RIVERS STATE GOVERNMENT OF NIGERIA V. SPECIALIST KONSULTUncategorized
RIVERS STATE GOVERNMENT OF NIGERIA V. SPECIALIST KONSULT
In the Supreme Court of Nigeria
Friday, February 11, 2005
Case Number: SC. 368/2001
MUHAMMADU LAWAL UWAIS CHIEF JUSTICE, NIGERIA
SYLVESTER UMARU ONU JUSTICE, SUPREME COURT
AKINTOLA OLUFEMI EJIWUNMI JUSTICE, SUPREME COURT
NIKI TOBI JUSTICE, SUPREME COURT
DENNIS ONYEJIFE EDOZIE JUSTICE, SUPREME COURT
RIVERS STATE GOVERNMENT OF NIGERIA
SPECIALIST KONSULT (SWEDISH GROUP)
DAHIRU MUSDAPHER, JSC
(Lead Judgment): Chief Joshua Alao, the appellant herein, instituted this action in the High Court of Kwara State and in the Ilorin Judicial Division against the three respondents herein as the defendants seeking the following reliefs jointly and/or severally:-
“1. A declaration that the plaintiff is the Oluo of Oke-Oyi having been so appointed by the Oke-Oyi King makers and approved by the Kwara State Governor under section 3(1) of the Chiefs (Appointment and Deposition) Law.
- A declaration that the second defendant has no power to appoint an Oluo for the Oke-Oyi in view of section 78(1) (J) of the Local Government Edict (Law) No. 8 of 1976 and section 13 of Chiefs (Appointment And Deposition) [Amendment] Edict No.8 of 1985.
- A perpetual injunction prohibiting the first defendant from parading himself as the Oluo of Oke-Oyi and prohibiting the second defendant from so treating him.
- A declaration that Edict No. 3 of 1988 is unconstitutional null and void and inapplicable to this suit and
- An Order to compel the Kwara State Government to refund the N10,000.00 paid by the plaintiff before filing this suit.”
Pleadings were delivered and exchanged. At the hearing before the trial Court, plaintiff testified and called no other witness. The first respondent gave evidence and called one witness, while for the 3rd defendant, a witness testified. With the consent of the parties, Learned Counsel tendered about twenty documents from the bar as exhibits. In addition to the written addresses filed by the parties after the conclusion of evidence, learned counsel also proffered oral addresses. In his judgment delivered on the 24/11/1995, Gbadeyan J, partially found for the plaintiff and granted him prayers 1, 2 and 3 refused reliefs 4 and 5. The first defendant felt aggrieved with the decision and appealed to the Court of Appeal. The plaintiff also felt unhappy with part of the judgment refusing his prayers and also cross-appealed. The Court of Appeal allowed the appeal of the first defendant, it set aside the decision of the High Court and held that the plaintiff had failed to prove his case and ordered the dismissal of the claims. The Court of Appeal also dismissed the cross-appeal. This is an appeal by the plaintiff. The amended Notice of Appeal filed with the leave of this court contains 15 grounds of appeal. In compliance with the Rules of this court briefs of argument were filed and exchanged and at the hearing of the appeal, learned counsel relied on the arguments canvassed in their respective written briefs, except for the learned counsel for the 2nd and 3rd respondents who was absent from court but filed a brief and by the provisions of the Rules of this court, he was deemed to have argued the appeal. Before I discuss the issues submitted for the determination of the appeal it is convenient at this stage to set out the facts of the case.
This is a prolonged and protracted chieftaincy dispute concerning the Baleship or the village head of Oke-Oyi or as the plaintiff christianed it, the Oluo of Oke-Oyi. The controversy has gone through all the courts on three occasions, this is its fourth orbit in the Supreme Court. It started in 1972 when the erstwhile Bale Yusuf died while performing pilgrimage in Saudi Arabia. Mallam Gbadamosi Akano the father of the present first defendant and the plaintiff contested for the position of the village head to succeed the deceased Bale Yusuf. Mallam Gbadamosi Akano was eventually appointed and turbaned as the village head by the Emir of Ilorin. The appellant herein disagreed with the appointment and went to the courts. The dispute culminated in suit No SC 143/1/1986 in which this court affirmed the appointment and the turbanning of the said Gbadamosi Akano as the Bale or village head of Oke-Oyi. Mallam Gbadamosi Akano died in 1988 and his son the first defendant herein manifested his desire to succeed his father as the village head of Oke Oyi. The appellant also resolved unrelentingly once again to claim the stool for himself. Attempts were made by both the Ilorin East/West local Government Councils and the Ilorin Emirate council to resolve the dispute all to no avail. The Ilorin Emirate council in 1989, set up a committee under the chairmanship of Balogun Alanamu to investigate the chieftaincy dispute and to recommend to the Emirate council the person to be appointed as Bale of Oke-Oyi between the plaintiff and the first defendant. The committee completed its task and the Emirate council in a letter, informed the first defendant of his appointment as the Bale of Oke-Oyi. The first defendant was eventually and at a ceremony witnessed by many people including the plaintiff was presented and turbaned before the people of Oke-Oyi by the Emir of Ilorin on the 20/11/1990.
