NIGERIAN TELEVISION AUTHORITY v. NIGERIAN PORTS AUTHORITY
(2013)LCN/6391(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of July, 2013
CA/B/314/2009
RATIO
DUTY OF COURT: WHETHER A COURT CAN MAKE OUT A CASE FOR PARTIES
The law is already trite that it is not the duty of the court to make out a case for the parties. The Supreme Court per Nnaemeka-Agu, J.S.C. (of blessed memory) in case of Umokoro Usikaro & Ors. v. Itshekiri Communal Land Trustees & Ors (1991) 12 SCNJ 75 at 91 held that:
“Indeed for a court to make an order which no party has asked for and which the parties were not heard is a breach of the party’s constitutional right of fair hearing.” PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
NIGERIAN TELEVISION AUTHORITY Appellant(s)
AND
NIGERIAN PORTS AUTHORITY Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Justice Chukwura Nnamani sitting at Federal High Court 1, Benin City delivered on 19th day of June, 2008. The Appellant as Defendant at the lower court challenged the jurisdiction of the court to entertain the Suit on the ground the action is statute-barred and that there is no valid pre-action notice issued on the Defendant before instituting the action.
The Appellant at the lower court filed a Motion on Notice setting down for hearing and determination the points of law raised in her statement of defence. The statement of defence is at pages 18 – 20 of the Records of Appeal, while the Motion on Notice is at pages 34 – 36 of the Records of Appeal. The trial Judge without ruling on the Preliminary Objection raised on the jurisdiction of the court to entertain the suit went ahead and gave final Judgment in favour of the Respondent.
The summary of the facts in this appeal is as follows:-
The Plaintiff/Respondent herein instituted an action against the Defendant/Appellant in the year 2005 over the piece or parcel of land donated/assigned to it by the Delta State Government and Warri Local Government Council, Warri for the planting of its Station in the Area and sought the following reliefs:
(a) For possession of land situate at the New Port Warri in common border with the Village Community of Ugbuwangue in Warri South Local Government Area within the jurisdiction of this Court, well-known to both parties, wrongfully occupied or taken by the Defendant as a trespasser.
(b) For damages assessed at N5 million for wrongfully entering the said Plaintiff’s land and cutting down its grasses and excavating its soil and digging trenches and depositing sand and gravel and commencing building thereon with bulldozers and concrete mixers heavily engaged at site to the detriment and loss of the Plaintiff.
(c) For an injunction perpetually restraining the Defendant, its agents, servants, contractors or any person or persons or group of persons or body corporate claiming wrongfully the right of presence or occupation of the said land either through the Defendant or by right paramount.
The Defendant/Appellant filed her Statement of Defence wherein she raised an objection as to the jurisdiction of the Court to entertain the suit. The trial court without ruling on the issue of jurisdiction proceeded and delivered its final judgment and held that: the Plaintiff claims succeeds in claims (a) and (c). In claim (b) N500,000.00 damages awarded. The Judgment of the trial court is at pages 71 -73 of the Records of Appeal.
Being incensed by the verdict, the Defendant/Appellant appealed against the Judgment of the trial Court on the ground that the learned trial Judge erred in law when he failed to rule on the issue of jurisdiction raised in the Defendant/Appellant Preliminary Objection and proceeded to give final Judgment without taking evidence from both the Plaintiff/Respondent and Defendant/Appellant witnesses.
The Notice of Appeal is as contained on pages 74 & 75 of the Record of Appeal. It provides as follows:-
TAKE NOTICE that the Defendant/Appellant being dissatisfied with the decision of the Federal High Court, Benin City contained in the Judgment of Justice Chukwura Nnamani sitting in Court 1, dated 19th June 2008 more particularly stated in paragraph 2 below do hereby appeal to the Court of Appeal, Benin upon the grounds set out in paragraph 3 and will seek the reliefs set out in paragraph 4.
And the Appellant further stated that the person directly affected by the appeal is set out in paragraph 5 herein.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: The whole decision.
