MRS. CLARENCE ADAOBI MOSES-OBIEKWE v. MR. OLADELE OJOGBEDE
(2019)LCN/12887(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/L/907/2017
RATIO
ACTION: COUNTER CLAIM
“A counter-claim, though considered as an independent action, its complexion alters when it is an offshoot of the main claim and is interwoven with it as in this case vide Dabup v. Kolo (1993) 9 NWLR (pt. 317) 254 at 270 and 281; therefore the Chief Magistrate Court could not have severed the counter-claim from the main claim to confer jurisdiction on it when both the main claim and counter-claim can be entertained by the High Court which has general jurisdiction under Section 272(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution).” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
INTERPRETATION: MEANING OF ‘JUSTICE’
“The point must be made that the main responsibility of a Court is to do justice. This is key and fundamental. In doing justice, a Court will not be blindfolded by the case of any of the parties but will rather look at justice from the angle of all state holders in the administration of justice. This means seeing justice beyond the perception of the parties, justice must be seen from the perception of the Court and Society. See Akpadiaha v. Uko (2017) LPELR 42635(CA). In Salisu & Ors. V Abubakar & Ors. (2014) LPELR – 23075(CA), Abiru JCA at p.64 held: The theory of justice enjoins a Court of law to hold an even balance between the parties as one sided justice will amount to injustice. It postulates that justice is a three-way traffic (I) Justice for the plaintiff who is crying for redress of the alleged wrong to him; (ii) justice for the defendant who is pleading that he should be heard and his defence considered before any order is made against him; and (iii) justice for the Society at large whose social norms and psyche are certainly going to be adversely affected if it cannot be seen by the common but reasonable man that upon the fact as laid down, justice in the real and true sense of the word has been seen to have been done by the Court – Okomu Oil Palm Ltd. v. Okpame (2017) 3 NWLR (Pt.1020) 71.” In the concept of justice, I must add that a Court will also look at justice from the perception of the Court. It is injustice for a Court to make a decision which has no bearing or does not substantially address issues. The decision of a Court must not be made for fun but must have the capacity of enforcement. A Court is not a playing ground which is all about fun. A Court decides on the right between the parties. If therefore a Court’s decision does not affect the true tenent of justice, it would have failed and therefore a decision that will just satisfy the ego of party is not really justice.” PER TOBI EBIOWEI, J.C.A.
STATUTE: SECTION 16 & 19 OF THE LEGAL PRACTITIONERS ACT
“…the parties did not advert their minds to the stipulations of Sections 16 and 19 of the Legal Practitioners Act which vests jurisdiction in actions for recovery of legal practitioners charges on the High Court. Being the stipulation of a statute, the trial Chief Magistrate was entitled to take judicial notice of the same and apply it; and it was not obligated to hear the parties on the issue. It rightly declined jurisdiction to entertain the action.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
MRS. CLARENCE ADAOBI MOSES-OBIEKWE Appellant(s)
AND
MR. OLADELE OJOGBEDE Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the decision of the High Court of Lagos Sate (the Court below) sitting on appeal over the decision of the Magistrate Court Lagos remitting the case back to the Magistrate Court to determine the issue of its jurisdiction it had declined to pronounce upon.
The reliefs in claim at the Magistrate Court which can be found in page 4 of the record of appeal (the record) was for an order directing the appellant to pay the claimant the sum of N75,000.00 being the amount owed for outstanding legal services rendered and being the value of the returned cheque and for interest of 21% per annum on the said sum of N75,000.00 from 01.04.10 until judgment and thereafter at 18% per annum from the date of judgment until final liquidation as well as the sum of N350,000 being general and special damages suffered by the claimant by the willful act of the appellant together with the sum of N200,000.00 as costs of the action.
Upon conclusion of trial and adoption of written addresses, the learned Chief Magistrate in the course of writing the judgment raised and decided suo motu that he had no jurisdiction in the matter which should have been filed at the Court below. The learned Chief Magistrate then struck out the action and the counter-claim which was described as an ancillary claim on ground of lack of jurisdiction and awarded cost of N30,000 against the appellant.
The appeal against the decision of the learned Chief Magistrate which allowed the appeal and set aside the decision of the learned Chief Magistrate on the ground that it did not afford the parties the opportunity to be heard on the issue of jurisdiction before deciding in its judgment to strike out the claim and counter-claim on ground of want of jurisdiction. The Court below then remitted the claim and counter-claim to the Chief Magistrate Court to enable counsel for the parties address that Court on the issue of jurisdiction. The Court below declined to pronounce on the other issues raised and argued by the parties in the appeal.
