NASU v. JACOB A & ORS
(2020)LCN/14252(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, June 10, 2020
CA/MKD/236/2017
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTIONS (NASU) APPELANT(S)
And
1. ANIAH JACOB A 2. AKPO JOHN U 3. BEATRICE UTUBAKU RESPONDENT(S)
RATIO
WHETHER OR NOT NON-COMPLIANCE WITH THE PROVISIONS OF SECTION 97 AND 99 OF THE SHERIFFS AND CIVIL PROCESS ACT CAN BE WAIVED
Section 97 of the Sheriffs and Civil Process Act provides that:
“Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)- “This summons (or as the case may be) is to be served out of the State (or as the case may be) …and in the… State (or as the case may be).”
Section 99 of the Sheriffs and Civil Process Act provides that the time limited for answering to summons so endorsed for service outside the State, same shall not be less than thirty days after service of the writ has been effected. These provisions regulate service of an originating process to ensure that the defendant is immediately notified on the face of the originating process that he is being summoned to a Court outside his State and that he is given adequate time to enable him appear. The issue of whether non-compliance with the provisions of Section 97 and 99 would amount to an irregularity that can be waived or cured or whether non-compliance with the provisions render the service of the originating summons void have been considered in a number of judicial pronouncements. In Odu’a Investment Co. Ltd v. Talabi (1997) LPELR-2232(SC), which was the decision of a seven-man panel (Full Court) of the Supreme Court, one of the issues considered was whether the provisions of Sections 97 and 99 of the Act were mandatory or directory and so can be waived. Previous decisions of the Supreme Court such as in Skenconsult (Nig.) Ltd. and Anor. v. Ukey (1981) 1 S.C.6; Nwabueze & Anor. v. Justice Obi Okoye (1988) 4 NWLR (Pt. 91) 664; NEPA v. Onah (1997) 1 NWLR (Pt.484) 680 et al were discussed, and, the Apex Court held, per Ogundare, JSC, at pages 87 – 90 as follows:
“Reading carefully the wordings of Sections 97 and 99 of the Act I am of the firm view that the provisions of these Sections are for the benefit of defendants alone rather than of the general public.
The purpose of Section 99 is to give a defendant served in a State outside the one in which the writ was issued sufficient time to enable him make appearance. The endorsement to the writ required by Section 97 informs him that the writ was issued in another State. With this view of these Sections I cannot say that a breach of any of them is of such incurable nature that cannot be waived by the person for whose benefit they act provided, that is, the defendant. I think he can waive them if he so chooses… PER OTISI, J.C.A.
STEPS A DEFENDANT WHO PLANS TO CHALLENGE THE COMPETENCE OF AN ORIGINATING PROCESS IS REQUIRED TO TAKE TO DEMONSTRATE HIS INTENTION
Therefore, a defendant who plans to challenge the competence of an originating process or the competence of its service ought to take timely steps that unmistakably demonstrate his intention. The Supreme Court, per Rhodes Vivour, JSC in PDP v. INEC & Ors (2018) LPELR- 44373(SC) in which non-compliance with the provisions of Section 97 was under consideration, had explained that a conditional appearance is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction. The Noble Lord further explained, at pages 13-14 of the E-Report:
“‘When an originating process is served on the defendant and he has an objection to it, he is expected to either-
(a) enter an appearance on protest, or
(b) enter a conditional appearance, and
(c) file a Notice Motion asking the Court to set aside the purported writ and service of same on the ground of originating process and service being invalid.
If the defendant does not follow the above procedure he cannot question the originating process or service on appeal.”
See also: Social Democratic Party v. John Hingah Biem & Ors (2019) LPELR-46871(CA). PER OTISI, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF LAW ON THE JURISDICTION OF A COURT TO ADJUDICATE ON A MATTER BEFORE IT
It is a rudimentary principle of law that the jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. Jurisdiction has variously been described as the life blood, the life wire, the fiat, the stamp of authority which necessarily enures to the Court or Tribunal and empowers it to adjudicate; Buremoh v Akande (2017) LPELR-41565(SC); Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (PT 1247) 465, (2011) LPELR-2185(SC), (2011) 2-3 SC (PT.1) 46; Madukolu v Nkemdilim (supra), (1962) 2 NSCC 374. A Court is said to have jurisdiction and therefore competent to entertain a suit when: –
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
b) 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
c) The case comes before a Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. See:Madukolu v Nkemdilim (supra); FBN Plc v Obande & Sons Enterprises & Ors (1998) 2 NWLR (PT 538) 410. Where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would simply amount to a nullity. PER OTISI, J.C.A.
WHETHER OR NOT ORIGINATING SUMMONS IS AN UNUSUAL METHOD OF COMMENCING PROCEEDINGS IN THE HIGH COURT
Again, in Oba Osunbade v Oba Oyewunmi 30 NSCQR 434 at 449, the Supreme Court per Ogbuagu JSC said:
“It is now firmly settled that an Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal.”
See also:Inakoju v Adeleke (2007) 2 MJSC 1; Peters-Pam v. Muhammed (2008) 9 MJSC 117; FGN v Zebra Energy (Nig.) Limited (2003) 1 MJSC 3; Executive Governor, Nasarawa State & Anor v. Ukpo (2017) LPELR-42445(CA).
Originating Summons is a procedure for which only affidavit evidence is adduced. It is therefore well settled that in actions where there is likely to be substantial dispute of facts, or, where the relief or reliefs sought by a claimant are declaratory in nature, originating summons procedure that admits only affidavit evidence ought not to be employed. The action must be brought by writ of summons, the facts being in dispute. It is in accord with justice to postulate that where the complaint of the plaintiff makes allegations against a defendant, oral evidence is required. This would provide opportunity for the defendant to cross-examine witnesses testifying against him. It is important to note that it is not the filing of a counter affidavit per se that determines whether or not facts are in dispute. In Ossai v Wakwah (2006) 4 NWLR (Pt.969) 208 at 229, (2006) LPELR-2813 (SC) at page 19, (2006) 2 SC (Pt.1) 19, the Supreme Court, per Mohammed JSC (as he then was) unequivocally put it this way:
“It must be emphasized that it is not the filing of a counter-affidavit to oppose claims in an originating summons that makes such proceedings contentious or result in disputed facts. Even where no counter-affidavit was filed or where counter-affidavit was filed but ignored by the trial Court, as in the lost out case, the nature of the claims and the facts deposed in the affidavit in support of the claims in the originating summons are enough to disclose disputed facts and hostile nature of the proceedings.”PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the decision of the National Industrial Court of Nigeria (the lower Court) sitting at Makurdi, Coram P. O. Lifu, J., delivered on July 4, 2017, in favour of the Respondents in an Originating Summons filed by the Respondents wherein they sought for the interpretation of the Constitution of the Appellant and a Memorandum of Understanding (MOU) made on 3/2/2016.
