ODILIBE v. NDLEA & ANOR (2020)

ODILIBE v. NDLEA & ANOR

(2020)LCN/15231(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/L/1178/2015

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

SUNNY ODILIBE APPELANT(S)

And

1. NATIONAL DRUG LAW ENFORCEMENT AGENCY 2. ALHAJI MOHAMMED NARAGUTA RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IMSLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; lsah v. INEC (2016) 18 NWLR (Pt. 1544) 175.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 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 fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 208 (1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. V. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello V. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must co-exist in order to vest jurisdiction in a Court. PER OGBUINYA, J.C.A.

THE PRINCIPLE IN THE INTERPRETATION OF STATUTES

To begin with, this one sentence crucial provision is submissive to clarity. On this premise, the law commands the Court to accord it its ordinary grammatical meaning without any embellishments, see Nobis-Elendu v. INEC (supra); Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Setracto (Nig) Ltd. v. Kpayi (2017) 5 NWLR (Pt. 1558) 280; Adeokin Records v. MCSCN (2018) NWLR (Pt. 1643); Ecobank v Honeywell Flour (2019) NWLR (Pt. 1655). Secondly, the provision cannot be construed in isolation. In other words, other mutually-related provisions in the Decree have to be construed holistically in order to glean the draftman’s intention: the sole purpose of interpretation, see NPA PLC v. Lotus Plastics Ltd. (2005) 79 NWLR (pt. 959) 158; Ugwuanyi v. NICON Ins. PLC (2004) 11 NWLR (Pt. 897) 612; A-G, Lagos State v. A.G, Fed. (2014) 9 NWLR (pt. 1412) 217; Abegunde v. O.S.H.A (2015) 8 NWLR (pt. 1399) 30; Akpamgbo Okadigbo v. Chidi (No.1) (2015) 10 NWLR (pt. 1466) 171. I will pay due obeisance to these cannons of interpretation of statutes in order not to insult the law. PER OGBUINYA, J.C.A.

WHETHER OR NOT A JUDGE HAS THE POWER TO SET ASIDE OR VARY THE ORDER OF ANOTHER COURT OF CONCURRENT JURISDICTION

It is settled law, beyond any peradventure of doubt, that save in the absence of statutory authority, want of jurisdiction or where judgment is a nullity, a Court or Judge has no power to set aside or vary the order of another Court or Judge of concurrent/co-ordinate jurisdiction, see Witt & Busch Ltd. v. Dale Power Systems PLC (2007) 17 NWLR (Pt. 1062) 1; SPDCN Ltd. v Edamkue (2009) 14 NWLR (Pt. 1160) 1; Adesigbin v. Mil Gov., Lagos State (2017) 10 NWLR (Pt. 1574) 442; Customary Court of Appeal, Edo State v. Aguele (2018) 3 NWLR(Pt. 1607) 369; Okoye v Nigerian Const. & Furniture Co. Ltd (1991) 6 NWLR (pt. 199) 501; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130; Azuh v. CBN PLC (2014) 11 NWR (Pt. 1419) 580; Fawehinmi v. A-G, Lagos State (No.1) (1989) 3 NWLR (pt. 112) 707; Eneh v. NDIC (2018) 16 NWLR (pt. 1645) 355; Cole v. Jibunoh (2016) 4 NWLR (pt. 1503) 499; NIMB Ltd. v. UBN Ltd. (2004) 12 NWLR (pt. 888) 599/(2004) LPELR-2003 (SC).
In NIMB Ltd. v. UBN Ltd (supra), Pats-Acholonu, JSC, of the blessed memory, graphically captured the raison d’etre for the hallowed principle of law in these illuminating words:
The theory of justice to which we adhere rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of law is that just as stare decisis exercises a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of co-ordinate jurisdiction do not sit on appeals on each other, attracts respect for the law. PER OGBUINYA, J.C.A.