The appellant was aggrieved with the decision of the Court below and filed a notice of appeal with four (4) grounds of appeal. The appellant argued the appeal in a brief of argument filed on 31.07.17 to the effect that the Court below should have decided whether the Chief Magistrate Court had jurisdiction in the matter and should not have remitted the case back to the Chief Magistrate Court to determine the issue of jurisdiction as there should be an end of litigation and an appeal is a complaint against the decision disclosed on the record citing in support the case of Ohida v. Mil. Admin., Kogi State (2000) 12 NWLR (pt. 660) 24.
The appellant also argued in the brief that the materials were in the record for the Court below to decide all the issues raised and argued in the appeal and that the Court below erred by abdicating its responsibility of failing to decide on all the issues raised and argued in the appeal holistically citing in the case of Ayanlowo v. Sagamu Local Government (2016) LPELR 44936 which the appellant contended was misapplied by the Court below.
The appellant argued that the counter-claim was an independent action which the Court below should have considered separate from the main claim upon which it should have held that the learned Chief Magistrate was wrong in treating the counter-claim as ancillary to the main claim and should have treated the counter-claim as proved having regard to the findings made by the learned Chief Magistrate on the merit of the case that the respondent could not act for the landlady and the tenant as their agent which deserved dismissal of the counter-claim with costs against the respondent.
The appellant further contended in page 5 of the brief that, The Claimant ADMITTED the Appellant paid him the money.
He prevaricated on the reason for payment of the money. In one breadth he said it was for SERVICES RENDERED AS HER AGENT. In another breadth, he said it was for preparation of TENANCY AGREEMENT. The Chief Magistrate pronounced that the Claimant could not ETHICALLY be agent of both the Landlady and the Tenant and the Tenant had her own agent. There was no Tenancy Agreement. So the money extorted IN ADVANCE for that consideration should be REFUNDED for FAILURE OF CONSIDERATION. It is to avoid giving judgment for this claim and other proven claims by the appellant that the High Court Judge IS CRAFTING INJUDICIAL AND INJUDICIOUS DEVICES, TO AVOID. The appellant finally urged that the appeal should be allowed and the judgment of the Court below set aside and judgment be entered on the counter-claim in terms of the counter-claim with costs in the Chief Magistrate Court, the Court below and this Court.
The respondent’s brief was filed on 27.11.17, but deemed as properly filed on 16.01.19. The respondent contended that jurisdiction is a threshold issue and that the Chief Magistrate Court having not assessed the issue, the Court below was right in remitting the case back to the Chief Magistrate Court to determine the issue of jurisdiction as parties and the Court cannot by connivance, acquiescence or collusion confer jurisdiction on a Court where jurisdiction is lacking citing in support the cases of Okolo v. Union Bank (2004) ALL FWLR (pt. 97) 981, FGN v. Oshiomhole (2004) 3 NWLR (pt. 860) 305, Barry v. Eric (1998) 8 NWLR (pt. 562) 404 at 418 ? 419; and that since the Court below reached the decision to send the case back for re-hearing it was right not to have considered the other issues in the appeal citing in support the case of Eagle Super Pack Nig. Ltd. v. A.C.B. (2006) 12 S.C. 3.
The respondent contended that it is not in doubt that the appellant did not file any defence regarded as ?special defence under the Magistrate Court Rules to the respondent’s particulars of claim showing the counter-claim was deemed admitted citing in support the cased of Otto v. Mabamije (2004) 17 NWLR (pt. 903) 489, Bunge v. Governor of Rivers State (2006) 12 NWLR (pt. 995) 573; that counsel?s submission cannot be substituted for evidence citing in support the cases of Ifeajuna v. Ifeajuna (1997) 7 NWLR (pt. 513) 405, Calabar Central Co-operative Tariff and Credit Society Ltd. and Anor. v. Ekpo (2008) ALL FWLR (pt. 418) 98 at 205, U.A.C. v. Mcfoy (1961) 2 ALL E.R. (no pagination).
The respondent further contended that a defendant who did not file defence to the case cannot adduce evidence at the trial of the action as there are no issues joined upon which he could adduce evidence and the claim is deemed admitted accordingly citing in support the cases of First Bank (Nig.) Ltd. v. Khaladu (1993) 9 NWLR (pt. 315) 44 at 56, Mobil Producing Nig. Unltd. v. Monokpo (No. 2) (2001) FWLR (pt. 78) 1210.