3. GROUND OF APPEAL
GROUND 1:
The learned trial Judge erred in law when he failed to rule on the issue of jurisdiction raised in the Defendant/Appellant Preliminary Objection and proceeded to give Judgment without taking evidence from both the Plaintiff/Respondent and Defendant/Appellant witnesses.
PARTICULARS OF THE ERROR:
1. The failure to rule on the issue of jurisdiction raised by the Defendant/Appellant in its Statement of Defence after counsel to both parties has addressed the court on the issue.
2. The failure to allow the Defendant/Appellant to call its witnesses after pleadings have been fully exchanged in the matter deprived the Defendant/Appellant the right of fair hearing.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
An order dismissing the Judgment of the trial Judge and enter Judgment for the Defendant/Appellant based on the Plaintiff/Respondent being statute barred.
ALTERNATIVELY
An order remitting the case back to the trial court for fresh hearing of the matter.
From the facts of this case and Ground of Appeal highlighted above, the two (2) issues for determination in the appeal are as follows:-
“(1) Whether the trial court had jurisdiction to entertain the Suit.
(2) Whether the failure of the trial court to rule on the issue of jurisdiction raised by the Defendant/Appellant and proceeded to give final Judgment without allowing the parties call their witnesses in proof of the facts in issue has not denied the Defendant/Appellant fair hearing.”
The Respondent in her Amended Respondent’s Brief of Argument dated and filed 2/5/12, but deemed as properly filed on the 9/5/12, formulated the following two (2) issues for the determination of this appeal as follows:
“(1) Whether there was any feature in the case which fettered the jurisdiction of the trial court to entertain the Suit?
(2) Whether the learned trial Judge denied the Appellant fair hearing when he exercised his judicial discretion and ruled that both the Preliminary Objection challenging jurisdiction of the court and the issue narrowed down by the court regarding the Plaintiff/Respondents substantive claim be taken together?”
In addition, the learned counsel to the Respondent at page 2 of their Brief of Argument incorporated argument on their Preliminary Objection to the hearing of this appeal.
RESPONDENT’S NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that at the hearing of this Appeal or sooner determination thereof, the Respondent shall rely on this Preliminary Objection and notice thereof is being given to you that this Appeal is incompetent and liable to be dismissed.
TAKE FURTHER Notice that at the hearing of this Appeal, the Respondent shall draw Your Lordship’s attention to the Preliminary Objection raised by the Respondent against this Appeal to the effect that this Appeal is incompetent and as such should be dismissed and we urge the Honourable Court to uphold same.
GROUND UPON WHICH THE OBJECTION IS BASED
The sole ground of Appeal does not emanate and rise from the judgment of the lower court.
PARTICULARS OF THE OBJECTION
Contrary to the assertion of the Appellant; at page 73 of the Record of Appeal, the lower court entertained, considered and ruled on the Appellant’s Preliminary Objection before proceeding to render Judgment for the Respondent.
ISSUE FOR DETERMINATTON REGARDING THE PRELIMINARY OBJECTION
The Respondent conceives the sole issue for determination as regards the Notice of Preliminary Objection raised by the Respondent to be – ‘whether the sole ground of appeal of the Appellant takes its root from the judgment appealed against’?
ARGUMENT IN RESPECT OF THE PRELIMINARY OBJECTION
It is settled law that the Ground of Appeal must arise from the judgment appeal against. Where the ground of appeal is alien as in this case to the Judgment appeal against, it is submitted that it is not an appeal against the judgment of lower court and as such is incompetent and liable to be struck out. See the case of Baba-Iya v. Sikeli (2005) All FWLR (Pt. 289) @ 1232 Ratio 1 where the Court of Appeal held as follows:-
“A ground of appeal must be derived from the decision appealed against. In the instant case, the Appellant’s ground four and issue three formulated therefrom not having been distilled from the Judgment of the trial judges are struck out for being incompetent.”