The facts leading to the appeal, as presented by the Appellant, are as follows: The Appellant is a registered Trade Union, with branches in virtually all the academic institutions in Nigeria, including the Federal College of Education (FCE), Obudu, Cross-River State. The Respondents, who were initially eight claimants at the trial Court, were members of the Appellant’s Union and were elected as the Branch Chairman, Secretary and ex-officio of the NASU-FCE, Obudu Branch sometime in 2015. Soon after their election, misunderstandings arose in which the Respondents were accused of fraud, embezzlement of Union funds, gross violation of the Union’s Constitution and engaging in various anti-union activities. The
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Branch was then plunged into crisis and disharmony leading to factions and a leadership crisis which halted union activities in the said Branch. Various petitions and counter petitions were received by the Appellant from the Branch. In a bid to resolve the said crisis in the Branch, the Appellant, through her General Secretary led some senior officers of the Union to a peace and reconciliatory meeting with the Respondents and others as a result of which a Memorandum of Understanding (MOU) was agreed upon and signed by all the parties involved. Notwithstanding the peace moves, the crisis persisted with allegations that the terms of the MOU were not being observed. As a result, the National Executive Council (NEC) of the Appellant directed the General Secretary to dissolve the said Branch Executive Committee, audit the accounts and financial reports of the said Branch and thereafter constitute a Caretaker Committee. The Respondents were also invited to appear before an audit committee in Ibadan, the Head Office of the Appellant, which they refused to do. The Appellant alleged that the Respondents frustrated its efforts to constitute a Caretaker Committee in the
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said Branch and but rather instituted action in the lower Court.
The Respondents instituted action by way of Originating Summons. For the Respondents, the facts were that the controversy was occasioned by a disagreement between two of the elected executive committee members of the Branch, being the Chairman who was the 1st Respondent, and, the Treasurer, Atsu Comfort. The Respondents averred that while the 1st Respondent complied with what he was obliged to do in the MOU, the Treasurer, failed to comply. Rather than invoke the relevant paragraphs of the MOU against her, the Appellant dissolved the entire elected executive committee of the Branch, contrary to provisions of the Constitution of the Appellant. When the Appellant would not consider the representations made by the Respondents alleging the constitutional breach in the action taken against the elected executive of the Branch, the Respondents approached the lower Court for the interpretations of the relevant Rules of the Appellant’s Constitution and the contents of the MOU. At the conclusion of hearing, the lower Court granted some of the reliefs sought by the Respondents.
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Dissatisfied with the decision of the Lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 20/7/2017, pages 587 – 595 of the Record of Appeal. An Amended Notice of Appeal on seven grounds of appeal was filed on 22/10/2018 but deemed on 21/1/2019.
The Appellant’s Further Amended Brief of Argument was filed on 22/10/2018 but deemed on 21/1/2019. The Respondents had earlier filed an Amended Respondent’s Brief on 21/9/2018. This Brief was overtaken by the Appellant’s Further Amended Brief of Argument, which was served on the Respondents on 23/10/2018 through their Counsel, Ocha P. Ulegede, Esq. The Respondents filed no other Brief in response.
At the hearing of the appeal on 20/3/2020, Rotimi Olujide, Esq., who appeared for the Appellants informed the Court that the only extant Brief was the Appellant’s Further Amended Brief of Argument which was filed on 22/10/2018 but deemed on 21/1/2019. The Respondents, who were served with Hearing Notice on 16/3/2020 through their Counsel, Ocha Ulegede, Esq., did not appear and were not represented. There was also no explanation before the Court for their absence. The Court,
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being satisfied that the Respondents had been duly served through their Counsel, Ocha Ulegede, Esq., with the Hearing Notice for the day’s proceedings, as well as with the Appellant’s Further Amended Brief of Argument, proceeded to hear the appeal. The Court further noted that the Respondent’s said Counsel, who is resident within jurisdiction, failed to respond to the Appellant’s said Further Amended Brief.
Mr. Olujide adopted the Appellant’s Further Amended Brief as their arguments in support of the appeal. He urged the Court to allow the appeal and set aside the decision of the lower Court.
In the said Appellant’s Further Amended Brief, five issues were distilled as follows:
(a) Whether having regards to the decisions of the Supreme Court inOwners of M. V. Arabella vs. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182 followed by the Court of Appeal in Appeal No: CA/A/588/2013: Governing Council of National Teachers Institute, Kaduna & Anor. vs. Non- Academic Staff Union of Educational and Associated Institutions (NASU) Unreported Judgment delivered on 25th April, 2018, and the
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provisions ofSections 97 and 99 of the Sheriffs and Civil Process Act, 2004, the learned trial Judge erred in law when he continued to entertain the claims of the Claimants/Respondents and proceeded to grant the Reliefs sought in the Originating Summons. (Ground 7).
(b) Whether having regards to the whole circumstances and facts of this case at the trial Court, the learned trial judge erred in law when he assumed original jurisdiction to entertain this action which issues borders on intra-union disputes in the light of the provisions of Part One of the Trade Disputes Act, Cap. T8, LFN 2004. (Ground 1).
(c) Whether having regards to the whole circumstances and facts of this case and in the light of the unchallenged Counter – affidavit and the attached exhibits of the Appellant opposing the Respondents’ Originating Summons at the trial Court, the learned trial judge erred in law when he held that the dissolution of the Federal College of Education Obudu Branch Executive Committee of the Appellant’s Union is unconstitutional, illegal, null and void and of no effect whatsoever as the four year mandate given to the Respondents remain sacrosanct (Grounds
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2 and 6).
(d) Whether the learned trial judge was right to have allowed the action to have commenced by way of Originating Summons when the facts of the case as averred in the affidavits of the parties disclosed contentious facts or controversies of disputed question of facts without calling for pleadings or oral evidence to resolve the disputed facts between the parties. (Ground 3).
(e) Whether in the circumstances of this case, the sum of N3,000,000.00 (Three Million Naira) awarded by the learned trial judge to the Respondents as damages and the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) as cost of the action is too excessive, punitive, outrageous, arbitrary, without proof of any actual damage suffered by the Respondents and without any Legal justification. (Ground 5).
