NDABU OBO EKPO EKPO OBO & ORS v. HH MURI JOSEPH B. ANATING-EDEM VI
(2018)LCN/11809(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/C/77/2016
RATIO
JURISDICTION: WHERE THERE IS A DEFECT IN JURISDICTION
“I must say that the issue of jurisdiction is fundamental. It is the foundation and pivot of adjudication. If a Court lacks jurisdiction, it automatically lacks the necessary competence to try the case. A defect in competence is fatal because the entire proceedings would be null and void ab initio however well conducted or well decided they might otherwise be. See I.G.P V. AIGBIREMELEN (1999) 13 NWLR (Pt. 635) 443. MINISTRY OF WORKS V. THOMAS (NIG) LTD (2002) 2 NWLR (Pt. 752) 740 at 788. The requisites of competence to adjudicate have been long judicially settled by the Apex Court. It has been held that a Court has jurisdiction over a matter when:
a. It is properly constituted with respect to the number and qualification of its members.
b. The subject matter of the action is within its jurisdiction.
c. The action is initiated by due process of law and
d. Any condition precedent to the exercise of its jurisdiction has been fulfilled.
See MADUKOLU V. NKEMDILIM (1962) 2 SC NLR. 341.” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. NDABU OBO EKPO EKPO OBO
2. HH MURI EFFIONG OKOKON MBUKPA
(For and on behalf of Efut Combined Assembly And Efut Abua Efut Ekondo Combined Council)
3. NDABU GODWIN BASSEY
4. NDABU JOSEPH OKON
EDEM
5. NDABU BASSEY ASUQUO ETIM Appellant(s)
AND
HH MURI JOSPEH B. ANATING-EDEM VI Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment):
The Respondent as Plaintiff/Claimant at the Trial Court claimed against the Appellants as Defendants reliefs, damages, injunction (see page 31 of the Records).
The suit was heard on the amended writ of summons filed on the 12th of July, 2006 (see page 31 of the Record of Appeal), the further Amended Statement of Claim filed on 12th July, 2006 and Amended Statement of Defence filed on 1st August, 2007 (see page 48 of the Records).
At the close of hearing, the Appellants in their address filed on the 26th of November, 2014 and the reply on points of Law, challenged the jurisdiction of the Court to determine the suit on grounds that the amended writ of summons filed on the 12th of July, 2006 was incompetent because it was issued by a Law Firm, Dr. Tony Ukam & Co., which is not a Legal Practitioner whose name is on the Roll.
In its judgment delivered on the 20th of November, 2015, the Learned Trial Judge Emilia Ibok, J, of the Calabar Division of the High Court of Cross River State in suit No. HC/389/2003, discountenanced the amended writ of summons and entered judgment for the Respondent on the original writ of summons issued on the 11th of August, 2003. This appeal revolves round the said judgment.
Counsel for the Appellants, Eke Edem Esq, formulated four issues for determination as follows:
(1) Whether having discountenanced the amended writ of summons of this suit as incompetent, the Learned Trial Judge was right in entering judgment for the Respondent on the original writ of summons.
(2) Whether the Learned Trial Judge was right in holding that the suspension of the Respondent by the Efut Combined Assembly and Efut Abua Efut Ekondo Combined Council were in breach of his right to fair hearing.
(3) Whether the Learned Trial Judge was right in reinstating the Respondent to the position of Secretary-General of Efut Abua Efut Ekondo Combined Council.
(4) Whether the Learned Trial Judge was right in awarding the Respondent N3 Million as General damages.
Counsel for the Respondent, Etim Effiom Esq, distilled three issues for determination thus:
(1) Whether the trial Court had jurisdiction to hear and determine this suit in the light of the original writ of summons and the further amended statement of claim, filed on the 11th of August, 2003 and 12th July, 2006 respectively.
