.

Per Kayode, JSC, [of blessedly remarkable memory] @ 721- 722 paragraphs H – B.

With utmost deference to the foremost erudite jurist, this Court deemed it expedient not too long ago to further trace the genesis of the well cherished fundamental doctrine of fair hearing to the creation of our progenitor, Adam. Indeed, it is trite, that the Almighty, in His infinite wisdom created Adam and whereupon He commanded the Angels nay Satan to bow to Adam:

It is trite, that all the Angels [promptly] obeyed God’s command and duly prostrated to Adam except the Satan. God then queried:

Satan, why did thou refuse to bow to Adam when I commanded thee? To which Satan most pridefully, retorted: Oh, My Lord, I refused to bow to Adam because I am better than him. You created me out of fire, while you created him out of dust. Thus, even Satan was accorded an oral hearing before the Almighty God cursed him to eternity. See JEGEDE vs. POROYE [2016] LPELR – 41292 [CA] per Saulawa, JCA @ 48. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

COURT PROCEEDINGS: THE POSITION OF THE LAW AT INSTANCES WHERE THE COURT WANTS TO DETERMINE A TECHNICAL POINT RAISED SUO MOTU

Now, regarding the allegation of breach of the right of fair hearing of the Appellant, I would want to reiterate the trite fundamental doctrine, that prior to determining a technical point raised suo motu, the Court has an obligation to invite the parties to address it thereon. In the locus classicus on the issue, the Supreme Court had, five decades ago, laid the fundamental general principle thus:

It is most desirable that if a Court considers after hearing argument of counsel that a matter before it can in fact be decided on a technical point on which it has not been addressed by counsel, then the judge should have the matter re-opened and give counsel on each side the opportunity to address on the point which he thinks may decide the matter before he gives judgment in regard to it. It is only after so acting that a Court should adjudicate on a technical point taken by the Court itself, particularly when the defect, if there was one, could be cured if the Court in its discretion, give leave to amend.

See COLE VS. MARTINS [1968] 1 ALL NLR PER Lewis, JSC @ 161-162. See also THE REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA vs. AKINDELE [1967] NMLR 263; AG, ONDO STATE VS. TENE & ORS [2015] LPELR 25730 – CA/B/135/2008, per Saulawa, JCA @ 70 – 71 paragraphs D – B; UNITY BANK PLC VS. ABOLA [2008] 42 WRN 112; OKAFOR VS. NWEKE [2007] 19 WRN 1; [2007] 10 NWLR [pt. 1043] 521; [2007] ALL FWLR (Pt. 368) 1016. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

MR. PATRICK DOMINIC OKON Appellant(s)

AND

1. THE AKWA IBOM SECTOR COMMANDER, FEDERAL ROAD SAFETY COMMISSION UYO.
2. THE COMMISSIONER OF POLICE, AKWA IBOM STATE. Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is consequent upon the judgment of the Federal High Court, Uyo, delivered on March 24, 2011 in suit No. FHC/UY/CS/56/2010. By the said judgment, the Court below Coram A. I. Chikere, declined jurisdiction to entertain the suit and thus struck out same.

BACKGROUND FACTS
The facts and circumstances surrounding the appeal are gleanable from the records of appeal, transmitted to this Court on May 13, 2011. On April 23, 2010 the Appellant filed an originating motion on Notice in the Court below thereby seeking to enforce the fundamental rights thereof pursuant to Order 2 Rules 1 & 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, Sections 34 (1) (a), 35, 36, 41, 44, 45 and 46 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The reliefs sought in the application are to the effect thus:
?(a) A declaration as wrongful and a breach of the fundamental right, of the 1st Respondent and or his agents, assigns, privies, officers, servants or representatives to subject the Applicant to torture and or inhuman