I shall adopt the issues as framed by the Appellant for determination of this appeal and resolve the issues in this order: Issue (a), Issue (b), Issues (c) and (d) together, and Issue (e).
Issue (a)
The originating process in the case leading to the instant appeal was commenced by Originating Summons, which was issued on 12/10/2016 in the Makurdi
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Division of the lower Court. The Appellant’s address for service was stated to be in Abuja, Federal Capital Territory. The Originating Summons, the originating process, was neither marked for service outside Makurdi nor was the return dated limited to 30 days as enjoined by Sections 97 and 99 of the Sheriffs and Civil Process Act.
It was submitted that the necessity for endorsing relevant processes issued in a particular State, the Federal Capital Territory or jurisdiction, which is meant to be served outside the State, the Federal Capital Territory or jurisdiction where same was issued, has been given judicial backing in a plethora of decided authorities. Reliance was placed on the case of Owners of MV “Arabella” vs. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182 at 220-221. The issue of whether or not Section 97 of the Sheriffs and Civil Process Act was applicable to the National Industrial Court of Nigeria was settled by this Court in Appeal No: CA/A/588/2013: Governing Council of National Teachers Institute, Kaduna & Anor. v. Non-Academic Staff Union of Educational and Associated Institutions (NASU) (Unreported),
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delivered on 25/4/2018. The Court was urged to hold that by virtue of Section 95 of the Sheriff and Civil Process Act as well as the provisions of Order 10 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, the Originating Summons through which the Respondents commenced their suit in the lower Court sitting in Makurdi but served on the Appellant in Abuja FCT, qualified as an originating process that required endorsement as stipulated by Section 97 of the Sheriffs and Civil Process Act. The failure of the Respondents to issue and endorse the Originating Summons was in breach of the mandatory provisions of Section 97 of the Sheriffs and Civil Process Act and in disregard of the decision of the Supreme Court in Owners of MV “Arabella” v. Nigeria Agricultural Insurance Corporation (Supra) as well the decision of this Court in Appeal No: CA/A/588/2013: Governing Council of National Teachers Institute, Kaduna & Anor v. Non-Academic Staff Union of Educational and Associated Institutions (NASU) (Supra).
It was argued that service of a writ that does not have the proper endorsement as stipulated under Section 97 is a
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fundamental defect that renders the writ incompetent, citing the case of Bello v. National Bank of Nig. Ltd. (1992) 6 NWLR (PT. 246) 206 at 218, which was cited with approval in Owners of MV “Arabella” v. Nigeria Agricultural Insurance Corporation (Supra). It was therefore submitted that failure to so endorse the Respondent’s Originating Summons was not a mere irregularity capable of being waived but a fundamental defect. Relying on the already cited judicial pronouncements, it was submitted that the trial Court had adjudicated on this matter without the requisite jurisdiction to entertain same thereby rendering the judgment of the lower Court, as well as, the entire proceedings, void and a nullity. Reliance was placed on Madukolu v Nkemdilim (1962) 2 SCNLR 341; UAC v. McFoy (1961) 3 All ER 1169 at 1172. The Court was urged to resolve this issue in favour of the Appellant.
Resolution
The Originating Summons, which was the originating process, provided the address for service on the Appellant as follows:
Non-Academic Staff Union of Educational and Associated Institutions
National Headquarters
Plot 577, Gidado Idris Street
Wuye
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District
Abuja, FCT.
The said Originating Summons also gave a period of fourteen days for the Appellant to answer to the summons. Section 97 of the Sheriffs and Civil Process Act provides that:
“Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)- “This summons (or as the case may be) is to be served out of the State (or as the case may be) …and in the… State (or as the case may be).”
Section 99 of the Sheriffs and Civil Process Act provides that the time limited for answering to summons so endorsed for service outside the State, same shall not be less than thirty days after service of the writ has been effected. These provisions regulate service of an originating process to ensure that the defendant is immediately notified on the face of the originating process that he is being summoned to a Court outside his State and that he is given adequate time to enable him appear. The issue of
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whether non-compliance with the provisions of Section 97 and 99 would amount to an irregularity that can be waived or cured or whether non-compliance with the provisions render the service of the originating summons void have been considered in a number of judicial pronouncements. In Odu’a Investment Co. Ltd v. Talabi (1997) LPELR-2232(SC), which was the decision of a seven-man panel (Full Court) of the Supreme Court, one of the issues considered was whether the provisions of Sections 97 and 99 of the Act were mandatory or directory and so can be waived. Previous decisions of the Supreme Court such as in Skenconsult (Nig.) Ltd. and Anor. v. Ukey (1981) 1 S.C.6; Nwabueze & Anor. v. Justice Obi Okoye (1988) 4 NWLR (Pt. 91) 664; NEPA v. Onah (1997) 1 NWLR (Pt.484) 680 et al were discussed, and, the Apex Court held, per Ogundare, JSC, at pages 87 – 90 as follows:
“Reading carefully the wordings of Sections 97 and 99 of the Act I am of the firm view that the provisions of these Sections are for the benefit of defendants alone rather than of the general public.
The purpose of Section 99 is to give a defendant served in a State outside the one in
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which the writ was issued sufficient time to enable him make appearance. The endorsement to the writ required by Section 97 informs him that the writ was issued in another State. With this view of these Sections I cannot say that a breach of any of them is of such incurable nature that cannot be waived by the person for whose benefit they act provided, that is, the defendant. I think he can waive them if he so chooses…
It follows, therefore, that where a defendant is served with a writ of summons in breach of Sections 97 and 99 of the Act, he has a choice either to object to the service by applying to have it set aside and the Court ex debito justitiae will accede to the application or ignore the defect and proceed to take steps in the matter. By entering unconditional appearance and filing pleadings, as in the case on hand, he is deemed to have waived his right to object and cannot later in the proceedings seek to set same aside because of the original defect. I am not unmindful of the fact that in Skenconsult and Nwabueze this Court had held that non-compliance with these Sections would render the proceedings null and void. It would appear that
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this declaration was unnecessary in those cases as the defendants were ex debito justitiae entitled to have the proceedings set aside because (1) in Skenconsult there was no service at all on the 2nd defendant and the service on the 1st defendant was irregular and he did not waive the irregularity and (2) in Nwabueze, the service on the defendants were irregular and they did not waive the irregularity. In NEPA there was indication in the lead judgment of Mohammed J.S.C. that there was no waiver which would suggest that had there been waiver the decision might have been otherwise.
