NIGERIA SECURITY AND CIVIL DEFENCE CORPS v. MR. ETHELBERT NNADI
(2017)LCN/10321(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of September, 2017
CA/E/361/2015
RATIO
DELIVERY OF JUDGMENT: WHETHER THE PROVISIONS OF SECTION 294 OF THE 1999 CONSTITUTION AS REGARDS TIME FOR DELIVERY OF JUDGMENT APPLIES TO THE APPELLATE COURTS
The provisions of Section 294(1) of the Constitution ante do not apply to decisions or opinions of Justices of the Supreme Court or the Court of Appeal. Section 294(5) of the Constitution is couched as follows: “(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.” But it is not a licence to delay the decision or opinions of the Justices of the Supreme Court or the Court of Appeal from being made known timeously after the parties or Counsel have argued the appeal. In Enekebe vs. Enekebe (1964) NMLR 42, Bairamian, JSC held at page 46 as follows: “In the cases on discretion which I have seen, the trial Court goes by the material presented to it, and the Court of Appeal goes by the material in the record…” In Nnajiofor Vs. Ukonu (1985) 2 NWLR (pt. 9) 578 Aniagolu JSC held at page 700 par. “G” to page 701 par. “A” to “E” to wit:- “It is sometimes inevitable that the trial of a case may stretch out over a long period due to circumstances some of which were outlined in Chief Ifezue Vs. Mbadugha and Anor (1984) 5 S.C. 79 at p. 166. So long as man is on this earth, his plans are bound to be affected by earthly variable, which inevitably encroach upon his time, and his timing. The greater problem for which a trial Judge must himself be held responsible, arises where the Judge adjourns for judgment for a long period at the end of which he has only his record or proceedings and the documents tendered to deal with in order to recapture the impressions, the nuances and demeanours of witnesses and all that transpired during the trial. He can neither then, in those inner cloisters of his chambers where he is alone, secure the assistance of counsel or of the witnesses, nor consult his fellow Judges for any help. In the meantime during that long period of adjournment, he had been hearing other cases, and watching other witnesses in those other cases. Now, there must be a clash of evidential impressions, a confusion as to who was the witness in this case or that; and a mix-up as to the issues involved. The end result is usually a waffled judgment from the confused Judge, which neither does justice to either party nor to their contentions. In these, and similar circumstance, an Appeal Court must set aside the said judgment. A good example of a hearing of a case over an inordinately long period of adjournments resulting in what I call “waffled” judgment is afforded by the facts of Akpor Vs. Iguoriguo and Ors (supra) in which the trial Judge after several adjournments was transferred from the judicial division in which the case was being heard to another judicial division, and had to return to the judicial division after he had adjourned the case sine die. This Court, in allowing the appeal of the defendants/appellants stated that: “Having thoroughly examined the record and listened to the argument of learned counsel on both sides (i.e. for both the appellant and the respondent), we are satisfied that the judgment of the lower Court, based as it is, principally on the relative value assigned to the evidence of the witnesses who testified before him by the learned trial Judge who could not possibly, in the peculiar circumstances of these proceedings, have made good use of his having seen and observed the demeanour of the said witnesses, ought to be set aside”. Each case must be decided on its own circumstances. In the present case on appeal, the learned trial Judge neither delayed his trial in all the circumstances nor delayed the judgment. There was no infringement, contrary to the appellants’ contentions, of Section 33(1) of the Constitution”. Oputa JSC concurred at page 707 par. “H” to page 708 par. “A” – “B” as follows:- “If for instance a witness deposed, four or five years ago, that 2 + 2 make five, his arithmetic will always continue to be wrong and it does not matter that the mathematics witness testified with optimum candour and bearing and that his demeanour was impeccable. Lapse of time will not make any difference to the conclusion that his arithmetic was wrong. In order words, demeanour, impression, candour, etc are not always each, and index of truth. They are merely aids to credibility but not infallible aids. There are other aids perhaps more potent. One such aid is probability. Things inconsistent with human knowledge and experience are properly rated as improbable and vice verse. When the facts deposed to by a witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief. That is the purport of Section 148 of the Evidence Act Cap. 62 of 1958. That was what Aristotle meant when he said that “Probability has never been detected bearing false testimony”. It is when this appeal is argued on its merits that it will be easy to see whether the learned trial Judge based his judgment wholly on the impression made on him by the witnesses or on other factors like probability, etc”. See Ogbechie & Ors. vs. Onochie & Ors. (1986) 3 SC 54, Eso, JSC at pages 56-64 and Karibi-Whyte, JSC at pages 68-70 and Odi & Anor. vs. Osafile & Ors. (1985) 1 NSCC (Pt.–) 14, Sowemimo, C.J.N. held at pages 37-38. Appellate Courts are bound by the entries in the record of appeal. They do not see nor observe the demeanor of the parties or the witnesses as they testify in the Court below hence have to limit the determination of the dispute from the entries in the record. The question of considering the demeanor of the parties/witnesses does not arise in appellate Court as that is within the province of the Court of first instance. Appeals are heard not on oral or written addresses of counsel/parties but on briefs filed and exchanged by the parties, hence Order 19 Rule 3(5) of the Court of Appeal Rules, 2016 provides as follows: “(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.” Order 19 Rule 9(1) of the Court of Appeal Rules (ante) provides that: “(1) Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs already filed in Court.” To ask the parties or learned Counsel to re-argue the appeal because ninety days stipulated under Section 294(1) of the Constitution expired will only be further delaying the making known of the decision or opinion of this Court for another ninety days. In United Bank for Africa Ltd. vs. Nwora (1978) 2 LRN 149 Fatayi-Williams, JSC (as he then was) held at page 155 to wit: “… It is the duty of the Court whenever possible, not only to minimize the cost of litigation, but also to see to it that justice is not delayed unnecessarily. PER JOSEPH TINE TUR, J.C.A.
ISSUE(S) FOR DETERMINATION: WHETHER A JUDGE OR JUSTICE MAY RAISE AN ISSUE(S) FOR DETERMINATION SUO MOTU
The authorities of the Supreme Court show when a learned Judge or Justice may raise an issue that is germane to the administration of justice depending on the circumstances of each case. I shall refer to the opinion of Idigbe, JSC in Uwaifo vs. Attorney-General Bendel State & Ors. (1982) 7 SC 124. His Lordship held at 187 to 188 by quoting Chandler vs. DPP (1964) A.C. 763 where Lord Reid held at page 769 that: “…No judge can be expected to treat something which is before his eyes as though it was not there.” In Emegwara vs. Nwaimo (1954) 14 WACA 347 at 349, Verity, C.J., held that: “There is one point to which no argument was addressed and which was not made the subject of appeal but in regard to which in my opinion the learned Judge erred in form if not in substance…” In Ogunro & Ors. vs. Ogedengbe & Anor. (1960) 5 FSC 137, Hubbard, Ag. F.J., held at page 140 that: “There is one other point, not raised on this appeal, which I think should be dealt with…” In Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517, Oputa, JSC held at page 557 paragraph “C” that: “…The issue of venue was not taken up and argued in the parties’ briefs but being an issue of jurisdiction, the Court can take it up itself at any stage.” See also Bayero vs. Mainasara (2007) All FWLR (Pt.359) 1285 at 1314 paragraphs “D”-“G”. PER JOSEPH TINE TUR, J.C.A.