degrading treatment by assaulting and dragging him along on the public highway at Aka-Itiam Road, Uyo.
(b) A declaration as wrongful and a breach of the fundamental rights of the Applicant for the 1st Respondent and or his agents, assign, privies, officers, servants or representatives to arrest the apprehension about any wrong doing at Aka-Itiam Road, Uyo on 1/4/2010 and causing the Applicant to be detained at the 2nd Respondent’s cell at ‘C’ Division police Station, Aka in Uyo for 3 days from 1/4/2010-3/4/2010 without bail or charge thereto;
(c) A declaration as wrongful, oppressive and or illegal and a breach of the Applicant’s rights for the 1st respondent whether acting by himself and or through the agency of his assigns, servants, officers or privies or representatives to take from seize, detain or impound the Applicant’s Toyota Hiace Bus No. XC 964 AGU and refusing to release same without any reasonable cause even upon his plea for same from 1/4/2010.
(d) An Order of Court for:
(i) The 1st Respondent to release the Applicant’s Toyota Bus No. XC 964 AGU to the Applicant together with his Driving License, Original Copies of his

vehicle particulars and Nokia phone;
(ii) The payment of N5,000.00 (Five Thousand Naira) by the 1st Respondent to the Applicant for each day of detaining the said vehicle from 1/4/2010 until it is released and a written apology.
(e) The payment of N1 Million damages and or as compensation by the 1st Respondent to the Applicant for the loss, injury and embarrassment thereby caused to the Applicant;
(f) A perpetual injunction restraining the Respondents whether acting by themselves and or through their agents, assigns, officers, privies or representatives howsoever from further breaching the fundamental rights of the Applicant in the manner and circumstances of this case.

The application is predicated upon a total of nine grounds, and a 13 paragraphed affidavit deposed to personally by the Appellant. The application proceeded to hearing. Eventually on March 24, 2011, the Court below delivered the long awaited judgment to the conclusive effect thus:
The Federal High Court cannot try an issue of Fundamental right as such. Such a determination can only be tried to a particular subject matter. In the present case, the particular subject

matter and principal issue is the assault on the Applicant and the seizure of his Toyota Hiace Bus No. XC 964 AGU. There is no way the Applicant’s fundamental rights can be enforced without a determination as to how the rights were infringed with respect to the assault and seizure of the Toyota Hiace Bus.
The Applicant’s Claim for an Order for the prosecution of the Respondents is a relief the Federal High Court has no jurisdiction to entertain. It is only the High Court of Akwa Ibom State that has jurisdiction to grant the relief.
I must state that the fact that state judiciary is on strike, does not expand the jurisdiction of the Federal High Court to determine subject matter outside Section 251 of the 1999 Constitution.
Consequent upon the authorities cited and decisions of my Lords of the Apex Court which decision is binding on this Court. I hold that this Court has no jurisdiction to entertain Suit.
Having declined jurisdiction in basis of subject matter of litigation it will be an exercise in futility to deal with Issue of Pre-Action Notice. I so hold. Accordingly, Suit is struck out for lack of jurisdiction.
?
A notice of appeal

predicated upon two grounds was filed same day the judgment was delivered. see pages 128-129 of the Record. The Appellant’s brief and Reply brief were filed on July 1, 2011 and September 1, 2011 respectively. The 1st Respondents’ brief was filed on August 8, 2011.

At page 3 of the brief thereof, the Appellant raises two issues for determination, viz:
3.1. Whether the Learned Trial Judge did not err in law by concluding the trial upon the holding that the Federal High Court, Uyo had no jurisdiction to entertain the subject -matter of the Appellant’s suit.
3.2. Whether the proceedings in the Appellant’s action as was conducted by the learned judge of the Federal High Court, Uyo, was consistent with the provision of fair hearing as contemplated by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.

The first issue has been argued at pages 3-8 of the said brief, to the effect that the Court below has erred in law upon holding that it had no jurisdiction to entertain the suit.
?
It was submitted, that the three factors necessary to determine the Issue of jurisdiction have been satisfied in the Instant case by the

Appellant. That the claim of the Appellant fell within the jurisdiction of the Court below, the suit was properly commenced, and there was no feature therein that ousted the jurisdiction of the Court below. See ADEYEMI VS. OPEYORI (1976) 1 FNR 149 @ 150; MADUKOLU VS. NKEMDILIM (1962) 2 All NLR 581; DANTATA Vs. MOHAMMED (2009) All FWLR (Pt. 21) 889 @ 923 E-H.