In Skenconsult, Nwabueze and NEPA, there was no waiver and this Court, in those cases, rightly in my respectful view, set aside the defective service on the application of the defendants. In Adegoke Motors, there was waiver and this Court rejected similar application. And rightly, too, in my humble view.
From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rule of Court requiring leave of the Court or a Judge for a writ be served
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out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debito justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court, to allow, in appropriate cases, such amendments to be made and to make such Order dealing with the proceedings generally as it thinks fit.
Turning to the case on hand, the appellant from the various steps it took in the proceedings after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on.”
The decisions in Owners of MV “Arabella” v. Nigeria Agricultural Insurance Corporation (supra), also reported in (2008) LPELR-2848(SC) and
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CBN v. Interstella Communications Ltd & Ors (2017) LPELR-43940(SC), relied on in the decision of this Court in Governing Council of National Teachers Institute, Kaduna & Anor. v. Non-Academic Staff Union of Educational and Associated Institutions (NASU) (supra) now reported in (2018) LPELR-44557(CA), were decisions of five-man panels of the Supreme Court. In my respectful view, these decisions are all to be read in the light of the decision of the Full Panel of the Apex Court in Odu’a Investment Co. Ltd v. Talabi (supra).
By this decision, non-compliance with provisions of Sections 97 and 99 render service of the originating process voidable. And, where the writ and or service of it is voidable, the defendant who complains of such non-compliance before he takes any fresh step in the matter, is entitled ex debito justitiae to have the irregularity set aside. Where he has taken fresh steps in the matter, he is taken to have waived his rights to raise the complaint; Ariori v. Elemo (1983) I SCNLR 1. Therefore, a defendant who plans to challenge the competence of an originating process or the competence of its service ought to take timely steps that unmistakably
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demonstrate his intention. The Supreme Court, per Rhodes Vivour, JSC in PDP v. INEC & Ors (2018) LPELR- 44373(SC) in which non-compliance with the provisions of Section 97 was under consideration, had explained that a conditional appearance is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction. The Noble Lord further explained, at pages 13-14 of the E-Report:
“‘When an originating process is served on the defendant and he has an objection to it, he is expected to either-
(a) enter an appearance on protest, or
(b) enter a conditional appearance, and
(c) file a Notice Motion asking the Court to set aside the purported writ and service of same on the ground of originating process and service being invalid.
If the defendant does not follow the above procedure he cannot question the originating process or service on appeal.”
See also: Social Democratic Party v. John Hingah Biem & Ors (2019) LPELR-46871(CA).
In this case, the Appellant was served with the Originating Summons and gave Notice of Preliminary Objection in which they mainly argued that the suit was an abuse of
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Court process, that the lower Court lacked jurisdiction to hear and determine the Respondents’ claims as the claims border on inter-union dispute and that the suit was wrongly commenced by originating summons, pages 187 – 188 of the Record of Appeal. When the Preliminary Objection was overruled, the Appellant filed its Counter Affidavit in opposition to the Originating Summons upon leave of Court to so file out of time, pages 526 – 533 of the Record of Appeal. In all these proceedings, the Appellant raised no complaint regarding the non-compliance with Sections 97 and 99 of the Sheriff and Civil Process Act. Indeed, this complaint was not made at all in the lower Court but on appeal to this Court. A complaint regarding the service of an originating process that is voidable must be made at the earliest; PDP v. INEC & Ors (supra). It is a personal right which the defendant may decide to waive. A person who is entitled to the benefit of a statutory provision may waive it and allow the transaction to proceed as though the provision did not exist; Ariori & Ors v. Elemo & Ors (1983) LPELR-552(SC). Where the defendant in the face
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of the voidable originating process, responds to the said process and goes on with the hearing of the matter, he will be deemed to have waived his right to complain. The Appellant is deemed to have waive his right to complain regarding any non-compliance with Section 97 and 99 of the Sheriff and Civil Process Act. This complaint therefore cannot be raised at this stage. Issue (a) is accordingly resolved against the Appellant.
Issue (b)
Counsel for the Appellant commenced his submissions on this issue by emphasizing the fundamental nature of jurisdiction of a Court to hear and determine a matter submitted to it for adjudication. Judicial pronouncements on the foundational importance of jurisdiction cited and relied on included: Obaseki & Anor v. Orukwo (2011) 24 NLLR (Pt. 69) 372 at 391 CA; Mustapha v. Gov. of Lagos State (1987) NWLR (Pt.58) 539; Tukur v. Gongola State (1989) 4 NWLR (Pt. 117) 592, Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 and Timitimi v. Aniabebe (1953) 14 WACA 379.
It was submitted that the entire gamut of the case presented to the trial Court by the Respondents centered on the running of the Respondents’ Branch
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by the Respondents and other Executive members, which included the Treasurer, Mrs. Comfort Atsu. The various roles played by the said Branch Executive members leading to the various disputes, accusations/allegations and counter accusations/allegations, the issue of payment of check-off dues, financial impropriety allegation, dissolution of the said Branch by the Appellant, the NASU Thrift Saving Scheme, the invitation of the Respondents to appear before an audit panel in Ibadan, Oyo State, the Directive to the Provost of the Respondents’ College to put all NASU deductions into a suspense accounts among other issues were presented to the trial Court by affidavit evidence. These disputes were all part of the intra-union disputes between Branch members and a parent union. The Respondents in paragraph 2h of the affidavit in support of the Originating Summons admitted the existence of some intra-Union dispute over the leadership tussle at the Branch. Citing Section 54 of the National Industrial Court Act, 2006, it was submitted that an intra-union dispute is a dispute within a Union arising from the organization and running of a trade Union as laid down in the
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Union Constitution. The decisions in Kalango v. Dakubo (2004) 1 NLLR (Pt. 1) 180 at 199; Daniel v. Fadugba (1998) 13 NWLR (Pt. 582) 496 and Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 239 were also cited and relied on.
Being an intra-union dispute, it was argued that the trial Court lacked the original jurisdiction to have entertained this case in the first place by virtue of Section 2 (1) of the Trade Disputes Act, Cap T8, Laws of the Federation, 2004, which provides:
2 (1) “No person shall commence an action, the subject matter of a Trade Dispute, or any inter or intra union Dispute in a Court of Law.”
