OKONJO v. OKONJO & ORS
(2020)LCN/15438(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, November 18, 2020
CA/AS/16/2020
RATIO
JURISDICTION: WHETHER A CHALLENGE TO THE COMPETENCE OF A COURT MAY BE RAISED ORALLY
The law is settled that a challenge to the jurisdiction or competence of a Court in respect of the matter before it, can be raised by various means, including raising it orally. Indeed, it is clear from decided cases, that there is no special format for raising such challenge. See the cases of NDIC V. CBN (2002) LPELR-2000(SC) and ADEGBITE V. AMOSU (2016) LPELR-40655(SC) amongst many others. PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
WHETHER A DEFENDANT MAY RELY UPON A DEFENCE BASED ON FACTS NOT STATED IN THE STATEMENT OF CLAIM
A defendant is not entitled to rely upon a defence, which is based on facts not stated in the statement of claim unless he alleges such facts specifically in his pleadings by way of special defence. See N.I.P.C. Ltd. v. Bank of West Africa Ltd. (1962) 1 All N.L.R. 556; (1962) 2 SCNLR 324 and Sketch v. Ajagbemokeferi (1989) 1 N.W. L.R. (Pt. 100) 678. PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
GROUND OF APPEAL: WHAT CONSTITUTES A GROUND OF LAW, OF MIXED LAW AND FACTS AND OF FACTS
What constitute ground(s) of law vis a vis ground(s) of mixed law and fact and of facts, has from earliest times received the attention of the Courts particularly the Supreme Court. For example, in the case of OBATOYINBO V. OSHATOBA (1996) LPELR- 2156(SC), (1996) 5 NWLR (Pt. 450) 531; the Supreme Court dwelling on this issue, stated thus: –
“The objection taken to these grounds is of importance in determining whether the second notice of appeal filed by the Plaintiffs is competent. Section 213(2)(a) of the 1979 Constitution confers a right of appeal as of right where the grounds of appeal, that is, the complaints of defects in the judgment appealed against are of law alone. Where however the grounds of appeal are of mixed law and fact or of facts simpliciter, leave of the Court below or of this Court must be sought and obtained before there can be a valid appeal to this Court – See Section 213(3) of the Constitution. See also xxx. These cases show how difficult it has been for counsel drafting grounds of appeal. It is not the label given to a particular ground that determines its nature, that is, whether of law alone, of mixed law and fact or of facts simpliciter- see: Nwadike v. Ibekwe (supra) at p. 743, the dictum of Nnaemeka-Agu, JSC to the effect:
‘’…it is a recognised fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert a ground of mixed law and fact into a ground of law.” Eso, JSC in his illuminating dictum in Ogbechie v. Onochie (supra) at p. 491 observed:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the Law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
As to what is a question of law with which a ground of law is concerned Karibi – Whyte JSC opined thus in Metal Construction (W.A.) Ltd. v. Migliore (supra) at pp. 149-150:
“Generally considered, the term “question of law” is capable of three different meanings. First it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the Court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated, a question of law in this sense is one predetermined and authoritatively answered by the law.
The second meaning is as to what the law is. In this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain mater. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning. The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only. Thus any question which is within the province of the Judge instead of the jury is called a question of law even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents, often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge.”
And as to what is a question of fact, the learned Justice of the Supreme Court added at p. 150.
“Now turning to what is a question of fact? It is easy to postulate that it is anything which falls outside the meaning of question of law. That will not be entirely correct, because there are exceptions. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact.”
In construing a ground of appeal, the ground as formulated and its particulars are to be considered together. xxx See Nafiu Rabiu v. Kano State (1980) 8 11 S.C. 130. If a Judge considers matters, which are not before him, and relies on them for the exercise of his discretion, he will be exercising his discretion on wrong principles and this will be a question of law. ”
I am of the considered view that till date the law remains that in civil matters tried on pleadings, it is the claims or reliefs as endorsed on the writ of summons and contained in the statement of claim that determine the jurisdiction and/or competence of the Court or Tribunal seised of a matter. Hence, it is a fundamental principle that jurisdiction and/or competence of an action, is determined by the claimants/plaintiffs claim and not by the defence, and so the writ of summons and statement of claim which contains the claim before the Court, are the documents that must be examined in detail to ascertain whether it comes within the jurisdiction of a court. See the cases of KAYILI V. YILBUK (2015) LPELR-24323(SC) and INCORPORATED TRUSTEES OF ALGON V. RIOK (NIG) LTD (2018) LPELR-45289(CA) amongst many others. PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
JURISDICTION: THE FUNDAMENTAL NATURE OF JURISDICTION
Indeed, the issue of jurisdiction is so fundamental and important to adjudication that the position of the law in respect of bringing an appeal in respect of jurisdiction has been so relaxed to the extent that many of the principles governing an appeal in respect of so many other issues of law have now been rendered otiose. See for example the case of WESTERN STEEL WORKS LTD. & ANOR. V. IRON STEEL WORKERS LTD. (1987) 2 NWLR 179 AT 188 wherein the Supreme Court has long ago stated thus: –
“The fundamental nature of jurisdiction exempts it from any disabilities and restrictions which frustrate other legal points on appeal if not raised in the Court below or at the appropriate time. The failure to raise it does not invest the Court with the competence it has not got. In line with the principle above enunciated, the Supreme Court made it abundantly clear that it is never too late or premature to raise the issue of jurisdiction whether at the Court of first instance or Appellate Court and when raised, the objection ought to be taken first and decided upon.”
See also FIRST BANK OF NIGERIA PPLC V. T.S.A INDUSTRIES LTD (2010) 15 NWLR (Pt. 1216) 247 SC; (2010) LPELR – 1283 (SC). PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
APPEAL: POSITION OF THE LAW ON WHETHER A LEAVE OF COURT MUST BE SOUGHT BEFORE AN APPEAL IN AN INTERLOCUTORY DECISION
Now, what is the position of the law relating the filing of an Appeal in an interlocutory decision such as in the instant Ruling on appeal?
The settled position of the law, which has a constitutional stamp of approval is that leave must first be sought and had, before such an appeal is lodged.
See Section 242 of the 1999 Constitution of the Federal Republic of Nigeria as Amended. The section provides as follows: “…”
The appeal herein is not of the types enumerated in Section 241 to which Section 242 has been ‘made subject to’ and shall, therefore, necessarily be by leave of the lower Court or this Court.
Where leave is required to be given, but is not given the appeal lodged is incompetent and liable to be struck out. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JURISDICTION: CONSIDERATIONS TO DETERMINE THE COMPETENCE OF AN ACTION
A Court of law has the jurisdiction and powers to decide whether it has jurisdiction to decide a case or not as, if it conducts a case and delivers a decision where it has no jurisdiction or where there is no competent Appeal, no matter how well decided the decision be, it shall be a nullity and would be an exercise in futility.
This is what the trial Court was called upon to resolve by the preliminary objection, raised by the Appellant/1st Defendant herein. That was the purport of his objection. Now, upon what can the competence of an action and jurisdiction of a Court of law be discerned?
The authorities are myriad, such that the locus classicus case of Madukolu V. Nkemdilim 1962 ALL NL (42-43 LPELR) suffices to show that it could be upon the writ of summons and statement of claim or even from evidence led disclosing the fact. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
PRINCE IFECHUKWUDE OKONJO APPELANT(S)
And
1. PRINCE IKECHUKWU OKONJO 2. OKAFOR UTULU A.K.A APINGOLO (Onu-Diokpa Of Agidiahe) (For Himself And On Behalf Of Agidiahe Quarters Of Ogwashi-Uku) 3. DIOKPA ABUEMEKA ABUA (Diokpa Of Ikelike) (For Himself And On Behalf Of Ikelike Quarters Of Ogwashi-Uku) 4. THE GOVERNOR OF DELTA STATE 5. ATTORNEY-GENERAL OF DELTA STATE 6. DELTA STATE DIRECTORATE OF CHIEFTAINCY AFFAIRS RESPONDENT(S)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The Appellant herein was the 1st defendant in the action taken out against him by the 1st Respondent as Claimant at the High Court of Justice, Delta State in suit No. 0/28/2019 of 15th October, 2019 against him and the 2nd – 6th Respondents. Thereat the Claimant/1st Respondent, now challenged the selection, coronation and the approval of the installation of the Defendant/1st Appellant as the Obi of Ogwashi-Uku. The statement of claim pursuant to the Rules of Court applicable, and accompanied with the claimant’s statement on oath of 43 paragraphs, claimants list of Documents to be relied upon at the trial and some Documents as annexures thereto was taken out by Ama Atuwewe Esq., (SAN) of Ama Atuwewe (SAN) & Co. on the 15th day of October, 2019 and filed on the 16th October, 2019.
Pricked by the said suit and not agreeable that the suit could be instituted in the form, manner and at the time in which it was so constituted and filed, the 1st Defendant therein Appellant now, by his learned counsel, Arthur Obi Okafor, (SAN) of Arthur Obi Okafor (SAN) & Associates by Motion on Notice dated 12th November, 2019 urged the trial Court to strike out the suit for want of competence and jurisdiction.
For the avoidance of doubt and ease of reference, I reproduce both the statement of claim and the grounds for the Notice for the striking out of the suit for incompetence and want of jurisdiction, verbatim thus:
STATEMENT OF CLAIM
WHEREOF THE CLAIMANT JOINTLY AND SEVERALLY SEEKS THE FOLLOWING RELIEFS:
i. A DECLARATION that by the rule of succession by primogeniture regulating succession to the throne of Obi of Ogwashi-Uku, the Claimant is the next Obi of Ogwashl-Uku in succession to the late Obi Professor Ben Okonjo.
ii. A DECLARATION that the rule of primogeniture regulating the succession to the throne of Obi of Ogwashl-Uku is sacrosanct and same cannot be circumvented under any guise under the native law a d custom of the Ogwashi-Uku people, save where the next in line is physically or mentally incapacitated.
iii. A DECLARATION that the 1st Defendant being the 3rd eldest surviving son of the late Obi Professor Ben Okonjo Is not qualified according to the native law and custom and the order of succession to the throne of Obi of Ogwashi-Uku to be chalked and crowned as the Obi of Ogwashi-Uku or to be accorded any recognition In that respect.
iv. A DECLARATION that the process by which the 1st Defendant was purportedly chalked and crowned as the Obi designate of Ogwashi- Uku by the 2nd and 3rd Defendants Is unknown to the native law, practices and norms of the Ogwashi-Ukupeople and is contrary to the declaration stating the customary law regulating succession to the traditional ruler’s title of the Obi of Ogwashi-Uku Kingdom pursuant to the Traditional Rulers Council and Chiefs Law Cap T. 2, Laws of Delta State of Nigeria, 2006.
v. A DECLARATION that the Claimant is the rightful person to be chalked, crowned and recognized by the 2nd – 6th Defendants as the Obi of Ogwashi-Uku in succession to Obi Professor Ben Okonjo.
vi. AN ORDER setting aside and or nullifying the purported chalking and crowning of the 1st Defendant as Obi designate of Ogwashi-Uku by the 2nd and 3rd Defendants for being in gross contravention of the native law, practices. and norms of the Ogwashl-Uku people and the declarations stating the customary law regulating succession to the traditional ruler’s title of the Obi of Ogwashl-Uku Kingdom pursuant to the Traditional Rulers Council and Chiefs Law Cap T; 2, Laws of Delta State of Nigeria, 2006.
vii. AN ORDER directing 2nd and 3rd Defendants and or their respective families and heads to chalk and crown the Claimant as Obi of Ogwashl-Uku according to the native law and custom of Ogwashi-Uku and the declaration stating the customary law regulating succession to the traditional ruler’s title of the Obi of Ogwashl-Uku Kingdom pursuant to the Traditional Rulers Council and Chiefs Law Cap T.2, Laws of Delta State of Nigeria, 2006.
viii. AN ORDER directing the 4th Defendant to immediately issue a staff of office to the Obi of Ogwashi-Uku to the Claimant.
ix. AN ORDER of perpetual injunction restraining the 1st – 3rd Defendants from interfering with the traditional stool of Obi of ogwashl-uku in a manner inconsistent with the native law and custom of the Ogwashi-Uku people and the declaration stating the customary law regulating succession to the traditional ruler’s with of the Obi of Ogwashl-Uku Kingdom pursuant to the Traditional Rulers Council and Chiefs Law Cap T. 2, Laws of Delta State of Nigeria, 2006.