ISSUES FOR DETERMINATION: CONSEQUENCE OF ISSUES NOT DISTILLED FROM ANY OF THE GROUNDS OF APPEAL
Issue 2 for determination raises the question of service of pre-hearing notice on the appellant before commencement of proceedings. The issue is not tied to any ground of appeal and is accordingly struck out. PER JOSEPH TINE TUR, J.C.A.
ISSUES FOR DETERMINATION: CIRCUMSTANCES IN WHICH THE COURT WILL MERGE ISSUES FOR DETERMINATION
The grounds of appeal and the issues formulated for determination by this Court do overlap hence, for brevity and convenience sake, I shall merge them for determination. See Apampa vs. The State (1982) 6 SC 47 at 55 and Anie vs. Uzorka & Ors. (1993) 8 NWLR (Pt.309) 1 at 16. PER JOSEPH TINE TUR, J.C.A.
CAUSE OF ACTION: DEFINITION OF A CAUSE OF ACTION
A cause of action was defined by Fatayi-Williams, JSC (as he then was) in Savage vs. Uwaechia (1972) 3 SC 214 at 221 to wit: “A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements – the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage. As Lord Esher said in Cooke Vs. Gill (1873) L.R. 8 C.P. 107 and later in Read Vs. Brown (1888) 22 Q.B.D. 128 (C.A.), it is every fact that it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court (See also Kusada Vs. Sokoto Native Authority, SC. 131/68 delivered on 13th December 1968, where the definition in Read Vs. Brown (supra) was referred to with approval).” In Uwazuruonye vs. The Governor of Imo State & Ors. (2012) 11 MJSC 46, Onnoghen, JSC held at page 65 to 66 as follows: “It is settled law that a cause of action is the fact or combination of facts which gives rise to a right to sue or institute an action in a Court of law or Tribunal. The term also includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed/relief ? See Elabanjo vs. Dawodu (2006) 15 NWLR (Pt.1001); P.N. Udoh Trading Co. Ltd. vs. Abere (2001) 11 NWLR (Pt.723) 114 at 129…” PER JOSEPH TINE TUR, J.C.A.
CAUSE OF ACTION: HOW TO DETERMINE THE CAUSE OF ACTION
Only the pleaded facts in a statement of claim are to be examined to determine what is the cause of action. See Ogbimi vs. Ololo (1993) 7 SCNJ (Pt.2) 447; Nosiru Bello vs. Attorney-General of Oyo State & Ors. (1986) 5 NWLR (Pt.5) 838. But where the suit or action was instituted on a motion supported by affidavit and documentary exhibits as in this appeal the Supreme Court held in University Press Ltd. vs. I.K. Martins Ltd. (2000) FWLR (Pt.5) 222 at pages 733 to 734 as follows: “Against this background, learned appellant’s counsel submitted that in view of the motion paper which is accompanied by the affidavit evidence placed before the lower Court, it was not possible for that Court to determine the vexed question of venue with reference only to the statement of claim. It is his further submission that the lower Court has, by reason of the above two assertions, approbated and reprobated, on what should be the proper documents to be examined by the Court with regard to the issue of venue at this preliminary point in time. Finally, counsel submitted that the issue of venue having been questioned, the determination of that issue could not be restricted to an examination of the statement of claim. In support of his contention, counsel relied on the National Bank of Nigeria Ltd. Vs. John A. Shoyoye (supra) at p. 193-4 and Western Steel Works Ltd. & Anor Vs. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (pt. 49) 285 at 305. PER JOSEPH TINE TUR, J.C.A.
SERVICE OF COURT PROCESS(ES): PURPOSE OF SERVICE OF PROCESSES
The purpose of service of processes was explained by Fatayi-Williams, JSC (as he then was) in United Nigeria Press Ltd. & Anor. vs. Timothy Olu Adebanjo (1969) 1 All NLR 114 at 122 as follows: “In our opinion, the object of all types of service of processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist, if he may, that which is sought against him. Therefore, since the primary consideration in an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the Court must be satisfied that the mode of service proposed would probably, after all practicable means of effecting personal service have proved abortive, give him notice of the process concerned. In the present application, all that is disclosed in the affidavit in support is that the appellants could not be found at their registered address and that if the motion papers are pasted on the door of this address notice of them might get to the knowledge of the appellants.” PER JOSEPH TINE TUR, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
NIGERIA SECURITY AND CIVIL DEFENCE CORPS Appellant(s)
AND
MR. ETHELBERT NNADI Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The learned Counsel representing the parties in this appeal adopted their respective briefs of argument on 23rd May, 2017 and the appeal was adjourned to enable the panel deliberate to make known its decision. The appeal was assigned to me for decision making. Since then I have had all manner of health challenges moving from one hospital to another. When I recovered strength to prepare and deliver the opinion of this Court, then came the annual vacation. I have remained at my duty post throughout the period of the annual vacation to prepare and make known the decision or opinion of the panel that heard the appeal. I have not tagged the determination of this appeal as ?Judgment? but rather a ?Decision? or an an ?Opinion? because of the provisions of Section 294(1)-(4) read together with 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which provides as follows:
?1. Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of
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evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
2. Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
3. A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
4. For the purpose of delivering its decision under this Section, the Supreme Court or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
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318(1) In this Constitution unless it is otherwise expressly provided or the con otherwise requires:-
?Decision? means, in the
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relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation.”
Any determination by a Justice of the Supreme Court or the Court of Appeal is either a ?decision? or an ?opinion?. In Chief Andrew Thomas vs. Local Government Service Board (1965) NMLR 310, Brett, JSC held at page 315 that The greater includes the less Section 318(1) of the Constitution (ante) is very clear as to what constitutes any determination of that Court The term includes judgment, decree, order, conviction, sentence, or recommendation.? That is to say, a ?judgment? or ?ruling?, etc of the Supreme Court or the Court of Appeal as the case may be, is regarded as ?any determination of that Court under Section 318(1) of the Constitution. A ?determination? was defined in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 236 by Alexander, C.J.N. at page 243-244 as follows:
?More light is thrown on the meaning of the words
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?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question?).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.”
In Baba vs. Civil Aviation (1991) SCNJ (Pt.1) 1, Karibi-Whyte, JSC held at page 25 that:
?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to
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decide, there is, in my view, no determination
The object and intention of the legislature is what should guide this Court in the determination of any matter or cause submitted by the parties for determination. See Osho vs. Philips (1972) 1 All NLR (Pt.1) 276 at 285 and Odutola Holdings Ltd. vs. Ladejobi (2006) 12 NWLR (Pt.994) 321. In Maxwell On the Interpretation of Statutes, 12th Edition by P. St. J. Langan appears the passage at page 33:
?It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: ?It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.? ?We are not entitled,? said Lord Lorebun, L.C., ?to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.? A case not provided for in a statute is not to be dealt with merely because
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there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.?
In Dias Jurisprudence, 5th Edition, the author wrote at pages 146 to 147 as follows:
?Although a case has neither been reversed nor overruled, it may cease to be ?law? owing to changed conditions and changed law: cessante ratione cessat ipsa lex. It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law, the other is where a case, which is acknowledged to have been law at the time, has ceased to have that character owing to altered circumstances. It is the latter that is under consideration. If, of course, the law-making function of Courts is admitted, then it would be easy to reject out-of-date precedents openly on the ground of changed conditions and not have to resort to the threadbare fiction that cases only reflect what always has
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been law.