The respondent also contended that even though a counter-claim is a separate action, without the original claim, the counter-claim cannot stand alone, therefore it should follow that where a defendant fails to file a defence to an action, which failure is tantamount to an admission, the counter-claim becomes superfluous and incompetent.
Consequently, it was argued that where the Court competently dismisses the plaintiff’s claim, the counter-claim without defence suffers the same fate as the counter-claim rises or falls with the principal claim; upon which the respondent urged that the appeal should be dismissed and the decision of the Court below affirmed.
The appellants reply brief was filed on 12.12.17, but deemed as properly filed on 16.01.19. it quoted part of the judgment of the Chief Magistrate Court in pages 35 – 36 of the record declining jurisdiction deferring to the Legal Practitioners Act which designated jurisdiction to the High Court, to contend that the Court below was not only in gross error of law in remitting the appeal back to the Chief Magistrate but is guilty of ABDICATION OF RESPONSIBILITY to determine the appeal, as the Chief Magistrate Court cannot be expected to reverse itself and say
I have jurisdiction citing the case of Ayanlowo v. Shagamu Local Government (without providing the citation) where it was ?only said that if a Court raised the issue suo motu and without giving parties opportunity to address it before basing its decision on it, THAT DECISION SHOULD BE SET ASIDE? but that the case did not state that the appellate Court should remit the case back to the trial Court and that the Court below should have determined all aspects of the appeal in its supervising jurisdiction.
The reply brief added in page 2 thereof that My 2nd ARGUMENT is that the Chief Magistrate having gone through the whole gamut of trial and having taken addresses of Counsel and pronounced on the DEMERIT of the Plaintiff?s case, SHOULD HAVE EQUALLY PRONOUNCED on the counter claim INSTEAD OF, AT THAT POINT, INVOKING THE LEGAL PRACTITIONERS? ACT WHICH IS IRRELEVANT IN THE CASE, the Plaintiff having not brought his action under the Act. And no legal service under the Act having been shown. The N75,000 being claimed by the Plaintiff was, in his words, AGENCY FEE.
Hence the Court in its judgment said: ?The Plaintiff cannot be both agent of the Landlord and the Tenant?.
The fact that one is a Legal Practitioner does not mean that any transaction he enters into should be governed by the Legal Practitioners? Act.
The reply brief concluded by urging that arguments of the respondent should not be countenanced and the appeal be allowed and the counter-claim granted in terms of the reliefs sought therein.
Deciding specifically on raising an issue of jurisdiction suo motu by the Court and deciding on it without affording the parties the opportunity to be heard the Supreme Court held in the case of Alims Nigeria Limited v. United Bank for Africa (2013) 6 NWLR (pt.1351) 613 at 626 per the judgment prepared by his lordship, Fabiyi, J.S.C., inter alia that, It is now clear that the issue of jurisdiction is a threshold one which can be taken at any stage of the proceedings; even before the apex Court for the first time. It can be raised by any of the parties or by the Court suo motu. Where there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction, the judex has the duty to raise it suo motu, if the parties fail to draw the attention of the Court to it. In such a situation where the judex raises it suo motu, it is proper to invite the address of both counsel before deciding one way or the other. However, failure of the Court to so invite the address of counsel, does not, ipso facto, render such a decision a nullity unless it is shown that the decision is incorrect or occasioned a miscarriage of justice. See: Olutola v. University of Ilorin (supra); Katto v. CBN. (supra); Imah v. Okogbe (supra); Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39) 1.
The lead judgment (supra) was concurred in by their lordships of the Apex Court (Muhammad, Peter-Odili, Ariwoola and Akaahs, JJ.S.C.).
The Supreme Court also held in the case of Gbagbarigha v. Toruemi and Anor. (2013) 6 NWLR (pt.1350) 289 at 310 ? 311 per the lead judgment prepared by his lordship, Rhodes-Vivour, J.S.C., inter alia that, When a judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties; or an issue not before the Court, the judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails. See Kuti v. Balogun (1978) 1 SC p. 53; Ogiamien v. Ogiamien (1967) NMLR p. 246, (1967) SCNLR 311; Adeniji v. Adeniji (1972) 4 SC p. 10; Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) p. 252 but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the judge
1. When the issue relates to the Courts own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the record serious questions of the fairness of the proceedings is evident. See Comptoir Commercial & Ind S.PR. Ltd. v. O.G.S.W.C. (2002) FWLR (Pt. 105) p. 839, (2002) 9 NWLR (Pt. 773) 629; MD. Kolawole & ors v. A .-G., Oyo & 3 ors (2006) 3 NWLR (Pt. 966) p. 50 .