GROUNDS FOR THE MOTION TO STRIKE OUT NOTICE OF THE APPEAL/SUIT FOR INCOMPETENCE
i. The Claimant’s action is one calling upon the Honourable Court to take over the powers of the Executive Council to approve or set aside the selection of the traditional ruler without any consideration being given to the propriety or otherwise of the decision taken by the Executive Council approving the appointment of the 1st defendant/applicant as the Traditional Ruler of Ogwashi-Uku.
ii. The Claimant’s action was filed prematurely without the Claimant first lodging any complaint or making any representation to the Executive Council within 21 days window provided in Section 19 (2) of the Traditional Rulers, Council and Chiefs Law or within a reasonable time thereafter asking for the setting aside of the 1st defendant/applicant’s selection as the Traditional Ruler of Ogwashi-Uku before approaching my lord’s Court.
iii. That this action ought not to have been commenced without the Claimant/Respondent seeking or making representation to the Executive Council for setting aside of the approval of appointment of the 1st defendant/applicant as the Traditional Ruler of Ogwashi-Uku by the Executive Council.
iv. The High Court of Justice does not have the jurisdiction to take over powers given to the Executive Council by Statute and purport to exercise those powers without the Claimant/Respondent first having a recourse to the Executive Council for the setting aside of the selection of the 1st Defendant/Applicant as the Traditional Ruler of Ogwashi-Uku.
v. The Claimant/Respondent’s attack on the issuance and presentation of Staff of Office is again pre-mature for without prior representations being by the said Claimant/Respondent to the Executive Council for the setting aside of the selection of the 1st defendant/applicant, the acts predicated on the said selection by the Executive Council cannot lawfully be questioned.
vi. The Claimant failed to make the said Executive Council a party in this suit.
vii. This action cannot be competently decided in the absence of the Executive Council that is Statutorily empowered to approve the appointment or set aside the selection of a Traditional Ruler under Section 19 (J) of the Traditional Rulers, Council and Chiefs Law Cap. T2 Laws of Delta State.
The summary of the facts and circumstances of this appeal are that on the 16th day of October, 2019, the 1st Respondent as the claimant at the trial Court issued a writ of summons against the Appellant and 2nd – 6th Respondents in suit No. NO 8/28/2019 between Prince Ikechukwu Okonjo Vs. Prince Ifechukwude Okonjo & 5 Ors as per the averments in the statement of claim and the reliefs therein sought.
The Appellant herein upon the entry of conditional appearance, challenged the jurisdiction of the trial Court to hear the suit and upon the Grounds thus:
i. The Claimant’s action is one calling upon the Honourable Court to take over the powers of the Executive Council to approve or set aside the selection of the traditional ruler without any consideration being given to the propriety or otherwise of the decision taken by the Executive Council approving the appointment of the 1st defendant/applicant as the Traditional Ruler of Ogwashi-Uku.
ii. The Claimant’s action was filed prematurely without the Claimant first lodging any complaint or making any representation to the Executive Council within 21 days window provided in Section 19 (2) of the Traditional Rulers, Council and Chiefs Law or within a reasonable time thereafter asking for the setting aside of the 1st defendant/applicant’s selection as the Traditional Ruler of Ogwashi-Uku before approaching my lord’s Court.
iii. That this action ought not to have been commenced without the Claimant/Respondent seeking or making representation to the Executive Council for setting aside of the approval of appointment of the 1st defendant/applicant as the Traditional Ruler of Ogwashi-Uku by the Executive Council.
iv. The High Court of Justice does not have the jurisdiction to take over powers given to the Executive Council by Statute and purport to exercise those powers without the Claimant/Respondent first having a recourse to the Executive Council for the setting aside of the selection of the 1st Defendant/Applicant as the Traditional Ruler of Ogwashi-Uku.
v. The Claimant/Respondent’s attack on the issuance and presentation of Staff of Office is again pre-mature for without prior representations being by the said Claimant /Respondent to the Executive Council for the setting aside of the selection of the 1st defendant/applicant, the acts predicated on the said selection by the Executive Council cannot lawfully be questioned.
vi. The Claimant failed to make the said Executive Council a party in this suit.
vii. This action cannot be competently decided in the absence of the Executive Council that is Statutorily empowered to approve the appointment or set aside the selection of a Traditional Ruler under Section 19 (J) of the Traditional Rulers, Council and Chiefs Law Cap. T2 Laws of Delta State.”
The first Respondent reacted to the Appellant’s application by filing a counter affidavit with exhibits.
It is the Appellant’s grouse that despite the evidence led by the 1st Respondent himself establishing that he did not make the mandatory representation to the Executive counsel as required by law, the Court proceeded to Rule that it needed evidence to resolve the issue whether it had jurisdiction to hear the matter and thereby struck out the Appellant’s application. For the avoidance of doubt, this is what the trial judge said in his ruling:
“I have carefully perused the affidavit evidence for and against this application. It is clear from the affidavit evidence on both sides of the divide that is not possible for the Court to decide the issue of jurisdiction without evidence been adduced.
Learned silk Arthur Obi Okafor for the 1st Defendant in his submission before this Court said that his objection is in two compartments, he said the second compartment which is that the Executive Council is not a party to this suit do not need evidence as the extant law defines who the Executive Council is. I am of the view that this court must restrain itself from making any pronouncement that will touch on the merit of this case at this stage. I am of the view that the appropriate time this Court can decide whether it has jurisdiction to entertain this suit or not is after evidence has been led by all the parties to this suit. It is too early for this Court to so decide.
This Court will determine whether it has jurisdiction at the appropriate time. Learned Silk for the 1st Defendant/Applicant and learned Silk for the Claimant will address the Court at the close of evidence. This application for now is premature and is struck out accordingly.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Aggrieved by the Ruling aforesaid, the Appellant filed a Notice of Appeal upon 2 (two) Grounds as contained on pages 210-213 of the Record of Appeal thus:
GROUNDS OF APPEAL
GROUND 1
The learned trial judge was wrong when he struck out the Appellant’s application challenging the jurisdiction of the Honourable Court to hear and determine the suit, holding thereby that he will need to hear evidence to effectively determine the application.
PARTICULARS
A) The trial Court in striking out the Appellant’s application failed to advert to the following:
i) That one of the grounds for the Appellant’s application on jurisdiction raises the issue of improper Constitution of the 1st Respondent’s suit, which said ground can be dealt with upon casting a glance at the parties expressed on the Writ of Summons and/or Statement of Claim together with the consideration of the provisions of the relevant statutory Legislation to wit the Traditional Rulers, Council and Chiefs Law Cap. T.2 Laws of Delta State, contained in the Revised Laws of Delta State of Nigeria in force on the 30th day of April, 2008.
ii) That the issue of improper Constitution of the 1st Respondent’s suit raised by the Appellant in the motion challenging the jurisdiction of the Honourable Court, did not entail any resolution of issues of fact to justify the holding of the trial Court that evidence was needed to effectively resolve the Appellant’s objection.
B) The approach adopted by the trial Court in deferring the hearing and determination of the issue of jurisdiction to be considered at the address stage (after hearing of evidence) was wrong which thereby occasioned a grave miscarriage of justice.
GROUND 2
The Learned trial judge was wrong when he refused to strike out the 1st Respondent’s suit, the competence of which was challenged by the Appellant on the ground that the 1st Respondent failed to meet with the condition precedent that ought to be complied with before the institution of the action.
PARTICULARS
A) The trial Court in refusing to strike out the 1st Respondent’s suit held albeit wrongly that the objection cannot be effectively determined without taking evidence from the parties; which holding failed to take into account the following:
i) That the ground on non-compliance with condition precedent raised in the Appellant’s application challenging the jurisdiction of the trial Court can be competently determined on the basis of the materials available before the Court vide the affidavit evidence filed by the parties.
ii) That the condition precedent which was not met by the 1st Respondent is that he did not make representation to the Executive Council before filing this suit, the substance of which was not denied in his counter affidavit filed in opposition to the Appellant’s motion.
iii) That the 1st Respondent in his counter affidavit was clear in stating that the representation made by him was to the 4th – 6th Respondents.
iv) That Exhibit OK5 attached to the 1st Respondent’s further and better affidavit, shows that there was no petition/representation before the Executive Council against the selection of the Appellant as the Traditional Ruler of Ogwashi-Uku Town at the time the Executive Council approved the appointment of the Appellant as the Traditional Ruler of Ogwashi-Uku Town.
(B) The approach adopted by the trial, Court in deferring the hearing are determination of the issue of jurisdiction to be considered at the address stage (after hearing of evidence) was wrong which hereby occasioned a grave miscarriage of justice.
Additional Grounds shall be filed upon receipt of the record of proceedings.
RELIEFS SOUGHT
i) An order allowing this appeal.
ii) An order setting aside the ruling of the learned trial Court coram Hon. Justice K. O. Okpu in Suit No: 0/28/2019 between Prince Ikechukwu Okonjo v. Prince Ifechukwude Okonjo & Ors.
iii) An order striking out Suit No: 0/28/2019 between Prince Ikechukwu Okonjo v. Prince Ifechukwude Okonjo & Ors. for want of jurisdiction.
In his Appellant’s Brief of Argument settled by its learned senior counsel, Arthur Obi Okafor (SAN) and filed on 5-6-2020, the Appellant has formulated two Issues for the determination of this appeal thus;
1. Whether the trial Court was right when it held that it need to hear evidence before it can resolve the issue raised in the Appellant’s application challenging the competence of the suit on the ground that it was not properly constituted as to parties? (Distilled from Ground 1).
2. Whether the trial Court was right when it held that it needed to hear evidence before it can resolve the issue raised in the Appellant’s application challenging the jurisdiction of the Court on the ground that a condition precedent was not met before filing the suit? (Distilled from Ground 2)
Appellant also filed an Appellant’s Reply Brief of Argument on the 6th July 2020. It is dated 5th July 2020.
The 1st Respondent’s Brief of Argument dated and filed on 29th June, 2020 was settled by his Learned Senior Counsel, Ama Etuwewe, SAN. The 2nd – 6th Respondents did not file any Briefs of Argument.
In the said Appeal, the 1st Respondent filed a Notice of intention to raise and rely on a preliminary objection pursuant to Order 6 of the Court of Appeal Rules, 2016, Section 242 of the 1999 Constitution of the Federal Republic of Nigeria as amended and under the inherent jurisdiction of this Honourable Court.
The said Notice of preliminary objection filed on 29-6-2020 has arguments thereon incorporated and argued at pages 10-11 of the 1st Respondents Brief of Argument. By the said preliminary objection, we have been urged to strike out this appeal for being competent. The Notice of preliminary objection states as follows:
“NOTICE BY THE 1ST RESPONDENT OF INTENTION…..“
In arguing the Notice of preliminary objection, the 1st Respondent from his page, 1 of the Respondent’s Brief of Argument submitted that this Court lacks the jurisdiction to entertain this appeal, the Appellant did not obtain the leave of either the lower Court nor this Court before launching this appeal. For this, the learned counsel opines that the appeal was brought in crass violation of the Section 242 of the Constitution of the Federal Republic of Nigeria as amended. The reason for the leave, according to the learned counsel, is because the Grounds of Appeal are a combination of law and of mixed law and facts. That a ground of appeal complaining of the non-compliance with a condition precedent before the institution of the action was a question on ground of fact. That the Appellant said there was no compliance whilst the Respondent said there was compliance.
That it was therefore a question of mixed law and facts. That evidence was required to resolve the conflicting facts waved and to apply the law to it as regarding the right of appeal. The case of B B Apugo & Sons Ltd V. O. H. M. B. (2016) 13 NWLR (pt 1529) page 206 at page 264 and AFROBELL NIGERIA (LTD) VS NDIC (2017) 5 NWLR PT. 1558 page 203 at 222 referred to. Quoting Afrobell’s Case (Supra) where this Court (at the Lagos Division) held “leave of Court, where it is required, is a condition precedent in the exercise of the right of Appeal. Therefore, failure to obtain leave where it is required renders any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court.”
Abubakar V. Dankwambo (2015) 18 NWLR (pt 1491) 213 at pages 234-235 G.A thus:
“Where leave which means permission is a pre-condition before an appellant can file a Notice of Appeal, containing grounds of mixed law and fact an appellant who files a Notice of appeal without satisfying or obtaining that pre-condition would have his process thrown out.”
It was therefore submitted that the condition precedent being leave or permission had not been obtained and therefore, this Court has no jurisdiction. See Abdul V. Congress for Progressive Change (2014) 1 NWLR pt 1388 pg 299 at 327 paragraphs G-H (SC) and ENTERPRISE BANK LIMITED V. AROSO (2014) 3 NWLR (pt 1394) page 256 at 281 paragraph D-F (SC) where the apex Court held that by the 1999 Constitution, if a ground of Appeal … involves question of law alone, the appellant can appeal as of right. If or when a ground of appeal is based on facts alone or on mixed law and facts, it cannot be filed unless leave is sought and obtained.
The above is very important in that the Court would have no jurisdiction to hear an appeal where the grounds of appeal are on facts or/and mixed law and facts and the appellant never sought and obtained leave to file the grounds.
The learned counsel submitted that the fact that a ground of Appeal is described as a ground of law is not sufficient but that it is for the Court to inquire into what really the Ground is.
That a reading of the Ground together with the particulars of Appeal will be an aid. What a Ground of fact and Ground of mixed law and facts is, BASF. Nigeria Limited V. Faith Enterprises Limited (2010) NWLR (pt 1183) page 104 at 132-133 as stated by the Supreme Court to mean;
“A ground of law has the undermentioned meanings;
a. A question in which the Court has no discretion to exercise because it is already predetermined and resolved by the law;
b. A question which calls for the argument and determination of what the true position is in law. Such a question usually arises out of the uncertainty of the law.
c. Interpretation of documents which is a question of fact but is strictly within the duty of the Court.