It is contended, that by the combined effect of Section 46 of the 1999 Constitution and Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Fundamental Rights Rules, the action could be entertained by any High Court in a State, either a state High Court or Federal High Court. Allegedly, the proviso to both Order 2 Rule 1 (supra) as well as Section 251 of the 1999 Constitution rather arrogate the enforcement of Fundamental Rights of any person against the Federal Government or any of its agency to the Federal High Court. See ADEBILEJE Vs. NEPA (1998) 12 NWLR (Pt. 200?) 219 @ 227; GRACE JACK Vs. UNIVERSITY OF AGRIC MAKURDI (2004) AII FWLR (pt. 200)? 1506 @ 1508-1511; NEPA Vs. EDEGBERO (2003) FWLR (Pt. 139) 1556 @ 1569 B-F.

The Court is urged to allow the appeal on issue 1.

?The

Issue No. 2 is canvassed at pages 8-13 of the brief, to the effect that the point made by the Court below, at page 124 paragraph 4 of the Record, was extremely biased and unfair to the Appellant. The Court below went beyond the plaintiffs’ claim, and hence fell into the error of holding that it had no jurisdiction. See OSUJI vs. EKEOCHA (2009 ) 177 LRCN 134 @ 195 paragraph F; GBADAMOSI VS. DAIRO (2007) 145 LRCN 508 @ 523 paragraph Z.

Further contended, that the judgment (delivered on 24/3/2011) was in breach of Section 294(1) of the 1999 Constitution, and led to a miscarriage of justice to the Appellant. See IFEZUE vs. MBADUGHA (1984) All NLR 246; EKERI vs. KIMISEDE (1979) 1 NMLR 194, et al.

Conclusively, it’s postulated, that being an action pursuant to the fundamental rights enforcement process, the Court below ought to have justified the Appellant’s confidence of his right of access to Court. See AKULEGA Vs. BENUE STATE CIVIL SERVICE COMMISSION (2001) 12 NWLR (Pt. 728) 524 @ 571 B-C.

The Court is urged to so hold, and allow the appeal.

The provision of Section 16 of the Court of Appeal Act has been invoked urging upon the Court to deal with

the action as the Court of first instance upon the facts on record, and grant the relief which the Appellant may deserve. See ANYANRU VS. MANDILAS LTD. (2007) 147 LRCN 1036 @ 1050 paragraphs UZ.

Conclusively, it’s urged that the appeal be allowed, the judgment or the Court below nullified, and appropriate judgment granting the relief claimed by the Appellant, be entered.

Contrariwise, the 1st Respondent’s brief was filed on August 8, 2011. At page 4 thereof, two issues have been couched , viz
i. Whether the lower Court has jurisdiction to entertain the suit.
ii. Whether the proceedings at the lower Court was consistent with principle of fair hearing.

The issue one is canvassed at pages 4-6 of the brief, to the effect that the ‘bitter truth’ is that the Court below has no jurisdiction to entertain the suit, considering the facts and circumstances thereof.
?
It’s submitted, that this matter does not fall within the ambit of fundamental human rights procedure cases. The reason being that it’s only traffic offences committed by the Appellant by virtue of Section 10(4) (a), 10(4)(f), and 10(4) (z) of the Road Safety Commission

[Establishment] Act, 2007 and Section 114 (1) and (2) of the National Road Traffic Regulation, 2004.

Further submitted, that Section 251 of the 1999 Constitution (supra) does not make any provision in respect of the real subject matter of the suit. See SEATRUCK NIG. LTD VS. ANIGBORO (2001) FWLR (pt. 37) 175 @ 181.