WHETHER OR NOT THE COURT LOOKS AT THE STATEMENT OF CLAIM TO DETERMINE THE PRESENCE OR ABSENCE OF ITS JURISDICTION

It is trite law, that a Court looks at the statement of claim as the major barometer to determine the presence or absence of its jurisdiction to adjudicate over a matter, see Akine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466),124; Sun Ins. (Nig.) Plc. v. U.E.C.C. Ltd. (2015) 11 NWGLR (Pt. 1471) 570; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231. For matters not commenced by writ of summons, where pleadings are filed, averments in the affidavit in support takes the place of pleadings, see Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545; Uwazuruonye v. Gov. Imo State (2013) 8 NWLR (Pt.1355) 28. It must be stressed, that it is only a plaintiff’s statement of claim, or affidavit, not a statement of defence or a counter-affidavit, that is relevant in determining the jurisdiction of a Court, see Izenkwe V. Nnadozie (1953) 14 WACA 301; UBA Plc. v. BTL Ltd. (2006) 19 NWLR (Pt. 1013) 361; Ngere v. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1559) 440. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the Federal High Court, Lagos Judicial Division (hereinafter addressed as “the lower Court”), coram judice: I.N. Buba, J., in Suit No. FHC/L/CS/331/2001, delivered on 24th September, 2014. In the lower Court, the appellant and the respondents were the plaintiff and the defendant respectively.

The facts of the case, which transfigured into the appeal, are amenable to brevity and simplicity. Sometime in 1997, at the instance of the Federal Republic of Nigeria, the erstwhile/defunct Miscellaneous Offences Tribunal (the Tribunal), presided over by Garba N. Nabaruma, J. (now C.J), made an order of interim forfeiture of the appellant’s property situate and being at the No.90 Adeniyi Jones Avenue, Ikeja, Lagos. Since then, the appellant, who has been domiciled abroad, has not been arraigned before any Court. Subsequently, on 30th April, 2001, on the appellant’s father’s, Chief Charles Odilibe’s, routine inspection of the said property, he discovered that the second respondent, acting for the first appellant, had advertised it for sale by auction. Sequel to the advertisement, the appellant, beseeched the lower Court, via an originating summons filed on 2nd May, 2001, wherein he formulated three questions for determination, and tabled against the respondents the following reliefs:
1. DECLARATION that the Defendant cannot dispose of the plaintiff’s property situate at No. 90, Adeniyi Jones Avenue, Ikeja, Lagos without first arraigning, trying and convicting the plaintiff for the criminal offence that may be alleged against him.
2. DECLARATION that the advertisement pasted on No. 90, Adeniyi Jones Avenue, Ikeja, Lagos by the 2nd defendant on behalf of the 1st defendant advertising for sale and showing the intentions of the defendants to sell the plaintiff’s property by auction upon an interim forfeiture order is an abuse of the process of Court and same is unlawful, illegal and unconstitutional.
3. A DECLARATION that the landed property of the plaintiff situate at EC. Adeniyi Jones Avenue, Ikeja, Lagos cannot be sold and its proceed forfeited to the Federal Government unless and until a conviction is secured against the plaintiff by a Court of competent jurisdiction.
4. DECLARATION that the interim order of this Honourable Court obtained by the defendants on 8th October, 1997 cannot last forever or ad-infinitum.
5. AN ORDER restraining the defendants either by themselves, agents or privies from selling, transferring alienating or otherwise disposing of the title and interest of the plaintiff in the plaintiff’s property situate at No. 90, Adeniyi Jones Avenue) Ikeja, Lagos.
6. AN ORDER nullifying the purported Auction Notice issued by the 2nd defendant on behalf of the 1st defendant for the sale of the plaintiff’s property situate at No: 90, Adeniyi Jones Avenue, Ikeja, Lagos.
7. AN ORDER nullifying any purported sale and/or disposal of the plaintiff’s property situate at No. 90, Adeniyi Jones Avenue, Ikeja, Lagos by the defendants or their agents.

In reaction, the respondents joined issues with the appellant by filing a counter affidavit and a preliminary objection against the jurisdiction of the lower Court to entertain the suit. The suit was duly, heard by the lower Court. In a considered judgment, delivered on 24th September, 2014, found at pages 251-205 of the record, the lower Court dismissed the suit.