A Ground of Appeal raises a question of fact where it relates to;
1. Any question not determined by a principle of law;
2. Any question, except that which relates to what law is;
3. Any question that is to be answered by the jury rather than the judge Ekunola V C.B.N (2013) 15 NWLR pt. 1377 page 224 at 260-261 paragraphs H-F thus: “where a ground of appeal raises a complaint on an issue of law based upon accepted or admitted facts, it is a ground of law requiring no leave of Court. But where the complaint or real issue is founded on disputed or unascertained facts then it is a ground of mixed law and facts requiring leave of Court.
4. Where the ground the complaint is that the Judgment is amongst other reasons, perverse necessarily will involve examining facts and the evidence ignored or that the Court has taken into account irrelevant matters and has based its decision thereon or has misconceived the thrust of the case of the appellant, the ground is one of mixed law and facts.”
Reproducing Ground one of the Notice of Appeal, the learned counsel submitted that it was incontrovertible that the said Ground was a ground of facts or at best a ground of mixed law and facts but definitely not a ground of law simpliciter.
Ground 1 “…”
Ground 2 “…”
The Ground one and its particulars in support challenged the discretion of the trial Judge to call for evidence to determine the issue. That was a ground of mixed law and facts. That the refutation of the complaint of the Appellant that the condition precedent to institute the claim had not been met was done in affidavit; that the said complaint cannot be resolved without evidence as it borders on facts to be supported by evidence.
F.B.N V. Abraham (2008) 18 NWLR pt 1118 page 172 at 18a paragraph A (SC) to the effect that “a ground of appeal questioning the exercise of discretion by a Court is not a ground of law but a ground of mixed law and fact; Ajuwa Vs SPDC Nig Ltd, (2011) LPELR 8243 and a host of other cases to the same contention were referred to cap the submission that such a ground of Appeal raised without leave is incompetent.
Arguing further, it was submitted that issues distilled from such incompetent Grounds of Appeal, are themselves automatically incompetent and both, liable to be struck out by the court.Labour Party V. Bello (2017) 2 NWLR pt 1548 page 145 at 170 relied upon.
Ultimately it was submitted that on the aforesaid case law authorities and the cases of The State Vs. Omoyele (2017) NWLR pt. 1547, page 341 at 270 Abubakar V. Dankwambo, and Otti Vs. Ogah (2017) 7 NWLR (pt. 1563) page 1 at 29, this appeal should be struck out.
Replying, the Appellant by his Reply Brief of Argument on the preliminary objection starts of by contending that the objection seems to be taken out against only the Ground No. 2 of the Notice of Appeal and that being the case, the objection itself was incompetent, as a preliminary objection can only be taken against the hearing of an appeal and not against only one or some of the grounds of Appeal.
Counsel relies of Nwaolisah V. Nwabusoh (2011) LPELR SC at 52 Rhodes Vivour, JSC, where the Court held; “A preliminary objection should only be filed against the hearing of the appeal and not against one or more grounds of appeal. Consequently, if it succeeds that is the end of the appeal. See NEPA V. ANGO (2001) 15 NWLR pt 737 page 627. Where other grounds of appeal can sustain an appeal a preliminary objection should not be filed; rather than a Motion of Notice should be filed against the offending grounds of appeal.”
See Odunukwe V. Ofomata & Anor (2010) LPELR 2250 SC at 2-3.
That for the above view, the P. O. was incompetent and should be struck out.
Arguing in the alternative that if this Court considers the preliminary objection as competent, the learned counsel posited that on the authorities cited by the 1st Respondent in support of his objection and indeed the locus classicus case of Nwadike V. Ibekwe (1987) 4 NWLR (pt 67) 718, the Ground one merely raised issues of law. The learned counsel however, had submitted at page 7 of his Reply Brief of Argument on this objection that “the only question this Honourable Court will answer in resolving the issue whether Ground 1 is of pure law or of mixed law and fact is to make inferences from the admitted facts as endorsed on the writ of summons and statement of claim in conjunction with the applicable legislation; counsel said – he “wondered what issues of facts have been thrown up in Ground 1 and says there is none”. That 1st Respondent’s counsel appreciated this fact and only played the ostrich by pretending to be attacking both Grounds 1 and 2, when his arguments was directed solely at Ground 2. That the Appellant was evasive in his pleadings on the making of representation to the Executive Council, and therefore, was deemed to have admitted the assertion and therefore, bringing the issue under an undisputed fact, thus making the Ground raised on appeal a question of law, for which no leave was required to file.
It was argued that the 1st Respondent created the impression that the objection had been considered and refused rather than what it was, i.e. the refusal of the trial Court to decide the issue of jurisdiction raised in the application by postponing it until after the trial. That the objection should be dismissed as being misconceived and frivolous.
RULING ON THE PRELIMINARY OBJECTION
This preliminary objection taken herein against the instant interlocutory appeal was itself greeted with an objection on the ground of incompetence. I dare say that the macrebre dance of objection in this character has no place in our adjectival or procedural law. The reason is simple; it is to ensure that there is speedy dispensation of justice such that bumps and road blocks may not be permitted to be erected at every point of the journey towards the search for justice.
In any event, the preliminary objection clearly hinged the objection on the two Grounds of appeal, thus not isolating the Grounds as contended.
That he dwelt more on the Ground 2 in his expatiation in argument did not obviate the reliance and reality of Ground 1, thus the question of coming by a motion to have that Ground of Appeal struck out, rather than the brining of a preliminary objection for the dismissal of the Appeal is unfounded. The preliminary objection is not defective and will be entertained on its merit. The suggestion to that effect is discountenanced, same having no basis.
The 1st Respondent contended that the Notice of Appeal and in particular the 2 Grounds thereof were such that the leave of the trial Court or this Court ought to have been sought and obtained before filing them.
He contended that the grounds bordered on questions of facts and at worst questions of mixed law and facts, involving the consideration of the facts as laid out in the Affidavit and the counter Affidavit before a decision could be arrived at adjudging whether the trial Court had jurisdiction or not based on the competence or otherwise of the suit from the point view of the reasons or grounds given to wit the want of prior or condition precedent of giving Notice or prior complaint to the Executive council of Delta State and its response obtained; and the deficiency in the composition of the necessary parties in the suit, the Executive council not having been joined as defendant.
The objector is also of the view that the trial Court had only exercised a discretion by its Ruling deferring to deliver Ruling on the preliminary objection and that the exercise of a discretion was not appealable without leave of Court first sought and had.
That the preliminary objection should be overruled and dismissed and the trial Court’s position be upheld.
The 1st Respondent/Appellant contends to the contrary and that is, that the objection be upheld and the Ruling of the trial Court deferring a Ruling be set aside and the interlocutory appeal be allowed.
I have given a thoughtful consideration to the rather ingenious positions of the two learned silk for the respective parties and think that the thread of substance and justice that is discernible from the 2 convulated positions is simply the question whether the stand taken by the learned trial judge in deferring a Ruling on the objection taken to the competence of the suit as instituted and on the basis of the 2 reasons in the Grounds of the supporting Affidavit thereof was allowed in law?
A Court of law has the jurisdiction and powers to decide whether it has jurisdiction to decide a case or not as, if it conducts a case and delivers a decision where it has no jurisdiction or where there is no competent Appeal, no matter how well decided the decision be, it shall be a nullity and would be an exercise in futility.
This is what the trial Court was called upon to resolve by the preliminary objection, raised by the Appellant/1st Defendant herein. That was the purport of his objection. Now, upon what can the competence of an action and jurisdiction of a Court of law be discerned?
The authorities are myriad, such that the locus classicus case of Madukolu V. Nkemdilim 1962 ALL NL (42-43 LPELR) suffices to show that it could be upon the writ of summons and statement of claim or even from evidence led disclosing the fact.
It is desirable, however, to first clear the coast on whether there is an appeal properly before this Court in this interlocutory appeal. The 1st Respondent’s learned counsel had by his Notice of preliminary objection dated and filed on 29-06-2020 urged that the instant appeal be struck out for failure to seek and obtain the leave of either the lower Court which gave the Ruling or this Court, before filing this appeal which is based on grounds of mixed law and fact contrary to Section 242 of the 1999 Constitution of the Federal Republic of Nigeria, as amended. The 1st Respondent’s learned counsel, Ama Etuwevwe, SAN moved the Court in Lamine to strike out the appeal as being incompetent.
The Respondents and in particular the 1st Respondent/Appellant in the application did not press on this objection. In fact the 2nd and 3rd Respondents, 5th, 6th and 7th Respondent’s counsel, respectively who were all in Court when the objection was formally raised and argued said nothing on the objection as raised. It was not as a visitation of nature in the muteness and raises the presumption therefore of non-opposition to the said objection raised and for which they had adequate Notice. I remember that they filed no Brief and for closed themselves in law. It is only the 1st Respondent’s learned counsel Arthur Obi Okafor, SAN that merely intoned thus – “the preliminary objection should be overruled.”
Now, what is the position of the law relating the filing of an Appeal in an interlocutory decision such as in the instant Ruling on appeal?
The settled position of the law, which has a constitutional stamp of approval is that leave must first be sought and had, before such an appeal is lodged.
See Section 242 of the 1999 Constitution of the Federal Republic of Nigeria as Amended. The section provides as follows: “…”
The appeal herein is not of the types enumerated in Section 241 to which Section 242 has been ‘made subject to’ and shall, therefore, necessarily be by leave of the lower Court or this Court.
Where leave is required to be given, but is not given the appeal lodged is incompetent and liable to be struck out.
The appeal herein, being an interlocutory Appeal lodged without leave contrary to Section 242 of the 1999 Constitution and the Court of Appeal practice Directions 2013 Rule 1 (ii) thereof relating to interlocutory Appeals challenging the Ruling, it is incompetent. The said Rule 1 (ii) provides as follows: “…” Accordingly, the preliminary objection to the competence of the appeal as filed and argued by Atuwevwe, (SAN) learned silk, for the preliminary objector/Respondent succeeds. The Notice of Appeal in this interlocutory Appeal is struck out.
In case, I got it wrong in the law, I shall proceed, to consider the interlocutory appeal on its merit, granting or assuming that it was competently initiated in law, as contended vehemently, by the Appellant’s learned senior counsel.
MERIT OF THE INTERLOCUTORY APPEAL
Was the trial Court right when it held that it needed to hear evidence before it can resolve the issue raised in the Appellant’s application challenging the competence of the suit on the ground that it was not properly constituted as to parties? (Distilled from Ground 1).
Arguing this issue, it was emphasized that the purport of the objection was to have the suit terminated by having it struck out without the necessity of entering into a full blown trial, when the Court had no jurisdiction to determine the matter.
The learned counsel reproduced the claims of the 1st Respondent and submitted that the non-joinder of the Executive council had defeated the action. That the non-joinder of the Executive council made the suit incompetent on the authority of Ikechukwu V. Nwoye (2015) 3 NWLR (pt 1446) 367 at 400 (SC) per Galadima JSC (rtd). That the right of fair hearing of the Executive council cannot be protected by its non-joinder.
That there was no evidence required as the issue of improper Constitution of the action would not require evidence as it can be completely, effectively and effectually resolved on the face of the writ of summons and the statement of claim. That the originating processes before the Court was sufficient to resolve the issue as to Constitution of parties.
On the issue 2, it was argued that the condition precedent had not been satisfied. That from Exhibit Ok 5 the 1st Respondent did not make representation to the state Executive Council.
That having tendered Exhibit Ok5; it cannot approbate and reprobate. The learned counsel contends that even if the 1st Respondent complained to the 4th Respondent, that did not amount to a complaint to the State Executive Council as contemplated by Section 19(2) of the Traditional Rulers Council and Chiefs Law, which Executive Council is defined by Section 2 of the Law to mean the Executive Council of the State.
That the Court does not have power to define the “Executive Council” differently from the definition given to it by the law applicable.
That the Court cannot expand the law but only expound the law, which has been defined without equivocation or ambiguity in the statute already.
That the statute has provided the procedure of challenging the appointment and it is only that procedure and non-other that must be followed. See Commerce Bank Nigeria Ltd Vs. Attorney General, Anambra State (1992) 8 NWLR pt 261 page 528; Ibrahim V. INEC (1999) 8 NWLR (pt 614) page 334. Lawal Obobahinn of Ihima & Ors Vs. Ohida & Ors (2009) LPELR 8372 (CA) Faloye V. Owoseni (2001) 9 NWLR pt 717.
That there was no compliance with Section 11(1) (2) of the law and that the prayer made by Exhibit Ok1 was not that required by the said law.
That the 1st Respondent did not seek in Exhibit Ok1 the invalidation of the selection of the Appellant. That the Attempt at converting Exhibit OK1 into a formal presentation to the Executive council was an afterthought and “akin to clutching at straws by a drowning man”.
Also that at the time Exhibit OK1 was issued, the right to agitate or complain had not arisen. That the OK1 was written on 23-9-2019 whilst the appropriate authority received notification of the selection on 4th October, 2019. Notification ought to have been first made and complaint even then within 21 days after the Notification. That the Exhibit OK1 was a stray document and cannot amount to a representation mandatorily made within the contemplation of the Section 18 and 19 of the Traditional Council and Chiefs Law.