It is contended, that the is Respondent is not a legal person known to law in Nigeria, thus it’s not a proper person in this matter. See Section 1(1) of the FRSC (Establishment) Act, 2007, stipulating that the FRSC shall be sued in its corporate name.

Further contended, that for failure to serve a pre-action notice, the Court below lacks jurisdiction to entertain the suit. See Section 16(1) of FRSC (Establishment) Act, 2007; NDANJO VS. BENUE STATE GOVT (2002) FWLR (Pt. 122) 158.

The Court is urged to resolve the first issue in favour of the Respondents.

Issue No. 2, is canvassed at pages 6-7 of the brief, to the effect that the proceedings of the Court below was in tandem with the principle of fair hearing and relevant laws.

Submitted that there are exceptions where it is permissible for a Court to raise an issue suo

motu. The instances include when an issue relates to the Court’s jurisdiction, or where parties have ignored a statute that may have decisive bearing on the case. see COMPTOIR & IND. SPR LTD VS. OGUN STATE WATER CORP. (2002) FWLR (pt. 105) 839; DR. JONATHAN COOKEY VS. MRS. EVANGELINE FOMBO (2005) All FWLR (Pt. 271) 25 sc; Cop vs. Ayi (2005) All FWLR (pt. 256) 679 (CA), et at.

The Court is urged to so hold.

Conclusively, the Court is urged upon to refuse the appeal, award heavy cost against the Appellant in favour of the 1st Respondent, and accordingly affirm the judgment of the court below.

Having accorded an ample regard upon the submissions of the learned counsel contained in their respective briefs vis-a-vis the record of appeal, as a whole, I have no hesitation in adopting the Appellant’s two issues for the determination of the appeal, anon.

ISSUE NO. 1:
The first issue raises the question of whether or not the Court below was right in holding, as it did in the vexed judgment, that it lacked jurisdiction to entertain the instant suit. The said issue is distilled from ground two of the notice of appeal.
?It is trite, that the

Federal High Court is a creation of the Constitution of the Federal Republic of Nigeria, 1999, as amended [See Section 249]. Invariably, the jurisdiction of the Federal High Court is circumscribed and limited by the far-reaching provisions of Section 251 of the said Constitution, as amended by Section 27 of the Constitution of the Federal Republic of Nigeria First Alteration] Act, 2010.
It should be reiterated, for the avoidance of any lingering doubt, that the jurisdiction of the Federal High Court is limited to the extent of the matters arising from any of the enumerated provisions under Section 251 of the 1999 Constitution (supra). See ADETONA VS. IGELE GENERAL ENT. LTD. (2011) All FWLR (pt. 569) 1025 @ 1052 paragraphs E _ D; OSUNDE VS. BABA (2015) All FWLR (pt. 781) 1482 @ 1502 paragraphs F – G and 1502 paragraphs F _ G.
In the instant case, it’s evident from the pleadings that the matter arose from traffic offences allegedly committed by the Appellant by virtue of the provisions of Section 10(4) (ee) 10(4)(e) and 10 (4) (z) (aa) of the Federal Road Safety Commission [Establishment] Act, 2007 and Section 114 (1) and (2) of the National Road

Traffic Regulation, 2007. Arguably, the real subject matter of the case does not come within the purview of the provisions of Section 251, the 1999 Constitution (supra).

parties regarding the requirement of the pre-action notice, and the Appellant’s failure to give such notice prior to instituting the action. Under Section 16(1) of the Federal Road Safety Commission (Establishment) Act, 2007, its provided thus:
No suit shall be commenced against the commission on or before the expiration of one month after written notice of intention to commence the suit shall have been served upon the commission or the corps by the intending plaintiff or his agent and the notice shall clearly and explicitly state:
a) The cause of action;
b) The particulars of the claim;
c) The name and place of abode of the intending plaintiff;
and
d) The relief which he claims;
It must be reiterated that the requirement of the pre-action notice is mandatory. Thus failure to give such notice as required by law renders the action incompetent, and a nullity. See NDANJO vs. BENUE STATE GOVT. [2002] FWLR [Pt. 122] 158.

