NATIONAL JUDICIAL COUNCIL v. HON. JUSTICE P.N.C. AGUMAGU & ORS (2015)

NATIONAL JUDICIAL COUNCIL v. HON. JUSTICE P.N.C. AGUMAGU & ORS

(2015)LCN/7809(CA)

In The Court of Appeal of Nigeria

On Thursday, the 12th day of March, 2015

CA/A/361/2014

RATIO

APPEAL: PRELIMINARY OBJECTION; THE DISTINCTION BETWEEN A GROUND OF FACT OR MIXED LAW AND FACT

APPEAL: GROUND OF APPEAL: HOW TO DISCOVER THE NATURE OF A GROUND OF APPEAL
One of the paramount considerations, invented by the Supreme Court, to discover the nature of a ground of appeal, is that where a ground of appeal challenges an interlocutory decision of a court predicated on exercise of discretion, then it is, at best, ground of mixed law and fact, see FBN Plc. v. Abrahim (2008) 18 NWLR (Pt.1118) 172; Garuba v. Omokhodion (supra); Williams v. Mokwe (2005) 14 NWLR (Pt.945) 249. per. OBANDE FESTUS OGBUINYA, J.C.A.

PRACTICE AND PROCEDURE: THE DUTY OF A PARTY TO BE CONSISTENT IN THE PRESENTATION OF HIS CASE
The law, roundly, frowns on this chameleonic character of litigating parties. The law insists that a party must be consistent in the presentation of his case, see Garuba v. Omokhodion (supra); P.M. Ltd. v. The “MV Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Adeosun v. Gov. Ekiti State (2012) 4 NWLR (Pt.1291) 581; Obitude v. Onyesom Comm. Bank Ltd. (2014) 9 NWLR (Pt.1412) 352. A party, perhaps, in a bid to score victory or advantage is not allowed to change his case like an oscillating pendulum in a wall clock. It is a defilement of the law to indulge in such an unwholesome somersault practice. I hold, taking shelter under the law, solidified by Garuba case, that the decision of lower court was interlocutory, not final as, vainly, pontificated by the appellant. per. OBANDE FESTUS OGBUINYA, J.C.A.

APPEAL: FILING AN APPEAL; WHETHER LEAVE OF COURT IS REQUIRED FOR FILING AND APPEAL AND THE EFFECT OF THE FAILURE OF THE APPELLANT TO SEEK AND OBTAIN THE REQUISITE LEAVE BEFORE FILING SAME

The issues of jurisdiction, fair hearing and right of appeal are all constitutional issues. The requirement of leave before appealing, provided in section 242 of the Constitution, as amended, is not hostile to the jurisdiction of courts and right to fair hearing.
And appeal on fair hearing which is spiced with mixed law and facts requires the leave of court, see Kahih v. PDP (2014) 15 NWLR (Pt. 1430) 174. Access to court implies: “approach or means of approach to court without constraint”, see Amadi v. NNPC (supra), at 111, per Karibi-Whyte, JSC. The leave requirement is a mere condition precedent, “one which delays vesting of right until the happening of an event”, see Nigercare Dev. Co. Ltd. v. A.S.W.B. (2008) 9 NWLR (Pt.1093) 498 at 520, per Ogbuagu, JSC. The leave requirement is a prerequisite to the activation of jurisdiction of courts and fair hearing and not antithetical to them.
There is no saying the fact that, these anatomised issues of law, amply, demonstrate that the appellant’s grounds of appeal do not come within the purview of the provisions of the section 241 (1) (b) of the 1999 Constitution, as amended. They rather reside in the sacrosanct prescription of section 242 (1) of the Constitution, as amended, which ordains that this specie of appeal must be initiated with the leave of the lower court or this court. In the eyes of the law, leave in this con signifies permission, see S. U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718/(1987) 2 NSCC, Vol. 18, 1219; Garuba v. Omokhodio (supra); Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt.1073) 179. Where leave of court is required for filing an appeal and an appellant ignores seeking and obtaining the requisite leave before filing same, the appeal is rendered incompetent, see UBN Plc. v. Songunro (2006) 16 NWLR (Pt. 1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd. (supra); Ugboaja v. Akitoye-Sowemimo (supra); Akinyemi v. Odu’a Inv. Co. Ltd. (supra); Anaechebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168. per. OBANDE FESTUS OGBUINYA, J.C.A.

COURT: ABUSE OF COURT PROCESS; WHAT THE CONCEPT OF THE ABUSE OF COURT PROCESS ENTAILS AND HOW THE COURT DETERMINES THE PRESENCE OF THE ABUSE OF COURT PROCESS IN AN ACTION

COURT: A VERDICT OF COURT; WHEN IS A VERDICT OF COURT SAID TO BE PERVERSE
The appellant castigated the decision of the lower court on consolidation as perverse. A verdict of court is perverse when it runs counter to the pleadings and evidence before it, a court takes into account extraneous and irrelevant matters, a court shuts its eyes to the evidence, a court goes outside the issues canvassed by the parties or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna (2008) 16 NWLR (Pt.1114) 427; Onyekwelu v. Elfpet. (Nig.) Ltd. (2009) 5 NWLR (Pt.1133) 181; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt.1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt.1384) 477. per. OBANDE FESTUS OGBUINYA, J.C.A.

COURT: RULES OF COURT; THE PURPOSE OF RULES OF COURT
For completeness, the importance of the provision of order 29 rule(1) of the Rules cannot be overemphasised in our adjectival law.
The provision is meant to fast track and jump-start the administration of justice which is dotted with unwarranted delays in our legal system. In the word of the oracular Oputa, JSC, “Rules of Court… are rules established for attaining justice with ease, certainty and dispatch,” Unilag v. Aigoro (1984) 15 NSCC 745 at 782. The millipede speed at which proceedings move in courts has been decried as a dent on the administration of justice in the Nigerian legal system.
The consolidation safeguard in the provision is one of the key ways to speed up the hearing of matters. It will, therefore, be an affront to the law and justice to nullify a decision aimed at quick dispensation of justice, without substantial reasons. Such will be a judicial sacrilege! per. OBANDE FESTUS OGBUINYA, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER A COURT RAISING AN ISSUE SUO MOTU WITHOUTH IMPUT FROM PARTIES VIOLATES RIGHTS OF PATIES TO FAIR HEARING

Indisputably, the law, roundly, deprecates a court raising an issue suo motu, on its own motion, and deciding same without input from parties. Such an injudicious judicial exercise will undermine the inviolate right of parties to fair hearing which is guaranteed under section 36 of the Constitution, as amended. The rule, however, is not inflexible. It admits of some exceptions. The need for address becomes unnecessary when: the issue relates to court’s jurisdiction, the parties ignore a statute and serious question of fairness of proceedings is evident, see Gbagbarigha v. Toruemi (2013) 6 NWLR (Pt.1350) 289; Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300. Put the other way round, the concept of raising issue suo muto, which has become a clich in adjudication, is not absolute against the offending court. per. OBANDE FESTUS OGBUINYA, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

NATIONAL JUDICIAL COUNCIL Appellant(s)

AND

1. HON. JUSTICE P.N.C. AGUMAGU
2. HON. JUSTICE BABATUNDE ADEJUMO
3. HON. JUSTICE JUBRIL IDRIS
4. HON. JUSTICE COMWELL IDAHOSA
(Chairman and Members of the Panel set up by the 1st Respondent to investigate allegations against the appellant.) Respondent(s)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the Federal High Court, holden at Abuja, corom judice A. F. A. Ademola, J., in suit No. FHC/ABJ/CS/253/2014, delivered on 26/05/2014. The appellant, second-fourth respondents and the first respondent were the respective respondents and applicant in the Federal High Court, the lower court.

The facts of the case, which transformed into this appeal, submit to brevity and easy appreciation. The first respondent is a serving judicial officer in the service of the Rivers State judiciary. On 07/05/2009, he was appointed the President of the Customary Court of Appeal of Rivers State by the Governor of the State. By a letter dated 18/03/2014, the Governor of Rivers State appointed the first respondent as the Chief Judge of the State. The House of Assembly of Rivers State confirmed the appointment and he was sworn-in as the Chief of Rivers State.