The appellant was dissatisfied with the decision. Hence, on 15th December, 2014, the appellant lodged a 5-ground notice of appeal which is copied at pages 266-270 of the record. Later on, the appellant, with the leave of this Court, filed an amended notice of appeal on 17th July, 2019 and deemed properly filed on 17th October, 2019, which warehouses five grounds, wherein he prayed for: “AN ORDER allowing the appeal and setting aside the judgment of the lower Court and entering judgment in favour of the appellant”. Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 12th March, 2020.

During its hearing, learned counsel for the appellant, Tochukwu Onyiuke Esq., adopted the appellant’s brief of argument, filed on 17th July, 2019 and deemed properly filed on 17th October, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondents, J.N. Sunday, Esq., adopted the respondents’ brief of argument, filed on 12th March, 2020 and deemed properly filed on that day, 12th March, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled a single issue for determination to wit:
Whether the lower Court was right when it dismissed the appellant’s originating summons in its entirety.

In the respondent’s brief of argument, learned counsel crafted a sole issue for determination, viz:
Whether considering the facts and circumstances of this case and the relevant extant provisions of law, the learned trial judge of the trial Federal High Court was right in upholding the preliminary objection of the respondent herein and dismissing the suit of the appellant herein before him.

A calm look at the two sets of issues shows that they are identical in substance. In fact, the respondents’ verbose issue can be, conveniently, subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issue framed by appellant: the undisputed owner of the appeal.

Arguments on the issue
Learned counsel for the appellant explained the meaning of interim order as defined in Black’s Law Dictionary, 8th edition, page 832, Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; U.T.B. Ltd. v. Dolmetsch Pharm (Nig.) Ltd. (2007) 16 NWLR (Pt. 1061) 520. He noted that no charge was brought against the appellant after his discharge in 1992. He said that the interim order was gazetted but the respondent never took steps to make it final or cause its discharge. He relied onU.T.B. Ltd. v. Dolmetsch Pharm (Nig.) Ltd. (supra). He submitted that Sections 24, 25, 27 and 31 of the National Drug Law Enforcement Agency Act, 1990 (NDLEA Act) envisaged interim order. He described the purposes of Sections 27 and 28 of the NDLEA Act. He maintained that the respondent could not use interim order of forfeiture to sell the appellant’s property without conviction. He stated the purpose of mischief rule. He referred to Fidelity Bank v. Monye (2012) 10 NWLR (Pt. 1307) 1. He compared Section 31 (1) of the NDLEA Act, 1990 and Section 40 (1) NDLEA Act, 2004 and insisted that the interim order could not confer advantage on the respondents. He described the meaning and essence of final order. He citedGbasa v. Lovebet (2005) 15 NWLR (pt. 949) 551. He observed, in the alternative, that even if the interim order of forfeiture was validly observed, the first respondent was only a custody of the property. He cited Section 74 (3) of the NDLEA Act and the NDLEA gazette, page 158. He drew the meaning of custody from the Black’s Law Dictionary, 6th Edition, Page 384.

Learned counsel contended that the NDLEA Gazette, page 158, showed that the basis for the forfeiture was conviction for drug and drug related offences. He alleged that the conviction of the appellant, as stated in the Gazette was contrary to Section 36 (5) of the Constitution, as amended. He relied on Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589. He asserted that Section 2 (4) of the Decree 62 of 1999 only preserved order made by the Tribunal and never stated interim order to final order. He urged the Court to give liberal interpretation on the things mentioned. He cited A-G, Fed. v. A-G, Lagos State (2013) 16 NWLR (Pt. 1380) 249; Ehuwa v. O.S.I E.C (2006) 18 NWLR (Pt.1012) 544; Nobis-Elendu v. INEC (2015) 16 NWLR (Pt. 1485) 197.