Suddenly on the 27/9/1993, a letter emanating from the Office of the Deputy Governor of Kwara State, addressed to the chairman Ilorin East Local Government Council and the secretary Ilorin Emirate Council Directed that the plaintiff “Mr. Joshua Alao and not Issa Akano “ was approved to be appointed “as the Oluo (Bale) of Oke-Oyi with effect from 1st September, 1993.” A day later, to be precise on the 28/9/1993, the secretary to the State Government of Kwara State wrote a letter to Ilorin Emirate Council that the contents of the letter from the office of the Deputy Governor should be disregarded as directed by “His Excellency, the Executive Governor of Kwara State .” The Ilorin Emirate Council in a Press Release issued to the media reacted to the letter by the Deputy Governor in this way:
“The Ilorin Emirate Council had a long time ago deliberated on the appointment and has already appointed Mallam Alfa Issa Akano as the Village head Oke-Oyi.
The appointment of Mallam Isa Akano still stands as the authentic accredited and recognised Village head of Oke-Oyi.”
It was when the directives by the Deputy Governor of Kwara State was ignored, that the plaintiff instituted this fresh action claiming to be the rightful village head of Oke-Oyi by virtue of the recommendation as contained in the letter from the Deputy Governor, and also, as claimed by him, because, “he was nominated by the majority of the Kingmakers.”
As mentioned above, the trial Court Gbadeyan, J. found partially in favour of the plaintiff and the Court of Appeal allowed the first respondent’s appeal and set aside the decision of the trial court and ordered the dismissal of the plaintiffs claims. Now, in this judgment the plaintiff shall hereinafter be referred to as the appellant and the defendants as the respondents.
In the appellant’s brief eight issues have been identified, formulated and submitted to this court for the determination of the appeal. The learned counsel for the respondent on the other hand after objecting to grounds 1, 4, 5, 6 and 12 as incompetent for one reason or the other, (I shall deal with the competency of these grounds anon) formulated 4 issues for the determination of the appeal. It has been stated many times that the success of an appeal does not depend on the number of grounds of appeal filed nor on the prolixity of the issues formulated and submitted for the determination of an appeal. It is only the substance not the number that matter. It is incumbent for an intermediate appellate court to determine all the issues canvassed by the parties before it see ADAH VS. N.Y.S.C [20041 7 SC (Pt. 11) 139, (2004) 8 SCM, 1; 7-UP BOTTLING CO. LTD. VS. ABIOLA AND SONS LTD 1 13 NWLR (Pt 730) 469, (2001) 8, SCM, 1, in the instant case the Court of Appeal arrived at the view, that the appellant did not prove his case before the trial court. So the “live” and fundamental issue is whether the appellant had indeed proved his case in accordance with his pleadings and a secondary issue is also whether the pleadings of the appellant is sufficient for him to sustain his claims aims. It has been held that where an appellate court such as the Supreme Court, is of the view that a consideration of an issue is enough to dispose of the appeal, it is not under any obligation to consider all the other issues posed. See YADUBA VS. NIGERIAN RENOWNED TRA-DING CO. LTD.  5 NWLR (Pt 243 535 at 561, OKONJI VS. NJOKANMA  2 NWLR (Pt. 202) 131 EGBA VS. AGODO  1 SCNLR.
Applying the above principles, it appears to me, that issue No. 2 as contained in the respondent’s brief and issues 1 and 4 of the appellant’s brief, cover most adequately the “live wire” whether the appellant proved its case before the trial Court. They also cover the issue whether the appellant has sufficiently pleaded the facts which if proved by him would entitle him to judgment.
Now, I have above alluded to the objection raised by the respondent on some of the grounds of appeal filed by the appellant. I have seen that the objection to the competency of the grounds of appeal does not concern the grounds of appeal on which the issue 2 of the respondent and issues 1 and 4 of the appellant were based and premised.
Thus the issues can be discussed without discussing the preliminary objection as to the competency of the grounds of appeal.