Subsequently, the appellant, an executive body charged with the responsibility of disciplining judicial officers, suspended the first respondent from office as a judicial officer on 26/03/2014. It further queried him on why he should not be removed from office for failure to abide by his oath of office to uphold the Constitution and Laws of the Federal Republic of Nigeria. Sequel to that, and in order to preserve his job, the first respondent beseeched the lower court by dint of a motion ex parte, filed on 31/03/2014, for an order for leave to apply for judicial review by way of certiorari, prohibition, declaration and injunction against the appellant over its decision of 26/03/2014. The lower court granted the leave on that same 31/03/2014 and fixed the return date on 10/04/2014. Pursuance to the leave, the first respondent filed a motion on notice, on 01/04/2014, and replicated those outlined reliefs. On 17/04/2014, the appellant filed a motion on notice and it prayed the lower court to: set aside its enrolled order dated 10/04/2014 and strike out the entire suit filed by the first respondent.

At a resumed sitting of the lower court on 05/05/2014, the first respondent, qua counsel, urged it to take the appellant’s preliminary objection along with the substantive suit. The appellant objected to that line of procedure. After very dazzling and extensive arguments, for and against the procedure, the lower court adjourned to 26/05/2014 for ruling. In a considered ruling, delivered on that 26/05/2014, the lower court ordered, inter alia, that the appellant’s preliminary objection and the first respondent’s motion on notice, dated 01/04/2014, were fixed for 30/06/2014 for hearing.

The appellant was dissatisfied with the ruling. Hence, on 05/06/2014, it lodged a 7-ground notice of appeal, found between pages 209 – 222 of the printed record of appeal, and, ultimately, prayed this court as follows:

(i) To allow this appeal.
(ii) To set aside the ruling and Orders made by the lower court on 26th May, 2014, as well as the subpoena dated 2nd May, 2014.
(iii) Applying the provisions of Order 26 Rules 11 and 12 of the Federal High Court (Civil Procedure) Rules, 2009 to Appellant’s application dated and filed on 17th April, 2014.
To discharge the ex-parte Order made by the lower court on 31st March, 2014, amended on 10th April, 2014, and embodied in the enrolled Order dated 10th April, 2014 which was served on the Appellant on 11th April, 2014.
(iv) In the alternative to and/or if relief (iii) supra is refused by the Court of Appeal, To take the said Appellant’s application as a court of first instance, under and by virtue of Section 15 of the Court of Appeal Act, accordingly.

Thereafter, the parties filed and exchanged their briefs of argument in line with the practice and procedure regulating hearing of interlocutory appeals in this court. The appeal was heard on 12/02/2014.

Preliminary Objection

Before the hearing of the appeal, learned counsel for the first respondent, Chief Akin Olujinmi, SAN, argued his preliminary objection filed on 10/02/2015. The preliminary objection prayed this court to strike out the appellant’s appeal on the ground that:

The decision appealed against was an interlocutory decision of the trial court based on the exercise of the trial court’s discretion which undoubtedly involved a consideration of mixed law and fact for which the appellant ought to have obtained the leave of either the trial court or this court having regard to the combined effect of the provisions of Sections 241 and 242 of the 1999 Constitution as amended.

In arguing the objection, learned senior counsel for the first respondent submitted that the appeal was incompetent because, it was against the exercise of discretion of the lower court for which the appellant should have obtained leave of court. He noted that the decision to combine the actions was taken after a review of all the affidavits and other processes filed by the parties. He relied on sections 241 and 242 of the Constitution, as amended, UBA v. Stahlbau FMBH (1989) 6 SC (Pt. 1) 22 at 34-35 and Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145 to support the submission.

For the appellant, learned counsel, Chief Wole Olanipekun, SAN raised objection to the preliminary objection on the ground that it was argued before filing it. He referred to the case of Moyosore v. Gov., Kwara State (2012) 5 NWLR (Pt. 1293) 242; In Esoho v. Asuquo (2007) All FWLR (Pt. 359) 1355 to support the point. He urged the court to strike it out for being incompetent.

In opposition to the objection, learned counsel for the appellant, Chief Wole Olanipekun, SAN, contended that section 241(1)(a) and (b) of the Constitution, as amended, created appeal as of right for appeals involving final decisions and grounds of law alone.
He explained the term “final decision” as noted in the case of Global Scene Ltd. v. The Registrar, Trademarks (2011) All FWLR (Pt. 558) 877. He described the decision of the lower court as final so that no leave was required to appeal against it. He cited the cases of Mu’azu v. Bani Musa Holding Ltd. (2011) All FWLR (Pt. 594) 172; Global Scene Ltd. v. The Registrar, Trademarks (supra) in support of the contention.

Learned senior counsel posited that there was no absolute discretion as same must be exercised judicially and judiciously. He referred to the cases of CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48; Unilag v. Aigoro (1985) 1 NWLR (Pt. 1) 143; Unilag v. Olaniyan (1985) 1 NWLR (Pt. 1) 155 for the view. He noted that the appeal was against the lower court’s failure to comply with orders 26, 27 and 34 of the Federal High Court (Civil Procedure) Rules 2009 (hereunder abridged to “the Rules”) and binding decisions of appellate courts. He added that the grounds of appeal raised issues of jurisdiction, fair hearing and misapplication of order 29 of the Rules. To support the point, he referred to Calabar Central Co-operative Society & Ors. V. Ekpo (2008) All FWLR (Pt. 418) 198; Agbule v. WR & P. Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318; Newswatch Comm. Ltd. v. Attah (2006) 12 NWLR (Pt. 993) 144; Dingyadiv. INEC (2011) 18 NWLR (Pt.1224) 1; Ohia v. Akpuoe-Monye (1999) 1 NWLR (Pt. 588) 521.

He further contended that the issue of judicial precedent was not discretionary as a court would not have the discretion to follow it. He cited the cases of Dingyadi v. INEC (supra); Dalhatu v. Turaki (2003) 15 NWIR (Pt. 843) 310; Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) 536 for the view. He added that compliance with provisions of a statute or rules of court was not a matter of discretion. He placed reliance on Alao v. Akanbi (1989) 3 NWLR (Pt. 108) 111; Calabar Central Co-operative Society & Ors. V. Ekpo (supra); Akpari v. Hose (1999) 5 NWLR (Pt. 604) 54 for the contention.

On points of law, learned counsel for the first respondent urged the court to reject the objection to the preliminary objection because it did not form part of the arguments against it and it denied the first respondent his right to fair hearing. He relied on the case of Dakolo v. Rewane Dakolo (2011) 16 NWLR (Pt.1272) 22 on the point. He postulated that the preliminary objection was jurisdictional which the court could take suo motu.

Resolution of the preliminary objection.

The foremost point is to settle the objection erected by the appellant against the competence of the preliminary objection – that it was argued before filing. The resolution of this tangential issue will foreshadow the competent existence or otherwise of the preliminary objection. It can be gleaned, from the endorsement on the front page of the notice of preliminary objection, that it was filed on 10/02/2015. A look at the first respondent’s brief of argument, which hosts his arguments for the preliminary objection, shows that it was filed on 12/12/2014. By calenderic comparison, the arguments, wrapped in the brief, predated the preliminary objection. That is an incongruous configuration of events in that the preliminary objection was argued before its filing. It is an irregularity in law.

However, the irregularity pales into insignificance when the brief was, with the imprimatur of this court, deemed as properly filed and served on 12/02/2015. In other words, the order of this court restored the proper sequence of the events. It reversed that inverse procedure. In this wise, the irregularity was regularised and it became disabled from ruining the preliminary objection in limine.

Besides, a clinical examination of the preliminary objection shows that it evinces a jurisdictional question. A court of law cannot shut its eyes against a preliminary objection that borders on jurisdiction. Put simply, it must be considered by the court, see Jev. v. Iyortyom (2014) 14 NWLR (Pt.1428) 575. The raison d’etre for this principle of law is, firmly, founded in the despicable province of nullity. No court desires to waste the scarce judicial time. For this reason, this court is compelled, under pain of nullity of its decision, to consider the preliminary objection even in the face of a remediable irregularity. On this score, I find no merit in the appellant’s objection.