(2) Whether the trial Court did not err when it declared that the actions of the Efut Combined Assembly, Efut Abua/Efut Ekondo Combined Council, and of the Defendants in excitingly and hurriedly suspending the Claimant (Respondent) from the Efut Combined Assembly and Efut Abua/Efut Ekondo Combined Council and, or at all, for no offence or unexplained offence and without affording him the opportunity of being heard is a breach of the Claimant’s fundamental right to fair hearing, justice, and is repugnant to Natural Justice, Equity and Good Conscience, and constitutes abuse of Traditional Chieftaincy powers, is ultra vires, Ipso facto null and void and of no effect whatsoever.
(3) Whether the Trial Court did not err when it made orders reinstating the Respondent (Claimant) to the post of Secretary General of the Efut Abua/Efut Ekondo Combined Council and payment of the sum of N3 Million (Three Million Naira) only, to the Respondent (Claimant) by the 2nd, 3rd, 4th, 5th and 6th Defendants.
In dealing with this appeal, I will start with the first issue as formulated by counsel since it bothers on the jurisdiction of the Court. A resolution of this issue will determine the need or otherwise to go into the remaining issues.
Taking the first issue, learned counsel for the Appellants Eke Edem, Esq contended in summary that the lower Court lacked the jurisdiction to entertain the suit in that the amended writ of summons was incompetent having not been issued by a Law Firm which is not a Legal Practitioner.
In his reply, learned counsel for the Respondent, Etim Effiom, Esq submitted in summary, that, the suit was commenced by valid originating processes which clothed the Court with jurisdiction to hear and determine the suit on merit. That the Court cannot by its order rob itself of jurisdiction it had at the beginning of a suit.
He submitted further that the amended writ of summons could not qualify as an originating process because it was not duly and validly issued as he was bound by law to consider the processes in the Court’s file in determining whether or not it had jurisdiction.
I must say that the issue of jurisdiction is fundamental. It is the foundation and pivot of adjudication. If a Court lacks jurisdiction, it automatically lacks the necessary competence to try the case. A defect in competence is fatal because the entire proceedings would be null and void ab initio however well conducted or well decided they might otherwise be. See I.G.P V. AIGBIREMELEN (1999) 13 NWLR (Pt. 635) 443. MINISTRY OF WORKS V. THOMAS (NIG) LTD (2002) 2 NWLR (Pt. 752) 740 at 788.
The requisites of competence to adjudicate have been long judicially settled by the Apex Court. It has been held that a Court has jurisdiction over a matter when:
a. It is properly constituted with respect to the number and qualification of its members.
b. The subject matter of the action is within its jurisdiction.
c. The action is initiated by due process of law and
d. Any condition precedent to the exercise of its jurisdiction has been fulfilled.
See MADUKOLU V. NKEMDILIM (1962) 2 SC NLR. 341.
It should be noted that the suit that gave rise to this appeal was heard on the amended writ of summons filed on the 12th of July, 2006 (see page 31 of the Records) as well as the further amended statement of claim and the Amended Statement of Defence filed on 1st August, 2007.
The suit at the lower Court was originally commenced by a writ of summons issued on behalf of the Claimant by AGULANA, M. E. Esq. of Tony Ukam & Co. on the 11th of August, 2003. By a subsisting order granted on the 15th of June, 2007, the lower Court allowed the amendment of the writ as per the amended writ issued by Dr. Tony Ukam & Co. on 12th July, 2006 on behalf of the Claimant (see pages 31-33 of the Records). By the said amendment, the 5th Appellant was joined as defendant in the suit, while the 1st and 2nd Appellants were sued both personally and ‘for and on behalf of Efut Combined Assembly and Efut Abua Efut Ekondo Combined Council’.
The Court also by the subsisting order, allowed the further amendment of the statement of claim to reflect among others the above joinder and the capacities wherein the 1st & 2nd Appellants were sued.