Issue No. 2
The issue as mentioned above is concerned with the crucial question of whether the appellant had proved his case in accordance with his pleadings. It is of importance to bear in mind that the claims of the appellant before the trial court were essentially declaratory, hence the duty was on him to succeed on the strength of his own case and not on the weakness of the defendant’s case. See OWOADE VS. OMI-TOLA  2 NWLR (Pt. 77) 413. NDAYAKO VS. DANTORO  13 NWLR (Pt. 889) 187 at 214, (2004) 5 SCM 68. A declaratory judgment is also discretionary. It is the form of judgment which should be granted only in circumstances in which the court is of the opinion that the party seeking it, is, when all facts are taken into consideration, fully entitled to the exercise of the Court’s discretion in his favour. See EGBONIKE VS. MUONWEOKWU  ALL NLR 46. A plaintiff who seeks a declaratory relief must show that he has an interest or right which forms the foundation for that right. The plaintiff must establish a right in relation to which the declaration can be made. See CHUKWUMA VS. SHELL  4 SCNJ 1 at 42 P.T.I. VS ADEREMI  6 SCNJ. 46 at 73.
In the instant case the foundation of the appellants’claims are anchored in paragraphs 1, 2, 3 and 4 of the Statement of Claim which read thus:
“1. The plaintiff was appointed the Oluo of Oke-Oyi by the Oke-Oyi kingmakers who are the traditional appointers for the office of Oluo.
- There has been a long drawn legal battle as to the proper holder of the office of Oluo and the Government of Kwara State had to appoint an administrative panel to inquire into it.
- The plaintiff pleads the F. OYE COMMITTEE REPORT and the Government Decisions thereon.
- That as a result of the said Governments Decisions thereon the Deputy Governor of Kwara State wrote a letter Ref. No. MLG/S/CH.1/GEN/320/S.4/340 of 27/9/93 to the Chairman Ilorin East Local Government and the secretary, Ilorin Emirate Council etc.”
Now in relation to these averments, the Court of Appeal found: –
“In spite of the defences of the defendants denying most vehemently the averments of the plaintiffs Statement of Claim, it interesting to observe that the plaintiff did not deem it fit to call any of the Kingmakers whom he claimed appointed him. He gave evidence on his own behalf and no more. That is not all, contrary to the allegations in his reply but in accordance with the defendant’s pleadings, he admitted appearing before a panel of inquiry where he was found not suitable for the stool subject matter of this suit.”
With reference to the letter recom-mending his appointment by the Deputy Governor, the Court of Appeal held:
“On the plaintiffs dependence on Exhibits D1 and D17 for his appointment as Oluo of Oke-Oyi and the learned trial judges finding there on. In the light of the forgoing I hold that the learned trial judge erred in law to have received Exhibit D17 as well as Exhibit 1 and to have attached such probative value on them despite the fact that the same were tendered by the defence or by consent and I so hold.”
On the first leg of his reasons for the claims, the appellant averred in his pleadings that he was appointed by the kingmakers who are entitled under the customary law to appoint the village head, when ever a vacancy occurred. The appellant failed to call any of the kingmakers to testify on the appointment. The learned trial judge was manifestly in error to have found the appointment by the kingmakers. There was no evidence whatever adduced in proof of such appointment by the kingmakers. The result of the inquiry conducted by the Emirate Council found that not only was the appellant not suitable for appointment, but also he was rejected by the majority of the kingmakers. I accordingly agree with the Court of Appeal that the learned trial judge was in error to have found the appointment proved.
The second leg is the recommendation for appointment in the letter by the Deputy Governor. The letter from the Deputy Governor was clearly based on Exhibit D 17 which was a draft white paper on an Administrative Inquiry. I entirely agree with the decision of the Court of Appeal that Exhibit D 17 upon which Exhibit I was anchored is of no evidential value. It is a draft White Paper and cannot be said to represent the views of the Kwara State Government. I agree with the court below, that both Exhibits D.17 and 1, were inadmissible as evidence of the contents thereof. Where the law declares a document inadmissible, the document cannot be admitted in evidence even where there was no objection or even where the parties consent to its admission. See ETIM VS. EKPE  1 SCN LR 120. In any event, the Secretary to Government of Kwara State on behalf of the Governor wrote and directed that the Emirate Council and the Local government should ignore the letter written by the Deputy Governor. Again in any event, the stool of the village head of Oke-Oyi was not vacant when the appellant was purportedly recommended to be appointed by the Deputy Governor in Exhibit 1 in 1993, when the 1st respondent was appointed and turbaned since 1990 and was not removed.
Thus the appellant as the plaintiff had failed to establish by credible and acceptable evidence that he was entitled to the declarations sought by him. The material facts pleaded that require to be established by evidence were (i) the appointment of the appellant as the village head of Oke-Oyi by the traditional kingmakers and (ii) the recommendation of such appointment by the Deputy Governor. These two issues remain unsubstantiated according to law.
Thus the claims of the appellant were not established and he was not entitled to the declaratory relief claimed by him. I entirely agree with the decision of the Court below, that the appellant’s claims be and are hereby dismissed in their entirety.