Willes, C.J. once said, ?When the nature of things changes, the rules of law must change too.? This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of change. The question under review is whether changed conditions may deprive a case of its law-quality…?
See Davies vs. Powell (1737) Willes 46 at 51.
Section 294(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered empowers every Justice of the Supreme Court or the Court of Appeal to render an ?opinion? which may agree with the other Justices or not. But the final decision of the Court is the opinion of the majority of the Justices that sat to determine the controversy. The question whether there is a ?lead?; ?minority? or ?contributory? decision or opinion does not arise as the expressions are not to be found in Section 318(1) of the Constitution or Section 30 of the Court of Appeal Act (2010 Amendment). The practice of recalling the parties or their learned Counsel to re-argue an appeal at the expiry of 90 days from the date of
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argument is not supported by the provisions of any Section of the Constitution, the Court of Appeal Act 2004 nor the Court of Appeal Rules 2016. In Maxwell On The Interpretation of Statutes supra pages 320 and 326 as follows;
?Enactments regulating the procedure in Courts are usually construed as imperative, even where the observance of the formalities in question is not a condition exacted from the party seeking the benefit of the statute, but a duty imposed on a Court or public officer when no general inconvenience or injustice seems to call for a different construction?. …
?Enactments which impose duties upon conditions are, when these are not construed as conditions precedent to the exercise of a jurisdiction, subject to the maxim, lex non cogit ad impossibilia. They are understood as dispensing with the performance of what is prescribed when performance of it is impossible?.
The requirements stipulated under Section 294(1) of the Constitution applies to ?Every Court established under this Constitution? that hears evidence and relies on oral or written addresses from the parties or
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their respective Counsel before the Court delivers a ?decision? not a ?judgment? or a ?ruling?, etc. The word ?ruling? is omitted from Section 318(1) of the Constitution. The provisions of Section 294(1) of the Constitution ante do not apply to decisions or opinions of Justices of the Supreme Court or the Court of Appeal. Section 294(5) of the Constitution is couched as follows:
?(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.?
But it is not a licence to delay the decision or opinions of the Justices of the Supreme Court or the Court of Appeal from being made known timeously after the parties or Counsel have argued the appeal. In Enekebe vs. Enekebe (1964) NMLR 42, Bairamian, JSC held at page 46 as follows:
?In the cases on discretion which I have seen, the trial Court goes by the
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material presented to it, and the Court of Appeal goes by the material in the record
In Nnajiofor Vs. Ukonu (1985) 2 NWLR (pt. 9) 578 Aniagolu JSC held at page 700 par. ?G? to page 701 par. ?A? to ?E? to wit:-
?It is sometimes inevitable that the trial of a case may stretch out over a long period due to circumstances some of which were outlined in Chief Ifezue Vs. Mbadugha and Anor (1984) 5 S.C. 79 at p. 166. So long as man is on this earth, his plans are bound to be affected by earthly variable, which inevitably encroach upon his time, and his timing.
The greater problem for which a trial Judge must himself be held responsible, arises where the Judge adjourns for judgment for a long period at the end of which he has only his record or proceedings and the documents tendered to deal with in order to recapture the impressions, the nuances and demeanours of witnesses and all that transpired during the trial. He can neither then, in those inner cloisters of his chambers where he is alone, secure the assistance of counsel or of the witnesses, nor consult his fellow Judges for any help. In
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the meantime during that long period of adjournment, he had been hearing other cases, and watching other witnesses in those other cases. Now, there must be a clash of evidential impressions, a confusion as to who was the witness in this case or that; and a mix-up as to the issues involved. The end result is usually a waffled judgment from the confused Judge, which neither does justice to either party nor to their contentions. In these, and similar circumstance, an Appeal Court must set aside the said judgment. A good example of a hearing of a case over an inordinately long period of adjournments resulting in what I call ?waffled? judgment is afforded by the facts of Akpor Vs. Iguoriguo and Ors (supra) in which the trial Judge after several adjournments was transferred from the judicial division in which the case was being heard to another judicial division, and had to return to the judicial division after he had adjourned the case sine die. This Court, in allowing the appeal of the defendants/appellants stated that:
?Having thoroughly examined the record and listened to the argument of learned counsel on both sides (i.e. for both the
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appellant and the respondent), we are satisfied that the judgment of the lower Court, based as it is, principally on the relative value assigned to the evidence of the witnesses who testified before him by the learned trial Judge who could not possibly, in the peculiar circumstances of these proceedings, have made good use of his having seen and observed the demeanour of the said witnesses, ought to be set aside?.
Each case must be decided on its own circumstances. In the present case on appeal, the learned trial Judge neither delayed his trial in all the circumstances nor delayed the judgment. There was no infringement, contrary to the appellants? contentions, of Section 33(1) of the Constitution?.
Oputa JSC concurred at page 707 par. ?H? to page 708 par. ?A? ? ?B? as follows:-
?If for instance a witness deposed, four or five years ago, that 2 + 2 make five, his arithmetic will always continue to be wrong and it does not matter that the mathematics witness testified with optimum candour and bearing and that his demeanour was impeccable. Lapse of time will not make any difference
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to the conclusion that his arithmetic was wrong. In order words, demeanour, impression, candour, etc are not always each, and index of truth. They are merely aids to credibility but not infallible aids. There are other aids perhaps more potent. One such aid is probability. Things inconsistent with human knowledge and experience are properly rated as improbable and vice verse. When the facts deposed to by a witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief. That is the purport of Section 148 of the Evidence Act Cap. 62 of 1958. That was what Aristotle meant when he said that ?Probability has never been detected bearing false testimony?. It is when this appeal is argued on its merits that it will be easy to see whether the learned trial Judge based his judgment wholly on the impression made on him by the witnesses or on other factors like probability, etc?.
See Ogbechie & Ors. vs. Onochie & Ors. (1986) 3 SC 54, Eso, JSC at pages 56-64 and Karibi-Whyte, JSC at pages 68-70 and Odi & Anor. vs. Osafile & Ors. (1985) 1 NSCC (Pt.–) 14, Sowemimo, C.J.N. held at
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pages 37-38.
Appellate Courts are bound by the entries in the record of appeal. They do not see nor observe the demeanor of the parties or the witnesses as they testify in the Court below hence have to limit the determination of the dispute from the entries in the record. The question of considering the demeanor of the parties/witnesses does not arise in appellate Court as that is within the province of the Court of first instance. Appeals are heard not on oral or written addresses of counsel/parties but on briefs filed and exchanged by the parties, hence Order 19 Rule 3(5) of the Court of Appeal Rules, 2016 provides as follows:
?(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.?
Order 19 Rule 9(1) of the Court of Appeal Rules (ante) provides that:
?(1) Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs already filed in Court.
To
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ask the parties or learned Counsel to re-argue the appeal because ninety days stipulated under Section 294(1) of the Constitution expired will only be further delaying the making known of the decision or opinion of this Court for another ninety days. In United Bank for Africa Ltd. vs. Nwora (1978) 2 LRN 149 Fatayi-Williams, JSC (as he then was) held at page 155 to wit:
It is the duty of the Court whenever possible, not only to minimize the cost of litigation, but also to see to it that justice is not delayed unnecessarily.?