It fails and, accordingly, I overrule it. I will proceed to consider the preliminary objection on its merits.

The first respondent’s preliminary objection, like every preliminary objection, is aimed at terminating the appeal in limine.
Hence, the law mandates the court to hear preliminary objection first, see B.A.S.F. (Nig.) Ltd. v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd. v. Amadi (2011) 14 NWLR (Pt. 1266) 157; FBN Plc. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt.1326) 339.

Incidentally, the preliminary objection rotates around a very narrow compass – that the appeal is incompetent because it is against an interlocutory decision of the lower court based on exercise of discretion which, in turn, turned on mixed law and fact and filed without leave of court.
It is discernible, from loads of decided judicial authorities, that to differentiate between a ground of law, on the one hand, and a ground of fact or mixed law and fact, on the other hand, has been a stubborn and perennial judicial exercise. The dichotomy between them, though slim and subtle, has agitated the well-informed legal minds in this country and tons of ink expended on it. A ground of appeal does not translate into a ground of law or fact or mixed law and fact because it is so couched by the appellant. In other words, the manner an appellant has labelled a ground of appeal does not bring out the class of ground it belongs, id est, law, fact or mixed law and fact. To decipher whether a ground of appeal is of law or fact or mixed law and fact, a court has the bounden duty to, thoroughly and assiduously, examine the ground with its accompanying particulars. These cardinal principles on classification of grounds of appeal have been sanctified in an army of authorities, see Thor Ltd. v. FCMB Ltd. (2008) 4 SCNJ or (2002) 4 NWLR (Pt. 757) 427; Akanbi v. Salawu (2003) 13 NWLR (Pt. 838) 637; Garuba v. K. I. C. Ltd. (2005) 5 NWLR (Pt. 917) 160; FBN Plc. v. TSA Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247; General Electric Co. v. Akande (2011) 18 NWLR (Pt. 1225) 596; Abubakar v. Waziri (2008) 14 NWLR (Pt. 1108) 507; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357.
In order to curb the incessant difficulties associated with drawing a distinction between a ground of law and a ground of fact or mixed law and law, the Supreme Court, in myriads of decided cases, had evolved certain principles that would assist the courts, in a galaxy of authorities, see C.C.C.T.C.S. v. Ekpo (supra); Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1059) 99; NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148; Akinyemi v. Odu’a Inv. Ltd. (2012) 17 NWLR (Pt. 1329) 209; Atago v. Nwuche (2013) 3 NWLR (pt. 1341) 337; Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1225) 797; M.M.A. Inc. v. N.M.A. (2012) 18 NWLR (1333) 506.
A question of law connotes one of three meanings, to wit: (a) A question a court is bound to answer in accordance with a rule of law (b) A question which explains what the law is (c) A question which normally answers questions on law only and, invariably, falls within the judicial power of a Judex to answer. Contrariwise, a question of fact denotes one of three meanings, viz. (a) A question which is not determined by a rule of law. (b) Any question except one as to what the law is. (c) Any question which is to be answered by the Jury and not the Judge. These triumvirate meanings of questions of law and fact have received the approval of the apex court in an avalanche of cases, see C.C.C.T.C.S. v. Ekpo (supra); General Electric Co. v. Akande (supra); Ehinlanwo v. Oke (supra).
One of the paramount considerations, invented by the Supreme Court, to discover the nature of a ground of appeal, is that where a ground of appeal challenges an interlocutory decision of a court predicated on exercise of discretion, then it is, at best, ground of mixed law and fact, see FBN Plc. v. Abrahim (2008) 18 NWLR (Pt.1118) 172; Garuba v. Omokhodion (supra); Williams v. Mokwe (2005) 14 NWLR (Pt.945) 249.
Now, what transpired in the lower court can be garnered from the printed supplementary record, the bible of the appeal. The first respondent, on 05/05/2014, had solicited the lower court to fuse the hearing of his substantive application, on judicial review, with the appellant’s application against its jurisdiction. The supplication was, vehemently, opposed by the appellant: In a considered ruling, delivered on 26/05/2014, the lower court granted the first respondent’s prayer. The status of the decision is located in judicial milieu of case – law. In Garuba v. Omokhodion (supra), a scenario, which is congruent with the instant appeal, played out. The apex court, per Chukwuma-Eneh, JSC, at page 183, held:
The trial court opted to hear the preliminary objections first in exercise of its discretionary power. It is beyond argument that the appellants have questioned the trial court’s discretion in making the interlocutory order in other words, thus questioning the evaluation of facts…. I find that by examining the said 3 grounds of appeal will lead to further examining of the facts and circumstances on which the trial court’s exercise of its discretion in the matter of the directive it has given is premised….
It flows that this ex cathedra decision, which the feuding parties placed high premium on in their submissions, has, with finality, categorised the decision of the lower court as an interlocutory decision grounded on an exercise of discretion and well-rooted in mixed law and facts. The decision, to all intents and purposes, demolishes the seemingly impregnable argument of the appellant that the decision of the lower court was a final one. I brand it as a non sequitur. It is even startling that the appellant could change its stand, a volte-face, on the nature of the order made by lower court, in the midstream of the proceeding. It had previously stuck to the stance that the decision was an interlocutory one.
The law, roundly, frowns on this chameleonic character of litigating parties. The law insists that a party must be consistent in the presentation of his case, see Garuba v. Omokhodion (supra); P.M. Ltd. v. The “MV Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Adeosun v. Gov. Ekiti State (2012) 4 NWLR (Pt.1291) 581; Obitude v. Onyesom Comm. Bank Ltd. (2014) 9 NWLR (Pt.1412) 352. A party, perhaps, in a bid to score victory or advantage is not allowed to change his case like an oscillating pendulum in a wall clock. It is a defilement of the law to indulge in such an unwholesome somersault practice. I hold, taking shelter under the law, solidified by Garuba case, that the decision of lower court was interlocutory, not final as, vainly, pontificated by the appellant.

In an avowed bid to salvage the appeal, the appellant weaved the argument that the grounds raised issues of jurisdiction and fair hearing. It is doubtful if this sterling argument will infuse competence into the appeal. The issues of jurisdiction, fair hearing and right of appeal are all constitutional issues. The requirement of leave before appealing, provided in section 242 of the Constitution, as amended, is not hostile to the jurisdiction of courts and right to fair hearing.
And appeal on fair hearing which is spiced with mixed law and facts requires the leave of court, see Kahih v. PDP (2014) 15 NWLR (Pt. 1430) 174. Access to court implies: “approach or means of approach to court without constraint”, see Amadi v. NNPC (supra), at 111, per Karibi-Whyte, JSC. The leave requirement is a mere condition precedent, “one which delays vesting of right until the happening of an event”, see Nigercare Dev. Co. Ltd. v. A.S.W.B. (2008) 9 NWLR (Pt.1093) 498 at 520, per Ogbuagu, JSC. The leave requirement is a prerequisite to the activation of jurisdiction of courts and fair hearing and not antithetical to them.
There is no saying the fact that, these anatomised issues of law, amply, demonstrate that the appellant’s grounds of appeal do not come within the purview of the provisions of the section 241 (1) (b) of the 1999 Constitution, as amended. They rather reside in the sacrosanct prescription of section 242 (1) of the Constitution, as amended, which ordains that this specie of appeal must be initiated with the leave of the lower court or this court. In the eyes of the law, leave in this con signifies permission, see S. U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718/(1987) 2 NSCC, Vol. 18, 1219; Garuba v. Omokhodio (supra); Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt.1073) 179.