That the internal Administrative remedies had not been exhausted before going to Court. See Bamisile V. Osasuyi & Ors (2007) LPELR 8221 CA 31-42; Major-General Felix Mujakperuo Rtd & Ors Vs. Air Vice Marshall Frank O. Ajobena Rtd & Ors (2014) LPELR 23264 (CA); Amaka V. Attorney General of Ondo State & Ors (2012) LPELR 8478 (CA) page 3032.
It was argued that access to the Courts had been defined.
That on the authority of Madukolu V. Nkemdilim (1962) LPELR 24023 (SC) 9-10, there was a feature in the case (suit) that prevents the Honourable Court from exercising its jurisdiction i.e the feature in the case of the non fulfilment of the condition precedent.
That the exercise of reliance on Exhibits OK1 and OK5 would have resolved the issue.
That this Court should therefore invoke Section 16 of the Court of Appeal Act; cites Obi V. INEC & Ors (2007) LPELR 2166 SC 47-50 and to strike out the suit for being incompetent. Magbagbeola V. Akintola (2018) 11 NWLR pt 1629 at 177- at 194 (SC) relied upon on condition precedent to be mandatorily complied with.
That the word ‘may’ as used in Section 19 (1) (2) of the Delta State Traditional Council and Chiefs Law connotes ‘mandate’ or ‘compulsion’. That it was not facultative or permissive; as a duty was imposed upon the person conferred with the power to exercise. Adesola V. Abidoye (1999) NWLR (pt 637) 28 at 56 see Magbagbeola Vs Akintola Supra; applied by the Supreme Court.
We have been urged to allow the appeal and to dismiss the suit.
On the merit of the interlocutory Appeal, the 1st Respondent’s counsel submitted that if this Court was not mindful of striking out the objection as incompetent it should hold that the interlocutory appeal was one that could be taken along with the substantive appeal if dissatisfied with the ultimate decision. That it was merely an attempt to delay the hearing and timeous decision in the substantive suit. The learned counsel refers us to Jessico Maritime Resources Ltd Vs. M/T Mother Benedicta (2019) 12 NWLR (pt 1686) 323 at 341-342 where the apex Court stated thus: “it is unconscionable to pursue an interlocutory appeal that can be conveniently taken along with the appeal against the final decision, for the purpose of bringing about inordinate delay in the hearing and determination of the substantive claim.”
Learned counsel also emphasized that there was no basis for the preliminary objection, as the trial Court could determine its jurisdiction at the conclusion of evidence, as it had stated that it would.
On the merit, the 1st Respondent had also contended that the application was incompetent and ought to have been struck out as the applicant had not in his statement of Defence pleaded the condition precedent which was not complied with.
The learned counsel relying on Order 15 Rule 4 (2) of the High Court of Delta State (Civil procedure Rules, 2009, which provides thus:
“Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the claimant or defendant, as the case may be, and subject thereto, an averment of the performance or occurrence of all conditions necessary for the case of the claimant or the defendant shall be implied in his pleading.”
That the Rules of Court as above are on the authorities of Rasaki Vs. Ajijola (No. 2) (2018) 7 NWLR pt 1617 41 at 52 and A.D.C Vs Bello (2017) NWLR pt 1545, page 112 at 132 meant to be obeyed as they are not made for fun and the word “shall” is peremptory.
That the objection was raised in the character of a demurer as an afterthought, after the statement of Defence had been filed; that the non-compliance with the Section 19 of the Traditional Rulers Council and Chiefs Law, cap. T2 Laws of Delta State, 2006 robbing the lower court of jurisdiction was obvious.
The 1st Respondent/Argues that the issue of noncompliance with the condition precedent ought to be tested by evidence and was not to be based on the mere Ipsit dixit of the 1st Defendant and his co-Defendants only.
Counsel relies on Owoseni V. Faloye (2005) 7 SC pt II, page 79 at 105-106 lines 40-20 where the apex Court, stated per Oguntade, JSC thus;
“I agree that the question of absence of jurisdiction in a Court to adjudicate on a matter can be raised at any stage of the proceedings and indeed for the first time on appeal. But before a Defendant can raise the matter before evidence is led, the material giving rise to the complaint of absence of jurisdiction in the Court before which the suit is brought must be apparent on the face of the statement of claim.”
Alternatively the defendant may plead the issue himself. A defendant is not entitled to rely upon a defence which is based on facts not stated in the statement of claim unless he alleges such facts specifically in his pleadings by way of special defence.
In this case, the plaintiffs/appellants did not plead that they did not comply with Section 13 of the Ondo State Chief’s Law. The Defendant did not plead such non-compliance…
In that setting, the Court below should have refused to consider the issue as it was raised before the trial Court and could not be taken as a jurisdictional matter without evidence on the issue. In this case, there was no such evidence.
The learned counsel submitted that the Executive Governor of Delta State sued as the 4th Defendant was the head of the Executive Council of the State. Section 2 (a) – (c) of the 1999 Constitution of the Federal Republic of Nigeria relied upon. That the Exhibit OK7 addressed to the Governor was by implication a letter referred to the Executive council, headed by him. See Kayili V. Yilbuk (2015) 7 NWLR (pt. 1457) page 26 @ 58 paragraph A-B.
That Exhibit C to the Application of the Appellant was a worthless document, same not having been addressed to anybody; that not having complied with the Chiefs and Traditional Rulers law cannot be relied upon to challenge the jurisdiction of the Court.
That Exhibit ‘C’ has an “Assistant Secretary” rather than a “secretary” which is the office that is provided for in the law. That the document was, therefore, obtained for the purpose of the litigation on appeal now.
That there was no evidence of the secretary of the traditional committee writing to the appropriate authority, as defined by Section 2 of the law relevant. That the appropriate authority charged with Tradition Rulers and Chiefs Affairs was the Deputy Governor while the Appropriate Government Department was the Directorate of Chieftaincy Affairs.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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That this Court should take judicial Notice of these facts. The learned 1st Respondent’s counsel submitted that due compliance had not been made to the law, Section 18, thereof. See Abba V. SPDC Nig. Ltd (2013) 11 NWLR pt 1364, page 86 @ 112.
The 1st Respondent from paragraph 17 at page 12 thereof had delved conclusively to the merit of the case yet unheard let alone decided on the merit thereof. Hear the learned counsel in part:
“we contend that as it is presently the Appellant’s emergence as the Obi of Ogwashiuke is founded on nothing as the Notice required by Section 18 has not been written to the appropriate authority as prescribed by law till date.”
That there was no substantial evidence from facts deposed to in the supporting Affidavit and the law in support of the application and its purport.
That the 1st Respondent had complied with the law before instituting the suit. Counsel found support on Owoseni Vs. Faloye (2005) 7 SC pt. 11, page 79 (supra) for the view and that there was no feature in the case that barred the Court from assuming jurisdiction. The learned counsel contended that the reliance on the case of Mujakperuo & Ors Vs. Ajobena & Ors by the Appellant’s counsel was not apposite, as in that case, the claimant did not make any representation to the Governor, Attorney-General or relevant authority, unlike in the 1st Respondent’s case where representation was made to all relevant authorities, who acknowledged receipt of the representations made by the 1st Respondent. That the Appellant had not indicated any juristic person as the Executive council that can sue or be sued. Other than the Governor or the Attorney-General of the state already indicated as parties in the suit.
That the cases of PDP V. Ezeonwuka and Ikechukwu Vs. Nwoye are pre-election matters, which are suigeneris and where the political party must be added as a party, and therefore, was not an applicable decision as sought to be made by the Appellant in his submission. That there was no exactitude of any format of representation to be made to the executive council, shown by the Appellant.
That 1st Respondent had complied.
The learned counsel referred to Exhibits OK2 and OK5 and submitted that the coronation was done in the full knowledge of the actions duly taken in protest, as minds had been made up as it was stated that no injunction or protest stopping the 4th – 6th Respondents from issuing the staff of office to the Appellant inspite Exhibit OK1.
That the 4th – 6th Respondents already had a predisposed bias towards the 1st Respondent and failed to act as expected but colluded as evident in Exhibit OK5 to complete the injustice on the 1st Respondent; and that 1st respondent had only acted timeously, as delay defeats equity, He relies on F.H.A V. Kalejaiye (2010) 9 NWLR (pt 1226) page 147 at 169 at paragraph B-C that equity aids the vigilant and not the indolent.
That a complaint having been made to the governor (4th Respondent, it was no longer necessary to complain further; that it was akin to asking that an agent be joined in the suit where the master has been sued already. That the purport of Section 19 is that the state will be unbiased.
The learned counsel also argued that the complaint relates to non-receipt of the representation made by the 1st Respondent; and that the 4th Respondent had not complained and wondered why a third party who is not a privy should weep more than the bereaved.
That it is the responsibility of the claimant to pick on proper persons to sue, and that the issue of the non-joinder of the State Executive council harped upon by the 1st Defendant/Applicant was not tenable in law. That Sections 195 and 211 of the Constitution, 1999 as amended provides for the Attorney-General of the State and for actions against the state be it civil or criminal to be instituted or maintained in the name of the Attorney-General of the State.
That the suit as constituted was sufficient in law for the Court to adjudicate on the issues submitted to it. That “the joinder or mis-joinder of a party does not defeat the action, and the Court should deal with the matter in controversy so far as regards the rights and interests of the parties actually before him.”
Order 13 Rule 8 (1) High Court of Delta State (Civil Procedure) Rules, 2009. Relying also on Reptico S.A Geneva V. Afribank (Nig) Plc (2013) 14 NWLR (pt 1373) 172 @ 207 and Anyanwoko Vs Okoye (2010) 5 NWLR pt 1188, page 497, at 515-516. It was submitted that the non-joinder or misjoinder does not affect the jurisdiction of the Court or the competence of the suit. That it was a procedural issue and in the case of non-joinder or misjoinder may be corrected in the course of the proceedings by recourse to the relevant Rules of Court and does not affect the competence of the suit or the jurisdiction of the Court that the Appellant has not shown that the state Executive council was a juristic person that can be sued and that there was no question of non-joinder of a party whose presence was required.
That the decision in Kayili Vs. Yilbuk (supra) should be followed. That the statute should be so interpreted to give effect to the intention of the legislation, and not destroy it; i.e lit res magis valeat quatun pareat.
That the Appellant’s action was an attempt to lure the Court into determining the life issues at the interlocutory stage and that this was not acceptable in law. AG Kwara State Vs Lawal (2018) 3 NWLR pt 1608 page 266 at 295 paragraph A-C relied upon – where the Court of appeal’s decision and all the orders made touching the merit of the originating summons were held to be null and void and liable to be set aside. See Buremoh V. Akande (2017) 7 NWLR (pt 1563) 74 at 98.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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That the issue to be canvassed in the appeal are in the statement of Defence and are on facts to be resolved by evidence to be led.
Finally, the 1st Respondent contends that the invocation of the Section 16 power of this Court under the Court of Appeal Act had not arisen as the conditions for same as decided in A.G Kwara State Vs. Lawal (supra) was non-existent.
That the Court was right to have refused the application of the Appellant as it was a ploy to delay and frustrate the expeditious hearing of the 1st Respondent’s substantive suit.
That the appeal should be dismissed.
The ratio decidendi in the Ruling appealed from is that the Ruling on the motion shall be deferred until the completion of evidence in the trial, upon the hearing of evidence.
The ultimate question in this appeal is not whether the suit was competent before the trial Court. That is not the basis of the instant interlocutory Appeal. There is no doubt that the parties, particularly the Appellant’s counsel labored, most intelligently though, on the merit of the objection raised at the trial Court to show that the suit was premature and disclosed no cause of action at the time it was instituted and that worst off, it was incompetent by fact of parties nominated or omitted and the conditions precedent for the validity of the commencement of the suit.
I dare say, with due respect to both learned counsel that the parties got it all wrong when they dwelt on that genre of submissions, before us at this stage, as if it was the reason for the appeal.
A Court of law has the powers and discretion and indeed a duty to first of all ensure that it has jurisdiction before it embarks upon the exercise of adjudication.
In this instance, jurisdiction is as may be disclosed in the writ of summons and statement of claim or by statute.
There are circumstances where however, it may be deciphered only with certainty from the evidence led. In this instance where jurisdiction, discernable only from facts, have been averred in the affidavit and further Affidavit of the claimant/1st Respondent and denied by the counter Affidavit of the Appellant/Defendant, obviously the Court will be entitled to defer Ruling on the challenge to the incompetence of the suit on the grounds averred and denied particularly as to the making of representation and non-action or otherwise to the Executive council.
Indeed even as relating the joinder or non-joinder of the necessary party to make the suit competent there was the need to lead evidence to prove whether or not the person notified or complained to and joined, in this case falls within the meaning of the Executive Council of the state as defined in Section 2 of the Traditional Council and Chiefs Law Delta State, same having been disputed. I do not see anything wrong with the views and conclusion of the trial judge in this respect, as “Executive” council even if a juristic entity would act by human agent. Its limbs, hands and eyes would have to be shown by evidence.