The jurisdiction of the National Industrial Court of Nigeria, the lower Court, over trade disputes, whether inter or intra Union dispute is an appellate one and not original. Therefore for the trial Court to have jurisdiction, that is appellate jurisdiction, over the subject matter of this case, the Respondents ought to have complied with the conditions precedent as laid down in Part 1 of the Trade Dispute Act, being Sections 4 – 9 of the said Act on mediation, reconciliation and arbitration process before activating
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the appellate jurisdiction of the trial Court. The jurisdiction granted to the lower Court by the 1999 Constitution, as amended, and the National Industrial Court Act on Trade Union matters such as trade disputes, inter and intra Union Disputes is an Appellate jurisdiction, after the disputes must have gone through the conciliatory and arbitration body. The provisions of Section 254C (1) (j) (ii) of the 1999 Constitution, as amended, Section 7 of the National Industrial Court Act, 2006, and the decision in Aupctre & Ors vs. FCDA & Ors (2008) 10 NLLR (Pt.26) 304 at 316 – 317, were also cited and relied on.
It was further submitted that both the National Industrial Court of Nigeria and an inferior body such as an arbitral Tribunal cannot be said to have concurrent jurisdiction over trade disputes, including inter and intra union disputes. In this case, the trial Court therefore lacked the original jurisdiction to entertain intra union disputes. In support of this submission, Counsel cited and relied on Road Transport Employers Association of Nigeria (RTEAN) & Ors v. Mr. Olufemi Ajewole (2009) 15 NLLR (Pt. 41) 152;
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National Union of Hotels and Personnel Services Workers v National Union of Food, Beverages & Tobacco Employees & Anor (2004) 1 NLLR (Pt. 2) 286; Asuzu & Anor v. Ajewole & Ors (2009) 14 NLLR (Pt. 39) 434 at 456; and ASSBIFI v. Union Bank & Ors (2009) 14 NLLR (Pt. 37) 1 at 18-21.
It was finally submitted that in view of the fact that the issues the Respondents raised before the trial Court were intra union disputes, they ought to have exhausted the disputes resolution process of mediation, conciliation and arbitration specified in Part 1 of the Trade Disputes Act before approaching the trial Court by an appeal. The Court was urged to hold that their failure to observed the conditions precedent as laid down in Part 1 of the Trade Disputes Act made their case before the trial Court incompetent and the trial Court lacked the original jurisdiction to entertain same. Reliance was also placed on Madukolu & Ors v. Nkemdilim (1962) All NLR (Pt. 2) 581.
Resolution
It is a rudimentary principle of law that the jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a Court has to decide
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matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. Jurisdiction has variously been described as the life blood, the life wire, the fiat, the stamp of authority which necessarily enures to the Court or Tribunal and empowers it to adjudicate; Buremoh v Akande (2017) LPELR-41565(SC); Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (PT 1247) 465, (2011) LPELR-2185(SC), (2011) 2-3 SC (PT.1) 46; Madukolu v Nkemdilim (supra), (1962) 2 NSCC 374. A Court is said to have jurisdiction and therefore competent to entertain a suit when: –
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
b) 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
c) The case comes before a Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of
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jurisdiction.
See:Madukolu v Nkemdilim (supra); FBN Plc v Obande & Sons Enterprises & Ors (1998) 2 NWLR (PT 538) 410.
Where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would simply amount to a nullity.
Further, the claim of the plaintiff is the process to be examined in determining if the particular Court has jurisdiction to hear and determine the matter submitted to it for adjudication. The Court must restrict itself to the case as put forward by the plaintiff in his writ of summons and statement of claim; Tukur v Gongola State (1989) 4 NWLR (Pt. 147) 517; Akpamgbo-Okadigbo & Ors v. Chidi & Ors (2)(2015) LPELR-24565(SC); Emeka v Okoroafor (2017) LPELR-41738(SC); PDP v Oranezi (2017) LPELR-43471(SC); Agi v. PDP & Ors (2016) LPELR-42578(SC). Courts are creatures of statute with each Court’s jurisdiction defined and disclosed by the statutory provisions which creates it. The jurisdiction of a Court is therefore settled by the clear provisions of the Constitution and or other Statute specifically conferring such jurisdiction on the Court. A
25
resolution of a query as to the jurisdiction of a Court is steered by an examination of the provisions of statute that created it. Thus, an examination of the plaintiff’s claim, as well as the statutory provisions creating the Court are the primary factors to consider in determining if a Court has jurisdiction to entertain a matter.
Now, an intra-Union dispute has been defined as any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union’s constitution and by-laws, or disputes arising from chartering or affiliation of union. Section 54 of the National Industrial Court Act defines intra-union dispute as:
“Intra-union dispute” means dispute within a trade union or an employer’s association.”
In Kalango v Dokubo (supra) at 199 an intra-union dispute was defined by this Court, per Ikongbeh, JCA (of blessed memory) in these terms: –
“Such dispute is an intra-union dispute if it is between members of a union on one hand and the union itself on the other hand, or if it is between or among members of the
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same union inter se.”
Citing with approval an earlier decision of this Court, Owoade, JCA in Umoren v Akpan & Ors (2008) LPELR-8473(CA) said:
“In the case of Muyiwa Daniel & Ors vs. Mrs. Olutunde Fadugba (1998) 13 NWLR (Pt. 582) 482 at 496, the Court of Appeal (Lagos Division) per Opene JCA in similar circumstances as the present held as follows:
“I will proceed to examine the term “intra or inter trade dispute” and also refer to a similar phrase or words in an earlier statute that may throw light on the meaning of the phrase under construction.
The 20th Century Chamber Dictionary 1983 Edition defined “intra” as “within” while “dispute is defined as:
“to make a subject of argument, to contend for, to oppose by argument, to call in question, to argue, to debate.”
This clearly shows that intra union dispute is an argument or dispute within the union. A perusal at the Respondent’s claim shows that it is contesting or questioning the validity of the Union election by a member of the Union and this is no doubt an intra union dispute or dispute within the Union.” (Emphasis mine).
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In NUT & Ors v. Conference of Secondary School Tutors (COSST) & Ors (2005) LPELR-5953(CA) this Court, per Ngwuta, JCA (as he then was), at page 26 thereof, succinctly said: “Intra Union dispute is none other than a dispute between members of a trade union inter se.”
In the light of this characterization, the question is whether or not the claims of the Respondents before the lower Court fit into the garb of intra Union dispute as has been argued by the Appellants.