Finally, since the issue of jurisdiction raised suo motu by the judge without affording counsel a hearing has not led to miscarriage of justice, the decision will not be set aside. The Court of Appeal was right to uphold the issue of jurisdiction raised suo motu by the learned appellate High Court Judge.
(My emphasis).
The lead judgment (supra) of the Apex Court was concurred in by their lordship (Onnoghen, Chukwuma-Eneh, Muhammad and Ogunbiyi, JJ.S.C.).
Since the trial learned chief magistrate raised the issue of jurisdiction of the magistrate Court itself in the matter without affording the parties the opportunity to be heard and having regard to the fact that the appellant did not establish a miscarriage of justice, the Court below should not have reversed the decision of the learned Chief Magistrate to take and decide the issue of the jurisdiction of the Magistrate Court in the matter suo motu without affording the parties the opportunity to be heard.
The Court below was accordingly wrong in allowing the appeal on that ground and remitting the case back to the Chief Magistrate Court to afford the parties the opportunity to be heard on the issue of jurisdiction of the Chief Magistrate Court over the issue.
I agree with the appellant that the Court below should have determined the appeal of the appellant on the grounds of appeal it put forward whether the Chief Magistrate Court was right in declining jurisdiction in the action having regard to the claim and counter-claim and, whether the counter-claim was established at the Chief Magistrate Court vide the notice and grounds of appeal contained in pages 41 ? 44 of the record.
The notice and grounds of appeal in the present appeal are contained in pages 68 ? 69 of the record. Since the appeal does not depend on the credibility of the witnesses but on the printed record, Section 15 of the Court of Appeal Act treating an appeal as a re-hearing will be invoked to save time, cost, energy and resources to determine the appeal on the grounds of appeal raised and argued in the briefs of argument vide Jadesimi v. Okotie-Eboh (1986) 1 NWLR (pt. 16) 264.
It is the nature of the claim (and counter-claim were the defendant also counter-claimed) that would determine the jurisdiction of a Court vide Oni v. Cadbury Nigeria Plc (2016) 9 NWLR (pt. 1516) 80 at 87 following Anyah v. Iyayi(1993) 7 NWLR (pt. 305) 290 and Anigboro v. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (pt. 399) 35.
The particulars of claim which are binding on the parties and the Court vide Commissioner for Works, Benue State and Anor. v. Devcon Development Consultants Ltd and Anor. (1988) NWLR (pt. 83) 407 at 420 are contained in pages 2 – 4 of the record. Paragraphs 5 ? 6 thereof state thus-
“Claimant avers that his total legal fees for the services rendered was N300,000.00 (Three Hundred Thousand Naira Only) out of which the Defendant paid N225,000.00 (Two Hundred and Twenty Five Thousand Naira Only leaving a Balance of N75,000.00 (Seventy Five Thousand Naira Only). The Claimant shall found on a copy of the Cheque for the payment of the rent and part of the legal fee at the trial.
The Claimant avers that the Defendant issued a post dated Zenith Bank Cheque with No. 00000739 dated the 30/01/2011 in the sum of N75,000.00 (Seventy Five Thousand Naira Only) for the balance of his legal fees.
The reliefs sought which circumscribe the claim are contained in page 5 of the record thus
COUNTER CLAIM
The defendant counter claims against the plaintiff as follows:
1. N200,000 Damages for FRAUDULENT MISREPRESENTATION when as AGENT/SOLICITOR FOR HIS RELATION the owner of the premises he falsely represented to the Defendant then a prospective tenant that the premises had pipe borne water and thus putting the tenant into untold hardship upon entry:
i. Fetching clean water for her domestic use and for bathing
ii. Trauma of chasing water sellers
iii. Lateness of work
iv. Construction of well
2. Refund of N225,000 being AMOUNT ILLEGALLY EXTORTED from the Defendant ON FAILURE OF CONSIDERATION having not done any legal job.
3. Interest at the rate of 25% per annum from March 2010 on the N125,000
4. Cost of N100,000
PARTICULARS OF CLAIM
THE FOUNDATION of the claim of the Plaintiff is legal fee of N3 00,000
The ONLY SERVICE that a lawyer does in letting premises is DRAWING UP OF TENANCY AGREEMENT.