One may ask: Who raised these issues? The authorities of the Supreme Court show when a learned Judge or Justice may raise an issue that is germane to the administration of justice depending on the circumstances of each case. I shall refer to the opinion of Idigbe, JSC in Uwaifo vs. Attorney-General Bendel State & Ors. (1982) 7 SC 124. His Lordship held at 187 to 188 by quoting Chandler vs. DPP (1964) A.C. 763 where Lord Reid held at page 769 that: No judge can be expected to treat something which is before his eyes as though it was not there.? In Emegwara vs. Nwaimo (1954) 14 WACA 347
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at 349, Verity, C.J., held that: ?There is one point to which no argument was addressed and which was not made the subject of appeal but in regard to which in my opinion the learned Judge erred in form if not in substance In Ogunro & Ors. vs. Ogedengbe & Anor. (1960) 5 FSC 137, Hubbard, Ag. F.J., held at page 140 that: ?There is one other point, not raised on this appeal, which I think should be dealt with In Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517, Oputa, JSC held at page 557 paragraph ?C? that: The issue of venue was not taken up and argued in the parties? briefs but being an issue of jurisdiction, the Court can take it up itself at any stage.? See also Bayero vs. Mainasara (2007) All FWLR (Pt.359) 1285 at 1314 paragraphs ?D?-?G?.
Order 19 Rule 3(2)-(3) of the Court of Appeal Rules 2016 reads thus;
?3(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the
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decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books and other legal journals
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.?
The above provisions have support in Ijale vs. B.A. Shonibare, Privy Council Judgments (1841-1973) by Olisa Chukwura, SAN, 1980 Edition, page 947 where Lord UpJohn held at page 948 as follows:
?There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue in his favour. The Federal Supreme Court differed from
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the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.
In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES.?
In Odutola Holdings Ltd. & Ors. vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63, Ejinwumi, JSC held at pages 79-80 to wit:
?Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my humble view, not all the issues raised are necessary for the determination of the appeal. This is because several of the issues raised by the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the
18
trial Court in respect of the application brought before it by the respondents.
After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the light of the arguments advanced in the consideration of the merits of the appeal.?
?
I shall now consider this appeal on the merit. Mr. Ethelbert Nnadi (respondent) was the plaintiff in the High Court of Justice of Enugu State, holden at Enugu. The respondent instituted this suit now on appeal against the appellant (then as the defendant) in the Court below on 14th May, 2013. The suit was filed under the provisions of Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009; Sections 44 and 46 of the Constitution of the Federal Republic of Nigeria, 1999 as altered and the African Charter on Human and Peoples? Rights (Ratification And
19
Enforcement) Act 1983 by way of motion on Notice praying for the following reliefs and remedies:
?(a) An Order directing the Respondent, Nigeria Security and Civil Defence Corps to release to the Applicant, Ethelbert Nnadi his Mercedes Benz tanker with Registration No. XV 619 AAA, Engine and Chasis Nos. 150839, wrongfully seized by the Respondents operatives on the 11th day of January 2013 at Uwax Filling Station, Emene, Enugu, within the Jurisdiction of this Honourable Court.
GROUNDS UPON WHICH THE RELIEF IS SOUGHT:
a) The Applicant is the owner of one Mercedes Benz tanker with registration No. XV 619 AAA, Engine and Chassis Nos. 150839 and his right over or interest in the said vehicle protected to the Applicant by the provisions of Section 44(1) of the 1999 Constitution (as amended 2011) and Article 14 of the African Charter on Human and People Rights (ratification and enforcement) Act cannot be taken possession of compulsorily by the Respondent or her operatives in the manner complained of.
b) The Applicant as the aforesaid owner is entitled to the release or return of the said tanker impounded by the Respondent and its operatives
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on the 11th day of January, 2013.”
One Chinedu Nnamani swore to an affidavit in support of the application on 14th May, 2013 supported by Exhibits ?A1?-?A4? and a written address at pages 5-14 of the printed record. The appellant deposed to a counter-affidavit on 11th June, 2013 at pages 15-16 of the printed record. A written address accompanied the argument of the appellant in the Court below. The learned trial Judge N.P. Emehelu, J., heard the motion and granted orders on 22nd July, 2013 at pages 18 to 19 of the printed record. The learned trial Judge granted the application on 22nd July, 2013 to the effect that the subject matter in dispute should be released to the respondent on bond. Aggrieved with the orders of the learned trial Judge, the appellant filed a Notice of Appeal on 11th October, 2013 followed by a brief of argument on 30th October, 2015.
?
The respondent?s did not file any brief up to the time the appeal was heard on 11th May, 2017. The respondent was also not represented by a Counsel at the hearing of the appeal. There was evidence that the respondent had been served the record of appeal; the
21
appellant?s brief and hearing notice hence the learned Counsel representing the appellant had no option but to argue the appeal which was adjourned to enable this Court to render a decision or an opinion under Sections 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The appellant set out the facts in dispute in the brief of argument filed on 30th October, 2015 from pages 1-3 as follows:
?This is an appeal against the Judgment order of Hon. Justice N. P. Emehelu delivered on the 22nd day of July, 2013 at the State High Court of Justice Enugu. The Respondent Mr. Ethelbert Nnadi brought a miscellaneous application under Fundamental Rights Enforcement Procedure Rules 2009 and S.44 and S.46 of 1999 Constitution of Federal Republic of Nigeria and under Article 14 of the Africa Charter on Human and Peoples Right (Ratification and Enforcement Act) praying the Court for ?an order directing the Appellant ? Nigerian Security and Civil Defence Corps to release to the Applicant, Mr. Ethelbert Nnadi his Mercedez Benz tanker truck with registration No. XV 619 AAA, Engine and Chasis Nos. 15089,
22
wrongfully seized by the respondent operatives on the 11th day of January 2013 at Uwax Filling Station Emene, Enugu within the jurisdiction of the Honourable Court.
STATEMENT OF FACTS:
1. The Appellant/Respondent got to know about the suit when judgment order was served on her at National Headquarters Abuja and going through the order and other investigation about the whole matter, it was revealed that the whole process was conducted in error as the said counsel that stood for the appellant never informed the organization of the issue so as to give her mandate to do so for and on behalf of the corps as he did.
2. It was also noticed that the corps legal unit was not aware of any pending suit against it until the service of the judgment order.
3. That while investigation in that matter was going on, Respondent/Applicant in concert with some members of the corps rushed to Court to score a cheap point and to satisfy their selfish motives without first serving the corps one month?s pre-action notice and the originating processes of the Court.
4. That on the receipt of the said judgment order by the National Legal Adviser Nigeria
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Security and Civil Defence Corps National Headquarters Abuja, the National Legal Adviser directed that the legal unit Nigeria Security and Civil Defence Corps Enugu State Command still challenge the validity of the said judgment order hence this appeal challenging the judgment order.
5. It is this judgment order that the Appellant/Respondent is appealing against and has subsequently filed a notice of appeal dated on the 3rd day of October, 2013 and filed on the 11th day of October, 2013.
ISSUES FOR DETERMINATION:
1. Whether Court below was cloaked with jurisdiction to entertain this suit let alone making the order it made on the 22nd day of July 2013 when the Respondent/Applicant failed to serve the originating summon on the Appellant/Respondent.