What is more, by the Court Practice Directions of the Court of Appeal, 2013, interlocutory appeals are discouraged; indeed prohibited. The issue of jurisdiction though a thresh hold issue, may be taken at any stage of the proceedings; before the trial, during the trial or even on appeal. That it might end being successful in favour of an objector at the trial and thus exposing litigants to unnecessary anxiety, cost and delay, does not per se mean that the Courts should be hasty at terminating proceedings based merely on the processes filed, particularly where parties have deposed to opposing positions.
It will amount to unfair trial and a descent into the arena of conflict in favour of a party. The Court has a discretion as to when to take and resolve such a complaint.
This is more so, when the objection is of the character, as herein capable of extinguishing life from the suit peremptorily.
Indeed, the Grounds of Appeal and Issues arising there from question the exercise of the discretion of the trial Court to defer Ruling on the application or preliminary objection.
The exercise of discretion is a question involving a combination of facts and law. We have not been afforded the facts upon which the discretion was exercised and why they were considered to be wrong. The Appellant has not also proferred any reason to show that deferring a Ruling in the application to strike out the suit for alleged incompetence and consequential lack of jurisdiction in the trial Court was not in the nature of an Adjournment granted, and which was within the absolute discretion of the trial Court except miscarriage of justice or injustice would be caused thereby.
What injustice that would be caused the Appellant, has not been disclosed and I have not been shown any and can see none. Inconveniences by delay caused by anxiety in the hopeful state of success is not a legal ground to invalidate the exercise of a discretion by the Court.
The fact that an Appellate Court would have exercised the discretion differently will not make the exercise by the trial Court wrongful. There is no doubt, that a resolution of the appeal at this stage based on the preliminary objection raised and the arguments proffered by the Appellant’s counsel will amount to determining the substantive case constituted by the claimant/1st Respondent herein. That is not allowed in law. See A.G. Kwara State Vs. Lawal (supra). It will be prejudicial to comment on the merit of the Affidavit evidence of the parties as touching the competence of the suit as it will affect the merit of the claim, thus rendering it prejudicial to the parties.
On the other hand, this Court can only invoke its Section 16, Court of Appeal powers where the trial Court would have exercised the powers but for one reason or another, it did not. The trial Court could not have so done flowing from the reason we have stated; what is more, there was no demonstrated evidence from the contested positions in the Affidavits of the parties in this suit, which was not an originating summons matter, to be proceeded upon by this Court. This is not such a matter or circumstance that the trial Court can be denied its constitutional and statutory power of a Court of first instance to hear and to determine the suit or the motion before her.
Our Appellate jurisdiction on the determination of the merit of the case has not been properly activated as it has not crystallized. The invitation to assume that role is a call to usurpation of jurisdiction. The guard is that Courts of law must not be hungry for jurisdiction except as by law conferred.
See AG Kano State Vs. AG Federation (2007) 3 SCNJ 1 @ where it was held that where no justiciable cause had been activated or shown indicating or disclosing the original jurisdiction of the Supreme Court, the original jurisdiction was ousted thereby relieving the court of the power to adjudicate in the matter.
The trial Court and this Court not having heard the matter on its merit cannot validly dismiss the suit that was filed.
The objection taken to the suit was on two prongs i.e two sides, to wit;
i) Challenge on competence of the suit, which leads to striking out.
ii) Secondly, lack of jurisdiction of the Court of trial on the basis of not having a competent suit before it, thus making the Court wanting in jurisdiction. This also attracts a striking out order.
The 1st Respondent however, in address asks for a dismissal of the case.
This incongruous position demands evidence from parties and address by the learned counsel for the parties in the court of trial.
There is no question that the case of;
Alhaji Marog Adekunle Magbagbeola & 11 Ors
And
1. Alhaji Prince Maroof Oladime JI Akintola
2. The Executive Governor of Osun State
3. The Attorney General of Osun State (2018) 11 NWLR SC 275/2011 decided on the 13th January, 2018 was decided based on the uncontested pleadings that the condition precedent had not been complied with.
It should be noted that there was no challenge or issue relating to the composition of the parties as constituted in the matter in the appeal, supra. There was no serious contest demanding of oral evidence in that case, to prevent the necessity of making an order in lamine striking out the suit; which the apex Court in its substitution order for the dismissal order as made by the trial Court and affirmed by the Court of Appeal, made.
That case is clearly distinguishable from the one in hand. The Appellant is not within the contemplation of the person who should be given Notice or to whom representation should be made; where it is raised as done in this case, it is not a sufficient reason alone to decline jurisdiction to hear the matter. The appropriate thing to do is for the Court to allow evidence to be called to determine the question, whether the Notice or presentation said to have been made was to the appropriate officer.
In Katsina Local Authority & Anor Vs Makudawa (1971) 7 NSCC 119; (1971) 1 NMLR 100, it was held that whether a written Notice was served or not is a matter of fact of which oral evidence may, and indeed can be given and if accepted such evidence is conclusive.
The benefit of the representation was provided for the 3rd – 4th Respondents herein. It is they that ought to have pleaded that the 1st Respondent did not comply with the Notice or representation required by the law. It may therefore, be taken that the 1st Respondent claimant had complied with the provisions of the law or that the other Respondents have waived their rights under the section. See Ngelegla V. Tribal Authority Nongowa Chiefdom (1953) 14 WACA 325, Akwei V. Akwei (1994) 9 WACA, 325-327, DIsmors Vs. Milton (1938) 3 ALLER 763-764; 159 LT at 382-383.
Being amorphous and uncertain, evidence needed to be led to properly ascertain and to come to a finding. The trial Judge was not wrong. He was right. On the whole, the appeal against the Ruling that the trial shall proceed and that a Ruling in respect of the competence or otherwise of the suit and the jurisdiction of the Court shall be delivered after evidence must have been taken, is premature. The said premature appeal is a fractured still born babe and should be struck out as the grievance ought to have been raised in the final appeal against the claim if found unfavourable.
The Ruling appealed from, is accordingly, affirmed and the trial is to proceed as ordered by the learned trial judge.
However, this Court, having decreed the success of the preliminary objection to the competence of the instant appeal, by the order made earlier, the appeal stands struck out.
We refused the invitation to hear the suit on the merit in the purported exercise of power under Section 16 of the Court of Appeal Act 2004.
See C.G.G Nig. Ltd Vs Eronini (2019) 14 NWLR Page 219 at 242-243. Where in a situation where both the Court of Appeal and the Supreme Court found that the appeal was incompetent and liable to be struck out and was so struck out the Supreme Court could not under the Section 22 of the Supreme Court Act hear the Appeal on its merit as the court of Appeal could not have even heard it on the merit there being no competent appeal before her.
See Uwazurike Vs. A.G Federation (2007) 2 SCNJ at 382. where Ogbuagu, JSC Stated thus: “On this ground again, there is no competent appeal before this Court. This Court takes judicial notice of the said Rules and the said Notice of Appeal. This being so, the Court has no jurisdiction to entertain the appeal. I need not hear arguments from Counsel as the rule is clear, unambiguous and also mandatory. See the case of Chief Agbaka & 3 Ors v. Chief Amadi & Anor. [1998] 11 N.W.L.R. (pt.572) 16 at 25; [1998] 7 S.C.N.J. 367. This appeal also fails on this ground. It is therefore, struck out. But since it has failed on its merits, it stands dismissed.”
For the aforesaid, I shall and do strike out this appeal for incompetence and affirm as extant the Ruling of the trial Court as made and also order that Hearing shall continue on the merit of the suit, taking cognizance of the motion or objection as stated by the trial Court in its Ruling of 20th December, 2019 per K. O. Okpu, J., in suit No. 0/28/2019 appealed from; that is to say, the trial court is entitled to proceed with the taking or hearing of evidence to the conclusion and address by counsel before delivering an opinion on the objection or motion as argued before her in respect of the competence of the suit and jurisdiction of the trial Court.
Appeal is dismissed.
AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, M.A. DANJUMA, JCA. As it is only the conclusion that the instant appeal be disallowed (albeit by striking it out), that I wholly agree with, I consider it expedient to articulate the reasons for my position as shown hereunder:
The 1st Respondent on record as Claimant commenced the instant action against the Appellant on record as 1st Defendant and the 2nd – 6th Respondents by a writ of summons which issued on 16/10/2019. In paragraph 42 of the statement of claim filed in the action, the 1st Respondent claimed against his adversaries jointly and severally as follows.
“i. A DECLARATION that by the rule of succession by primogeniture regulating succession to the throne of Obi of Ogwashi-Uku, the Claimant is the next Obi of Ogwashi-Uku in succession to the late Obi Professor Ben Okonjo.
ii. A DECLARATION that the rule of primogeniture regulating the succession to the throne of Obi of Ogwashi-Uku is sacrosanct and same cannot be circumvented under any guise under the native law and custom of the Ogwashi-Uku people, save where the next in line is physically or mentally incapacitated.
iii. A DECLARATION that the 1st Defendant being the 3rd eldest surviving son of the late Obi Professor Ben Okonjo is not qualified according to the native law and custom and the order of succession to the throne of Obi of Ogwashi-Uku to be chalked and crowned as the Obi of Ogwashi-Uku or to be accorded any recognition in that respect.
iv. A DECLARATION that the process by which the 1st Defendant was purportedly chalked and crowned as the Obi designate of Ogwashi-Uku by the 2nd and 3rd Defendants is unknown to the native law, practices and norms of the Ogwashi-Uku people and is contrary to the declaration stating the customary law regulating succession to the traditional ruler’s title of the Obi of Ogwashi-Uku Kingdom pursuant to the Traditional Rulers Council and Chiefs Law Cap T. 2, Laws of Delta State of Nigeria, 2006.
v. A DECLARATION that the Claimant is the rightful person to be chalked, crowned and recognise by the 2nd – 6th Defendants as the Obi of Ogwashi-Uku in succession to Obi Professor Ben Okonjo.
vii. AN ORDER setting aside and or nullifying the purported chalking and crowning of the 1st Defendant as Obi designate of Ogwashi-Uku by the 2nd and 3rd Defendants for being in gross contravention of the native law, practices and norms of the Ogwashi-Uku people and the declarations stating the customary law regulating succession to the traditional ruler’s title of the Obi of Ogwashi-Uku Kingdom pursuant to the Traditional Rulers Council and Chiefs Law Cap T; 2, Laws of Delta State of Nigeria, 2006.
viii. AN ORDER directing 2nd and 3rd Defendants and or their respective families and heads to chalk and crown the Claimant as Obi of Ogwashi- Uku according to the native law and custom of Ogwashi-Uku and the declaration stating the customary law regulating succession to the traditional ruler’s title of the Obi of Ogwashi-Uku Kingdom pursuant to the Traditional Rulers Council and Chiefs Law Cap T.2, Laws of Delta State of Nigeria, 2006.
ix. AN ORDER directing the 4th Defendant to immediately issue a staff of office to the Obi of Ogwashi-Uku to the Claimant.
x. AN ORDER of perpetual injunction restraining the 1st – 3rd Defendants from interfering with the traditional stool of Obi of Ogwashi-Uku in a manner inconsistent with the native law and custom of the Ogwashi-lJku people and the declaration stating the customary law regulating succession to the traditional ruler’s with of the Obi of Ogwashi-Uku Kingdom pursuant to the Traditional Rulers Council and Chiefs Law Cap T. 2, Laws of Delta State of Nigeria, 2006.”
The witnesses’ statements on oath considered relevant were frontloaded to the statement of claim.
Apparently, upon service on the Appellant of the processes taken out in this suit by the 1st Respondent, the said Appellant caused a memorandum of conditional appearance to be filed on 14/11/2019, in the instant action. At pages 82 – 84 of the records of appeal (hereafter to be simply referred to “records”) is a motion on notice filed in the action by the 1st Defendant therein (now Appellant) on 13/11/2019. The motion on notice is dated 12/11/2019. The affidavit in support of the said motion is on pages 86-88 of the records, while the exhibits attached to the said supporting affidavit, are on pages 89-98. In the Appellant’s motion on notice (supra), he prayed for: –
“An order of the Honourable Court striking out the suit for want of competence or lack of jurisdiction.” he grounds for the application are: –
“i. The Claimant’s action is one calling upon the Honourable Court to take over the powers of the Executive Council to approve or set aside the selection of the traditional ruler without any consideration being given to the propriety or otherwise of the decision taken by the Executive Council approving the appointment of the 1st defendant/applicant as the Traditional Ruler of Ogwashi-Uku.
ii. The Claimant’s action was filed prematurely without the Claimant first lodging any complaint or making any representation to the Executive Council within 21 days window provided in Section 19 (2) of the Traditional Rulers, Council and Chiefs Law or within a reasonable time thereafter asking for the setting aside of the 1st defendant/applicant’s selection as the Traditional Ruler of Ogwashi-Uku before approaching my Lord’s Court.
iii. That this action ought not to have been commenced without the Claimant/Respondent seeking or making representation to the Executive Council for setting aside of the approval of appointment of the 1st defendant/applicant as the Traditional Ruler of Ogwashi-Uku by the Executive Council.