Learned counsel argued that the lower Court did not properly evaluate the evidence. He noted that the warrants of arrest, exhibits 5a and 5b were issued after the interim order of forfeiture. He described the evaluation as perverse. He urged the Court to re-evaluate the documentary evidence. He cited C.P.C. V Ombugadu (2013) 18 NWLR (Pt. 1385) 67; Ebba v. Ogodo (1984) 1 SCNLR 372; Whtye v. Jack (1996) 2 NWLR (Pt. 431) 407. He reasoned that exhibits 5a and 5b were issued contrary to Section 22(1) and (2) of the Criminal Procedure Act. He added that exhibits 5a and 5b were not certified true copies even though public documents. He urged the Court to expunge item. He relied on Sections 104 and 105 of the Evidence Act, 2011; Kabor Air Ltd. v. INCO Bev. Ltd. (2003) 6 NWLR (Pt. 816) 323; Akunduru v. Alaya (2007) 15 NWLR (Pt. 1057) 312. He persisted that the first respondent was interested in seizing the appellant’s property contrary to Section 44 (1) of the Constitution, as amended. He took the view that the decision was perverse. He cited Nobis Elendu v. INEC (supra). He postulated that the suit was not academic as it did not question the order of the Tribunal but the act done upon it. He relied on the order of the Tribunal. He concluded that the appellant was declared wanted after the interim order of forfeiture.

On behalf of the respondent, learned counsel narrated the history and nature of assets forfeiture globally. He submitted that Sections 25, 27, 29 and 31 of the NDLEA Act, 1990 (now Sections 34, 36, 38 and 40 of the NDLEA Act, 2004) deal with the power of the Agency over assets of criminal offenders. He noted that the Tribunal, now the lower Court, had the power to grant interim order of forfeiture under those sections. He asserted that those provisions were in line with Section 44 (2) (b) and (e) of the Constitution, as amended, which made the appellant’s right under Sections 43 and 44 (1) of the Constitution, as amended, not absolute. He explained that Section 31(1) of the NDLEA Act, 1990 (now Section 40) allowed forfeiture even on discharge on technical ground. He noted that the provisions were clear and should be given literal meaning. He relied on Berliet v. Kachalla (1985) 12 SNCJ 14; Akyen v. Mu’azu (2009) LPELR-3697; Ajiboye v. FRN (2012) LPELR-15338; FRN v. Ikedinwa (2013) LPELR 21120 (CA); AC v. INEC (2007) All FWLR (Pt. 378) 1012. He observed that first respondent’s prayer before the tribunal, under Section 27 and 31 (now 36 and 40) of the NDLEA Act 1990 and 2004 respectively, was double-barreled and granted as prayed. He claimed that the appellant would not relitigate the same issue before the same Court. He reasoned that Courts would look at the substance not form. He cited Ogundele v. Agiri (2009) LPELR-2328 (SC).

Learned counsel argued, per contra, that the lower Court could not adjudicate over a final decision of the Tribunal. He referred to Section 2 (1), 2 (b) and (4) of the Tribunals (Certain Consequential Amendments, ETC) Decree No. 62 of 1999; Nigerian Army v. Jacob & Hyela (2008) 18 NWLR (Pt. 1118) 115. He explained the meaning of decision as defined in Section 318 (1) of the Constitution, as amended; Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130; Dike v. Aduba (2000) LPELR-944 (SC); (2000) 3 NWLR (Pt. 647) 1; Shettima v. Goni (2011) LPELR-417 (SC). He insisted that the order qualified as a decision. He added that the order was confirmed as could be deduced from the originating processes that determined the jurisdiction of the lower Court. He referred to Anyah v. Iyayi (1993) 9 SCNJ 53; Akinfolarin v. Akinnola (1994) 4 SCNJ; Olagunju v. PHCN (2011) All FWLR 163 at 1645; Elelu-Habeeb v. A-G, Fed. (2012) All FWLR (Pt. 629) 1011. He took the view that the appellant wrongly appraised the order of the Tribunal. He insisted that the lower Court had no jurisdiction, based on that order, to hear the appellant’s suit. He concluded that a fugitive ought not to use judicial process to pursue recovery of property against a subsisting order of Court. He relied on FRN v Ikedinwa (supra).

Resolution of the issue.
A clinical examination of the issue, though seemingly stubborn, discloses that it is canalised within a narrow scope. Its kernel is very plain. It chastises the lower Court’s declination of jurisdiction to entertain the appellant’s suit which parented the appeal. The casus belli of the issue, therefore, is whether the lower Court was invested/clothed or drained of the requisite jurisdiction to adjudicate over the appellant’s suit.