It is noteworthy that the Respondents in the affidavit in support of the Originating Summons acknowledged that there was some intra Union dispute over leadership tussle at the Appellant’s Federal College of Education, Obudu Branch. See paragraph 2(h) of the Affidavit in support of the Originating Summons, page 24 of the Record of Appeal. These disputes were centred round alleged financial improprieties by the Branch elected Treasurer, Comfort Atsu. The Appellant intervened through its General Secretary meeting with the Branch members, which led to the signing of a MOU by the elected executive members of the Branch. Notwithstanding the MOU, the disputes continued with petitions
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and counter petitions. The Respondents deposed that they had complied strictly with the terms of the MOU and were neither informed of any violation nor given a hearing on the allegation before the Appellant dissolved the elected Executive Committee. The Respondents alleged that the dissolution of the elected Executive Committee by the Appellant was not in consonance with either the Appellant’s Constitution or the terms of the MOU, hence the action seeking an interpretation of portions of the Appellant’s Constitution and terms of the MOU.
It must be understood that the claims of the Respondents that seek interpretation of portions of the Appellant’s Constitution and terms of the MOU, were premised on the disagreement over the propriety of the dissolution of the elected Executive Committee by the Appellant (dispute between members and the Union itself), which in turn arose out of a dispute between the elected Executive Committee members that had factionalized the Branch (dispute between members of the same Union inter se). Looked at from this unswerving precinct, and having regard to established interpretations of what constitutes an
29
intra-union dispute, the dispute between the parties herein was an intra-Union dispute, Kalango v Dokubo (supra); Umoren v Akpan (supra); NUT & Ors v. Conference of Secondary School Tutors (COSST) & Ors (supra); Daniel v. Fadugba (1998). The question now is whether the Lower Court had jurisdiction to hear and determine an intra-Union dispute.
The Appellant’s Counsel contended that the Lower Court, as a Court of first instance, had no jurisdiction to hear and determine an intra-union dispute. Without any hesitation, I would agree with this standpoint and proceed to explain why. As already settled, Courts are creatures of statute. The jurisdiction of a Court is disclosed and bounded by the statute that creates it. The lower Court was created by Section 254A of the 1999 Constitution, as amended, and its jurisdiction set out by Section 254C. Section 254C (1) (j) provides:
(1) Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise
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jurisdiction to the exclusion of any other Court in civil causes and matters-
(j) relating to the determination of any question as to the interpretation and application of any – (i) collective agreement; (ii) award or order made by an arbitral Tribunal in respect of a trade dispute or a trade union dispute; (iii) award or judgment of the Court; (iv) term of settlement of any trade dispute; (v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement; (vi) trade union Constitution, the Constitution of an association of employers or any association relating to employment, labour, industrial relations or work place; (vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof; (Emphasis mine).
The National Industrial Court Act, which is an Act of the National Assembly, provides in Section 7 (1) – (4):
7. (1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters-
(a) relating to – (i) labour, including trade unions and industrial relations; and (ii) environment and conditions of work, health,
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safety and welfare of labour, and matters incidental thereto; and
(b) relating to the grant of any order to restrain any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action;
(c) relating to the determination of any question as to the interpretation of- (i) any collective agreement, (ii) any award made by an arbitral Tribunal in respect of a labour dispute or an organizational dispute, (iii) the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement, (iv) any trade union Constitution, and (v) any award or judgment of the Court.
(2) The National Assembly may by an Act confer such additional jurisdiction on the Court in respect of such other causes or matters incidental, supplementary or related to those set out in Subsection (1) of this Section.
(3) Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under Subsection (1) (a) of this section may go through the
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process of conciliation or arbitration before such matter is heard by the Court.
(4) An appeal shall lie from the decisions of an arbitral Tribunal to the Court as of right in matters of disputes specified in Subsection (1) (a) of this section. (Emphasis mine).
The Trade Disputes Act, CAP 432, Laws of the Federal Republic of Nigeria, 2004, defines a trade dispute as:
“trade dispute” means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person
By these provisions, trade disputes that are inter union or intra union fall within the purview of the Act. See also N.U.E.E. v B.P.E. (2010) NSCQR VOL 41 at 614.
The Appellant’s Counsel has rightly submitted that the Trade Disputes Act is an Act of the National Assembly, which, pursuant to Section 7(3) of the NIC Act, prescribes in its Part 1 that trade disputes, including inter and intra Union disputes, must go through the process of conciliation or arbitration before such matter can be heard by the National Industrial Court as of
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right in appellate jurisdiction. The jurisdiction granted to the NIC by the Constitution and by statutory provisions as found in the NIC Act regarding trade disputes such as, inter and intra Union disputes, is an Appellate jurisdiction, exercisable after the said disputes have gone through the conciliatory and arbitration body. See in particular the provisions of Section 254C (1) (j) of the 1999 Constitution, as amended, and, Section 7(4) of the NIC Act. Therefore, I agree with the Appellant’s Counsel that both the NICN and an inferior body such as an arbitral Tribunal cannot have concurrent jurisdiction over trade disputes, including inter and intra union disputes. See also Umoren v Akpan (supra).
It is the settled position of the law that if a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo ll. v Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S. C. (PT. II) 240. The trial Court, for the afore reasons, ought to have declined to entertain the claims of the Respondents as it
34
lacked jurisdiction to entertain intra union disputes as a Court of first instance. If found that a Court had no jurisdiction to hear and determine a matter before it, then every order arising from proceedings conducted without jurisdiction amount to a nullity; ex nihilo nihil fit; Melwani v Five Star Industries Ltd (2002) 1 S.C. 120; Adesigbin v Military Governor of Lagos State (2017) LPELR-41666(SC). The proceedings and orders made by the lower Court without jurisdiction were therefore a nullity and can only be set aside. I would therefore resolve Issue (b) in favour of the Appellant.
Issues (c) and (d)
The Appellant contended that the learned trial Judge ought not to have allowed the action to commence by way of Originating Summons when the facts of the case as averred in the affidavits of the parties disclosed contentious facts or controversies of disputed question of facts without calling for pleadings or oral evidence to resolve the disputed facts between the parties.
Without much ado, I would agree with the Appellant’s Counsel. The affidavit evidence reveals that there were issues in much controversy between the parties. The
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question is whether the originating summons procedure was, in this light, well suited for the resolution of the conflicting and contentious affidavit evidence.
The nature of originating summons has been very well pronounced in a number of legal authorities. The Supreme Court, per Onnoghen JSC (as he then was) put it this way in Dapianlong v. Dariye (2007) 8 MJSC 140, (2007) 4 S.C. (PT.III) 18 (2007) LPELR-928(SC) at page 46:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute.
In actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed:
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See Director, State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Din v. A-G of the Federation (1986) 1 NWLR (Pt. 17) 471; Keyamo v. House of Assembly Lagos State & Ors (2002) 18 NWLR (Pt. 799) 605 .”
Similarly, in Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453; (2003) LPELR-1239(SC) at pages 12-13, Belgore JSC, (as he then was) also said, page 467: “The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest. (Order 38 Rule 1 and Order 44 Rule 1). It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights. If there are serious disputes as to facts then a normal writ must be taken out and
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not originating summons; Doherty v. Doherty (1968) NMLR 241. In matters where facts are not in issue the originating summons, which must be supported by an affidavit of the facts must be taken out and will become operative once a Judge in chambers has signed it thus giving direction for its service.”
Again, in Oba Osunbade v Oba Oyewunmi 30 NSCQR 434 at 449, the Supreme Court per Ogbuagu JSC said:
“It is now firmly settled that an Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal.”
See also:Inakoju v Adeleke (2007) 2 MJSC 1; Peters-Pam v. Muhammed (2008) 9 MJSC 117; FGN v Zebra Energy (Nig.) Limited (2003) 1 MJSC 3; Executive Governor, Nasarawa State & Anor v. Ukpo (2017) LPELR-42445(CA).
Originating Summons is a procedure for which only affidavit evidence is adduced. It is therefore well settled that in actions where there is likely to be substantial dispute
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of facts, or, where the relief or reliefs sought by a claimant are declaratory in nature, originating summons procedure that admits only affidavit evidence ought not to be employed. The action must be brought by writ of summons, the facts being in dispute. It is in accord with justice to postulate that where the complaint of the plaintiff makes allegations against a defendant, oral evidence is required. This would provide opportunity for the defendant to cross-examine witnesses testifying against him. It is important to note that it is not the filing of a counter affidavit per se that determines whether or not facts are in dispute. In Ossai v Wakwah (2006) 4 NWLR (Pt.969) 208 at 229, (2006) LPELR-2813 (SC) at page 19, (2006) 2 SC (Pt.1) 19, the Supreme Court, per Mohammed JSC (as he then was) unequivocally put it this way:
“It must be emphasized that it is not the filing of a counter-affidavit to oppose claims in an originating summons that makes such proceedings contentious or result in disputed facts. Even where no counter-affidavit was filed or where counter-affidavit was filed but ignored by the trial Court, as in the lost out case, the nature
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of the claims and the facts deposed in the affidavit in support of the claims in the originating summons are enough to disclose disputed facts and hostile nature of the proceedings.” The learned trial Judge therefore misconceived the thrust of the objection of the Appellant to the Originating Summons procedure when he ruled as follows, pages 263 – 264 of the Record of Appeal:
“I have gone through the processes of the defendant/applicant/objector. I have not found any reaction in terms of counter affidavit to the originating processes of the claimant to enable the Court see how the originating summons affidavit is likely to engender hostile proceedings. It may be true that the affidavit of the claimant may contain disputed facts, substantial issues of controversy, but in the absence of any counter affidavit of the applicant, it will be difficult if not impossible for this Court to determine the non suitability of this mode of commencement for this litigation or suit.”
An aggrieved litigant should not employ originating summons as a procedure to ventilate grievances which are in dispute. Thus, Counsel for the Appellant was right
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in his contention that the originating summons procedure was not the correct procedure to employ in determining hostile proceedings in which facts are in dispute; Amasike v The Registrar, Corporate Affairs Commission (2010) 13 NWLR (PT.1211) 337 S.C; Ezeigwe v Nwawulu (2010) 4 NWLR (PT 1183) 159 S.C.; Agbakoba v INEC (2008) 18 NWLR (PT.1119) 489 S.C. In my considered view, therefore, there is no gainsaying the fact that the Respondents commenced the action by a procedure that does not permit a comprehensive ventilation of the matters in controversy in order to ensure justice for all the parties. The declarations and orders sought by the Respondents arising from the issues thrown up by the affidavit evidence of the parties cannot fairly be determined without recourse to oral evidence which is tested by cross examination. I am strengthened in this view by a scrutiny of the questions submitted for determination by the Respondents, particularly, questions 2, 4, 5, 8, 9, 10, 11, 12, 13 and 14, as well as the depositions in the affidavit in support of the claims. These depositions reveal that the Respondents do not admit that they violated any provision of the
41
Appellant Union’s Constitution or the MOU. The Respondents deny that they precipitated any crisis in the Branch by their actions. The Respondents do not also admit that there were any funds belonging to the Appellants which they misappropriated. Rather, they alleged that it was the treasurer, Comfort Atsu, who diverted various sums of welfare fund belonging to other members of the Union. These are questions can only be impartially resolved by the trial Court after hearing evidence from the witnesses of the parties. I agree with the Appellant’s Counsel that the questions framed by the Respondents for determination by the lower Court were not solely for the interpretation of the Constitution of the Appellant or the MOU. The depositions contained facts that required strong proof through pleadings and oral evidence that would be subjected to vigorous cross examination to test their veracity. The position of the Appellant that the contentious and highly disputed facts in the affidavit of the Respondents as well as the questions for determination by the trial Court cannot properly be determined and resolved by way of an Originating Summons, as was done
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in this case by the trial Court, cannot be said to be flawed. The general principle of law is that where there is conflicting affidavit evidence in an originating summons procedure, the trial Court should order pleadings in order for the parties to lead evidence to resolve such conflicts. An exception to this general principle is that where there are documents annexed to the affidavit of the parties which can be effectively used to resolve the conflicts, there would be no need to order for pleadings; Jev & Anor v. Iyortyom & Ors (2014) LPELR-23000(SC); Ezechukwu & Anor v. Onwuka (2016) LPELR-26055(SC).