- The High Court of Justice does not have the jurisdiction to take over powers given to the Executive Council by Statute and purport to exercise those powers without the Claimant/Respondent first having a recourse to the Executive Council for the setting aside of the selection of the 1st Defendant/Applicant as the Traditional Ruler of Ogwashi-Uku.
v. The Claimant/Respondent’s attack on the issuance and presentation of Staff of Office is again pre-mature for without prior representations being by the said Claimant/Respondent to the Executive Council for the setting aside of the selection of the 1st defendant/applicant, the acts predicated on the said selection by the Executive Council cannot lawfully be questioned.
vi. The Claimant failed to make the said Executive Council a party in this suit.
vii. This action cannot be competently decided in the absence of the Executive Council that is Statutorily empowered to approve the appointment or set aside the selection of a Traditional Ruler under Section 19 (1) of the Traditional Rulers, Council and Chiefs Law Cap. T2 Laws of Delta State.
viii. The Claimant’s action ought to be for a review (but it is not) of the decision of the Executive Council (approving the appointment) of the 1st defendant/applicant which is the body given powers by statute to approve the appointment of a Traditional Ruler or set aside the selection of a Traditional Ruler.”
The 1st Respondent filed an eight-paragraph counter affidavit with exhibits attached to the supporting affidavit of the Appellant’s motion. Other affidavits were subsequently filed by both the Appellant and the 1st Respondent in the motion on notice under reference.
The lower Court delivered its ruling in the motion on notice of the Appellant on 20/12/2019. Having first re-produced the dispositions it considered relevant in the supporting affidavit of the Appellant’s motion; counter affidavit of the 1st respondent; Appellant’s further affidavit in response to 1st Respondent’s counter affidavit; and further and better affidavit in response to the Appellant’s affidavit, the lower Court simply stated thus: –
“l have carefully perused the affidavit evidence for and against this application. It is clear from the affidavit evidence on both sides of the divide that it is not possible for the Court to decide the issue of jurisdiction without evidence been (sic) adduced.
Learned silk Arthur Obi Okafor for the 1st Defendant in his submission before this Court said that his objection is in two compartments, he said the second compartment which is that the Executive Council is not a party to this suit do not need evidence as the extant law defines who the Executive Council is. I am of the view that this Court must restrain itself from making any pronouncement that will touch on the merit of this case at this stage. I am of the view that the appropriate time this Court can decide whether it has jurisdiction to entertain this suit or not is after evidence has been led by all the parties to this suit. It is too early for this court to so decide.
This Court will determine whether it has jurisdiction at the appropriate time. Learned Silk for the 1st Defendant/Applicant and learned Silk for the Claimant will address the Court at the close of evidence. This application is premature and it is struck out accordingly.”
Being dissatisfied with the ruling of the lower Court, the Appellant initiated the instant appeal by a notice of appeal
dated 23/12/2019, and bearing the same date. The notice contains two grounds of appeal and the said grounds with their respective particulars read:
“GROUNDS OF APPEAL
The learned trial Judge was wrong when he struck out the Appellant’s application (challenging the jurisdiction of the Honourable Court to hear and determine the suit), holding thereby that it will need to hear evidence to effectively determine the application.
PARTICULARS
(A) The trial Court in striking out the Appellant’s application failed to advert to the following:
(i) That one of the grounds for the Appellant’s application on jurisdiction raises the issue of improper constitution of the 1st Respondent’s suit, which said ground can be dealt with upon casting a glance at the parties expressed on the Writ of Summons and/or Statement of Claim together with the consideration of the provisions of the relevant statutory legislation to wit the Traditional Rulers, Council and Chiefs Law Cap. T. 2 Laws of Delta State, contained in the Revised Laws of Delta State of Nigeria in force on the 30th day of April, 2008.
(ii) That the issue of improper constitution of the 1st Respondent’s suit raised by the Appellant in the motion challenging the jurisdiction of the Honourable Court, did not entail any resolution of issues of fact to justify the holding of the trial Court that evidence was needed to effectively resolve the Appellant’s objection.
B) The approach adopted by the trial Court in deferring the hearing and determination of the issue of jurisdiction to be considered at the address stage (after hearing of evidence) was wrong which thereby occasioned a grave miscarriage of justice.
GROUND 2
The learned trial Judge was wrong when he refused to strike out the 1st Respondent’s suit, the competence of which was challenged by the Appellant on the ground that the 1st Respondent failed to meet with the condition precedent that ought to be complied with before the institution of the action.
PARTICULARS
(A) The trial Court in refusing to strike out the 1st Respondent’s suit held albeit wrongly that the objection cannot be effectively determined without taking evidence from the parties; which holding failed to take into account the following:
(i) That the ground on non-compliance with condition precedent raised in the Appellant’s application challenging the jurisdiction of the trial Court can be competently determined on the basis of the materials available before the Court vide the affidavit evidence filed by the parties.
(ii) That the condition precedent which was not met by the 1st Respondent is that he did not make representation to the Executive Council before filing this suit, the substance of which was not denied in his counter affidavit filed in opposition to the Appellant’s motion.
(iii) That the 1st Respondent in his counter affidavit was clear in stating that the representation made by him was to the 4th – 6th Respondents.
(iv) That Exhibit OK5 attached to the 1st Respondent’s further and better affidavit, shows that there was no petition/representation before the Executive Council against the selection of the Appellant as the Traditional Ruler of Ogwashi-Uku Town at the time the Executive Council approved the appointment of the Appellant as the Traditional Ruler of Ogwashi-Uku Town.
(B) The approach adopted by the trial, Court in deferring the hearing are determination of the issue of jurisdiction to be considered at the address stage (after hearing of evidence) was wrong which hereby occasioned a grave miscarriage of justice.”
The reliefs sought by the Appellant as contained in the notice of appeal are: (i) to allow the appeal; (ii) an order setting aside the ruling of the learned trial Court delivered on 20/1212019; (iii) an order striking out the instant suit for want of jurisdiction.
It has been clearly shown in the leading judgment that the 1st Respondent brought a preliminary objection to the hearing of the instant appeal. The preliminary objection as expected was argued in the brief of argument of the said 1st Respondent. See paragraphs 2.01-2.20 on pages 1-11 of the brief of argument of the 1st Respondent. In the same vein, the Appellant opposed the preliminary objection of the 1st Respondent to the hearing of the appeal. See paragraphs 1.02-1.21 of the reply brief of argument of the Appellant. It is clear from the preliminary objection of the 1st Respondent that the hearing of the instant appeal is not being objected to because it was lodged outside the period provided by the Court of Appeal Act, C36 in Section 24 for the filing of an interlocutory appeal, but because it is the position of the 1st Respondent that the Appellant should have first sought the leave of the lower Court or that of this Court, before lodging the instant appeal. The position of the 1st Respondent in this regard, is based or predicated on the fact that the grounds of appeal in the instant appeal, are a combination of law and mixed law and facts. That the instant appeal was therefore filed or lodged in gross violation of Section 242 of the Constitution of the Federal Republic of Nigeria, as amended (and hereinafter to be simply referred to as “the 1999 Constitution”) the required leave having not been obtained prior to the filing by the Appellant of his notice of appeal. Suffice it to say that the arguments of the 1st Respondent and the Appellant in relation to the preliminary objection have been comprehensively captured in the leading judgment; and I do not see any need of doing this again, in this judgment.
In the consideration of the preliminary objection, my Lord and learned brother, Danjuma, JCA; in my considered view properly resolved the question as to whether or not the notice of preliminary objection brought by the 1st Respondent, is incompetent. That the stance of the Appellant that there was no proper challenge to the hearing of the instant appeal as the challenge having been restricted to ground 2 only, made it incumbent on the 1st Respondent to have filed a motion to challenge that ground of appeal alone, is untenable. All I can say is that it is clear from a reading of the arguments of the 1st Respondent in respect of the preliminary objection that the preliminary objection of the 1st Respondent was in respect of the hearing of the whole of the appeal. However, this does not stop the Court from making a conclusion that the two grounds of appeal the 1st Respondent has attacked, require no leave or that it is one of them that requires leave.
The question was asked in the leading judgment as to what the position of the law relating to the filing of an appeal against an interlocutory decision such as in the instant ruling on appeal is? The settled position of the law is that an interlocutory appeal against a decision can be filed as of right where the appeal raises a question of law only. I can only reiterate that by the provision of the Court of Appeal Act, an interlocutory appeal brought as of right or in respect of which leave must be first sought and obtained, must be brought or lodged within 14 days of the decision appealed against.
The ruling of the lower Court appealed against was delivered in a motion challenging its jurisdiction for want of competence or for lack of jurisdiction to entertain the instant case on the following grounds: –
“i. The Claimant’s action is one calling upon the Honourable Court to take over the powers of the Executive Council to approve or set aside the selection of the traditional ruler without any consideration being given to the propriety or otherwise of the decision taken by the Executive Council approving the appointment of the 1st defendant/applicant as the Traditional Ruler of Ogwashi-Uku.
ii. The Claimant’s action was filed prematurely without the Claimant first lodging any complaint or making any representation to the Executive Council within 21 days window provided in Section 19 (2) of the Traditional Rulers, Council and Chiefs Law or within a reasonable time thereafter asking for the setting aside of the 1st defendant/applicant’s selection as the Traditional Ruler of Ogwashi-Uku before approaching my Lord’s Court.
iii. That this action ought not to have been commenced without the Claimant/Respondent seeking or making representation to the Executive Council for setting aside of the approval of appointment of the 1st defendant/applicant as the Traditional Ruler of Ogwashi-Uku by the Executive Council.
iv. The High Court of Justice does not have the jurisdiction to take over powers given to the Executive Council by Statute and purport to exercise those powers without the Claimant/Respondent first having a recourse to the Executive Council for the setting aside of the selection of the 1st Defendant/Applicant as the Traditional Ruler of Ogwashi-Uku.
v. The Claimant/Respondent’s attack on the issuance and presentation of Staff of Office is again pre-mature for without prior representations being by the said Claimant/Respondent to the Executive Council for the setting aside of the selection of the 1st defendant/applicant, the acts predicated on the said selection by the Executive Council cannot lawfully be questioned.
vi. The Claimant failed to make the said Executive Council a party in this suit.
vii. This action cannot be competently decided in the absence of the Executive Council that is statutorily empowered to approve the appointment or set aside the selection of a Traditional Ruler under Section 19 (1) of the Traditional Rulers, Council and Chiefs Law Cap. T2 Laws of Delta State.
viii. The Claimant’s action ought to be for a review (but it is not) of the decision of the Executive Council (approving the appointment) of the 1st defendant/applicant) which is the body given powers by statute to approve the appointment of a Traditional Ruler or set aside the selection of a Traditional Ruler.”
The lower Court struck out the Appellant’s motion by which its jurisdiction and/or the competence of the instant case was challenged on the ground that it was premature. This was after it had first stated that it was not possible for it to decide the issue of jurisdiction without evidence being adduced. All that the Appellant’s appeal is about is simply a challenge of the correctness of the decision of the lower Court in this regard. “Jurisdiction” and or “incompetence” of an action, having regard to the positions of the law over the years, are certainly issues or questions of law. See the case of OGAGA V. UMUKORO (2011) LPELR-8229(SC). Indeed, the issue of jurisdiction is so fundamental and important to adjudication that the position of the law in respect of bringing an appeal in respect of jurisdiction has been so relaxed to the extent that many of the principles governing an appeal in respect of so many other issues of law have now been rendered otiose. See for example the case of WESTERN STEEL WORKS LTD. & ANOR. V. IRON STEEL WORKERS LTD. (1987) 2 NWLR 179 AT 188 wherein the Supreme Court has long ago stated thus: –
“The fundamental nature of jurisdiction exempts it from any disabilities and restrictions which frustrate other legal points on appeal if not raised in the Court below or at the appropriate time. The failure to raise it does not invest the Court with the competence it has not got. In line with the principle above enunciated, the Supreme Court made it abundantly clear that it is never too late or premature to raise the issue of jurisdiction whether at the Court of first instance or Appellate Court and when raised, the objection ought to be taken first and decided upon.”
See also FIRST BANK OF NIGERIA PPLC V. T.S.A INDUSTRIES LTD (2010) 15 NWLR (Pt. 1216) 247 SC; (2010) LPELR – 1283 (SC).
I am aware that in many cases a stamp of approval has been given to the practice whereby a trial Court or Tribunal entertaining a challenge to its jurisdiction and or competence, disposes of such a challenge at a later stage in the proceeding before it, that is in its judgment. However, I cannot but note that the practice is usually predicated on some provisions of the law or rule of Court that allows for this procedure; and thereby making an exercise of the power arising from the said procedure, a discretionary one which requires leave to appeal. See the case of DESTRA INVESTMENT LTD V. FRN (2018) LPELR – 43883(SC) which deals with provisions of the Administration of Criminal Justice Act, 2015; and Section 285 (8) of the 1999 Constitution dealing with challenge to jurisdiction in pre-election matters and election petitions. In other words, the position of the law basically, is that a challenge to the jurisdiction and/or competence of the Court must be entertained immediately and first determined, before the Court in question continues further proceedings in the case wherein the issues have been raised. In any event, I am of the considered view that in the instant case, the lower Court clearly did not reserve its resolution of the Appellant’s motion challenging the jurisdiction of the said Court to entertain the instant case till judgment. It explicitly found the said application brought by the Appellant to be premature and struck out the same. The lower Court by its ruling in my considered view, would simply appear to be giving the Appellant the opportunity to raise the challenge to its jurisdiction and competence a second time later in the proceeding.