In the circumstance, the first issue is resolved against the Appellant.

ISSUE NO.2
The second issue is whether or not the proceedings in the Appellant’s action as was conducted by the Court

below was consistent with the provision of fair hearing as contemplated by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.

It is a trite fundamental law, that in the determination of civil rights and obligations thereof, a person is entitled to a fair hearing within a reasonable time. See Section 36(1) of the 1999 Constitution as amended. By virtue of those provisions of Section 36(1) of the 1999 Constitution, as amended, a Court of law of whatever hierarchical standing is precluded from making any adverse decision or order that would affect the substantial interest of a person without according him the right of fair hearing which is amply predicated upon the equitable doctrine of audi alteram partem. See OKADIGBO VS. CHIDI [NO.1] [2015] 10 NWLR [Pt. 1466] 171, wherein the Apex Court aptly held:
This audi alteram partem principle as guaranteed under Section 36(1) of the 1999 Constitution remains a binding and indispensable requirement of justice applicable to and enforceable by all Courts of law. The principle affords both sides to a dispute ample opportunity of presenting their case to enable the enthronement of justice

and fairness, In the application of the principle, a hearing is said to be fair and in compliance with the dictates of the Constitute when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. ff one of the parties is refused or denied a hearing or the opportunity of being heard, the Court proceedings being perverse will be set aside on appeal.
See also ADIGUN vs. AG, OYO STATE [1977] 1 NWLR [pt. 53] 674 @ 707; GARBA v. UNIMAID [1987] 1 NSCC 255.
The foregoing authorities are to the resolute effect, that where there is a failure to accord hearing to all or any of the necessary parties to the dispute prior to the determination thereof, there is a fundamental breach of the provisions of Section 36(1) of the 1999 Constitution, as amended, thus, automatically rendering the entire proceedings in the case a nullity, void and of no effect whatsoever.
Most cherishingly, in ADIGUN vs. AG, OYO STATE [supra], the Apex Court aptly went to the extent of entrenching a divine flavour to the right of fair hearing:
Even God gave Adam an oral hearing despite the evidence supplied by his act of covering his

nakedness before the case against his continued stay in the Garden[s] of Eden was determined against him… Once an appellant shows that there is an infringement of the principle of natural justice against him, it is my view that he need show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy.
Per Kayode, JSC, [of blessedly remarkable memory] @ 721- 722 paragraphs H – B.
With utmost deference to the foremost erudite jurist, this Court deemed it expedient not too long ago to further trace the genesis of the well cherished fundamental doctrine of fair hearing to the creation of our progenitor, Adam. Indeed, it is trite, that the Almighty, in His infinite wisdom created Adam and whereupon He commanded the Angels nay Satan to bow to Adam:
It is trite, that all the Angels [promptly] obeyed God’s command and duly prostrated to Adam except the Satan. God then queried:
Satan, why did thou refuse to bow to Adam when I commanded thee? To which Satan most pridefully, retorted: Oh, My Lord, I refused to bow to Adam because I am better than him. You created me out of

fire, while you created him out of dust. Thus, even Satan was accorded an oral hearing before the Almighty God cursed him to eternity.
See JEGEDE vs. POROYE [2016] LPELR – 41292 [CA] per Saulawa, JCA @ 48.

In the instant case, the crux of the grouse of the Appellant under this issue is traceable to page 124 paragraph 4 lines 16 – of the Record, wherein the Court below held in the course of the vexed judgment, thus:
I must state here that the fact that the State Judiciary is on strike does not expand the jurisdiction of the Federal High Court to determine subject matter outside Section 251 of the 1999 Constitution.

The vehement argument of the Appellant on the issue is that the Court below by raising the issue suo motu, ‘was extremely biased and unfair to the Appellant’.