Where leave of court is required for filing an appeal and an appellant ignores seeking and obtaining the requisite leave before filing same, the appeal is rendered incompetent, see UBN Plc. v. Songunro (2006) 16 NWLR (Pt. 1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd. (supra); Ugboaja v. Akitoye-Sowemimo (supra); Akinyemi v. Odu’a Inv. Co. Ltd. (supra); Anaechebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168. The appellant filed its notice of appeal, which queried an interlocutory decision on exercise of discretion, without procuring the requisite leave of the lower court or this court. The failure to obtain the mandatory leave is offensive to the provision of section 242(1) of the Constitution, as amended. The dire consequence of that constitutional transgression is not a moot point. The appeal is stripped of competence which impinges on this court’s jurisdiction to entertain it. Jurisdiction, the authority of a court to entertain a matter before it, is the heartbeat of adjudication. In view of this kingly position, a court of law is, willy-nilly, bound to give it prime attention. Any decision, arrived at by a court drained of jurisdiction, no matter the quantum of industry, artistry, dexterity or objectivity invested in it, is marooned in the intractable vortex of nullity. That is the unfortunate fate of the appellant’s appeal.
This appeal brings to the fore the crying need for learned counsel and, by extension, litigants to always obtain leave of court, as a precautionary measure, in situations they are uncertain as to the status of their grounds of appeal. Had the appellants procured the leave of the lower court or this court ex abundanti cautela, their appeal would not have been caught in the inescapable den of incompetence and it would have been duly considered on its merits.

On the whole, on account of these reasons, arrived at after due consultation with the law, the respondent’s preliminary objection is imbued with merit. In the circumstance, I uphold the preliminary objection. Consequently, I strike out the appellant’s appeal, filed on 05/06/2014, for want of competence. The parties shall bear their respective costs of prosecuting and defending the doomed appeal.

Ordinarily, having struck out the appeal for being incompetent, that would have been the end of my arduous judicial assignment.
However, it is not. This a penultimate court – next to the apex court on the judicial ladder. In view of this hierarchical position, the law insists that I showcase my view on the appeal for the benefit of the Supreme Court, on the likely event of appeal to it. This is to, ultimately, obviate the need for the apex court to remit the appeal to this court if it has a contrary view on the preliminary objection thereby saving judicial time and costs for the courts and the litigants alike, see Ada v. NYSC (2004) 13 NWLR (Pt.891) 639; Tanko v. UBA Plc. (2010) 17 NWLR (Pt.1221) 80; Obiuweubi v. CBN (2010) 17 NWLR (Pt.1247) 465; Stowe v. Benstowe (2012) 9 NWLR (Pt.1306) 450; Elelu-Habeeb v. A.-G., Fed. (2012) 13 NWLR (Pt.1318) 423. In due obedience to this current state of the law, I will proceed to consider the merit of the appeal in the alternative.

The application.

Prior to the hearing of the appeal, learned counsel for the first respondent, Chief Akin Olujinmi, SAN, moved his motion on notice filed on 10/02/2015. It prayed the court for an order:

(i) Striking out grounds 1, 2, 3, 4, 5, 6 and 7 of the appellant’s grounds of appeal along with the issues and arguments based thereon.

Learned counsel informed the court that the application was based on 9 grounds and supported by a 5-paragraph affidavit deposed to by Richardo Ebikade, Esq. Learned counsel submitted that the appellant’s ground 1 had unrelated particulars. He posited that the particulars (i) and (ii) of ground 2 were unrelated to the complaint of consolidation of the application. He noted that ground 3 contained mixed law and fact and the appellant failed to obtain leave of court before filing it. He reasoned that ground 4 did not arise from the decision of the lower court, citing Garuba v. Omokhodion (supra) on the point. He stated that particulars (iv), (v) and (vi) of grounds 5 were unrelated to the complaint; adding that the ground did not arise from the decision of the lower court. He posited that ground 6 complained against the decision of the lower court made on 31/03/2014 and the appeal was not filed within 14 days. He described the ground as incompetent. He explained that the particulars were unrelated to the complaint. He postulated that the complaint about subpoena was an administrative decision which was not appeallable. He stated that particulars (v), (vi) and (viii) were unrelated to the complaint and should be struck out. He relied on the case of CPC v. Hon. Ombugadu, Appeal No. SC. 281/2012 (unreported) delivered on 19/07/2073.

In opposition to the application, learned counsel for the appellant, Chief Wole Olanipekun, SAN, urged the court to dismiss the application for being incompetent. Learned counsel descried it as an abuse of process of court. He referred to paragraph 5(a) and (b) of the Court of Appeal Practice Directions, 2013 (hereinafter called “the Directions”). He submitted that order 10 of the Court of Appeal Rules, 2011, (hereinafter referred to as “the Court Rules”) provided for preliminary objection and the application ought to be part of it.
He declared the case of Garuba v. Omokhodion (supra) as inapplicable. He noted that the objection in ground 3 was the same as the ground of preliminary objection. He contended, per contra, that the grounds were competent as their particulars related to the complaint. He explained that grounds 3-7 flew from the decision appealed against. He persisted that subpoena was a command and an administrative decision. He maintained that the days of technicalities were over. Learned counsel concluded that the appeal was on jurisdictional and constitutional issues.

On points of law, learned counsel for the first respondent countered that it was not two clear days that was required to serve the motion. He referred to paragraph 5(a) of the Directions. He stated that the motion was served on 10/02/2015. He noted that the appellant agreed to go on and it was too late in the day to object to service.

Resolution of the application

In due fidelity to the dictate of the law, I will first handle the objection launched against the application by the appellant. The objection has two prongs. In the first prong, the appellant derided the application as incompetent for its infraction of the provision of paragraph 5(a) of the Directions. Since the provision is pivotal, I will pluck it out, vertim ac litteratim, thus:
5-(a) No party may serve an application or a Notice of Preliminary Objection on an adverse party on the date scheduled for hearing. Such application must be served not later than 2 (two) days prior to the date scheduled for hearing.
To begin with, the provision is plain, clear and unequivocal. It is comprehension-friendly. On account of this clarity, the law decrees that it must be given its ordinary and natural grammatical meaning without any embellishments, see Berliet v. Kachalla (1995) 12 SCNJ 147; Kraus Thompson Org. Ltd. v. N.I.P.S.S. (2004) 17 NWLR (Pt. 901) 44; Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt.1035) 1; Jolasun v. Bamgboye (2010) 18 NWLR (Pt.1225) 285; Olley v. Tunji (2013) 10 NWLR (Pt.1362) 275. I will respect this hallowed principle of law in the interpretation of the provision.
Flowing from the registry endorsement on the face of the application, it was filed on 10/02/2015. The date scheduled for hearing was 12/02/2015. I have burrowed through the file, but I am unable to find, even with judicial lens, the affidavit of service indicating when the appellant was served with the application. Let me concede to the first respondent that he served the appellant on that same 10/02/2075. By lunar computation, the period between 10/02/2015 and 12/02/2015 is less than two days prescribed in the provision. The phrase “not later than”, employed in the provision, connotes “by a particular time and not after”, see Oxford Advance Learner’s Dictionary, International Student’s Edition, page 839. The term “prior to” means “in advance of, before”, see Webster’s New Explorer Encyclopedic Dictionary, page 1455. When the two phrases are joined together, they denote that the application should be served two days before the date scheduled for hearing. In essence, this imports two clear days before the hearing of the application.
By virtue of the provision of section 15(2) (a) of the Interpretation Act, Cap. 123, Laws of Federation of Nigeria, 2004, where a period is reckoned from a particular event, the day on which the event occurred should be excluded. The provision has been decked with a stamp of authority in Akeredolu v. Akinremi (1985) 2 NWLR (Pt. 10) 785; Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159. The obvious implication is that the date the application was filed, 10/02/2015, cannot be calculated in construing the provision.
That means that the appellant had only one day before the date scheduled for hearing, 12/02/2015. The appellant was shortchanged on the two clear days donated to it by the provision for service of the application on it. That was against the letters and spirit of the provision. The shortfall in the days is a desecration of the provision and the law, see Etsako West L.G.C. v. Christopher (2014) 14 NWLR (Pt. 1426) 73. Indubitably, the erosion of the two days allotted to the appellant, for service of the application on it, undercuts on the jurisdiction of this court to entertain it. It, also, injures the appellant’s inviolable right to fair hearing within a reasonable time as enshrined in section 36(1) of the Constitution, as amended. The consequence of the violation is far-reaching. These legal expositions, garnished with judicial authorities, deflate the argument of the first respondent against the objection. I, therefore, endorse in toto the submission of the appellant on this point. The non-compliance with the provision renders the application, wholly, incompetent.