What constitute ground(s) of law vis a vis ground(s) of mixed law and fact and of facts, has from earliest times received the attention of the Courts particularly the Supreme Court. For example, in the case of OBATOYINBO V. OSHATOBA (1996) LPELR- 2156(SC), (1996) 5 NWLR (Pt. 450) 531; the Supreme Court dwelling on this issue, stated thus: –
“The objection taken to these grounds is of importance in determining whether the second notice of appeal filed by the Plaintiffs is competent. Section 213(2)(a) of the 1979 Constitution confers a right of appeal as of right where the grounds of appeal, that is, the complaints of defects in the judgment appealed against are of law alone. Where however the grounds of appeal are of mixed law and fact or of facts simpliciter, leave of the Court below or of this Court must be sought and obtained before there can be a valid appeal to this Court – See Section 213(3) of the Constitution. See also xxx. These cases show how difficult it has been for counsel drafting grounds of appeal. It is not the label given to a particular ground that determines its nature, that is, whether of law alone, of mixed law and fact or of facts simpliciter- see: Nwadike v. Ibekwe (supra) at p. 743, the dictum of Nnaemeka-Agu, JSC to the effect:
‘’…it is a recognised fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert a ground of mixed law and fact into a ground of law.” Eso, JSC in his illuminating dictum in Ogbechie v. Onochie (supra) at p. 491 observed:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the Law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
As to what is a question of law with which a ground of law is concerned Karibi – Whyte JSC opined thus in Metal Construction (W.A.) Ltd. v. Migliore (supra) at pp. 149-150:
“Generally considered, the term “question of law” is capable of three different meanings. First it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the Court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated, a question of law in this sense is one predetermined and authoritatively answered by the law.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The second meaning is as to what the law is. In this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain mater. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning. The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only. Thus any question which is within the province of the Judge instead of the jury is called a question of law even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents, often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge.”
And as to what is a question of fact, the learned Justice of the Supreme Court added at p. 150.
“Now turning to what is a question of fact? It is easy to postulate that it is anything which falls outside the meaning of question of law. That will not be entirely correct, because there are exceptions. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact.”
In construing a ground of appeal, the ground as formulated and its particulars are to be considered together. xxx See Nafiu Rabiu v. Kano State (1980) 8 11 S.C. 130. If a Judge considers matters, which are not before him, and relies on them for the exercise of his discretion, he will be exercising his discretion on wrong principles and this will be a question of law. Xxx”
I am of the considered view that till date the law remains that in civil matters tried on pleadings, it is the claims or reliefs as endorsed on the writ of summons and contained in the statement of claim that determine the jurisdiction and/or competence of the Court or Tribunal seised of a matter. Hence, it is a fundamental principle that jurisdiction and/or competence of an action, is determined by the claimants/plaintiffs claim and not by the defence, and so the writ of summons and statement of claim which contains the claim before the Court, are the documents that must be examined in detail to ascertain whether it comes within the jurisdiction of a court. See the cases of KAYILI V. YILBUK (2015) LPELR-24323(SC) and INCORPORATED TRUSTEES OF ALGON V. RIOK (NIG) LTD (2018) LPELR-45289(CA) amongst many others.
The lower Court in my view clearly failed to answer the challenge to its jurisdiction and competence as presented to it by the Appellant in accordance with the rule or principles of law governing the resolution of such challenge. Having read the grounds of appeal of the Appellants together with their respective particulars, I am of the considered view that they qualify as grounds of law even though they would appear not to have been elegantly couched. The position of the law as enunciated by this Court in the case of AMCON V. ESEZOOBO (2017) LPELR-42700(CA) is that lack of elegance alone cannot defeat a ground of appeal when the essence of the complaint can be discerned from what is presented. That an appeal is a complaint against a decision and not against the arguments of counsel. And I dare say, it is not against the interpretation of a decision of a Court by counsel. I am of the considered view that if the 1st Respondent has not set out to seek that the instant appeal should not be heard, and has read the grounds of appeal and their respective particulars without colouration or unbiasly, then he would have known that the grounds of appeal in the instant appeal, challenge the correctness of the decision of the lower Court in striking out as premature the Appellant’s motion in respect of the objection to the jurisdiction of the said Court to entertain the instant case, and not the exercise of discretion by the said Court in the manner it chose to resolve the challenge to its (lower Court’s) jurisdiction. Going by cases which decide to the effect that a Court must decide the challenge to its jurisdiction before proceeding further in the case, otherwise everything done therein go to nought, I am of the view that the grounds in the instant appeal, are grounds of law upon which the instant appeal, is properly founded.
Flowing from all that has been said, is that I cannot uphold the preliminary objection of the 1st Respondent. It is hereby overruled.
Now to the resolution of the issues for the determination of the appeal, as formulated by the Appellant. In doing this, I cannot but state that I am at one with the part or portion of the conclusion of my learned brother, Danjuma, JCA; in the leading judgment disallowing the instant appeal (albeit by striking out) and that the lower Court should proceed with the hearing of the case on the merit. I am however not at one with his Lordship when he further stated “and also order that Hearing shall continue on the merit of the suit, taking cognizance of the motion or objection as stated by the trial Court in its Ruling of … appealed from; that is to say, the trial Court is entitled to proceed with the taking or hearing of evidence to the conclusion and address by counsel before delivering a Ruling on the objection or motion as argued before her in respect of the competence of the suit and jurisdiction of the trial Court.”
This is because the motion by which the Appellant objected to the jurisdiction and or competence of the lower Court to entertain the instant case, having been struck out by the said Court, was subsisting or a live matter; and in my considered view cannot properly come up at any other stage of the proceedings in the case, unless the issue of competence or challenge to the jurisdiction of the lower Court, is raised afresh in the action by the Appellant or suo motu by the said Court. The lower Court never stated in its ruling that it would take either of these two options. Indeed, this is what has eloquently informed the position I had earlier expressed that the lower Court never deferred its ruling in respect of the motion brought by the Appellant, till any later stage of the case. The lower Court disposed of the said motion by striking it out on the ground or for the reason that it is premature. This in my considered view only allows for the objection of the Appellant to the jurisdiction and competence of the lower Court to be brought afresh (if the Appellant considered doing this expedient or was so inclined).
The Appellant has argued to the effect that his challenge to the action of the 1st Respondent is based on two grounds: (i) the action is not properly constituted as regards the parties therein and (ii) was not properly initiated as a condition precedent to wit: no notice as to the representation made to the Executive Council was pleaded. These two grounds the Appellant raised by a motion challenging the jurisdiction and/or competence of the lower Court. I am of the considered view that the Appellant, like the lower Court did, has forgotten that the position of the law is that both the issue of competence of a Court and its jurisdiction (although wrongly used interchangeably most of the time). See MOBIL PRODUCING (NIG) UNLTD V. LASEPA (2002) LPELR-1887(SC) are determined from the pleadings of the plaintiff. That any issue of jurisdiction and or competence, that requires the ascertainment of an issue or fact not contained in the pleading of a plaintiff, by law, must be raised by the party relying on the same in his own pleading. See MOBIL PRODUCING (NIG) UNLTD V. LASEPA (supra) wherein the Supreme Court stated that:
“There seems to have been some confusion in the respondents’ arguments, as well as in the approach of the Court below, with regard to the issue of pre-action notice. Much stress has been placed on the argument that non-compliance with provisions such as Section 29(2) of the Act leads to a question of jurisdiction which can be raised at any time and which if resolved against the appellant renders the entire proceedings a nullity. This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my opinion, bearing the distinction in mind, appropriate guidelines could be fashioned out as follows:
(i) Where on the face of the proceedings a superior Court is competent, incompetence should not be presumed.
(ii) Where on the face of the proceedings the Court is incompetent, the Court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(III) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of facts, the Court should regard such incompetence as arising ex facie.
(iv) When the competence of the Court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts the incompetence cannot be said to arise on the face of the pleadings. The fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement on its own competence.
(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court’s incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons.
(vi) A judgment given in proceedings which appear ex facie regular is valid.”
The guidelines re-produced above were put on ground by the Supreme Court in a case in which the non-giving of pre-action notice was the main issue. The matter before the lower Court in the instant case is a chieftaincy matter and it would appear that the guidelines reproduced above are of general application and are applicable to chieftaincy matters. See in this regard the case of OWOSENI V. FALOYE (2005) LPELR-2856(SC) wherein the Supreme Court amongst others stated:
“One other remarkable occurrence in this appeal is that none of the parties when they were before the trial Court raised the issue of non-compliance by the plaintiffs/appellants with Section 13(4) of the Chiefs Law, Ondo State 1984. The issue surfaced for the first time in the Court below when the respondents in their brief (as appellant in the Court below) formulated as their first issue the following:
“1. Whether in view of provisions of S. 13 (5) of the Chiefs Edict (as amended) which requires the plaintiffs to lodge their complaints against the approval of a candidate to a minor chieftaincy with the Executive Council of Ondo State, the plaintiff/respondent’s suit was premature.”
I agree that the question of absence of jurisdiction in a Court to adjudicate on a matter can be raised at any stage of the proceedings and indeed for the first time on appeal. But before a defendant can raise the matter before evidence is led, the material giving rise to the complaint of absence of jurisdiction in the Court before which the suit is brought must be apparent on the face of the statement of claim.
Alternatively, the defendant may plead the issue himself. A defendant is not entitled to rely upon a defence, which is based on facts not stated in the statement of claim unless he alleges such facts specifically in his pleadings by way of special defence. See N.I.P.C. Ltd. v. Bank of West Africa Ltd. (1962) 1 All N.L.R. 556; (1962) 2 SCNLR 324 and Sketch v. Ajagbemokeferi (1989) 1 N.W. L.R. (Pt. 100) 678. In this case, the plaintiffs/appellants did not plead that they did not comply with Section 13 of the Ondo State Chiefs Law. The defendant did not plead such non-compliance. On the contrary, the defendants in paragraph 35 of their statement of defence pleaded that the relevant Commissioner had said that any party who was dissatisfied should go to Court. It was not the argument of counsel that compliance with Section 13 of Ondo Chiefs Law was a constituent element of the suit brought by the plaintiffs/appellants. In that setting, the Court below should have refused to consider the issue as it was not raised before the trial Court and could not be taken as a jurisdictional matter without evidence on the issue. In this case, there was no such evidence.”
See also the case of AJAYI V. ADEBIYI (2012) LPELR-7811(SC).
I am of the considered view that it is clear as crystal from the cases cited above, that in the instant case the lower Court was not enabled by the Appellant (who had not filed a statement of defence in which the issue or question of the non-making of representation to the Executive Council was raised), to consider such a fact in relation to the challenge to its jurisdiction and competence. In other words, the factual basis of “making representation to the Executive Council” or otherwise, having not remotely arisen in or from the statement of claim and relief which the 1st Respondent sought against the parties, rendered that aspect of challenge to competence and/or jurisdiction of the lower Court, itself incompetent and resolvable without need for evidence being adduced; i.e. on the writ of summons and statement of claim. It should always be borne in mind that a case premised or predicated on pleadings is not erected on evidence. Evidence having regard to the immutable position of the law on cases tried on pleadings, is to resolve issues in respect of which parties are not ad idem. Furthermore, evidence in respect of any fact that ought to be pleaded but not pleaded serves no useful purpose in law. Such evidence goes to no issue. I am therefore of the considered view that the lower Court completely misapprehended the position of the law in striking out the Appellant’s motion as being premature as the said Court conceived that evidence needed to be adduced to enable it resolve the issue of jurisdiction and or competence raised by the Appellant when the Appellant had not filed his statement of defence thereby joining any issue or issues with the 1st Respondent, in the instant case. The lower Court in my considered view would appear to have been confused regarding the procedure the Appellant employed to ventilate the challenge to its jurisdiction and competence. That is, the lower Court would appear to have conceived that it was dealing with the Appellant’s motion as one brought “in lieu of demurrer”. The Appellant’s motion in my considered view did not fit into “Proceedings in lieu of demurrer” as provided for under Order 22 of the Rules of the lower Court and so could not be determined on the basis of the requirement(s) of the provisions of the said Order. In this regard, see the case of OKOYE V. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD (1991) LPELR-2509(SC) wherein the Supreme Court stated thus: –
“Originally, demurrer, was a form of pleading before it was abolished by the Deodands Act, 1846, whereby proceeding in lieu of demurrer was substituted. The latter procedure, however, retained much of the essential characteristics of the old one. It has remained essentially a question of pleading: under a demurrer, a party objected that his opponent’s pleading in point of law, disclosed no cause of action or ground of defence, as the case may be. When a demurrer was pleaded, the question raised was forthwith set down for argument and decision. Now under a proceeding in lieu of a demurrer, the issue still depends on the pleadings but may be one of law or partly of law and partly of fact, which the trial Judge may generally dispose of before, at or after the trial. See Everett v. Ribbands (1952) 2 Q.B. 198 p. 206. See also Vol. 30 Hals. Laws of England (3rd Edn.) p.17. However, under Order 29 Rule 3 of our local rule, it is disposed of before the defendant’s pleading, if necessary. Matters that can be raised on the pleading which can be taken up in proceedings in lieu of demurrer are matters which go to the merits and include matters relating to cause of action, ground of defence, statutory provisions or defences, illegality, and damages. They do not include matters of those pleas, such as pleas to the Jurisdiction, stay or suspension of the action or in abatement which are classified as dilatory pleas. So all that the dismissal on ground of law under Order XXIX of the High Court Rules of Eastern Nigeria applicable in Anambra State, comes to is this: that assuming that every allegation of fact in the Statement of Claim or of defence is taken as true, the plaintiff will still fail because all those facts do not disclose a cause of action (or of defence) against his adversary.