From the record of appeal, at page 104], the very last time the Court below sat in respect of the trial of this matter was on February 25, 2011. The Court below had it recorded to the effect, inter alia, thus:
Court- Case is adjourned to 15/3/11 for judgment.
B.O. Nnamani to file motion to regularize process within 7 days.
?
Indeed, the vexed judgment

was eventually delivered on March 24, 2011. It is needless to state that the judgment was delivered barely thirty days after final addresses by the respective parties. Thus, by any stretch of imagination, the judgment could not be said to have been delivered outside the 90 days time limit allowed by Section 294(1) of the 1999 Constitution. Thus, I would agree with the Respondent’s submission at page 7 paragraph 5.2 of the brief thereof, to the effect:
The judgment in question was delivered within the time stipulated by law and record of appeal provides a crystal clear evidence on that.

It is trite that parties as well as the Court are bound by the records of proceedings thereof.

of counsel that a matter before it can in fact be decided on a technical point on which it has not been addressed by counsel, then the judge should have the matter re-opened and give counsel on each side the opportunity to address on the point which he thinks may decide the matter before he gives judgment in regard to it. It is only after so acting that a Court should adjudicate on a technical point taken by the Court itself, particularly when the defect, if there was one, could be cured if the Court in its discretion, give leave to amend.
See COLE VS. MARTINS [1968] 1 ALL NLR PER Lewis, JSC @ 161-162. See also THE REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA vs. AKINDELE [1967] NMLR 263; AG, ONDO STATE VS. TENE & ORS [2015] LPELR 25730 – CA/B/135/2008, per Saulawa, JCA @ 70 – 71 paragraphs D – B; UNITY BANK PLC VS. ABOLA [2008] 42 WRN 112; OKAFOR VS. NWEKE [2007] 19 WRN 1; [2007] 10 NWLR [pt. 1043] 521; [2007] ALL FWLR (Pt. 368) 1016.

In the instant case, as cryscally established above, the point in question raised suo motu by the Court below was neither in issue at the trial of the matter nor related to the ratio decidendi of the vexed

judgment appealed against. Thus, the said point raised by the Court below could at best be regarded as an obiter dicta. Indeed, it’s a trite doctrine, that an appeal is usually against the ratio decidendi of the judgment of a lower Court except where the obiter dicta is so unequivocally linked with the ratio decidendi as to be deemed to have radically influenced the ratio decidendi. See SAUDE VS. ABDULLAHI [1989] 4 NWLR [pt. 116] 387 [SC]; OKPEJI Vs. MINISTER OF AGRICULTURE [1997] 9 NWLR [Pt. 522] 693; WEMA BANK Plc vs. BRASTEM STERR NIGERIA LTD. [2010] LPELR 9166 – CA/L/29/05.

Indeed, it’s so obvious from the record, that the issue raised suo motu has not influenced the Court below in arriving at the vexed judgment thereof. And I so hold.

In the circumstances, the second issue is hereby resolved against the Appellant.

Hence, having resolved both issues against the Appellant, the appeal resultantly fails, and it is hereby dismissed by me. The judgment of the Federal High Court Uyo Judicial Division, delivered by the Hon. Justice A.I. Chikere on March 24, 2011, is hereby affirmed.

There shall be no order regarding

costs.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my Learned Brother, Ibrahim Mohammed Musa Saulawa, JCA.

I concur with his reasoning resolving the issues against the Appellant and dismissing the appeal.

I too dismiss this appeal and I abide by the consequential orders as made in the lead judgment.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege to read in advance the lead judgment just delivered herein by my learned brother I.M.M. SAULAWA, JCA which I agree with. The failure to issue pre-action notice deprived the trial Court of the requisite jurisdiction. This appeal is devoid of merit and I equally dismiss it.

Appearances:

Chief P. Anselem EyoFor Appellant(s)

Chibuzor AkujuobiFor Respondent(s)

Appearances

Chief P. Anselem EyoFor Appellant

AND

Chibuzor AkujuobiFor Respondent