The sole ground of appeal is couched in the following form:-
“The learned trial Judge erred in law when he failed to rule on the issue of jurisdiction raised in the Defendant/Appellant Preliminary Objection and proceeded to give Judgment without taking evidence from both the Plaintiff/Respondent and Defendant/Appellant witnesses.”
The question that arises is; can it be said as the Appellant seems to argue that the lower court failed to rule on the jurisdictional question raised in paragraphs 7 – 9 of its statement of defence, see pages 18 – 19 of the Record of Appeal.
We may bold to assert with professional sincerity and profound humility that the lower court considered and ruled on the issue of jurisdiction in the following words:-
“Conually put, the Preliminary Objection of Defendant regarding pre-action notice and statute-barred actions are of no effect. This is because a party will not be allowed to benefit from his participation in an illegality because the court does not countenance illegality.”
It is of no moment that the lower court in refusing to countenance the “Notice of Preliminary Objection is hereby struck out”. In our humble view what matters is that the learned trial Judge considered the merit of the Notice of Preliminary Objection and found no substance in same. At page 73 of the Record of Appeal, the learned trial Judge in his well considered Judgment chronicled as follows:
“Conually put, the Preliminary Objection of Defendant regarding pre-action notice and statute barred actions are of no effect.”
It is crystal clear from the foregoing that before proceeding to render Judgment in favour of the Respondent herein, the learned trial Judge judicially demobilized the potency of the Preliminary Objection first and foremost before rendering Judgment in favour of the Respondent herein.
It is our humble submission that a party is bound by the Ground of Appeal submitted to the appellate court for adjudication.
Thus, as can be seen from page 73 lines 15 – 17 of the Records Appeal, the learned trial Judge found no merit in the Notice of Preliminary Objection and held it to be of no effect.
We dare say that the phrase ‘of no effect’ is synonymous with ‘null and void’ and therefore constitute a binding judicial decision on the issue raised by the Appellant.
The day of slavish adherence and devotion to technical rules are over and the current judicial wind is a harbinger of substantial justice over mechanical and technical justice.
The argument of the Appellant quite aside from being grossly fallacious, tilts toward an invitation to this Honourable Court to read into a Judgment that which is not embedded in that Judgment.
We crave the court’s indulgence to submit that this Honourable Court will be on proper wicket to discountenance the sole Ground of Appeal, the issue distilled therefrom, and the argument canvassed thereon as contained in the Appellant’s Brief of Argument.
If all these are discountenanced, the Appellant is footless, and by extension headless and the proper thing for the court to do is to dismiss the entire appeal as same is vexatious, frivolous and entirely defunct.
First of all, it is pertinent to mention that, from the processes filed before this court, the Appellant did not file a reply brief, to provide a platform for an answer, to the arguments incorporated in the Respondents brief to his Notice of Preliminary Objection. Notwithstanding that however, this court is duty bound by law to consider the merit or otherwise of the said objection. The main grouse raised by the objection is that, the sole Ground of Appeal contained in the Appellant’s Notice of Appeal, did not take its root from the Judgment appealed against.
I had earlier on in this Judgment set out the sole ground complained against. For the avoidance of any doubt, and the fear of being repetitive, I venture again to set out the sole ground of this appeal:-
“The learned trial Judge erred in law when he failed to rule on the issue of jurisdiction raised in the Defendant/Appellant Preliminary Objection and proceeded to give Judgment without taking evidence from both the Plaintiff/Respondent and Defendant/Appellant witnesses.”
