PAUL MASU ESQ. v. JOHN UDEAGBALA & ANOR (2011)

PAUL MASU ESQ. v. JOHN UDEAGBALA & ANOR

(2011)LCN/4743(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of July, 2011

CA/PH/402/2009

RATIO

INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 10 RULES 1 AND 3 OF THE COURT OF APPEAL RULES, 2007 AS REGARDS THE DUTY OF THE RESPONDENT THAT INTENDS TO RELY UPON A PRELIMINARY OBJECTION TO THE HEARING OF THE APPEAL

Order 10 of the rules of this court 2007 provides for the filing of preliminary objection to the competence of appeals and what the court does in respect of such objections. Order 10 rules 1 and 3 are particularly reproduced hereunder for ease of reference: “1. A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out grounds of objection, and shall file such notice together with twenty copies thereof with the registrar within the same time. 3. If the respondent fails to comply with this rule, the court may refuse to the hearing thereof at the costs of the respondent or may make such other order as it thinks fit.” (underlining mine for emphasis) A community reading of the foregoing rules of court reveals that non compliance by the respondent with their requirements does not outrightly lead to the court’s refusal to entertain the seemingly offensive objection. The court has the discretion, depending on the particular facts of the case, to entertain the objection if the justice of the case would be served. The objection being raised in the instant case pertains the jurisdiction of the court since appellant’s 2nd ground of appeal is also not excluded from the challenge levied by the respondents. The implication is that if all the three grounds in appellant’s notice are incompetent the court would lack the competence to proceed with the appeal. The fundamental nature of respondents’ objection that borders on the court’s competence dictates it still be considered notwithstanding the respondents’ non-compliance with the rules of this court. PER MUSA DATTIJO MUHAMMAD, (OFR) J.C.A.

JURISDICTION: WHETHER A STATUTORY PROVISION CAN BE USED TO IMPOSE JURISDICTION ON A COURT WHERE IT LACKS THE JURISDICTION TO ENTERTAIN A MATTER

The fact remains that once a court lacks jurisdiction, no statutory provision can be used to impose it. The absence of jurisdiction has been held to be irreparable. See Umanah v. Attah (2006) 17 NWLR (PT.1009) 503 SC and Ndayako v. Dantoro (2004) 13 NWLR (Pt.889) 187. PER MUSA DATTIJO MUHAMMAD, (OFR) J.C.A.

DUTY OF COURT: WHETHER COURTS MUST CONFINE THEIR DECISIONS TO THE MATTERS BROUGHT BEFORE THEM

…the court lacks the jurisdiction of making and deciding a case for the parties other than the one the parties themselves prayed the court to determine. Courts, it has been held, must confine their decisions to matters that are fought upon by the parties and that it is wrong and unjust for the courts to open new and unexpected battle fields in their, judgments. Doing so will resultantly erode public confidence in the administration of justice as well. PER MUSA DATTIJO MUHAMMAD, (OFR) J.C.A.

RAISING ISSUES SUO MOTU: DUTY OF COURT TO AFFORD THE PARTIES OPPORTUNITY TO ADDRESS IT ON THE POINT IT RAISES SUO MOTU

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

PAUL MASU ESQ. Appellant(s)