Now, the gravamen of the appellant’s chief grievance is that the lower Court ought not to have divested itself of jurisdiction over the matter. The lower Court, in disrobing itself of jurisdiction, weaved its reason on the provision of Section 2 (4) of the Tribunals (Certain Consequential Amendments, ETC) Decree No. 60 of 1999 (the Decree). Due to the royal/olympian position of the provision, it is imperative to pluck it out, where it is domiciled in the statute book, ipsissima verba, as follows:
(4) Any order, remand decision or judgment made by a Tribunal before the commencement of this Decree is hereby preserved.
To begin with, this one sentence crucial provision is submissive to clarity. On this premise, the law commands the Court to accord it its ordinary grammatical meaning without any embellishments, see Nobis-Elendu v. INEC (supra); Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Setracto (Nig) Ltd. v. Kpayi (2017) 5 NWLR (Pt. 1558) 280; Adeokin Records v. MCSCN (2018) NWLR (Pt. 1643); Ecobank v Honeywell Flour (2019) NWLR (Pt. 1655). Secondly, the provision cannot be construed in isolation. In other words, other mutually-related provisions in the Decree have to be construed holistically in order to glean the draftman’s intention: the sole purpose of interpretation, see NPA PLC v. Lotus Plastics Ltd. (2005) 79 NWLR (pt. 959) 158; Ugwuanyi v. NICON Ins. PLC (2004) 11 NWLR (Pt. 897) 612; A-G, Lagos State v. A.G, Fed. (2014) 9 NWLR (pt. 1412) 217; Abegunde v. O.S.H.A (2015) 8 NWLR (pt. 1399) 30; Akpamgbo Okadigbo v. Chidi (No.1) (2015) 10 NWLR (pt. 1466) 171. I will pay due obeisance to these cannons of interpretation of statutes in order not to insult the law.
By virtue of the provision of Section 2 (2) of the Decree, the Tribunal was abolished from the judicial firmament of our corpus juris. The prescription of Section 2 (1) of the Decree replaced the lower Court in the judicial stool of the defunct Tribunal. In virtue of Section 2 (3) of the Decree, a charge, claim or Court process filed before the Tribunal, under the relevant enactments, NDLEA Act herein, shall, including the title and venue, be deemed to be filed in the lower Court. The operative word in the last provision is “deemed“. It is the past tense of deem, which in the eyes of the law, means “to treat a thing as being something that it was not or as possessing certain qualities that it does not possess”, Orji v. Dorji Textiles Mills (Nig) Ltd. (2010) All FWLR (pt. 519) 999 at 1020-1021, per Tobi, JSC; Akeredolu v. Akinremi (No.2) (1986) 2 NWLR (pt. 25) 710; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29. So, in practical terms, the charge, claim or Court processes filed in the erstwhile Tribunal were taken to be filed before the lower Court. The provision of Section 2 (4) of the Decree, upon which the lower Court erected its decision, preserved the decision of the Tribunal. The feuding parties joined issue on the connotation of the word “preserved”. The word “preserved”, employed in the provision, is the past tense of preserve. Etymologically, preserve, a verb, denotes/signifies, inter alia, “1. to keep safe from injury, harm, or destruction: PROTECT” see Merriam-Webster, Webster’s New Explorer Encyclopedic Dictionary, (USA, Federal Street Press, 2006) page 1447.
A communal/conjunctive reading of these chronicled provisions, which are comprehension-friendly, amply, demonstrates that the ex-parte application, which the Federal Republic of Nigeria filed before the Tribunal, was deemed as filed in the lower Court. Indubitably, the interim order of forfeiture of the appellant’s property, the res in the matter, which germinated from the ex parte application, was protected as an order of the lower Court. In effect, the application, which gave birth to the order, and the interim and confirmed order, were deemed to have been conducted and issued by the lower Court. The Decree, on the footing of its tenor, bequeathed/assigned the proceeding in the deceased Tribunal to the lower Court which inherited same. Flowing from the lower Court’s inheritance and ownership of the order, it was robbed of the jurisdiction to sit on appeal over its own decision. The law does not grant a Court the licence to constitute itself into an appellate Court over its decision, see Famu v. Kassim (2013) 7 NWLR (Pt. 1352) 124; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Ngere v. Okuruket ‘xiv’ (2017) 5 NWLR (1599) 440; Eneh v. NDIC (2018) 16 NWLR (Pt. 1645) 355. The meat of the appellant’s action was to invite the lower Court to sit on appeal over its decision. The solicitation ignored the appellant’s right of appeal to the Court of Appeal as entrenched in Section 7 (1) of the Decree. The lower Court would have offended the law if it had acceded to the salivating supplication by the appellant. This Court would have questioned its quo warranto for such an injudicious exercise.
That is not all. During the life time of the banished Tribunal, it enjoyed equal pedestal with the lower Court in the hierarchy of Nigerian Courts. Put differently, the Tribunal and the lower Court were Courts of co-ordinate/concurrent jurisdiction. It is settled law, beyond any peradventure of doubt, that save in the absence of statutory authority, want of jurisdiction or where judgment is a nullity, a Court or Judge has no power to set aside or vary the order of another Court or Judge of concurrent/co-ordinate jurisdiction, see Witt & Busch Ltd. v. Dale Power Systems PLC (2007) 17 NWLR (Pt. 1062) 1; SPDCN Ltd. v Edamkue (2009) 14 NWLR (Pt. 1160) 1; Adesigbin v. Mil Gov., Lagos State (2017) 10 NWLR (Pt. 1574) 442; Customary Court of Appeal, Edo State v. Aguele (2018) 3 NWLR(Pt. 1607) 369; Okoye v Nigerian Const. & Furniture Co. Ltd (1991) 6 NWLR (pt. 199) 501; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130; Azuh v. CBN PLC (2014) 11 NWR (Pt. 1419) 580; Fawehinmi v. A-G, Lagos State (No.1) (1989) 3 NWLR (pt. 112) 707; Eneh v. NDIC (2018) 16 NWLR (pt. 1645) 355; Cole v. Jibunoh (2016) 4 NWLR (pt. 1503) 499; NIMB Ltd. v. UBN Ltd. (2004) 12 NWLR (pt. 888) 599/(2004) LPELR-2003 (SC).
In NIMB Ltd. v. UBN Ltd (supra), Pats-Acholonu, JSC, of the blessed memory, graphically captured the raison d’etre for the hallowed principle of law in these illuminating words:
The theory of justice to which we adhere rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of law is that just as stare decisis exercises a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of co-ordinate jurisdiction do not sit on appeals on each other, attracts respect for the law.
I have, in due loyalty to the expectation of the law, visited the record: the spinal cord of the appeal. The appellant’s processes, originating and others, monopolise pages 1-125 and 171-200 of the record. I have perused them with the finery of a tooth comb. Interestingly, they are rebellious to ambiguity. I am unable to find, even with the prying eagle-eye of a Court, where the appellant asserted and established want of statutory authority or jurisdiction on the Tribunal to make the order. Nor was it demonstrated in those processes, that the order, which is in heat of being impugned or ostracised, was marooned in the intractable web of nullity. These, as displayed above, are the exceptions to the ageless principle that a Court of co-ordinate jurisdiction cannot review a decision of a sister Court of concurrent jurisdiction. The appellant, in his infinite wisdom, starved the Court of these exceptions. The net effect is not far-fetched. In the glaring absence of these exceptions, the lower Court was not, in the least, equipped with the necessary jurisdiction to review the order of the Tribunal.
The legal consequences of the foregoing, the lower Court’s acquisition of the interim order and being of co-extensive jurisdiction with the Tribunal, are far-reaching vis a vis the appellant’s action. First, the Judex of the lower Court was disqualified, on the footing of the reasons articulated above, from adjudicating over the suit. Second, the suit houses/warehouses a feature, the same reasons adumbrated above, which prevents/prohibits the lower Court from exercising its jurisdiction over it. In sum, the second limbs of the first and second ingredients of jurisdiction, exhibited/laid out at the dawn of the judgment, as invented in Madukolu v. Nkemdilim (supra) the locus classicus on jurisdiction, infested and contaminated the suit. In the mind of the law, they have disabled its adjudication by the lower Court in that it was not clothed with jurisdiction. Where a Court is not clothed with the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri V. Ogola (2016) 3 NWLR (Pt 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). The lower Court would have fractured the law if it had not declined jurisdiction. I endorse, in toto, its finding on the point.