That brings me to the other prong-that the application was an abuse of court process. The term “abuse of court process” is an elusive and a polymorphous precept in the wide domain of litigation.
It exhibits variegated forms and is disobedient to a single definition.
It is a mantra in adjudication, usually mounted, as a shield, by defending parties to scuttle the life span of an action at its infancy. A law lord, Nanaemeka Agu, JSC, captured, graphically, the purport and hall marks of the term in the celebrated case of Saraki v. Kotoye (1992) 11/12 SCNJ (Pt. 1) 26 at 48-49 in these illuminating words:
The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation…. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues….
The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.
These all-encompassing features of abuse of court process have been, severally, re-echoed by the apex court in a slew of decided authorities, see CBN v. Ahmed (2001) 11 NWLR (Pt.724) 369; Ntuks v. NPA (2007) 13 NWLR (Pt.1051) 392; Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1; Dingyadi v. INEC (No. 1) (2011) 10 NWLR (Pt.1255) 347; Ogboru v. Uduaghan (2011) 17 NWLR (Pt.1277) 727; Barigha v. PDP (2013) 6 NWLR (Pt.1360) 451; Igbeke v. Okadigbo (2013) 12 NWLR (Pt.1368) 225; Ogboru v. Uduaghan (2013) 12 NWLR (Pt. 1370) 33; Denton-West v. Jack (2013) 15 NWLR (Pt.1377) 205.
It is deducible from the elastic nature of abuse of judicial process, that there are no hard and fast rule in determining the absence or presence of it in any action. Put simply, a court is enjoined by law to examine each case, predicated on its facts and circumstances, in order to ascertain if it showcases an abuse of court process or not, see Waziri v. Gumel (2012) 9 NWLR (Pt.1304) 185.
On this score, the factual antecedents of each case have to be married with the negative elements of abuse of court process.
I have juxtaposed the application with the negative elements of abuse of court process as encapsulated in the above displayed authorities. The first respondent’s preliminary objection, which had been determined in his favour, was filed contemporaneously with his application on 10/02/2015. The application is geared towards scuttling all the appellant’s seven grounds of appeal. The law gives the first respondent the nod to file this genre of application if he wanted to strike out some grounds of the appeal, see NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148; General Electric Co. v. Akande (2010) 18 NWLR (Pt.1225) 596; Adejumo v. Oluwaiye (2014) 12 NWLR (Pt.1421) 252. The application exhibits all the characteristics of a preliminary objection. Indeed, the two terminal processes share a common target – to snuff life out of the appellant’s appeal at its embryo. The preliminary objection has even achieved the joint purpose. On this premise, the application is a classic exemplification of a multiplication of actions against the appellant with the unavoidable potential to irritate, harass and annoy it, put starkly, the application has its value in irritation, vexation and annoyance vis-a-vis the appellant.
Unarguably, the first respondent possesses the unfettered constitutional right to ventilate his grievances in the court of law, but the right is violable as it is subject to proper use. In the view of the law, the first respondent’s intention/motive in proliferating the applications against the appellant is of no moment, see Saraki v. Kotoye (supra). Interestingly, the law gives the courts the unbridled licence, under their wide inherent powers, to truncate any matter which is tainted with an abuse of judicial process, see O.S.S.I.E.C. v. NCP (supra). Where a court finds that there is an abuse, the last process vacates, see Dingyadi v. INEC (No. 1) (supra). In the result, the application remains an abuse of court process and unwelcome to this appeal.
By way of summation, I have reached the findings that the first respondent’s application is an abuse of judicial process as well as marooned in the concept of incompetence. I am not oblivious of the end result of these two findings in terms of the consequential orders attendant to them. While an action enmeshed in a abuse of court process is penalised by order of dismissal, an order striking out is visited on one infested with incompetence. Be that as it may, here the two concepts overlap, the abuse dovetails with the incompetence. As a matter of fact, the incompetence reinforces the abuse in the sense that the former is one of abhorrent tentacles of the latter. In view of this intertwined compatible judicial relationship, with the abuse holding dominion, an order that, invariably, follows it, an abuse, will be sufficient.
Overall, having regards to these legal dissections, the appellant’s vivo voce objection is imbued with merits. It succeeds and I uphold it. Consequently, the first respondent’s application is dismissed for being an abuse of court process.

The appeal

During the hearing of the appeal, on 12/02/2015, learned counsel for the appellant, Chief Wole Olanipekun, SAN, adopted the appellant’s brief of argument, filed on 09/06/2015, and the appellant’s reply brief, filed on 10/02/2015 but deemed properly filed on 12/02/2015, as representing his arguments for the appeal. He urged the court to allow the appeal. Similarly, learned counsel for the first respondent, Chief Akin Olujinmi, SAN, adopted his brief, filed on 12/12/2014 but deemed properly filed on 12/02/2015, as forming his submissions against the appeal. He urged the court to dismiss the appeal.

The appellant, in its brief of argument, formulated three issues for determination to wit:

i. Considering the clear provisions of Order 26 Rules 11 and 12 of the Federal High Court (Civil procedure) Rules, 2009 whether the lower court was not in grave error in its failure to take and rule on the Appellant’s application dated and filed on 17th April, 2014, but rather, consolidating the said application with Respondent’s motion dated 1st April, 2014.

ii. Having regard to the clear provisions of Order 34 of the Federal High Court (Civil Procedure) Rules, 2009 titled “Application for Judicial Review” and the Constitutional and Statutory Provisions and grounds under which Appellant’s application dated 17th April, 2014 was brought, whether the lower court did not fall into grave error in its reliance on Order 29 of the Rules to order the consolidation of the Appellant’s said application with the Respondent’s application of 1st April, 2014.

iii. Considering the fact that the lower court’s jurisdiction was being challenged by the Appellant vide its application dated 17th April, 2014, and which said application is yet to be heard, whether the lower court did not commit serious error and breached the Appellant’s right to fair hearing by ordering it to produce (before it) the minutes of its emergency meeting held on 26th March, 2014 and also issuing a subpoena against it.

On the other hand, the first respondent, in his brief of argument, crafted a solitary issue for determination, viz:

Whether the trial court was right in its decision to hear the preliminary objection of the appellant along with the substantive suit.

A detailed comparison between the two sets of issues shows that they are identical. The first respondent’s singular issue can be, conveniently, subsumed under the appellant’s three issues. For this reason, I will decide the appeal on the basis of the three issues framed by the appellant, the undoubted owner of the appeal.

Arguments on the issues:

Issue one.

Learned counsel for the appellant submitted, after reproducing the provisions of order 25 rules 11 and 12 of the Rules, that the question of consolidating the appellant’s application with the respondent’s did not arise. He explained that the provision of order 26 covered every motion, irrespective of the nature of proceedings, including the ex parte motion in order 34 of the Rules. He analysed the provision of order 34 of the Rules. He referred to the Black’s Law Dictionary, 6th Edition, page 576, which defined ex parte order and ex parte hearing. He persisted that the lower court’s order of 31/03/2014 came within those definitions. He noted that the word “shall” was constantly used in order 26 of the Rules giving it compulsory effect. He relied on the cases of Bamaiyi v. A.-G., Fed. (2001) 12 NWLR (Pt.727) 468; Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367; Ogidi v. State (2005) 9 NWLR (Pt.918) 256 to support the submission. He added that the provisions were clear and did not call for interpretation but application. He cited the cases of Ekpo v. Calabar Central Co-operative Society (2008) 6 NWLR (Pt.1083) 362; Marwa v. Nyako (2012) 6 NWLR (Pt.1296) 200 for the view. He referred to the cases of Fagbola v. Titilayo Plastic Ind. Ltd. (2005) 2 NWLR (Pt.909) 1 and Oliver v. Dangote Industries Ltd. (2009) 10 NWLR (Pt.1150) 467 where the provisions of order 9 rule 12(1) and (2) of the Rules, 2000, same as order 26 of the Rules, was considered.