The sole Ground of Appeal complained against, from its couching, seeks the intervention of this court as an appellate court on error of omission by trial court to decide on an issue. The claim of the Appellant is that, he had raised the issue of jurisdiction on a Preliminary Objection before the lower court, and that, that court did not make a pronouncement on the objection, but proceeded to give its Judgment. Can he then appeal against that refusal? Again put in another way, must the refusal to make a pronouncement takes its root from the Judgment before an aggrieved party can appeal against such a refusal? The simple answer is no. The law is already settled that in the absence of a decision on a point and that point has been canvassed at the trial court, the course open to the party aggrieved is to appeal against that non-decision. See the decision of this court per Edozie, JCA (as he then was) in Ejikeme v. Amaechi (1998) 3 NWLR (Pt. 542) 456 at 472. His Lordship stated as follows:-
“I was privileged to have read in draft a copy of the lead Judgment just delivered by my learned brother Oguntade, JCA. I agree with him that the Respondents Preliminary Objection against the appeals 1st and 2nd grounds of appeal set out in the lead Judgment is bereft of any substance. A party is competent to appeal against the failure or omission of a court to decide on an issue canvassed before the court. In the case of Ogundare v. Ogunlowo (1997) 6 NWLR (Pt. 509) 360 at 368; the Supreme Court, per Belgore, JSC had this to say:- In the absence of a decision on a point and that point has been canvassed at the trial court, the course open to the party aggrieved is to appeal against that non-decision. Saude v. Abdullah (1989) 4 NWLR (Pt. 116) 387, 433, 434; Adesokan v. Adetunji (1994) 5 NWLR (Pt. 346) 540, 575, 576. The Appellants 1st and 2nd Grounds of Appeal complaining against the failure by the court below to consider the question of the Respondents capacity to maintain the action are valid grounds of appeal. The Respondents Preliminary Objection is misconceived and accordingly dismissed.”
I find the decision of this court cited above, on all fours with the present Notice of Preliminary Objection in the instant Respondent’s Brief of Argument. The sole ground of this appeal which is anchored on non-decision by the lower court, remains a valid ground on this appeal. The Respondent’s Preliminary Objection in this appeal is misconceived and is accordingly dismissed.
Turning now to the main appeal. I had earlier in this Judgment set out the issues as formulated by the parties for determination. I did, as demanded by law, considered the Notice of Preliminary Objection of the Respondent first. An examination of the two sets of issues will reveal that they are in all respect the same, but differently worded. That being the case, I tend to be guided by the issues as formulated by the Appellant.
ISSUE ONE (1)
‘Whether the trial court had jurisdiction to entertain the suit’.
Learned counsel to the Appellant in his argument submitted that, the Appellant as Defendant in the lower court in paragraphs 7 – 9 of its Statement of Defence challenged the jurisdiction of the trial court to entertain the suit. The Appellant had contended that the suit is statute-barred and also that the trial court lacks the jurisdiction to hear the case when no valid pre-action notice was served on the Appellant. The Statement of Defence of the Appellant is at pages 18 – 20 of the Record of Appeal. At paragraphs 7 to 9, the Appellant challenged the jurisdiction of the trial court, and at page 51 of the records of appeal, the court set down for hearing the said objections challenging the jurisdiction of the court.
Learned counsel submitted further that, on the 5/6/07, the lower court took arguments from the Appellant’s counsel challenging its jurisdiction. The arguments were concluded on 17/7/07 at pages 52 to 57 of the Record of Appeal. The lower court therefore ought to rule firstly on the issue of jurisdiction raised by the Appellant. Instead the lower court left the issue of jurisdiction raised in the Statement of Defence of the Appellant and proceeded to decide the matter based on Section 1 and Section 49 of the Land Use Act 2004 which he raised suo-motu and resolved to dispose the matter on the next adjourned date. See page 66 of the Records of Appeal.
Learned counsel further submitted that the essence of jurisdiction is to determine whether the court has the power to hear the matter at all. It must therefore be clearly determined whenever it is raised. In this case, the lower court failed to rule on the issue of jurisdiction and proceeded to determine the substantive matter at interlocutory stage. This singular act renders the judgment a nullity no matter how well conducted it may be.