AND

1. JOHN UDEAGBALA
2. DYNAMIC FARMS LTD. Respondent(s)

MUSA DATTIJO MUHAMMAD, (OFR) J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Rivers State High Court presided by Agumagu J. The ruling was delivered on 23rd December 2008. The appeal raises a very narrow issue, to wit, whether a court can make for parties before it a case other than the one the parties approached the court to resolve. The background facts leading to the ruling appealed against are recounted herein immediately.
The appellant commenced suit No.PHC/609/2007 at the lower court claiming against the respondents special and general damages for the breach of contract between the two. He filed his statement of claim. The respondents did not file their statement of defence. Instead, they filed series of applications including a Motion on Notice dated 13th but filed on 31st August 2007 and a Notice of preliminary objection dated and filed on 3rd October 2007. Whereas the motion dated 13th but filed on 31st August sought the dismissal of the suit because of appellant’s neglect to file copies of documents to be relied upon at the trial of the suit, the preliminary objection, or the other hand, sought the dismissal of the suit because the appellant had sued the wrong defendants and the suit had, in any event, failed to disclose any cause of action against the defendants therein.
On 27/2/2008, learned counsel to the respondents sought to move the application dated 13/8/2007 but filed on 31/8/2007. A fire alarm forced the court to hurriedly rise. It brought the proceedings of that date to an abrupt end. The court resumed sitting on 1/4/2008 on which date counsel on both sides fully argued respondents’ application filed on 31/8/2007 having adopted their written addresses on same and finally moved the court. The court adjourned for ruling. In the ruling, see pages 88-96 of the record of appeal, the court held that appellant’s suit had disclosed no cause of action and accordingly struck out the suit. This decision was however arrived at on the basis of the respondents’ preliminary objection filed on 3/10/2007 instead of their Notice of motion filed on 31/8/2007 in respect of which parties had moved the court.
Aggrieved by the ruling, the plaintiff at the lower court has appealed against same vide his Notice filed on 3rd March 2009.
Parties have filed and exchanged briefs of arguments in compliance with the rules of the court. At the hearing of the appeal, they adopted and relied on the said briefs being arguments in respect of their positions. The two issues formulated in the appellant’s brief as having arisen for the determination of the appeal read:
(i) Whether a trial judge can make specific finding based on an application (Notice of preliminary objection) that was not argued before him by the two (2) counsels in the matter
(ii) Whether an agent can create a legal relationship between his disclosed principal and a third party without incurring a legal liability for himself.”
The lone issue distilled in the respondents’ brief reads:
“Whether the record of appeal as herein transmitted can sustain grounds 1 and 3 of the Notice of appeal and if yes whether the learned trial judge rightly struck out the suit of the appellant for want of cause of action.”
From the foregoing issue, the respondents seek to challenge grounds 1 and 3 in appellant’s Notice of appeal which they urge are incompetent. The two, it is argued, do not raise any meaningful complaint against the ruling of the lower court. Besides, they do not flow from the decision appealed against. Relying on the decisions in Bello M. Magaji v. The Nigerian Army (2008) All FWLR (PT 420) 603 at 619, Veepee IND. Ltd. v. Cocoa IN Ltd. (2008) All FWLR (Pt 425) 1667 at 1686, and Akinpelu v. Adegboro (2008) All FWLR (Pt 429) 413, learned respondent counsel urges that the two grounds be struck out.
Otherwise, learned respondents’ counsel argues that the lower court is right in striking out appellant’s suit that had not disclosed any cause of action. Citing Arjay Ltd v. Airline Management support Ltd. (2003) FWLR (Pt 156) 943 at 963, learned counsel submits that the respondents are entitled to raise the objection to the competence of appellant’s action even before filing their statement of defence in the suit. On the whole, learned counsel contends that the appeal lacks merit and that same should be dismissed. I am unable to agree.
Learned respondent’s counsel seems to challenge the competence of this appeal in the clumsy issue he presents for the court’s consideration in determining the appeal. Order 10 of the rules of this court 2007 provides for the filing of preliminary objection to the competence of appeals and what the court does in respect of such objections. Order 10 rules 1 and 3 are particularly reproduced hereunder for ease of reference:
“1. A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out grounds of objection, and shall file such notice together with twenty copies thereof with the registrar within the same time.
3. If the respondent fails to comply with this rule, the court may refuse to the hearing thereof at the costs of the respondent or may make such other order as it thinks fit.” (underlining mine for emphasis)
A community reading of the foregoing rules of court reveals that non compliance by the respondent with their requirements does not outrightly lead to the court’s refusal to entertain the seemingly offensive objection. The court has the discretion, depending on the particular facts of the case, to entertain the objection if the justice of the case would be served. The objection being raised in the instant case pertains the jurisdiction of the court since appellant’s 2nd ground of appeal is also not excluded from the challenge levied by the respondents. The implication is that if all the three grounds in appellant’s notice are incompetent the court would lack the competence to proceed with the appeal. The fundamental nature of respondents’ objection that borders on the court’s competence dictates it still be considered notwithstanding the respondents’ non-compliance with the rules of this court. The fact remains that once a court lacks jurisdiction, no statutory provision can be used to impose it. The absence of jurisdiction has been held to be irreparable. See Umanah v. Attah (2006) 17 NWLR (PT.1009) 503 SC and Ndayako v. Dantoro (2004) 13 NWLR (Pt.889) 187 .
Now, are the three grounds in appellant’s Notice of appeal affected by the vice learned respondent counsel alleges? I think not. The point has been succinctly made in appellant’s reply brief that at least ground 1 in their notice of appeal is meaningful and comprehensive enough to sustain the appeal. I agree that the ground is a clear complaint that the lower court has erred and occasioned miscarriage of justice when it based its decision on a process that was neither before it nor argued by the parties. The ground alone provides the basis for the formulation of the real question raised by the appeal as contained in appellant’s first issue. Learned appellant counsel is right. Respondents’ objection that lacks merit is accordingly dismissed.
Arguing the issue in their brief, learned appellant counsel contends that it is wrong in law for the lower court to ground its findings on an application that was not argued by parties. The court’s duty, it is submitted, is limited to the consideration of issues joined by the parties before it and the evidence in relation to which the parties seek the resolution of such issues. The 3/10/2007 preliminary objection that was never moved by parties at the lower court, contends learned counsel, cannot form the basis of the court’s ruling in respect of the motion filed on 31/8/2007. Relying on Pharmaceutical Chemist and General Ent. Ltd v. Roche (Nig.) Ltd. (2006) All FWLR (Pt. 322) 1542 at 1552, Okwejiminor v. Gbaleji (2003) All FWLR (Pt. 409) 405, learned counsel submits that the lower court lacks the jurisdiction to decide on a non existing process. Such a decision, insists appellant counsel, being perverse is liable to be interfered with on appeal.
Learned respondents’ counsel seems not to realize the potency of appellant counsel’s submissions. Beyond contending that the lower court has the jurisdiction of determining their application filed on 31/8/2007 on the basis of the preliminary objection that is separate and distinct from the former, learned respondents’ counsel said no more. I dare say that it would still be futile, given the facts of the instant case, if he did.
To understand what actually transpired and the processes involved in the proceedings that led to the ruling being appealed against, the proceedings of the 27/2/2008 and 1/4/2008 are hereunder reproduced and cited for ease of reference. The proceedings of 27/2/2008 are at pages 82-83 of the record thus:
“IN THE HIGH COURT OF RIVERS STATE OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HON. JUSTICE P. N. C. AGUMAGU (JUDGE)
ON WEDNESDAY THE 27TH DAY OF FEBRUARY, 2008
SUIT NO.PHC/609/2007
BETWEEN
PAUL MADU ESQ…………… Claimant
VS
JOHN UDEAGBALA & ANOTHER.. Defendant