Learned silk contended that the appellant’s motion, filed on 17/04/2014, should have been listed for hearing within 14 days and ruled on within 14 days after hearing it. He posited that the ex parte order of 31/03/2014 lapsed by the operation of the rules so that the first respondent’s application of 01/04/2014 had no base to stand to be consolidated with the appellant’s. He stated that something could not put on nothing. He cited the cases of Skenconsult v. Ukey (1981) 1 SC 6; Macfoy v. UAC (1961) 3 All ER 1169. He added that no court of law should act in vain, relying on Adeogun v. Fasogbon (2008) 17 NWLR (Pt. 1115) 149 for the view.

For the first respondent, learned counsel submitted that the lower court rightly ruled that order 29 of the Rules provided it with the power to combine the hearing of jurisdictional objection with the substantive matter. He reasoned that all the appellant’s arguments on order 26 were never made before the lower court and ruled upon by it. He opined that the appellant could not argue such issues in this court and in the appeal. He refused to respond to the appellant’s complaint that the first respondent did not comply with order 34 of the Rules in initiating the application. He explained that it was an issue pending before the lower court for decision. He maintained that the appeal was limited to whether the lower court was right in its decision to combine the appellant’s preliminary objection with the substantive matter.

On points of law, learned counsel for the appellant contended that where a party failed to respond to a submission made by an adverse party, the submission would be deemed to be conceded. He relied on Ifeajuna v. Ifeajuna (1997) 7 NWLR (Pt.513) 405; Adefulu v. Ukulaja (1993) 2 NWLR (Pt.274) 227; Jubrin v. Eje (1992) 7 NWLR (Pt.255) 631. He concluded that the first respondent conceded to the appellant’s submissions.

Issue two.

Learned counsel for the appellant argued that the parties agreed that the first respondent’s application, which was for judicial review, was governed by order 34 of the Rules. He stated that the plaintiff’s action would vest jurisdiction in court. He relied on Adeyemi v. Opeyori (1976) 9-10 SC 31; Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517 on the point. He referred to the appellant’s prayers in its motion and persisted that order 29 of the Rules did not apply to the matters. He contended that the court could consolidate the hearing of objection and substantive suit under order 29 of the Rules as enjoined in the cases of Senate President v. Nzeribe (2004) 9 NWLR (Pt.878) 251; Amadi v. NNPC (2000) 9 NWLR (Pt.674) 76; Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423. He, however, insisted it was inapplicable to the matter because: it was not commenced by originating summons and not properly constituted by way of parties. He relied on the capacity the second – fourth respondents were sued.

Learned counsel further argued that evidence would be required to ascertain the positions of the second-fourth respondents.
He took the view that the lower court was bound to take judicial notice of the members of the appellant. He cited section 122 of the Evidence Act, 2011 and Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227 for the view. He added that the issuance of subpoena conveyed the impression that evidence would be taken.

Learned counsel narrated the conditions precedent created in order 34 of the Rules. He maintained that those conditions robbed the lower court of the jurisdiction to take the application how much more consolidating it with one challenging its jurisdiction. He noted that the first respondent did not file the appellant’s decision on 26/03/2014 with the lower court. He stated that a party’s right to access the court depended on the fulfillment of the conditions precedent. In support of the view, he referred to Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) 536; Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt.5) 17; Gambari v. Gambari (1990) 5 NWLR (Pt.152) 572; Obaba v. Military Governor of Kwara State (1994) 4 NWLR (Pt.336) 26. He described the use of the word “shall” in order 34 of the Rules as additional conditions precedent and cited Onyemaizu v. Ojiako (2010) 4 NWLR (Pt.1185) 504 for the point.

It was further submitted that the case of Madukola v. Nkemdilim (1962) 1 All NLR 581 gave three conditions for assumption of jurisdiction by any court. He explained the appellant’s ground for the application – that the lower court had no vires to hear the action because of section 254 C (1) of the Constitution, as amended, section 7 of the National Industrial Court Act, 2006 and improper parties. He persisted that the lower court should have taken the appellant’s motion first, citing Garuba v. Omokhodion (supra) and Ajayi v. Adebiyi (2012) 11 NWLR (Pt.1310) 137 for the point. He posited that the appellant was complaining of non-service of the originating processes and the order of 31/03/2014 which was denial of fair hearing under section 36 of the Constitution, as amended.

Learned counsel further contended that the lower court contradicted itself on the applicability or otherwise of the decision in Manuwa v. NJC (2003) 2 NWLR (Pt.1337) 1 and its conclusion was perverse. He persisted that Manuwa case (supra) was applicable.
He, also, referred to the case of Zamani Lekwot v. J.T.C.C. D.K.S. (1997) 8 NWLR (Pt. 515) 22 on the effect of failure to attach the process to be quashed. He noted that the lower court refused to be bound by those decisions contrary to the doctrine of judicial precedent. He relied on Atolagbe v. Awuni (supra) and Dalhatu v. Turaki (supra). He reasoned that the lower court embarked on speculation which it had no jurisdiction to do. He relied on the cases of Alamieyeseigha v. FRN (2006) 16 NWLR (Pt. 1004) 1; Uwagboe v. State (2008) 12 NWLR (Pt. 1102) 621; Abalaka v. Ministry of Health (2006) 2 NWLR (Pt. 953) 105 for the point. He posited that the lower court relied on irrelevant cases such as CA/L/959/09: Governor Central Bank v. Akingbola and CA/L/960/2009: CBN v. Akingbola and came to a very perverse decision. He listed other contradictions that showed perversity: that leave was granted to the first respondent on 03/03/2014, that the appellant brought its motion under order 29 rule 4(a) of the Rules and that it filed a counter-affidavit to the motion for judicial review which did not involve taking oral evidence. Learned counsel concluded that the law permitted the court to dismiss or strike out any suit that disclosed no reasonable cause of action or constituted an abuse of process on the authority of Thomas v. Olufosoye (1985) 1 NWLR (Pt. 18) 689.

On behalf of the first respondent, learned counsel submitted that it had become settled within the discretion of a trial court to combine hearing a preliminary objection challenging its jurisdiction with a substantive matter. He cited AP Plc. v. Adeniyi (2011) 15 NWLR (Pt.1271) 560 and Chukwu v. Amadi (2012) 4 NWLR (Pt.1289) 136 to buttress the submission. He posited that the cases of Garuba v. Omokhodion (supra) and Ajayi v. Adebiyi (supra) did not decide anything different. He asserted that the appellant could not show that the lower court’s exercise of discretion, in the consolidation, was tainted with illegality or substantial irregularity.
He explained that a judicial review application, usually commenced by originating, shared affinity with originating summons – both forms of procedure relied on affidavit evidence. He noted that the principle of combination could even be applied in cases commenced by writ of summons. He relied on Chukwu v. Amadi (supra) for the point.
Learned silk postulated that the lower court rightly relied on order 29 of the Rules after it had found that the trial would be on affidavit evidence and would not involve the taking of oral evidence.

Issue three.

Learned counsel for the appellant submitted that the lower court’s order for the appellant to produce its minutes of emergency meeting of 26/03/2014 was made suo motu. He described it as wrongly made, citing A.-G., Fed. v. Abubakar (2007) 10 NWLR (Pt.1041) 1 for the submission. He described the lower court’s order on subpoena as sponsoring the first respondents which was against the orthodox method of adjudication. He relied on NTA v. Babatope (1996) 4 NWLR (Pt.440) 75 and Bayol v. Ahemba (1999) 10 NWLR (Pt. 623) 381 on the point. He stated that the act of the lower court as compelling the appellant to prove evidence for the first respondent contrary to order 34 rule 9(12) of the Rules. He noted, on the authority of Oyeyemi v. Commissioner for L.G. (1992) 2 NWLR (Pt. 226) 661, that if a party complained of breach of his right to fair hearing, he needed not prove any special damage.

Learned counsel further submitted that a court whose jurisdiction was challenged had no vires to make any binding order, consequential or otherwise. He relied on Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 and NDIC v. CBN (2002) 7 NWLR (Pt.766) 272 for the view. He postulated that a party who applied for the setting aside of an order made against him would not be in contempt if he failed to obey it until the application/appeal would be determined one way or the other. For the postulation, he referred to Chukwuogor v. Chukwuogor (Nig.) Ltd. (2007) 17 NWLR (Pt. 1064) 589; Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt. 412) 129; F.A.T.B. v. Odogwu (1992) 2 NWLR (Pt.225) 539. Learned counsel posited that the lower court did not have the vires to sign and issue the subpoena during the pendency of the appellant’s application and that it pre-empted and exhibited bias. He took the view that the lower court could not cite the appellant for contempt if it failed to comply with the commands of the subpoena.