The findings on issue to be contested in the substantive trial must not be made at the hearing of the interlocutory application such as the instant case. See:- Ojukwu v. Yar Adua (2009) All FWLR (Pt. 482) 1065 at 1175 Paras C – D; Oduko v. Govt. of Ebonyi State (2009) 4 MJSC (Pt. 7) 21-22 Paras F – F; Okwaraoka v. Offonze 2007 All FWLR (Pt. 361) 1771 at 1782 – 1783 Paras G – A; SPDC Nig. v. Hotel De Dafama Ltd (2007) All FWLR (Pt.359) 1395 at 1404 – 1405; The State v. Udu (2007) All FWLR (Pt. 360) 1609 at 1616. We urge this court to set aside the Judgment of the lower court for lack of jurisdiction and allow the appeal.
Learned counsel to the Respondent in reply to these arguments of the Appellant, submitted that, there was no feature in the Respondent’s case as formulated before the trial court which fettered the jurisdiction of that court to entertain the suit. The Appellant’s challenge to jurisdiction was as contained in paragraphs 7 – 9 of the Statement of Defence dated 7/2/07, and predicated on the ground that the Respondent’s Suit was statute-barred and incompetent for failure to issue and serve what is termed valid pre-action notice. See pages 18 – 20 of the Records of Appeal.
Learned counsel gave a history of the transfers of Judges who started the hearing of the application of the Appellant and the adjournments, but it was Hon. Justice Chukwura Nnamani who then sat on the case for the first time on the 7th of May 2008. The learned trial Judge narrowed down the issues of law that were germane to the determination of the Suit vis-a -vis the objection of the Appellant and consequently adjourned the matter to the 21/5/08 so as to have counsel to parties address the new trial Judge on the Appellant’s Ground of Preliminary Objection and the issues of law raised suo-motu by the court. See pages 66 – 68 of the Records of Appeal. The trial court having taken arguments from counsel to both parties with regard to the Appellant’s Preliminary Objection challenging jurisdiction and the issues of law that were germane to the determination of the substantive suit under a procedure already agreed to by counsel to the Appellant and the Respondent could not be said to have left the issue of jurisdiction raised by the Appellant unresolved before proceeding to Judgment as asserted by the Appellant.
Learned counsel further submitted that the decision of the trial court on jurisdiction of the lower court is encapsulated in the Judgment delivered on the 19th of June 2008 which comprehensively determined the specific rights of both Appellant and the Respondent on Preliminary Objection and the substantive suit at once and the court has jurisdiction to do so. See page 71 lines 8 – 10 of the Records of Appeal. See also the case of the Senate President, Federal Republic of Nigeria v. Arthur Nzeribe (2004) All FWLR (Pt. 215) 359; Odusote v. Odusote (1977) 1 All NLR 219. Also the Rules of Procedure at the Federal High Court permits the court to so act as it did. See Order 14 Rule 2 (1) (2) (3) of the Federal High Court (Civil Procedure) Rules 2009. The learned trial Judge used Section 1 and Section 49 of the Land Use Act 2004 to dispose off substantially the entire suit before the court. Also, Order 16 Rule 2 and 3 of the Federal High Court (Civil Procedure) Rules 2009 and Section 1 and Section 49 of the Land Use Act Laws of the Federation of Nigeria 2004. The trial court did not fail to rule on the issue of jurisdiction, it did. On the procedure adopted by the trial court, see:- Alhaji Sabo Gabari v. Ibrahim Ilori (2003) FWLR (Pt. 177) 901 at 915; Finnih v. Imade (1992) 1 NWLR (pt. 219) 511.
This court carefully examines the submission of counsel above. The Appellant had raised before the lower court in her Statement of Defence contained on page 18 of the Records of Appeal, jurisdictional question. These questions are set out in paragraph 7, 8 and 9 of the said Statement of Defence. For purposes of clarity, this court will set out those paragraphs.
Paragraph 7:
“The Defendant categorically denies paragraph 9 of the Statement of Claim and avers that the Plaintiff never wrote any letter dated 19th May, 2001 to it giving notice of intention to go to court. The Defendant shall put the Plaintiff in the strictest proof thereof,”
Paragraph 8:
“The purported notice of intention to sue as per paragraph 9 of the Statement of Claim is invalid and runs against the Provisions of Section 27 (2) of the Nigerian Television Authority Act (Cap 329) LFN 1990.”