In the instant case, the learned trial Judge acknowledged that the factors for testing the credibility and veracity of a witness were: her/his knowledge of the facts she/he testifies, her/his disinterestedness, her/his integrity and the surrounding circumstances of the case. However, I do not see how a Court can draw these conclusions regarding a witness without the benefit of oral evidence that is passed through the crucible of cross examination. The authorities relied on by the learned trial Judge were Okosi v The State (1989) 1 NWLR
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(PT 100) 642 and Onuoha v State (1989) (Pt 101) 23, also reported in (1989) LPELR-2704(SC). Both of these cases were not determined on affidavit evidence. Rather, both sides presented oral evidence which was subjected to thorough cross examination. But, the learned trial Judge in this case, on the basis of the conflicting affidavit evidence, sans oral evidence and the benefit of cross examination, wrote off the depositions of Mrs. Comfort Atsu, the treasurer, describing her as a witness that lacked credibility, page 582 of the Record of Appeal. My concern is this: how could a trial Court prefer the account of a witness that it never saw or heard and whose bearing and demeanour in the witness box it did not watch, over the conflicting affidavit evidence of another witness, when neither account was tested for veracity by the fire of cross examination? There has to be compelling reason to accept affidavit evidence of one party over another that is in conflict. Indeed, the volume and complexity of the conflicting evidence in this case ought to have compelled a decision to order pleadings and enable oral evidence, the veracity of which would be tested by cross
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examination. There can only be a proper evaluation of evidence when evidence is equally and impartially placed on the scales of justice. A judgment that is devoid of proper evidentiary support and evaluation cannot be supported. I therefore agree completely with the Appellant that the failure of the learned trial Judge to call for the filing of pleadings or oral evidence in this case where the facts were highly disputed, contentious and controversial caused a miscarriage of justice. There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It simply means that the Court has failed to do justice according to law; Aighobahi & Ors v. Aifuwa & Ors (2006) LPELR-267(SC); Nwankwoala v FRN (2018) LPELR-43891(SC); Eze v. University of Jos (2017) LPELR-42345(SC); Oguntayo v. Adelaja & Ors (2009) LPELR-2353(SC). The decision of the trial Court cannot therefore be allowed to stand. Issues (c) and (d) are resolved in favour of the Appellant.
Issue (e)
The learned trial Judge had awarded the sum of N3,000,000.00 to the Respondents as damages and the sum of
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N150,000.00 as cost of the action. The Appellant argued that the award was excessive, punitive, outrageous, arbitrary, without proof of any actual damage suffered by the Respondents and without any legal jurisdiction.
Without going into the merits of the arguments of the Appellant, the decision on appeal has already been adjudged to amount to a miscarriage of justice in the circumstance made, and, fundamentally, to have been delivered without jurisdiction. The judgment is therefore a nullity and bound to be set aside. Accordingly, Issue 5 is resolved in favour of the Appellant.
There is merit in this appeal. It succeeds and is hereby allowed. The decision of the lower Court in Suit No NICN/MKD/62/2016, delivered on July 4, 2017, is hereby set aside.
Parties are to bear their costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Lead Judgment delivered by my learned Brother, Hon. Justice O.A. Otisi, JCA. I agree with the conclusion that there is merit in this Appeal and it succeeds. For these and the fuller reasons in the lead judgment. I also allowed the Appeal and set aside the Judgment of the Lower Court
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I also abide by the Order(s) as to costs of this Appeal.
JOSEPH EYO EKANEM, J.C.A.: I read in advance a copy of the lead judgment of my learned brother, Otisi, JCA. I agree with the reasoning and conclusion therein that the appeal has merit.
For the sake of emphasis. I intend to say a word or two on issue 1, which to my mind raises a simple poser as to the effect of a breach of Sections 97 and 99 of the Sheriffs and Civil Process Act. 2004.
The decision of the full bench of the Supreme Court in Odu’a Investment Co. Ltd V. Talabi (1997) 52 LRCN 2107 settled decisively the question. In the lead judgment. Ogundare, JSC held the view that the provisions of Sections 97 and 99 of the said Act are for the benefit of a defendant and not one of general public policy, and therefore a defendant for whose benefit it was made can waive non – compliance. Thus it was held that a breach of the provisions renders the writ of summons voidable and not void. A waiver of such breach can occur where the defendant does not object timeously to the non – compliance but rather takes steps to defend the matter. I am not aware of any decision of a full bench of the Supreme Court
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that has overruled the decision in Odu’a Investment Co. Ltd case and so it stands as the binding authority on the issue.
In this instance, it is clear that the preliminary objection of the appellant at the lower Court was completely silent on non-compliance with Sections 97 and 99 of the Sheriffs and Civil Process Act. After the preliminary objection was overruled by the lower Court, the appellant filed its counter-affidavit in opposition to the originating summons upon obtaining leave of that Court to do so out of time. It is only in the appeal to this Court that the appellant has raised the issue of non – compliance with Sections 97 and 99 of the Act. It is too late in the day for it to do so as it had waived its right to raise the complaint. A similar situation arose in the recent case of Central Bank of Nigeria V. Interstella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294. Ogunbiyi, JSC, guided by Mako V. Umoh (2010) 8 NWLR (Pt. 1195) 82 at pages 325 – 236, held as follows:
“At pages 59 to 71 of the record, it is evident on the face of the preliminary objection filed by the appellant at the trial Court that non-compliance with
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Section 97 was not raised therein.
In support of the principle of waiver, the authority in the case of Mako V. Umoh (supra) is relevant in situation where a party takes fresh steps without timeously objecting to it.
In the case under reference it was held at pages 110 -111 paras. H – B that:
“Non – compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rules of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service voidable and the defendant who complains of such non-compliance is entitled ex debito justitiae to have the writ set aside as was done in the case of Skenconsult (Nig) Ltd V. Ukey (1981) 1 SC 6, Nwabueze V. Okoye (1988) 4 NWLR (Pt. 91) 664, NEPA V. Onah (1997) 1 NWLR (Pt. 484) 680 provided he has not taken steps in the matter which will amount to waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused.
The alleged issue of non – compliance with the SCPA was not raised at the trial Court. As rightly submitted by the 1st and 2nd respondents’ counsel, it is
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too late in the day for the appellant to seek a respite where it waived and forfeited it.
The appellant is also estopped by operation of law from raising this objection on appeal after it failed to raise at the Trial Court and took fresh steps in arguing other points which are totally irrelevant to an objection under Section 97 of the SCPA.”
The decision applies with great force in this instance.
Inspite of the above and in the light of the resolution of issues (b) and (d) an the lead judgment, which I hereby adopt, I also find merit in the appeal. I allow the same and set aside the decision of the Lower Court. I abide by the order as to costs made in the lead judgment.
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Appearances:
Rotimi Olujide, Esq. For Appellant(s)
The Respondents, who were served with Hearing Notice through Counsel, Ocha P. Ulegede, Esq., on 16/3/2020, failed to appear and were not represented For Respondent(s)