For the sake of completeness, the appellant launched lots of attacks on the exhibits 5a and 5b attached to the respondent’s counter affidavit. It is trite law, that a Court looks at the statement of claim as the major barometer to determine the presence or absence of its jurisdiction to adjudicate over a matter, see Akine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466),124; Sun Ins. (Nig.) Plc. v. U.E.C.C. Ltd. (2015) 11 NWGLR (Pt. 1471) 570; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231. For matters not commenced by writ of summons, where pleadings are filed, averments in the affidavit in support takes the place of pleadings, see Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545; Uwazuruonye v. Gov. Imo State (2013) 8 NWLR (Pt.1355) 28. It must be stressed, that it is only a plaintiff’s statement of claim, or affidavit, not a statement of defence or a counter-affidavit, that is relevant in determining the jurisdiction of a Court, see Izenkwe V. Nnadozie (1953) 14 WACA 301; UBA Plc. v. BTL Ltd. (2006) 19 NWLR (Pt. 1013) 361; Ngere v. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1559) 440.
Incontestably, the appellant’s suit was commenced by dint of originating summons. It flows, that it was the affidavit in support of it that will serve as the yardstick in determining the jurisdiction of the lower Court. It is not the counter-affidavit that has the exhibits 5a and 5b as its appendages. This inelastic position of the law, with due reverence, punctures and exposes the learned appellant’s counsel’s dazzling argument on the point. It is disabled from its birth.