Paragraph 9:
“The Defendant will at the hearing of this Suit contend that this court lacks jurisdiction to entertain this Suit because it is statute-barred.”
The Appellant did contended the issue of jurisdiction before the lower court. The learned trial Judge on pages 66 – 68 of the Records of Appeal instead of dealing and or determining the question of jurisdiction raised by the Appellant on that 7/5/08, adopted a procedure of his own by narrowing down the issues of law that were germane to the determination of the suit vis-a-vis the objection of the Appellant. He consequently adjourned the matter to the 21/5/08 so as to have counsel to parties address him on the ground of Preliminary Objection and the issues of law raised suo-motu by the court. The learned trial Judge in his final Judgment on page 73 of the Records of Appeal held as follows:-
“Conually put, the Preliminary Objection of Defendant regarding pre-action notice and statute barred actions are of no effect. This is because a party will not be allowed to benefit from participation in illegality because the court does not countenance illegality.”
From the decision of the trial court above, it is beyond doubt that the trial court did not deal with the fundamental question whether it had or had no jurisdiction even to entertain the suit in the first place, it was carried away by what it found to be an illegality. According to it, since illegality had arisen, and the court does not countenance it, the question regarding pre-action notice and statute-barred action are of no effect. With respect, the learned trial Judge fell into a grave error when he failed to distinguish between the jurisdiction vested in the court to hear and determine a matter before him, from the exercise of power with respect to a matter within jurisdiction. The Judgment of the learned trial Judge quoted earlier on, focused on the exercise of power with respect to a matter within his jurisdiction. So overwhelmed by that power that he considered the application before him to examine whether the court had jurisdiction or not to hear the matter in the first place as of no effect, hence overtaken by what he conceived as “illegality”. The Supreme Court per Karibi-Whyte, J.S.C. (as he then was) drew the line of demarcation between the two powers in the case of Prince Yahaya Adigun & Ors v. The Attorney-General of Oyo State & Ors. (1987) 4 S.C. 272 at 341. The court held as follows:
“The jurisdiction vested in the court to hear and determine a matter before it is different from the exercise of power with respect to a matter within its jurisdiction. The court has inherent power in respect of matters within its jurisdiction. It has no inherent power to assume jurisdiction in respect of a matter not within its jurisdiction. This in my view is the line of demarcation between the exercise of powers with respect to matters within jurisdiction and the assumption of jurisdiction.”
The learned trial Judge failed or neglected to give consideration to the Appellant’s challenge to the Respondent’s on pre-action notice, the failure of which, made the entire action as statute-barred, which affects the jurisdiction of the trial court. Learned trial Judge was duty bound by law not to venture for any reason into the main suit unless and until he had determine whether he had jurisdiction even in the first place to hear and determine the suit. He suo-motu adopted his own procedure of dealing with the matter outside what the law provided. It goes without saying that an allegation that a court lacks the jurisdiction to entertain a matter by its very nature attacks the fairness of hearing untaken by a court. See the Supreme Court decision in Kenon v. Tekan (2001) 7 NSCQR 147 at 167, the court held as follows:-
“Unfairness of a trial comes in two broad categories. One is procedural unfairness that arise when the court or tribunal adopts a procedure which does not ensure that one or both parties are not put at a disadvantage. The commonest forms are where a party had been deprived of an opportunity of a hearing or where there is no procedural equality between the parties. Substantive unfairness arises where the Judge approaches his adjudicative function with a mind closed or a mind influenced by consideration other than the facts in evidence before him or facts on which parties are in agreement, or is influenced by factors extraneous to his proper role as an umpire.”The situation in the present appeal is even more extensive when the trial Judge will suo-motu narrow down the issue in contention between the parties and ruled that the matter will be decided based on those issues of law that he considers are germane to the determination of the substantive Suit and the Appellant’s Preliminary Objection. In other words, the court made out the case for the parties to fight on. The law is already trite that it is not the duty of the court to make out a case for the parties. The Supreme Court per Nnaemeka-Agu, J.S.C. (of blessed memory) in case of Umokoro Usikaro & Ors. v. Itshekiri Communal Land Trustees & Ors (1991) 12 SCNJ 75 at 91 held that:
“Indeed for a court to make an order which no party has asked for and which the parties were not heard is a breach of the party’s constitutional right of fair hearing.”