Tenancy agreement is ONE FOR THE WHOLE DURATION OF TENANCY
So for a Lawyer to DEMAND 2 YEARS tenancy agreement is not only criminal extortion but unethical and inhumane.
The principal claim (supra) was thus for legal services by the respondent who described itself in paragraphs 1 and 2 of the particulars of claim contained in page 2 of the record as a legal practitioner in these words:-
1. The Claimant is a Legal Practitioner in active legal practice with his operational office at Suite 22, 6th Floor, 8/10, Broad Street, Western House, Lagos.
2. The Claimant is a Legal Practitioner trading under the name and style of Dele Ojogbede & Co.
The learned chief magistrate was therefore right in declining jurisdiction over the respondent?s claim which was for recovery of legal fees for services rendered by a legal practitioner. By Sections 16 and 19 of the Legal Practitioners Act CAP. L11, Laws of the Federation, 2004, only the High Court has original jurisdiction in an action by a legal practitioner for the recovery of legal fees or charges for services rendered. The Court below should have held that the Chief Magistrate Court was right in striking out the action for lack of jurisdiction.
The counter-claim is contained in pages 5 ? 6 of the record thus
COUNTER CLAIM
The defendant counter claims against the plaintiff as follows:
1. N200,000 Damages for FRAUDULENT MISREPRESENTATION when as AGENT/ SOLICTOR FOR HIS RELATION the owner of the premises he falsely represented to the Defendant then a prospective tenant that the premises had pipe borne water and thus putting the tenant into untold hardship upon entry:
i. Fetching clean water for her domestic use and for bathing
ii. Trauma of chasing water sellers
iii. Lateness to work
iv. Construction of well
2. Refund of N225,000 being AMOUNT ILLEGALLY EXTORTED from the Defendant ON FAILURE OF CONSIDERATION having not done any legal job .
3. Interest at the hate of 25% per annum from March 2010 on the N425,000
4. Cost of N100,000
PARTICULARS OF CLAIM
THE FOUNDATION of the claim of the Plaintiff is legal fee of N300,000.
The ONLY SERVICE that a lawyer does in letting premises is DRAWING UP OF TENENACY AGREEMENT.
Tenancy agreement is ONE FOR THE WHOLE DURATION OF TENANCY
So for a Lawyer to DEAMND 2 YEARS tenancy agreement is not only criminal extortion but unethical and inhumane
i. Plaintiff is a Solicitor/ Agent of the premises at No.6 Olajide Olabanji Street, Lekki, Phase 1 belonging to his relation who was resident overseas.
ii. The Plaintiff LIVED in the premises at the time of the transaction and for a time thereafter.
iii. The Plaintiff misrepresented to the Defendant, an expectant mother and in a sensitive position in a commercial bank that there was pipe borne water in the premises thereby making the defendant to take the premises as a tenant
iv. The Plaintiff IN HIS LACK OF CONSCIENCE charged the Defendant 10% of the annual rental of N1.5 million for TWO YEARS instead of what obtains in the CUSTOM OF THE TRADE of 5% of the annual rental FOR ONE YEAR
v. One year after entering into the premises there was no agreement to sign. Therefore the N225,000 paid should be refunded on failure of consideration and as extortionist.
vi. On the Defendant entering into the premises, she was shocked to discover that there was no pipe borne water. The Defendant confronted the Plaintiff.
vii. The well in the premises could only yield yellow mud water.
viii. The Defendant led other tenants to contribute to enhance the quality of the well spending N100,000
ix. The Plaintiff partook in the enhanced well facility
x. It is recently that the landlady constructed a borehole?.
A counter-claim, though considered as an independent action, its complexion alters when it is an offshoot of the main claim and is interwoven with it as in this case vide Dabup v. Kolo (1993) 9 NWLR (pt. 317) 254 at 270 and 281; therefore the Chief Magistrate Court could not have severed the counter-claim from the main claim to confer jurisdiction on it when both the main claim and counter-claim can be entertained by the High Court which has general jurisdiction under Section 272(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution).