2. Whether the Court below had jurisdiction to entertain this suit at all for failure of respondent/applicant to fulfill the condition precedent to serve a Pre-action Notice on the Appellant/Respondent as required under Section 20(3) and (4) and Section 21 of the Nigeria Security and Civil Defence Corps Act, 2003 as amended in 2007.
3. Whether or not the entire suit is incompetent and whether
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the lower Court was cloaked with jurisdiction to entertain same for failure of Respondent to comply with the provision of Section 97 of the Sheriffs and Civil Process Act in issuing the write of summons dated on 14th day of May 2013 and filed on the 14th day of May 2013.
4. Whether the Court below was cloaked with jurisdiction to entertain this suit at all let alone make any interlocutory or final order in same, when the writ of summons initiating this suit being null and void on the threshold for failure of Respondent/Applicant to seek the leave of Court to issue and serve same on the Respondent/Appellant out of jurisdiction.
5. Whether the trial High Court of Enugu State had jurisdiction to entertain the fundamental rights suit involving the Appellant/Respondent.”
The grounds in the Notice of Appeal at pages 22-23 of the printed record are as follows:
?GROUNDS OF APPEAL:
Error in Law:
The learned trial Judge erred in law by hearing and determining this suit with it has no jurisdiction to try same.
Particulars of Error:
The applicant brought this application against the respondent in the High Court of Enugu
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State. The appellant is by creation of the law a Federal establishment and any suit against it should be filed, heard and determined in the Federal High Court.
Error in Law:
The learned trial Judge erred in law when it assumed jurisdiction in this suit while the respondent was not served with the application.
Particulars in Errors:
i. The applicant after the detention of the truck, the subject matter of this suit and while the investigations are still going on filed the motion/application without serving same on the respondent.
ii. Any originating process as in this application must be served on the respondent himself and if in this respect to the principal officer. The principal officer is never aware of this suit until the judgment order was served on him at his office in Abuja. See Section 21 of the NSCDC Act 2003.
RELIEF SOUGHT:
To set aside the judgment order of the lower Court delivered on the 22nd of July, 2013.?
Issue 2 for determination raises the question of service of pre-hearing notice on the appellant before commencement of proceedings. The issue is not tied to any ground of appeal and is accordingly
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struck out. The grounds of appeal and the issues formulated for determination by this Court do overlap hence, for brevity and convenience sake, I shall merge them for determination. See Apampa vs. The State (1982) 6 SC 47 at 55 and Anie vs. Uzorka & Ors. (1993) 8 NWLR (Pt.309) 1 at 16.
The entire issue in this appeal involves the question of the competency of the proceedings conducted by the respondent in the Court below against the appellant. The question is whether there was no evidence that the processes necessary for the initiation of the proceedings were served on the proper parties as claimed. The issue of jurisdiction can be raised at any time, even in the Supreme Court. When raised, the issue should be resolved first. The jurisdiction of a Court to hear a claim is different from the laws the Court is enjoined to apply in decision making. See Laniyan vs. Dadeowo & Ors. (1971) 1 All NLR 166 at p.170-171 per Coker, JSC. Non-compliance with statutory provisions or rules of Practice and Procedure may constitute an irregularity capable or not of vitiating the whole proceedings particularly if that goes to the root of the action. Occasions may
27
arise where the Court has to examine the Writ of Summons and the Statement of Claim to determine the cause of action and whether jurisdiction vests in the Court before a learned trial Judge may proceed to hear the dispute or controversy to make binding orders.
Where a dispute or controversy is contested on pleadings, the issue of lack of jurisdiction may be pleaded in the statement of defence. See Barclays Bank vs. CBN (1976) 6 SC 186; Amawo vs. Attorney-General North Central State & Ors. NNLR 118 at 124. The issue may be raised at any stage of the proceedings or suo motu by the Court, especially where a plea of lack of jurisdiction is so obvious on face of the processes. See Oloriode vs. Oyebi (1984) 5 SC 1 at 32; Katto vs. CBN (1991) 12 SCNJ 1 at 19-20, or on appeal. See Oloba vs. Akereja (1988) 3 NWLR (Pt.84) 508 at 520; Eze vs. FRN (1987) 2 SCNJ 76; and Chacharos vs. Ekimpex Ltd. (1998) 1 SCNJ 93. Jurisdiction of the Court to entertain proceedings is to be determined not from the date of filing the action but when and where and how the cause of action arose. See Uwaifo vs. Attorney-General of Bendel State (1982) 7 SC 124 at 278-280; Adeyemo vs.
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Ajiboye (1987) 7 SCNJ 1; Adeyemi vs. Opeyori (1976) 9 & 10 SC 31 at 49.
Jurisdiction must vest in a Court of justice or a Tribunal in order for the Court to make binding orders. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76 at 90. But there are times evidence is required to determine the issue of jurisdiction particularly where the complaint concerns the venue where the subject-matter was situate. See Dweye vs. Iyomahan (1983) 8 SC 76; Chiekwe vs. Obiora (1960) 5 FSC 258 and Adetiye vs. Amodu (1969) 1 NMLR 62. But the Court has to determine what was the cause of action in this proceedings. A cause of action was defined by Fatayi-Williams, JSC (as he then was) in Savage vs. Uwaechia (1972) 3 SC 214 at 221 to wit:
?A cause of action is defined in Stroud?s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements ? the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage. As Lord Esher said in Cooke Vs. Gill (1873) L.R. 8
29
C.P. 107 and later in Read Vs. Brown (1888) 22 Q.B.D. 128 (C.A.), it is every fact that it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court (See also Kusada Vs. Sokoto Native Authority, SC. 131/68 delivered on 13th December 1968, where the definition in Read Vs. Brown (supra) was referred to with approval).”?
In Uwazuruonye vs. The Governor of Imo State & Ors. (2012) 11 MJSC 46, Onnoghen, JSC held at page 65 to 66 as follows:
?It is settled law that a cause of action is the fact or combination of facts which gives rise to a right to sue or institute an action in a Court of law or Tribunal. The term also includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed/relief ? See Elabanjo vs. Dawodu (2006) 15 NWLR (Pt.1001); P.N. Udoh Trading Co. Ltd. vs. Abere (2001) 11 NWLR (Pt.723) 114 at 129…?