The contrary of this juridical survey is not a moot point. The interim order of forfeiture, issued by the Tribunal, is still a subsisting order of the lower Court. The reason is this. The appellant has not exercised his right of appeal, donated to him by Section 7 (1) of the Decree, vis a vis the order nor has it been set aside by dint of appeal. It is settled law, that any order of Court, rightly or wrongly made, is valid until it is set aside in deserving circumstances, see Adesigbin v. Mil. Gov., Lagos State (supra); CBN v. Aribo (supra); Witts & Busch Ltd. v. Dale Power System PLC (supra); Cole v. Jibunoh (supra). In face of the validity and viability of the Tribunal’s order, the law stigmatised the appellant’s suit as a classic exemplification of an abuse of process, see Cole v. Jibunoh (supra). Indeed, the appellant employed the judicial process improperly, via duplication of action, in a manner that has its value in the irritation and annoyance of the adversary-the respondents.

In the light of this brief legal anatomy, conducted in due consultation of the law, the lower Court’s findings, want of jurisdiction and exhibition of abuse of process in the suit, are immaculate and unassailable. It did not defile the law. In the result, all the castigations which the appellant rained against them pale into insignificance. It will smell of judicial sacrilege to intervene in findings that are not hostile to the law. I therefore, dishonour the salivating invitation of the appellant to sacrifice the lucid judgment on the underserved shrine of perversity for lack of legal justification. In the end, I am left with no choice than to resolve the solitary issue against the appellant and in favour of the respondents.

On the whole, having resolved the mono issue against the appellant, the destiny of the appeal is plain. It is bereft of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 24th September, 2014. The parties shall bear their respective costs expended in the prosecution and defence of the appeal of the doomed appeal.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the leading judgment of my learned brother, OBANDE FESTUS OGBUINYA, JCA that the instant appeal lacked merit, and it should be dismissed.
Appeal is dismissed.

BALKISU BELLO ALIYU, J.C.A.: I had the preview of the lead Judgment of my learned brother, OBANDE FESTUS OGBUINYA, JCA just delivered. I agree with the reasoning and conclusion reached therein in resolving the lone issue for determination and I adopt same as mine. I also find no merit in this appeal and I dismiss it. I affirm the judgment of the Federal High Court, Lagos Division in respect of Suit No: FHC/L/CS/331/2001, delivered on the 24th September 2014. I abide by the consequential orders made in the leading judgment.

Appearances:

Tochukwu Onyiuke, Esq. with him, Rachael S. Ezeoke, Esq. and Providence Ikhayere, Esq.
For Appellant(s)

J.N. Sunday, Esq. D.P.L.S. with him, O. Iwuchukwu, Esq. A.D NDLEA For Respondent(s)