Claimant in court. Defendants absent.
Mr. Paul Madu, for himself.
Mr. C. C. Nwaodu for Defendants
Mr. Nwaodu: Our application is dated 27-09-2007 and was filed on 3/10/2007. It prays as contained on the face of our motion paper. In support is a 6 paragraphs affidavit. We rely on all. My learned friend is not opposing we move in terms.
Mr. Madu, we 6rre not opposing court order as prayed.
Mr. Madu: we pray to be allowed to withdraw our motion for joinder fired on 12/1/2007.
Court: application granted. Said motion is hereby struck-out.
Mr. Nwaodu: Our application is dated 13/8/2007. It prays as contained on the face of the motion paper. Our grounds of objection ere contained on the face of our motion paper & it is to the effect that respondent failed to comply with order 3 r 2 (2) of the rules of this Honourable court.
This application is supported by a 4 paragraphs affidavit.
We rely on all these paragraphs. There is in support a written address. In paragraph 3 of our supporting affidavit, we deposed to the fact that the documents.
Court, At this juncture there was a fire alarm in the court building.
We had to terminate proceedings in the interest of safety.
Adjourned to 13/3/2008 for continuation.
(Sgd): P. N. C. AGUMAGU
JUDGE
27/2/2008. ”
The proceedings of 1/14/2008 at pages 84-86 shows clearly that on resumption, Mr. Nwaodu continued from where he stopped on 27/2/2008 and moved the court in respect of their application filed on 31/8/2007. The application is at pages 49-51 of the record. It is supported by a four paragraph affidavit and seeks the courts order:
“Striking out this suit or setting aside the writ of summons and service thereof and all other processes filed in this suit.”
On the grounds that:
“a The claimant faired or neglected to comply with a condition precedent in the commencement of a civil proceeding by writ of summons
b. The claimant failed or neglected to file copies of every document to be relied on at the trial as required under 03 rule 2 (d) RHC, 2006.”
At page 51 of the record is the applicants’ written address in respect of the particular application.
The preliminary objection also filed by the respondents herein on the 3/10/07 is to be found at page 56 of the record. It seek the court’s order to strike out the same suit on the grounds that:
1. The statement of claim does not disclose any cause of action against the defendants.
2. By his statement of claim, the claimant/respondent must be seem to have sued the wrong defendants since his relationship throughout the transaction revealed one Barrister Ken U. Onyejeakor as his principal and nobody else.
3. The claimant/respondent racks the locus standi to institute the action since there is no privity of agency contract between him and the defendants and no dispute whatsoever exists between them.
4. The entire action is frivolous, speculative and an abuse of court process.”
Having taken arguments in respect of the earlier motion, the one filed by the respondents on 31/8/2007, the lower court adjourned for ruling, which ruling spans pages 88-89. The court’s ruling reads in part:
“Upon receipt of claimants’ processes, the defendants filed a preliminary objection on 3rd October 2007 wherein he prayed the court for an order striking out this suit for want of jurisdiction and or setting aside the writ of summons and service thereof as they are in competent.”
The court at page 90 of the record continued its purported consideration of the issues in controversy between the parties thus:
“The Defendants raised two issues for determination of the court, namely:
a. whether by the processes filed in this suit, the claimant has disclosed any cause of action against the Defendants.
b. whether the entire action is not an abuse of Court process.
The claimant/Respondent, in opposition to the Preliminary objection filed a counter-Affidavit of 11 paragraphs and in line with the Rules of this court, filed a written Address dated 12th December, 2007 which was filed on the same day. He formulated one issue as arising for the determination of this court and that is:- whether from the pleadings of the claimant, a cause of action is established against the Defendants as to justify adjudication by the Honourable Court in this proceeding.
This court, having critically looked at the issues as formulated by counsel on both sides, is of the view that the issue that arises for determination of this court is:
1. whether from the pleadings filed I this suit, the claimant have disclosed a cause of action against the Defendants to warrant this Court to entertain this suit? ”
The court concluded at page 96 of the record of appeal thus:
“In view of the above, I find no legal right which is enforceable by the claimant against the Defendants in this suit. In the light of the foregoing, it is my considered view and I hereby hold that there is no disclosed cause of action in this suit and this court accordingly lacks jurisdiction to entertain it. It is accordingly hereby struck-out.”
The proceedings of the lower court reproduced above shows very clearly that the court’s ruling the appellant is dissatisfied with and appealed against pertains the process the respondents filed on 3/10/2007 rather than the one filed on 31/8/2007 in respect of which the court had been moved. It is a ruling in respect of a case the parties are yet to make. Learned appellant counsel is indeed right that the lower court lacks the competence to decide a matter which parties before it never presented and asked the court to resolve. Put differently, the court lacks the jurisdiction of making and deciding a case for the parties other than the one the parties themselves prayed the court to determine. Courts, it has been held, must confine their decisions to matters that are fought upon by the parties and that it is wrong and unjust for the courts to open new and unexpected battle fields in their, judgments. Doing so will resultantly erode public confidence in the administration of justice as well.