Only the pleaded facts in a statement of claim are to be examined to determine what is the cause of action. See Ogbimi vs. Ololo (1993) 7 SCNJ (Pt.2) 447; Nosiru Bello
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vs. Attorney-General of Oyo State & Ors. (1986) 5 NWLR (Pt.5) 838. But where the suit or action was instituted on a motion supported by affidavit and documentary exhibits as in this appeal the Supreme Court held in University Press Ltd. vs. I.K. Martins Ltd. (2000) FWLR (Pt.5) 222 at pages 733 to 734 as follows:
?Against this background, learned appellant?s counsel submitted that in view of the motion paper which is accompanied by the affidavit evidence placed before the lower Court, it was not possible for that Court to determine the vexed question of venue with reference only to the statement of claim. It is his further submission that the lower Court has, by reason of the above two assertions, approbated and reprobated, on what should be the proper documents to be examined by the Court with regard to the issue of venue at this preliminary point in time. Finally, counsel submitted that the issue of venue having been questioned, the determination of that issue could not be restricted to an examination of the statement of claim. In support of his contention, counsel relied on the National Bank of Nigeria Ltd. Vs. John A. Shoyoye (supra) at
31
p. 193-4 and Western Steel Works Ltd. & Anor Vs. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (pt. 49) 285 at 305. I have carefully examined the above-two excerpts of the leading judgment of the lower Court the contents of which learned counsel for the appellant has invited us to hold amount to approbation and reprobation. Nothing can be further from the truth. In the first excerpt Uwaifo, JCA (as he then was) chides plaintiff?s counsel for his erroneous submissions wherein he argued that the vexed issue on venue should be determined by restricting the inquiry to the plaintiff?s statement of claim. Indeed, the learned Justice of the lower Court emphasized the need to look elsewhere, where possible, in the resolution of the problem of venue. In his Lordship?s analysis of the problem, as borne out in the second excerpt, it is quite clear, contrary to the submission of learned appellant?s counsel (at pp. 7 & 8 of his brief) that his Lordship examined not only the statement of claim but the motion paper and the affidavit evidence attached thereto. It is clear that the defendant who was within his legal right not to file a
32
statement of defence at that stage of his protest on venue was entitled to put across all facts available to it by way of affidavit evidence. There is no iota of truth that the lower Court confined itself to the statement of claim in reaching its decision on question of venue. I am satisfied that learned appellant?s counsel did not give a dispassionate consideration to the above two excerpts of the lower Court?s judgment that form the plank of his complaint. Clearly, there can be no other justifiable way of examining and determining the appellant?s protest on venue except by examination and evaluation of affidavit separately fielded by the plaintiff and the defendant in conjunction with the statement of claim. To do otherwise will lead to a grave miscarriage of justice which we cannot overlook. See National Bank of Nigeria Ltd. Vs. John A. Shoyoye (supra) and Western Steel Workers Union of Nigeria (supra). The result is that issue No. 2 is resolved against the appellant as having no merit whatsoever?.
Sections 1, 4 and 21 of the Nigeria Security and Civil Defence Corps Act Cap N146 Laws of the Federation of Nigeria 2004 provides as
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follows;
?1. Establishment of the Nigeria Security and Civil Defence Corps:
(1) There is established the Nigeria Security and Civil Defence Corps (in this Act referred to as ?the Corps?), which shall consist of such number of volunteers and regular members as may, from time to time, be recruited under the provisions of this Act.
(2) The Corps:-
a) shall be a body corporate with perpetual succession and a common seal;
b) may sue and be sued in its corporate name, and
c) shall have its headquarters in the Federal Capital Territory, Abuja.
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4. Powers of the Board:
(1) The Board shall be responsible for:-
a) providing the general policies and guidelines relating to major expansion programmes of the Corps.
b) The supervision of management and general administration of the Corps.
c) Recruiting volunteers and regular members of the Corps.
d) Organizing basic development and refresher courses for members of the Corps, and
e) Fixing, with the approval of the Minister, the terms and conditions of service of members and employees of the Corps, including their
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remuneration.
(2) The Board shall have power to do such other things which in the opinion of the Board are necessary to ensure the efficient performance of the functions of the Corps.
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21. Service of documents:
A Notice, summons or other document required or authorized to be served on the Corps under the provisions of this Act or any other enactment or law may be served by delivering it to the Commandant-General or by sending it by registered post and addressed to the Commandant-General at the principal office of the Corps?.
The word ?may? is employed by the draftsman in the provisions of Section 21 of the Nigeria Security and Civil Defence Corps Act, 2004 (not shall). In Mokelu Vs. Federal Commissioner for Works & Housing (1976) NMLR 329 Madarikan JSC held at pages 332 to 333 as follows:-
?We think that Mr. Balogun was on firm ground when he submitted that where an action is instituted in the Federal Revenue Court instead of the High Court in which it ought to have been brought, Section 22(2) enjoins the Federal Revenue Court not to strike out the action merely on that ground. In
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the expression ?no cause or matter shall be struck out by the Federal Revenue Court? we are of the view that the word ?shall? must be given its natural and proper meaning which is that a mandate is enjoined. Having so construed the word ?shall?, we will now proceed to consider what interpretation to give to the word ?may? appearing in the following portion of the subsection: ?the Judge of the Federal Revenue Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State
?May? is an enabling or permissive word. In that sense, it imposes or gives a discretionary or enabling power. But where the object of the power is to effectuate a legal right, ?may? has been construed as compulsory or as imposing an obligatory duty. The principle to be drawn from decided cases on the construction of the word ?may? appears to be quite clear. The word ?may? gives a power, and the important question is in what causes, where a Judge has a power given by the ?may?, it
36
becomes his duty to exercise it. When a statute confers a power or authority on a Judge to act in a certain case, it is imperative on him to exercise the power or authority when the case arises and its exercise is duly called for. (See MacDougall Vs. Patterson (1851) 138 E.R. 673).”
A party to a suit, resident within jurisdiction ought to have obtained leave before service of the processes at the head office of for instance, a Corporation or a Limited Liability Company with head office outside the jurisdiction of the Court that issued the processes. Nevertheless the party outside jurisdiction may appear and submit to the jurisdiction of the Court without protest so that the controversy may be determined on the merit.
In Grisby vs. Jubwe (1953) 14 WACA 637 the Court held at page 638 as follows:
?As to the first ground of appeal, that the Court erred in holding that there was a submission to the jurisdiction of the Court, it is unnecessary to decide the point whether as Liberian Consul the defendant was exempt from the jurisdiction. As he had clearly attended the Court, both on a motion and on the return date, he had thereby submitted
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to the jurisdiction by opposing the plaintiffs? motion and by accepting an order for pleadings.”
In African Reinsurance Corp. Vs. Abate Fantaye (1986) 6 S.C. 302, Eso JSC held at page 350 as follows:-
?Be that as it may, in this country, the common law position as laid down in Grisby?s case has not changed.”
Uwais JSC (as he was) held at pages 348 to 351 as follows;
?The question that is now to be answered is: when does a waiver of immunity take place or when can it be said that there is a submission to jurisdiction by a defendant who enjoys diplomatic immunity? At common law, it is as held by the West African Court of Appeal in Grisby?s case (supra) ? that is when appearance has been entered by or on behalf of the defendant to oppose a motion in the suit or when an order for pleadings has been accepted by the defendant. Similar decisions will be found in the English cases of In re Suarez (1918) 1 Ch. 176 at 193, Sultan of Jahore?s case (supra) and Dickinson?s case (supra). However, the position in England was far from clear because contrary views had been expressed in The Jassy
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(1906) p. 270. In re Republic of Bolivia Exploration Syndicate (1914) 1 Ch. 139; Baccus S.R.L. Vs. Servicio Nacional Del Trigo (1957) 1 Q.B. 438 and R.V. Madan (1961) 2 Q.B. 1. In Madan?s case, Lord Paker, CJ observed as follows: certain things are, we think, clear. In the first place, it is not for someone who is entitled to diplomatic immunity to claim it in the Courts. It is unnecessary to refer to the authorities, but we think it is clear that proceedings brought against somebody, certainly civil proceedings brought against somebody, entitled to diplomatic immunity, are, in fact, proceedings without jurisdiction and null and void, unless and until there is a valid waiver which, as it were, would bring the proceedings to life and give jurisdiction to the Court. Moreover, it is clear that, that waiver must be a waiver by a person with full knowledge of his rights, and a waiver by or on behalf of the chief representative of the state in question. In other words, it is not the person entitled to a privilege who may waive it, unless, of course, he does so as agent for or on behalf of the representative of the country concerned, it must be the waiver of
39
the representative of the state.