The cases decided under the English Order 18 Rule 11 read together with Order 33 Rule 3 which are the nearest examples to Order XXIX of our local Rule under consideration, show clearly that issues of jurisdiction do not come under the definition of the “points” or “grounds of law” contemplated by the Order. This is as it should be not only because questions of jurisdiction are strictly not matters for the rules but also, as explained in Stephenson, Blake & Co. v. Gram, Legros & Co. Ltd. 86 L.J.Ch 439, the function of the Court under the Order is “…to decide questions of law when arising between the parties as the result of the certain state of facts” See: Sumner v. William Henderson & Sons. (1963) 1 W.L.R. 823.
Indeed, jurisdiction as such does not usually come in for treatment in the standard works on pleadings. See Chitty & Jacobs: Queen’s Bench Forms (20th Edn.) and Bullen & Leak & Jacobs: Precedents of Pleadings (12th Edn.).
I do not therefore agree that it was a matter for Order XXIV at all. Issues of jurisdiction are dealt with under the inherent jurisdiction of Courts. But, as any issue of Jurisdiction can be raised and disposed of at any stage of the proceedings under the inherent jurisdiction of the Court, it is my view that the application of Order XXIX, though in error, did not occasion a miscarriage of justice.”
The law is settled that a challenge to the jurisdiction or competence of a Court in respect of the matter before it, can be raised by various means, including raising it orally. Indeed, it is clear from decided cases, that there is no special format for raising such challenge. See the cases of NDIC V. CBN (2002) LPELR-2000(SC) and ADEGBITE V. AMOSU (2016) LPELR-40655(SC) amongst many others.
The Appellant having regard to the stage at which he raised the challenge to the jurisdiction and competence of the lower Court in respect of this matter, had only the writ of summons and statement of claim, at his disposal. These, therefore were the only processes the lower Court had to rely on in the determination of the Appellant’s motion and not whatever facts he intended to raise as a defence to the instant action by way of defence and as contained in the affidavits he filed in support of the said motion. For the lower Court to have read into the statement of claim facts or matters disclosed in the affidavits filed in the Appellant’s motion and to have seen the need for the calling of evidence to resolve such facts or matters, in my considered view, is nothing short of impliedly amending the statement of claim before it, for the purpose or intended purpose of determining the Appellant’s motion without the 1st Respondent seeking for any such indulgence.
Now, to the issue of the challenge to the jurisdiction and/or competence of the lower Court having regard to the parties set out in the instant case.
Indeed, there is no doubt having regard to the law, that the case of the 1st Respondent as it pertains to the Appellant was properly constituted and the conceived non-joinder and non-fulfilment of a condition precedent as it pertains to the Executive Council (which is not a party on record) and in respect of which there is no application to join the action or to be joined in the action by any of the parties, is not a jurisdictional issue that can in any way militate against or defeat the instant before the lower Court. In this regard, see the case of AYORINDE V. ONI (2000) LPELR-684(SC) wherein the Supreme Court dwelling on a properly constituted case stated thus: –
“It seems obvious to me that the elementary considerations about the commencement of an action and the essential elements of a properly constituted action ought to be discussed before considerations of the effect of the attitude of respondents who were aware of the pendency of the case in which they have interest, and the justification for their being aloof without applying to the Court to be joined. The question of their standing by whilst a litigation affecting their interest is going on, depends upon the validity of the legal activity on the purported action.
It is an elementary consideration in bringing actions that a writ of summons must not only state the name of a Plaintiff with legal capacity to bring the action, it must also contain the name of a defendant, with legal capacity to defend the action, and claim against the defendant. In other words, the writ of summons shall state briefly and clearly the parties to the action, the subject matter of the claim and relief sought. There must be a dispute between the Plaintiff and the Defendant – xxx. It is well settled that a statement of claim filed by the plaintiff supersedes the endorsement of the writ of summons and cures whatever defect in the endorsement — see xxx. At the commencement of trial a properly constituted action must contain the Plaintiff, a defendant and the claim against the defendant. In Alhaji Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101, it was held that it was improper to join as co-defendants to an action, persons against whom the Plaintiff has no cause of action and against whom he has not made any claim – See xxx.
It is pertinent in this case to observe that the Plaintiffs have brought this action against Alhaja Airat Oni and Alhaji Fasiu Banire. In paragraphs 4 and 6 of the Plaintiffs Statement of Claim they pleaded
4. xxx.
5. xxx.
6. xxx.
It is obvious that Plaintiffs brought this action against the Defendants as children and grand children of late Musa Giwa (meaning Yisa Giwa). Learned counsel for the Respondents had rightly pointed out the specific finding by the learned trial Judge that the two defendants. i.e. the respondents to this appeal are not children and grand children of Musa Giwa (i.e. Yisa) whom the Appellants knew had customary tenancy with their late father and grand father Gbadamosi Fagbuyi Ayorinde. The learned trial judge found that Defendants are not the children and grand children of Musa (Yisa) Giwa, but the children and grand children of Sala Giwa. Having so found, it became obvious that the proper defendants against whom Plaintiff’s have claimed to have a cause of action, as endorsed on the writ of summons and pleaded in their statement of claim are not before the Court.
Accordingly, the defendants before the Court who are not the children and grand children of Musa (Yisa) Giwa, are not the persons directly affected by the result of the action and are not the proper defendants in this action. They are not persons against whom Plaintiffs have a claim and desire to prosecute this action. It follows therefore from this finding that there are no defendants against whom Plaintiffs can proceed. In the absence of any competent defendant, as the finding has disclosed before the case went on trial, the action should have been struck out on the ground that it is improperly constituted. The Court of Appeal was right to so hold, and learned counsel for the Respondents has so correctly submitted. It is elementary and fundamental requirement of the institution of actions in Court that a defendant should not be brought to Court unless a plaintiff has a claim against him. In Ekpere & Ors. v. Aforije & Ors. (1972) 1 All NLR (Pt. 1) 220, the plaintiffs sought as representatives of the Mosogan Community of Jesse Clan which in effect meant that the Jesse Clan had no interest in the land in dispute. The Jesse Clan had not been made a defendant in the action through appropriate representation. Since the relief claimed was against the Jesse Clan, and the Jesse Clan was not a party to the action, it was held that the action was entirely wrongly constituted and struck out with costs. So, in this case since the necessary defendants against whom Plaintiffs are claiming reliefs have not been brought before the Court to enable the exercise by the Court of its adjudicatory jurisdiction, the action is accordingly not properly constituted – See Madukolu v. Nkemdilim & Ors (1962) 1 All NLR 587.
The situation in the instant appeal is different from the case relied upon in the submission by learned counsel to the Appellants, where a necessary party to an action, for one reason or the other was not joined, the non-joinder will not render the judgment a nullity. It is a correct proposition of law that where an action is properly constituted, with a plaintiff with legal capacity to bring the action, a defendant with capacity to defend, and a claim with cause of action against the defendants, and the action has satisfied all pre-conditions for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity. – See xxx.
Where the nature of the evidence before the Court is such that the case of the parties before it can be determined in the absence of those not joined, it can proceed to do so. It is only in those cases where it will not be right and the Court cannot properly determine the issues before it in the absence of the parties whose participation in the proceeding is essential for the proper, effectual and complete determination of the issues before it, will it be necessary to insist on the joinder of such necessary parties. – See xxx In the appeal before us, the plaintiffs have not brought the defendants against whom the claim is being sought to enable the exercise of the jurisdiction of the Court for the effectual and complete determination of the issues. This is not the case of joinder. The Plaintiffs have not brought the defendants against whom a claim has been made. In the absence of the real defendants, the Court cannot proceed with the claim of the plaintiff. It is left with the only option to strike out the action.
Both learned counsel in this appeal have relied on the recent decision of this Court in Okoye & Ors. v. NCFC Ltd. & Ors. (1991) 6 NWLR (Pt.199) 501 for the options available to the Court in dealing with a case where the action before it was not properly constituted because those who should have been parties were not so made and the case proceeded to trial.
In Okoye & Ors. v. NCFC Ltd. & Ors. (supra), Akpata, JSC identified the following options depending on the facts of the case as follows –
“1. To remit the case for retrial and for those who ought to be joined to be joined;
2. To strike out the action if a retrial will necessitate extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder;
3. To join for purposes of the appeal the person who ought to have been joined in the trial Court;
4. To hold that the person complaining that he ought to have been joined was not such a necessary party and that the non-joinder would not defeat the cause or matter.”
In the circumstances of this case, it is clear that Appellants have brought the wrong defendants before the Court, and for an effectual and complete determination of their claim, they should bring before the Court, the children and grand children of Musa (Yisa) Giwa. I am therefore clearly of the opinion that the action not being properly constituted in the absence of proper defendants ought to be struck out. The other option is that of remitting the action for retrial before another Judge. This will still involve ascertaining the true descendants of Yisa Giwa and then joined as a party to the action. I prefer the expedient of striking out the action as not being properly constituted. I so hold. xxx”
Again, it is in my considered view clear as crystal, from the writ of summons and statement of claim of the 1st Respondent and reliefs sought in the instant case (and which as stated hereinbefore, were the only processes which the lower Court was duty bound to have considered for the resolution of the Appellant’s motion in question), the case presented by the said Appellant in the affidavits filed in support of his motion, was at the best one of non-joinder and misjoinder. Not a case that the 1st Respondent’s suit is totally lacking in proper parties. The Rules of the lower Court in Order 13 Rule 8, and this is in line with many decided cases, make it clear that no proceedings shall be defeated by reason of mis-joinder or non-joinder of parties and allows a Judge to deal with the matter in controversy so far as regards the rights and interest of the parties actually before him. Furthermore, and in order to show that a case of non-joinder and/or mis-joinder of parties, is not actually or irretrievably one that goes to jurisdiction and/or competence of a Court to entertain a case, is Order 13 Rule 6 of the Rules of the lower Court. The provisions of the said Order, allow the lower Court at or before the hearing of a case, to join persons it considers ought to have been joined where it is clear that they may likely be affected by the result of the case or to order that the name of any party improperly joined in an action, be struck out. This power, the lower Court having regard to the stage at which it entertained the Appellant’s motion could not have properly exercised having regard to the materials it was bound by law to have considered in the resolution of the Appellant’s motion. This is because there was no statement of defence before the lower Court from which the need to join any other party from those already brought before it could be ascertained. The striking out of the Appellant’s motion as being premature therefore did not arise. The aspect of the motion dealing with proper parties or proper Constitution of the case of the 1st Respondent having no factual basis, simply ought to have been struck out. Flowing from all that has been said hereinbefore is that, the two issues formulated for the determination of the instant appeal, by the Appellant must be and are hereby resolved against him.
In the final analysis, (and as an appeal is basically concerned with the correctness of the decision of a lower Court and not for the reasons in coming to the said decision), I find the instant appeal to be unmeritorious and it fails. The appeal is accordingly dismissed and not struck out. This is because I have earlier overruled the preliminary objection of the 1st Respondent to the hearing of the appeal. Furthermore, I find the lower Court to be correct in striking out the Appellant’s motion in its ruling appealed against. I accordingly affirm the striking out of the Appellant’s motion filed on 13/11/2019 irrespective of the reasons given for this by the lower Court. The lower Court clearly has the jurisdiction and competence to entertain the case of the 1st Respondent as constituted and initiated by the writ of summons that issued on 16/10/2019 and as set up in the statement of claim before the said Court.
I make no order as to costs.
ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: I have read the draft judgment of MOHAMMED AMBI – USI DANJUMA, JCA and I agree with the reasoning and conclusions contained therein. I have nothing to add as the judgment has covered the field.
I too hold that the appeal be dismissed accordingly.
Appearances:
Arthur Obi Okafor, SAN with him, Okechukwu Otukwu and Benjamin Osoh For Appellant(s)
Ama Etuwewe, SAN with him, E. U. Ilokhor – for the 1st Respondent.
Ngozi Chukurah – for the 2nd and 3rd Respondents.
T. P. I. Uraih (Mrs.) (Deputy Director, Civil Litigation, Delta State) with him, G. E. Orioko (Senior State Counsel) – for the 4th – 6th Respondents. For Respondent(s)