In Alli v. Alensinloye (2000) 6 NWLR (Pt. 660) 177 at 22, the Supreme Court held thus:
“In the fourth place, even when a court raises a point suo motu, the parties be given an opportunity to be heard on the point, particularly the party that may suffer a loss as point raised suo motu. See Odiase v. Agho (1972) 1 All NLR (Pt.1) 170, Ajao v. Ashiru (1973) 11 SC. 23, Atanda v. Lakanmi (1974) 3 SC. 109, Adegoke v. Adibi (1992) 5 NWLR (pt.242) 410 at 420.
In present case, the court of appeal, quite wrongly, waded into the arena of the dispute between the parties and formulated an issue on the admissibility of Exhibit A, an issue not raised by either of the parties, declared the document inadmissible in evidence and proceeded to expunge it from the records. Worse still is the fact that the said court below, again quite in error, raised the said issue notwithstanding the fact that it was covered by any of the grounds of appeal filed by the respondents, as appellants in that court, before it. Finally, although that court raised the said issue suo motu in its judgment and based its judgment and based its judgment mainly on the point, it failed to give the parties any opportunity whatsoever to be heard on the point so raised suo motu by it. It is plain to me that each and every one of the foregoing procedure adopted by the court of Appear in the determination of this appeal constituted serious errors of law which clearly occasioned a miscarriage of justice and cannot be allowed to stand. In my view the issue as to the admissibility of Exhibit A upon which the court below heavily relied in allowing the appeal before it is incompetent and is hereby struckout.”
See also Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40, Sande v. Abdullahi (1989) 4 NWLR (Pt.116) 387 and Adegoke Adibi (1992) 5 NWLR (pt 242) 410.
In the instant case where the lower court is guilty of the same vice that occurred and was repeatedly condemned by this and the apex court in the cited decisions the lower court’s incompetent decision appealed against cannot endure. It is hereby struck out. This informs my resolution of appellant’s first issue against the respondents.
It is academic to proceed to consider appellant’s 2nd issue since the lower court’s incompetent ruling that dwelt on the complaint raised in the ground of appeal from which the issue is distilled ceases to exist. The issue is accordingly discountenanced. On the whole, the appeal succeeds and is hereby allowed. The costs of the appeal is assessed at N50,000 in favour of the appellant.

EJEMBI EKO, J.C.A.: I had the privilege of reading, before now, the judgment just delivered in this matter by my learned brother M. D. MUHAMMAD (OFR), JCA. I am in complete agreement with my learned brother. I have nothing useful to add to the judgment, including all consequential orders therein, which I hereby adopt.

T. O. AWOTOYE, J.C.A.: I have had the opportunity of reading the draft of the judgment just delivered by my learned brother M. D. MUHAMMAD (OFR) JCA.
I am in full agreement with the reasonings and conclusion therein.
I have nothing more to add.
I abide by the consequential orders (including costs) made in the lead judgment.

Appearances

E. E. AimioshorFor Appellant

AND

S. E. AbazieFor Respondent