At this juncture, it may be pertinent to reproduce part of the judgment of the lower Court that gave rise to this appeal. At page 207 of the Record of Appeal the Learned Trial Judge reasoned thus:
”… Where an amended document is defective and is thus a nullity, the original document it is intended to cure subsists. The argument of the learned counsel for the Defendant in his Rejoinder on the point that one cannot place something on nothing and expect it to stand is the correct position of the law; but conversely also, the argument in this instance would be that where a nullity is placed on something, what was there originally is not substituted and still stands until such time as it is lawfully replaced. In other words, since the original writ before the effort to amend same is not objected to, it follows that the original writ filed to commence this action on 11/08/2003 would still be extant to support the case and this Court so holds.”
From the above reasoning of the Learned Trial Judge, it is my humble but firm view that the Judge over stepped his bounds and went off track when he came up with the above reasoning. It was erroneous for the Learned Trial Judge to rely on the original writ to enter judgment for the Respondent when the order allowing the amendment of that original writ made by the same Judge is still subsisting and has not been set aside.
It is trite that once an order for amendment has been granted and complied with, what existed before the amendment is treated as dead and the parties as well as the Court would be bound only by the amended process. It is also the law that once the Court makes an order for amendment and that order is complied with, the Court becomes functus officio and cannot revisit it. See OLANIRAN V. ADEBAYO (2008) ALL FWLR (Pt. 410) 767.
In NAGOGO V. CPC (2013) ALL FWLR (Pt. 685) 272 at 293, the Supreme Court, per Mary Peter-Odili, JSC held:
”There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendments are no longer material before the Court and no longer defines the issues to be tried before the Court?. It thus cannot be considered as the basis of one?s case in any action. Nor may a Court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the suit. The issues to be tried will depend on the state of the final or amended pleading.”
We should not lose sight of the fact that the main bone of contention was that the amended writ of summons filed on the 12th of July, 2006 was incompetent on the ground that it was issued by a Law Firm, ‘Dr. Tony Ukam & Co.’ which is not a Legal Practitioner whose name is on the Roll. It is not a mere technicality which could be waived or brushed aside.
The Learned Trial Judge in my view tried to do substantial justice. It is my humble but firm view that the issue before the Trial Judge i.e an incompetent amended writ of summons goes beyond doing substantial justice. It must be substantial justice according to law. In this case the party who failed to play according to the Rules has himself to blame. The incompetent Amended Statement of Claim which resulted from the fact that it was issued by a law firm which is not a legal practitioner as required by law is bound to result in fatal consequences for the Respondent.
Therefore no amount of ‘damage control’ by the Trial Judge in a bid to do substantial justice would save the bad situation.
Where as in the present case, a Court is devoid of jurisdiction, any exercise of judicial power no matter how diligent, is a nullity and incapable of conferring legal benefits. The first issue is hereby resolved against the Respondent and in favour of the Appellants.
The outcome of this first issue has rendered a consideration of the other issues academic and unnecessary. There is merit in this appeal and it is hereby allowed. The judgment of Emilia Ibok, J, of the Calabar Division of the High Court of Cross River State in suit No. HC/389/2003, delivered on the 20th of November, 2015, having been delivered without jurisdiction is hereby set aside. It is struck out for want of jurisdiction. I make no order as to costs.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft a copy of the judgment just delivered by my learned brother, Chioma Egondu Nwosu-Iheme, JCA.
I am in agreement with the reasoning and conclusion that this appeal has merit. I also for the same reason allow this appeal and abide by the consequential order as made by my learned brother in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege of reading the draft of the lead judgment just read by my learned brother NWOSU-IHEME, JCA and I agree with the reasoning and conclusion therein.
The defect in the amended originating process deprived the Court of requisite jurisdiction. The appeal is meritorious and it is accordingly allowed.
I adopt the consequential orders in the lead judgment as mine.
Appearances:
Christopher Utu-Baku, Esq.For Appellant(s)
Etim Effiom, Esq.For Respondent(s)