Furthermore, even where there is submission to jurisdiction, the submission could be withdrawn. This is clear from the majority decision in Baccus S.R.L?s case (supra) which the head note of the report summarized as follows: (2) that there could be no submission to the jurisdiction unless it were made by a person with knowledge of the right to be waived and with the authority of the foreign sovereign and therefore, because the acts of the head of the defendants in instructing solicitors to enter appearance and ask for security for costs had been done in ignorance of his rights and without the knowledge or authority of his superiors, they did not constitute a submission to the jurisdiction.
Happily these conflicting decisions had been settled by the English Diplomatic Privileges Act, 1964 which, though retaining the authority of a sending state to waive immunity, enacted that a waiver by the head of the embassy shall be deemed to be a waiver by that state ? see Section 2 Subsection (3) thereof. The Act also provides in Article 32(2) of Schedule 1 that, a waiver must always be express. I am to observe, with
40
respect, that the decision in R. Vs. Madan which was given in 1961 predated the enactment of the 1964 Act and therefore that decision could not have been based on the provisions of the Act as Nnaemeka-Agu JCA seems to hold.
Be that as it may, in this country, the common law position as laid down in Grisby?s case has not changed. Our enactment on waiver under the 1962 Act has no similar provisions to those in Article 32(2) of the 1st Schedule to the English Act of 1964. However, the facts in Grisby?s case are distinguishable from those of the present case. In the former case, it was said that the defendant had clearly attended the Court, both on a motion and on a return date. Could the same be said of the appellant in the case in hand
Order 2 Rules 2 and 4(1) of the High Court Rules of Enugu State 2006 provides the venue for the commencement of suits or actions relating to personal property distrained or seized by an opponent for any cause as follows;
?2(2) All suits relating to land or any mortgage or charge on or any interest in land, or any inquiry or damage to land and actions relating to personal property distrained
41
or seized for any cause, shall be commenced and determined in the Judicial Division in which the land is situated, or the distrain or seizure took place.
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4(1) All other suits may be commenced and determined in the Judicial Division in which the cause of action arose or where the defendant resides or carries on business?.
Order 3 Rule 1 of the Rules further provides as follows;
?3(1) Subject to the provisions of these rules or any applicable law requiring any proceedings to be begun otherwise than by writ, a writ of summons shall be the form of commencing all civil proceedings to wit;
a) Where a plaintiff claims:
i. any relief or remedy for any civil wrong, or
ii. damages for breach of duty, whether contractual, tortuous, statutory or otherwise, or
iii. damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property.
b) Where the claim is based on or includes an allegation of fraud, or
c) Where an interested person claims a declaration.?
Order 7 Rules 10-12 of the Rules again provides how and where the processes
42
issued are to be served on the defendants as follows;
?7(10) Service on a statutory corporation shall be in accordance with the Law constituting the corporation.
(11) In default of any provisions as prescribed in Rules 9 and 10 of this Order, service may be effected by registered post addressed to the principal officer of the ? of the corporation as the case may be, or by giving the process to the principal officer thereof wherever he may be found in the state, or by delivery of the process at the office of the ?. the corporation, to anyone found therein apparently in charge of the office, at the material time.
(12) When the suit is against a corporation or a company authorized to sue and be sued in the name of an officer or trustee, the process may be served by giving the same to any director, secretary, or other principal officer or by leaving it at the office of the corporation or company.?
The processes were served on the appellant?s State branch office at ?NSCDC Enugu State Command, 2/4 Works Road, G.R.A. Enugu?. This is verified by the sworn counter-affidavit of Onwo Ifeoma, the
43
secretary to the legal unit of the applicant living at No. 2/4 Works Road, G.R.A. Enugu. This enabled the appellant to submit to the jurisdiction of the lower Court without protest.
Onwo Ifeoma (F) swore in the Counter-Affidavit of 11th June, 2013 in the Court below as follows:
?I, Onwo Ifeama, Christian, Female, Nigerian citizen of Nigeria Security and Civil Defence Corps, 2/4 Works Road, G.R.A. Enugu do make oath and depose as follows;
1. That I am the above named person and secretary to the legal unit of the applicant.
2. That by virtue of my position, I am conversant with the facts of this case and I also have the consent and authority of the respondent to depose to this affidavit.
3. That I have seen the applicant?s processes served on the respondent.
4. That as a security outfit approved by law, part of our schedule or duty include entering and searching any premises of any suspected illegal dealer in petroleum products which led to the arrest and detention of a Mercedes Benz Truck with Registration Number: XV 619 AAA, Chassis Number: 150839 and Engine Number: 150839.
5. That upon further investigation, none
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of the occupants of the said vehicle could come up with an explanation of the true identification of the owner because they all ran away when the vehicle was arrested on the 11th day of January, 2013 at Uwax Filling Station, Emene, Enugu.
6. That subsequently, the applicant appeared claiming to be the owner of the vehicle.
7. That information at my disposal clearly shows that investigation into this matter has been completed and concluded.
8. That the facts available to us shows that the applicant is the owner of a Mercedes Benz (Truck with Registration Number XV 619 AAA with chassis Number 150839 and Engine Number: 150839).
9. That after the production of the particulars of the said vehicle, the respondent is satisfied that the true ownership of the said vehicle has been ascertained.
10. That the applicant made a statement to us showing how he handed over the said vehicle to the driver who ran away on the date of its apprehension.
11. That it is in the interest of justice to grant this application but on bond to the applicant.
And that I depose to this affidavit sincerely and conscientiously believing same to be true and
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correct and in accordance with oath law in force.?
The deponent is Secretary to the legal unit of the Nigeria Security and Civil Defence Corps at No.2/4 Works Road, G.R.A. Enugu in Enugu State of Nigeria. A person that swore to an affidavit or a counter-affidavit is described as ?the witness? in Section 115(1) of the Evidence Act, 2011. The provision reads as follows:-
?(1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.?
Onwo Ifeoma ?the witness? swore to the counter-affidavit as Secretary to the ?Legal Unit? of the appellant living at No.2/4 Works Road, G.R.A. Enugu, Enugu State at the time the Mercedez Benz tanker was impounded by the security outfit. Admitted facts constitutes admissible evidence against the appellant. Paragraph 2 of the counter affidavit is very clear that the witness had the consent and authority? of the appellant to swear to the counter affidavit. The appellant is a juristic body or
46
authority that acts through staff who can be trusted to swear to affidavits. What is not expressly denied in a counter affidavit is deemed admitted. Section 123 of the Evidence Act, 2011 reads as follows:
?123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.?
See also Re Odutola (2002) FWLR (Pt.119) 1624 at 1633; Iyamo vs. FMBN (1999) 13 NWLR (Pt.634) 178 at 188 and Akuma Industries Ltd. vs. Ayman Enterprises Ltd. (1999) 13 NWLR (Pt.634) 68 at 88. No one sets out to prove what has not been denied. See Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at page 102.
Section 124(1)-(3) and 168(1) and (2) of the Evidence Act, 2011 further provides as follows:
?124(1) Proof shall not be required of a fact the knowledge of which is not
47
reasonably open to question and which is:-
(a) Common knowledge in the locality in which the proceeding is being held, or generally, or
(b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection 11 of this section refers and shall take such knowledge into account.