The question of what makes a court competent to assume jurisdiction in a given matter is a settled law. The celebrated decision of the Supreme Court in Madukolu and Ors. v. Nkemdilim (1962) 7 All NLR 587 at 594 settled this position. It was held that:
“A court can only be competent if among other things all the conditions precedent for its having jurisdiction are fulfilled. Bairamian FJ (as he then was) stated the principles which have been accepted in successive cases in this court.
“A court is competent” he said when:-
(1) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another.
(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and
(3) The case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence if fatal for the proceedings a nullity however well concluded and decided. The defect is extrinsic to the adjudication.”
In summary, considering all that is stated above, the defect in the procedure adopted by the learned trial Judge in dealing with the jurisdictional application before him was defective and thus capable of being set aside by this court. Issue No. 1 is resolved in favour of the Appellant and against the Respondent.
On Issue No. 2; whether the failure of the trial court to rule on the issue of jurisdiction raised by the Defendant/Appellant and proceeded to give final Judgment without allowing the parties call their witnesses in proof of the facts in issue has not denied the Defendant/Appellant fair hearing?
In its resolution of the Issue No. 1 this court has adequately covered the issue of denial of the fair hearing by the procedure adopted by the trial court in dealing with the jurisdictional application of the Appellant before it. The Issue No. 2 therefore only becomes an academic exercise. The courts have been admonished not to embark on such exercise.
On when a suit is academic – A suit is academic where it is merely theoretical and of no particular utilitarian value to the Plaintiff even if Judgment is given in his favour. A suit is academic where it is not related to practical situation of human nature. It is speculative if it is based on speculation not supported by facts or very low on facts but high in guesses. A suit is hypothetical if it is imaginary, based on real facts, looks like a mirage to deceive the Respondent and as to the reality of the cause of action, a semblance of the actuality of the cause of action or relief sought. See:- Plateau State v. A.G. Federal (2006) 3 NWLR (Pt. 967) 346 at 419; Dike v. Okorie (1990) NWLR (Pt. 151) 418; Olubode v. Salami (1985) 2 NWLR (pt. 7)
283; Ojiegbe v. Owaranyia (1962) 2 SCNLR 368.
On duty on court to refrain from determining academic issue. A court will not consider any issue or issues raised in an action which would amount to a mere academic. See Ezerebo v. Ehindero (2009) 10 NWLR (pt. 1149) 169.
On the whole therefore, this appeal is meritorious, and it is hereby allowed.
(1) The Judgment of Hon. Justice Chukwura Nnamani of the Federal High court sitting in Benin City, delivered on the 19th day of June, 2008, in Suit No. FH3/B/35/05 is hereby set aside by this court.
(2) This court orders that the file in this case be remitted back to the Hon. Chief Judge of the Federal High Court for assignment to another Judge. Trial must commence de novo.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s conclusion that the appeal is meritorious and allowing the same.
Accordingly, I too, set aside the judgment delivered on 19/6/2008 by the lower court in Suit No: FHC/B/35/05. Furthermore, I abide by the consequential made in the lead Judgment.
TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have perused before today, the judgment just rendered by my learned brother SIDI D. BAGE, J.C.A. I am in full agreement with his reasoning and conclusion that the appeal has merits. l, too therefore allow it.
I, abide by the consequential orders of a retrial and remittance of the suit No: FHC/B/35/05 to the Hon. Chief Judge of the Federal High Court, for a reassignment to another judge of that court for trial denovo, as contained in the lead judgment.
Appearances
F. E. EDOGIAWERIE and L. O. IYAMUFor Appellant
AND
DELE OLOKEFor Respondent