The inevitable conclusion I respectfully reach is that the Court below should have held that the chief magistrate Court reached the right decision in the matter. Based on the discussion (supra), I would allow the appeal and set aside the decision of the Court below and restore the decision of the Chief Magistrate Court striking out the main action and the counter-claim built on it. Parties to bear their costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: It is hornbook law that it is wrong for a Court to decide on issues not raised by the parties without affording the parties a hearing on the issue it raised suo motu. However, it will not be necessary to afford the parties a hearing where the issue raised suo motu by the Court relates to the Court?s own jurisdiction and also where the parties were either not aware of, or ignored a statute which may have a bearing on the case. The Court in such circumstances will take judicial notice of the statute. Furthermore, the parties need not be heard where the issue raised is one which on the face of the Records shows serious questions as to the fairness of the proceedings. See OMOKUWAJO vs. FRN (2013) LPELR (20184) 1 at 37-38.
Before the trial Chief Magistrate Court, the parties did not advert their minds to the stipulations of Sections 16 and 19 of the Legal Practitioners Act which vests jurisdiction in actions for recovery of legal practitioners charges on the High Court. Being the stipulation of a statute, the trial Chief Magistrate was entitled to take judicial notice of the same and apply it; and it was not obligated to hear the parties on the issue. It rightly declined jurisdiction to entertain the action. The lower Court sitting on appeal was consequently in error when it set aside the decision of the trial Chief Magistrate Court on the ground that it did not afford the parties a hearing on the issue it raised suo motu. I iterate that in the diacritical circumstances the trial Court did not have to hear the parties on the issue and it arrived at the right decision by declining jurisdiction.
It is for the foregoing reason that I agree with the leading judgment of my learned brother, Joseph Shagboor Ikyegh, JCA, which I read in draft, that the appeal has merit. I equally join in allowing the appeal on the same terms as set out in the leading judgment.
TOBI EBIOWEI, J.C.A.: My learned brother, Joseph Shagbaor Ikyegh, JCA afforded me the priviledge of reading in draft the judgment just delivered. I am in complete agreement with the reasoning and the conclusion reached therein. I wish to however briefly make a comment on the issue of a Court raising an issue suo motu and resolving same suo motu. My learned brother in the judgment has brought out the general principles and the exception therein. In law, almost all general principles recognizes one or two exceptions. The principle which is discussed in this appeal does recognize an exception.
The point must be made that the main responsibility of a Court is to do justice. This is key and fundamental. In doing justice, a Court will not be blindfolded by the case of any of the parties but will rather look at justice from the angle of all state holders in the administration of justice. This means seeing justice beyond the perception of the parties, justice must be seen from the perception of the Court and Society. See Akpadiaha v. Uko (2017) LPELR 42635(CA).
In Salisu & Ors. V Abubakar & Ors. (2014) LPELR – 23075(CA), Abiru JCA at p.64 held:
The theory of justice enjoins a Court of law to hold an even balance between the parties as one sided justice will amount to injustice. It postulates that justice is a three-way traffic (I) Justice for the plaintiff who is crying for redress of the alleged wrong to him; (ii) justice for the defendant who is pleading that he should be heard and his defence considered before any order is made against him; and (iii) justice for the Society at large whose social norms and psyche are certainly going to be adversely affected if it cannot be seen by the common but reasonable man that upon the fact as laid down, justice in the real and true sense of the word has been seen to have been done by the Court – Okomu Oil Palm Ltd. v. Okpame (2017) 3 NWLR (Pt.1020) 71.”
In the concept of justice, I must add that a Court will also look at justice from the perception of the Court. It is injustice for a Court to make a decision which has no bearing or does not substantially address issues. The decision of a Court must not be made for fun but must have the capacity of enforcement. A Court is not a playing ground which is all about fun. A Court decides on the right between the parties. If therefore a Court’s decision does not affect the true tenent of justice, it would have failed and therefore a decision that will just satisfy the ego of party is not really justice.
The point I am trying to make is that even if a Court raises an issue suo motu, and addresses it suo motu, it is not in all instances that this will be offensive to the judicial system. While Courts are not encouraged to raise issues suo motu and address same suo motu, a Court will be more interested with the consideration of justice. That is why the apex Court has recognized some exceptions which my learned brother has ably addressed in the lead judgment.
The lower Court raised the issue of jurisdiction suo motu and resolved same suo motu. If this has occasioned miscarriage of justice, this Court would have held otherwise. Since it has not occasioned miscarriage of justice, the Court raising and resolving the issue of jurisdiction, suo motu will not have affect justice of the case.
For the above reason and much more for the fuller reasons adduced in the lead judgment by my learned brother Joseph Shagbaor Ikyegh, JCA, I also allow the appeal.
Appearances:
Mr. T. AnoziaFor Appellant(s)
Mr. A.O. EmmanuelFor Respondent(s)