Learned counsel argued that if issues one-three were resolved in favour of the appellant, the court would strike out the entire action of the first respondent. For the argument, he cited Dragetanos Const. (Nig.) Ltd. v. F.M.V. Ltd. (2011) 16 NWLR (Pt. 1273) 308; Oju LG. v. INEC (2007) 14 NWLR (Pt. 1054) 242; Ladumi v. Wema Bank Ltd. (2011) 4 NWLR (Pt. 1236) 44; Mini Lodge Ltd. v. Ngei (2009) 7 NWLR (Pt. 1173) 254. He posited, in the alternative, that if the court would have the consideration of the appellant’s motion on its merit, he urged it to do so based on section 15 of the Court of Appeal Act. He relied on the cases of Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 427; Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427; Ideozu v. Ochoma (2006) 4 NWLR (Pt. 970) 364 to urge the court to grant the application.

For the first respondent, learned counsel argued that the lower court did not make any order directing the appellant to produce its minutes of the emergency meeting of 26/03/2014 on 26/05/2014.
He explained that the lower court merely referred to the order it earlier made on 31/03/2014 and observed that it subsisted. He maintained that the observation did not tantamount to making an order which the appellant could have appealed against. He noted that the appellant did not appeal against the order of 31/03/2014 in its appeal filed on 04/06/2014.

Learned counsel further argued that the lower court made no order of issuance of subpoena on 26/05/2014. He added that it merely reminded the appellant that the subpoena, dated 02/05/2014, was still subsisting. He insisted that the reference to the subpoena did not amount to appeallable decision. He reasoned that issuance of subpoena was an administrative duty of the lower court and did not qualify as a decision for an appeal. Learned counsel countered that the amendment to the enrolled order was made without objection from other counsel. He referred to page 292 of the record. He described the appellant’s arguments against the amendment as incompetent.

Learned counsel contended that in the unlikely event that the appeal succeeded, no occasion would arise for the invocation of section 15 of the Court of Appeal Act. He posited that the lower court had not pronounced on the issues in contention in the substantive case or on the preliminary objection. He noted that the appellant argued issues outside the ruling of the lower court and same raised in its motion of 17/04/2014. Learned counsel relied on the case of Enekwe v. I.M.B. (Nig.) Ltd. (2006) 19 NWLR (Pt. 1013) 146 on the inapplicability of section 15 of the Act to the appeal.

Resolution of the issues.

An indepth study of issues one and two reveals that they are interwoven in substance. They quarrel with the decision of the lower court to consolidate the appellant’s application against its jurisdiction with the first respondent’s substantive application on judicial review filed on 17/04/2014 and 01/04/2014 respectively. I will attend to them first. In this wise, I will, in order to conserve the scarce judicial time, amalgamate their consideration.

Before I delve into the nuclei of the two issues, I observe that lots of the appellant’s arguments on issue one are directed against the decision of the lower court made on 31/03/2014. The law gives me the latitude to take judicial notice of it without proof, see section 122(1) and (2)(m) of the Evidence Act, 2011, then section 74(m) of the defunct Evidence Act, 2004; Aiyeola v. Pedro (2014) 14 NWLR (Pt. 1424) 409. It is axiomatic that the decision of 31/03/2014 is not a subject of appeal before this court. At the cradle of the appellant’s notice of appeal, found at page 209 of the main record, he specifically identified the decision of the lower court, delivered on 26/05/2014, as the one under attack in this appeal. It follows that the appellant’s scintillating submissions made on the impropriety of the decision of 31/03/2014 fly in the face of the law. The reason is not far-fetched. There is no ground of appeal that challenged the decision. The arguments were made in nubibus. Indeed, they bear the appellation of orphan in the sense that no ground of appeal gave birth to them. In the sight of the law, they are infested with incompetence. In due obedience to the law, those idle submissions are struck out.

A resume’ of the appellant’s grouse in the two issues falls within a slim scope, id est, that the lower court erred in law when it decided to consolidate the two applications. To do justice to this knotty point, the provision of order 29 rule 1 of the Rules is handy. I, therefore, invite it for assistance. It reads:
1. When a defendant wishes to –
(a) Dispute the Court’s jurisdiction to try the claim;
or
(b) argue that the Court should not exercise its jurisdiction, he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the Plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
In the first place, the wordings of the provisions are plain and unequivocal. According to the law, they must be accorded their ordinary meanings without any interpolations or distortions, see Berliet v. Kachalla (supra); Jolasun v. Bamgboye (supra); Olley v. Tunji (supra). Incontestably, the parties complied with the preconditions for the invocation of the provision by filing the applications. The provision allocates to the lower court the power to exercise its discretion on whether or not to consolidate the applications. This is confirmed by its deployment of the phrase “and the court may take such application together” in its (1)(b). In this con, the word “may”, a modal verb, is directory as opposed to mandatory, see Ugwanyi v. FRN (2012) 8 NWLR (Pt. 1302) 384. The heart of the appellant’s grievance is the rightness of the lower court’s exercise of its discretion in favour of consolidating of the two applications.
For a dispassionate consideration of the vexed complaint, the case-law will be of immense help. In the celebrated cases of Amadi v. INEC (supra); Inakoju v. Adeleke (supra); Dapianlong v. Dariye (2007) 8 NWLR (Pt.1036) 332; Garuba v. Omokhodion (supra); Ajayi v. Adebiyi (supra), the Supreme Court, wholeheartedly, sanctioned the procedure of consolidation of such applications as enunciated by this court in the case of Senate President v. Nzeribe (supra). Hence, the law allows a court to combine the hearing of such applications save the substantive matter involves the taking of evidence. It is crystal clear, the lower court toed the line of the decisions in these judicial authorities. I have my doubts if its decision insulted the law.
One of the appellant’s complaints, indeed its trump card, is that the consolidation of such applications is limited to actions commenced by dint of originating summons. The procedure of trial in actions begun by originating summons and that commenced under judicial review are coterminous in two ways. The proceedings of the two are conducted by means of affidavit evidence. Again, where their proceedings will involve calling of evidence, then they repel combination of preliminary objections with them. None of those guiding authorities, x-rayed above, proscribed the consolidation of such proceedings in matters of judicial review. Not even the case of Ajayi v. Adebiyi (supra) on which the appellant pegged its argument.
Contrariwise, the provision of order 29 rule 1 of the Rules has accommodated the procedure, perhaps, in the interest of quick dispensation of justice. Rules of courts, such as the lower court’s, are made to be obeyed in deserving circumstances such as the situation that confronted the lower court. To my mind, any procedural difference between the two proceedings is infinitesimal and impotent as to defeat the invocation of consolidation of applications in judicial review proceedings.
Another stricture which the appellant unleashed against the lower court’s decision was that it refused to follow the decision of this court in Manuwa v. N.J.C. (supra). It cannot be gainsaid that the lower court, being at the lower rung of the judicial ladder than this court, is bound to follow the decision of the latter on the ancient doctrine of stare decisis, see Osakue v. FCE, Asaba (2010) 10 NWLR (Pt.1201) 1. Nevertheless, I have read the case of Manuwa v. N.J.C. (supra) with the finery of a toothcomb. Truly, it involved the dismissal of the appellant, a judicial officer, by the respondent. The appellant’s suit was filed under judicial review as in this appeal.
However, there was no application for consolidation of applications as envisaged by order 29 rule 1 of the Rules for exercise of the lower court’s discretion. As a matter of fact, the provision was not construed in that case. In a word, the facts of that case are distinguishable from the one in hand. The doctrine of stare decisis, which ensures certainty in any legal system, thrives where facts of cases are on all fours. It is lame where the facts of cases are irreconcilable. Facts are the arrowhead of the law. In the absence of closeness/oneness of facts in the two cases, I must dishonour the enticing invitation of the appellant to crucify the lower court’s decision on the altar of stare decisis.
The appellant castigated the decision of the lower court on consolidation as perverse. A verdict of court is perverse when it runs counter to the pleadings and evidence before it, a court takes into account extraneous and irrelevant matters, a court shuts its eyes to the evidence, a court goes outside the issues canvassed by the parties or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna (2008) 16 NWLR (Pt.1114) 427; Onyekwelu v. Elfpet. (Nig.) Ltd. (2009) 5 NWLR (Pt.1133) 181; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt.1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt.1384) 477.
I have given an intimate reading to the lower court’s decision, sought to be impugned, and situated it with the adumbrated vices of perversion. The lower court merely outlined the affidavits filed by the parties, which was, totally, divorced from the assessment/evaluation of their contents. This means that the issue of its overlooking evidence did not arise. It premised the consolidation on the available affidavit processes filed by parties. It must be placed on record that the decision was a mere forerunner to the determination of the consolidated applications. It is, therefore, not eclipsed by perversity to warrant intervention by this court.
For completeness, the importance of the provision of order 29 rule(1) of the Rules cannot be overemphasised in our adjectival law.
The provision is meant to fast track and jump-start the administration of justice which is dotted with unwarranted delays in our legal system. In the word of the oracular Oputa, JSC, “Rules of Court… are rules established for attaining justice with ease, certainty and dispatch,” Unilag v. Aigoro (1984) 15 NSCC 745 at 782. The millipede speed at which proceedings move in courts has been decried as a dent on the administration of justice in the Nigerian legal system.
The consolidation safeguard in the provision is one of the key ways to speed up the hearing of matters. It will, therefore, be an affront to the law and justice to nullify a decision aimed at quick dispensation of justice, without substantial reasons. Such will be a judicial sacrilege!
In the light of the foregoing legal expositions, done with the law as beacons, it is obvious that the lower court was firma terra, in law, when it consolidated the applications of the parties. The decision is unassailable. It repels any interference by this court. In the result, I have no option than to resolve the issues one and two against the appellant and in favour of the first respondent.