(3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced. …
168(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
(2) When it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act.”
The presumption in law is that the witness had the authority to swear to the counter-affidavit on behalf of the
48
appellant. There is the further presumption that everything was done in a manner substantially regular? under Section 168(1) of the Evidence Act, 2011. It is to be presumed that formal requisites for rendering the acts of the deponent valid were complied with. Besides, the deponent was acting in a public capacity and had been duly appointed and was entitled to have sworn the counter-affidavit for and on behalf of the appellant is not in dispute.
The appellant is the Nigeria Security and Civil Defence Corps. The prefix ?Corp? to the appellant may be a short form for a ?Corporation?. A ?Corporation? is ?1. A group of people authorized to act as an individual and recognized in law as a single entity, especially in business. 2? The municipal authorities of a borough, town or city See The Concise Oxford Dictionary, 9th Edition, page 299. A ?Corporation? is defined in Osborn?s Concise Law Dictionary at page 107 as:-
?A legal person created by Royal Charter, Act of Parliament, international treaty, registration under a statutory procedure, e.g. under
49
the Companies Acts (the commonest type). A corporation is a distinct legal entity, separate from such persons as may be members of it, and having legal rights and duties and perpetual succession. It may enter into contracts, own property, employ people and be liable for torts and crimes. See Salomon Vs. Salomon & Son (1897) A.C. 22.?
The learned authors of Black?s Law Dictionary, 9th Edition, page 300 defines ?Corporate?, ?Corporate authority?; ?Corporate body? and ?Corporation? at pages 390-391 as follows:
?Corporate ? adj. (16c) of a relating to a corporation, esp. a business corporation, corporate bonds”.
Corporate authority ? (1817) 1. The power rightfully wielded by officers of a corporation. 2. In some jurisdictions, a municipal officer, esp. one empowered to represent the municipality in certain statutory matters.
Corporate body ? see corporation.
Corporation ? (15c) An entity (usu, a business) having authority under law to act as a single person distinct from the shareholders who own it and having rights to issue stock
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and exist indefinitely, a group or succession of persons established in accordance with legal rules into a legal or juristic person that has a legal personality distinct from the natural persons who make it up, exists indefinitely apart from them, and has the legal powers that its Constitution gives it. Also termed corporation aggregate, aggregate corporation, body corporate, corporate body. A corporation is an artificial being, invisible, intangible and existing only in contemplation of law? possesses only those properties which the charter of its creation confers upon it.?
Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered defines the phrase ?public service of the Federation? of Nigeria as follows:-
“Public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as:-
XXX
(h) Members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law.
The staff of any statutory corporation
51
established by an Act of the National Assembly or members or officers of other government security agencies established by law? are employed in the ?Public Service of the Federation? of Nigeria within the con of Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Any person wishing or desiring to institute an action against authorities or bodies of this nature have to examine the statutes that created or established them, the conditions precedent to be fulfilled to institute an action against them; on whom and where the processes initiating proceedings ought to be served, etc. When there is a dispute, example, that the proceedings were conducted without prior hearing notice, the burden of proving that service was effected before the action was heard is to be determined by the returns of the bailiffs effecting service of process on the parties.?
Paragraph 1 and 2 of the Statement in support of the motion on Notice shows that the owner of the tanker, namely the respondent resided at No.39 Wilmer Crescent, Olodi Apapa, Lagos State. The Mercedes Benz tanker was however impounded by
52
officers of the appellant on 11th January, 2013 at Uwar Filling Station, Emene, Enugu within the jurisdiction of the High Court of Enugu State. That is where the cause of action arose. The respondent filed the action in the High Court of Enugu in Enugu State on 14th May, 2013 and indicated that the processes were to be served on ?The Respondent (now the appellant) at ?NSCDC Enugu State Command, 2/4 Works Road, G.R.A. Enugu?.
Having submitted to the jurisdiction of the lower Court by filing a counter-affidavit, defending the action and obtaining remedies for the tanker to be released on bond, etc, the appellant cannot be heard to argue on appeal that the processes were not properly served on her before the hearing commenced to conclusion. The Notice of Appeal also provided in the column showing the ?Persons directly affected by the appeal? at pages 23-24 of the printed record to be served on:-
?i. The appellant, Nigeria Security And Civil Defence Corps 2/4 Works Road, G.R.A. Enugu.
C/O of his counsel
Ekoh S. N. Esq
Legal Unit
NSCDC Enugu.
2/4 Works Road, G.R.A. Enugu
08033406175<br< p=””
</br<
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ii. The respondent
Mr. Ethelbert Nnadi
C/O of his counsel
A. T. Umeanekwe Esq.
PP: A. T. Umeanekwe & Co.
No. 9, Chief Alum St. Ogui
New Layout, Enugu.
08054205042.?
The appellant had also indicated that the processes in this appeal should be served not at Abuja nor any other town or city which may be considered to be her Principal Head Office but within the jurisdiction of the Court below. The purpose of service of processes was explained by Fatayi-Williams, JSC (as he then was) in United Nigeria Press Ltd. & Anor. vs. Timothy Olu Adebanjo (1969) 1 All NLR 114 at 122 as follows:
?In our opinion, the object of all types of service of processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist, if he may, that which is sought against him. Therefore, since the primary consideration in an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the Court must be satisfied that the mode of service proposed would probably, after
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all practicable means of effecting personal service have proved abortive, give him notice of the process concerned.
In the present application, all that is disclosed in the affidavit in support is that the appellants could not be found at their registered address and that if the motion papers are pasted on the door of this address notice of them might get to the knowledge of the appellants.?
Order 4 Rules 9(1)-(5) of the Court of Appeal Rules, 2016 provides as follows:
?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such orders as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of
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justice as is mentioned in paragraph (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-
(a) Substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;
(b) Reduce or increase the sum awarded by the Court below by such amount as appears in the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded.
But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.
(5) A new trial shall not be ordered by reason of the ruling of any Judge of the Court below that a document is sufficiently stamped or does not require to be stamped.?
The appellant has not been able to show the wrong the learned trial
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Judge committed in the course of trial nor that the decision led to a miscarriage of justice to warrant this Court to interfere with the verdict. Accordingly, this appeal lacks merit and is dismissed. Parties to bear their respective costs.
The orders of this Court shall be drawn up forth with and served on the parties.
IGNATIUS IGWE AGUBE, J.C.A.: I had a preview of the leading judgment just delivered by my learned brother, HON. JUSTICE JOSEPH TINE TUR, JCA. I agree with the reasons adumbrated therein and conclusions reached thereat to the effect that the appeal lacks merit and should be dismissed. The issues distilled by both sides of the divide have been adequately and admirably dissected in the said leading judgment. I humbly and respectfully adopt the same as mine. The appeal is hereby dismissed. I endorse the order made in the leading judgment with regard to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH TINE TUR, JCA. I agree with his conclusion that the appeal lacks merit and is dismissed. Parties
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to bear their own costs.
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Appearances:
Mrs. S.N. Ekoh (DSC)For Appellant(s)
E.S. Okorie, Esq.For Respondent(s)
Appearances
Mrs. S.N. Ekoh (DSC)For Appellant
AND
E.S. Okorie, Esq.For Respondent