Having finished issues one and two, I proceed to deal with issue three. The kernel of the issue is straightforward-the lower court’s breach of the appellant’s right to fair hearing before making a pronouncement on its minutes of meeting and issuance of subpoena.
The pronouncement, sought to be nullified, is located at page 176 of the record. Its full reads:

The Orders of this Court on 1st Respondent to produce, file and serve the Certified True Copy (CTC) of the minutes of Emergency Meeting still subsist as well as the Subpoena of 02/05/2014.

In a bid to invalidate the issue, the first respondent christened the pronouncement an observation that was not appeallable in law.
To ascertain its status, I employ one cardinal principle of interpretation of documents. It is this. A passage has to be read holistically, taking into account what is anterior and posterior to it, so as to achieve a harmonious result of it, Ojokolobo v. Mamu (1987) 3 NWLR (Pt.61) 377/(1987) SCNJ 98; Unife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt.704) 609; Agbareh v. Mimra (2008) 2 NWLR (Pt.1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt.1188) 429. In keeping with this rule of construction, I have given a comprehensive look at the document. Prior to the order, the lower court, at the same page 176 of the record, ruled: “In conclusion, this Court makes the following orders”.
It is decipherable from the conclusion that it was an order. The Black’s Law Dictionary, Eighth Edition, defines order as: “2. A written direction or command delivered by court or judge. The word generally embraces final decrees as well as interlocutory direction or commands” [pages 1129 and 1130]. By virtue of section 318 of the Constitution, as amended, decision in relation to a court, means: “any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation”, see Awuse v. Odili (2003) 18 NWLR (Pt.851) 116; N.P.A. v. Eyamba (2005) 12 NWLR (Pt. 939) 409; Garuba v. Omokhodion (supra); Kubor v. Dickson (2013) 4 NWLR (Pt.1345) 534. Since the order falls within the all-embracing connotation of decision, it constitutes a decision that is amenable to appeal. It is of no moment that it alluded to a previous order. The reference does not make it less a decision which is appeallable under sections 240 and 241 of the Constitution, as amended. The first respondent’s view stands on quick sand and is untenable in law.

That brings me to the hub of the appellant’s complaint – that its right to fair hearing was breached because the lower court made the order suo motu. Indisputably, the law, roundly, deprecates a court raising an issue suo motu, on its own motion, and deciding same without input from parties. Such an injudicious judicial exercise will undermine the inviolate right of parties to fair hearing which is guaranteed under section 36 of the Constitution, as amended. The rule, however, is not inflexible. It admits of some exceptions. The need for address becomes unnecessary when: the issue relates to court’s jurisdiction, the parties ignore a statute and serious question of fairness of proceedings is evident, see Gbagbarigha v. Toruemi (2013) 6 NWLR (Pt.1350) 289; Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300. Put the other way round, the concept of raising issue suo muto, which has become a clich in adjudication, is not absolute against the offending court.

I have given a microscopic examination to the submissions of learned senior counsel on 05/05/2014, the return date of hearing, tucked away in the supplementary record. At pages 31 and 32 of that record, the first respondent’s counsel, Chief Akin Olujinmi, SAN, proffered arguments on the production of the appellant’s minutes of emergency meeting and subpoena. The learned senior counsel to the appellant, Chief Wole Olanipekun, SAN, offered counter-arguments at pages 35 and 36 of the self same record. In a nutshell, the parties, qua counsel, joined issues on the point via submissions in the bowel of the lower court.

These excerpts, extracted from the invincible records, clearly, confirm that the lower court did not dish out the order proprio motu.
The order germinated from the submissions of the parties presented to the lower court on 05/05/2014. The bottomline is that the lower court did not do violence to the concept of raising issue suo motu. The bald fact that the appellant made contrary submissions constitutes coup de grace to its proclamation of denial of its inalienable right to fair hearing vis-a-vis the order. The validity or appropriateness of the order is entirely a different thing which belongs to another proceeding. I dare say, the appellant enjoyed its constitutional right to fair hearing to the hilt. The chastisement of the order, on the footing of dispossession of fair hearing, takes to flight on confrontation with the appellant’s submission before the lower court. In the light of the opportunity given to the appellant, which it harnessed to the fullest, all its elegant arguments on the point come to nought. The tons of judicial authorities, cited by the appellant, remain good law, but irrelevant and inapplicable here. In sum, I resolve issue three against the appellant and in favour of the first respondent.

On the whole, having resolved the three issues against the appellant, the destiny of the appeal is obvious. It is bereft of merit and deserves dismissal. Consequently, I dismiss the appeal.
Accordingly, the decision of the lower court is affirmed. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal. This would have been my view point if this court were clothed with the jurisdiction to entertain the appeal. Nevertheless, my earlier finding, under the preliminary objection, that the appeal is incompetent still haunts it as it remains struck out.

SIDI D. BAGE, J.C.A.: I agree.

M.A. OREDOLA, J.C.A.: I agree.

I.G. MBABA, J.C.A.: I agree.

O.A. OTISI, J.C.A.: I agree.

Appearances

Chief Wole Olanipekun, SAN (with him, P. Lasisi, SAN, S. A. Mustapha, Esq., T. Alabi, Esq., Mrs. B. Aroromi and I. Akintunde, Esq.)For Appellant

AND

Chief Akin Olujinmi, SAN (with him, O. I. Olorundare, SAN, Mrs. Anne Achu, Ayodele Akinsanya, Esq., Olajide Loye Esq., Miss A. N. Oguchienti, Mrs. A. O. Balogun, Miss I. Y. Esan, Miss A. Balogun and E. G. Shaibu, Esq.) for the 1st respondent.
Chief G. A. Adekola-Kaseem, SAN (with him, S. T. Sonibare, Esq., J. Balogun, Esq., S. A. Oladipo, Esq. and J. T. Komolafe, Esq.) for the 2nd respondent.
E. C. Ukala, SAN (with him, O. A. Omonuwa, SAN, Udu Diegbe, Esq. and Miss. O. J. Iheko) for the 3rd and 4th respondents.For Respondent

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