Now, having found that the appellant had failed to establish his claims and in that there was no counter-claim by the respondents, all the other issues raised in this appeal, including the issues raised on the competency of some of the grounds of appeal, are not important or relevant to the determination of the appeal. Limiting myself to the issue discussed above, I dismiss this appeal as it is devoid of any substance. I affirm the decision of the Court below and confirm the dismissal of the appellant’s claims. I decline to discuss all the other issues as to discuss them will serve no meaningful purpose. The 1st respondent is entitled to costs which I assess at N10,000.00 only.
- L. KUTIGI, JSC:
I read in advance the judgment just delivered by my learned brother Musdapher, JSC. I agree with him that there is no merit in this appeal. It was just not possible for the Plaintiff/Appellant to have proved or established that he was appointed the Chief or Oluo of Oke-Oyi by the Oke-Oyi king-makers without calling any of the king-makers to testify as to how he was so appointed being a matter of customary law of the area. The omission was fatal. The Plaintiff’s claims were therefore rightly dismissed by the Court of Appeal. The appeal consequently fails. It is accordingly dismissed. I endorse the order for costs.
A.O. EJIWUNMI, JSC:
I have had the opportunity of reading before now the draft of the judgment just delivered by my learned brother Musdapher JSC. In that judgment, the facts to this appeal have been duly reviewed and also in the light of the only issue relevant to this appeal.
It is manifest that the question raised in this appeal is, whether the Court of Appeal was right to have allowed the appeal before it. The premise of the Court below for upholding the appeal being that the appellant (plaintiff) was not entitled to the judgment of the trial Court as the appellant had failed to prove his claim before that Court. The simple issue then is, whether the appellant led sufficient evidence to prove his claim, which in essence are as pleaded in paragraphs 1,2,3 and 4 of the Statement of Claim.
These are: –
“1. The plaintiff was appointed the Oluo of Oke-Oyi by the Oke-Oyi kingmakers who are the traditional appointers of the office of Oluo.
- There has been a long drawn legal battle as to the proper holder of the office of Oluo and the Government of Kwara State had to appoint an administrative panel to enquire into it.
- The plaintiff pleads the F. Oye Committee Report and the Government Decisions thereon.
- That as a result of the said Government’s Decision thereon the Deputy Governor of Kwara State wrote a lette4 Ref. No. MLG/S/CH.1/Gen/320/S.4/340 of 27/9/93 to the Chairman Ilorin East Local Government and the Secretary, Ilorin Emirate Counsel etc.”
The above averments were effectively challenged by the respondents by their pleadings at Paragraphs 14,18,20,22 and 25 thus: –
“14. The 1st defendant avers that there are 4 ruling houses to the stool of Bale of Oke-Oyi, viz: Ile Baale Isale, Ile Tuntun, Ile Bale Oke and the Odebode all hailing from Oluo (the 1st settler of Oke-Oyi).
- The 1st defendant hails from the Olukuewu (i.e. the Tuntun) ruling house.
- The 1st defendant states that the 5 king-makers in Oke-Oyi, namely: Elemoso, Akogun Jagun, Baba Gbogbo and the Balogun recom-mended him to the 2nd defendant as the Bale of Oke-Oyi.
- The 1st defendant states that the plaintiff is not a member of any of the ruling houses to the Baleship of Oke-Oyi. He is from Okuta-Ila village in Moro Local Government, Kwara State.
- The 1st defendant states that on 20/11/90, the 2nd defendant invited all the people of Oke-Oyi to the Emir’s palace and the 1st defendant was in the presence of all present (including the plaintiff) appointed, presented and turbaned before the people of Oke-Oyi by the then Emir as the new Bale of Oke-Oyi.”
As parties are bound by their pleadings and as issues were joined with the appellants on these matters, it became the burden of the appellants to lead evidence to prove his averments on a balance of probabilities. In this regard, it is necessary to observe that the onus of proof in a civil proceeding must be related to issues raised in the pleadings and the strength of the totalities of evidence adduced by the contesting parties at the trial. There can be no absolute standard. The degree of probability depends on the subject matter and varies from case to case and the burden of the issues is divided, each party having one or more cast upon him and is fixed either on the substantive law or on the pleadings. See Kate Enterprises Ltd. V. Daewo Nig. Ltd (1985) 2 N.S.C.C. 842; Mogaji & Ors V. Madam R. Odofin (1978) 4 S.C. 91, 93.
For that purpose, appellant was the sole witness who gave evidence and also tendered several documents in proof of his claim. The trial Court affirmed some of his claims, but the Court below upon a calm review of the evidence led by the appellant overturned the decision of the trial Court. This is because the Court below considered that the appellant failed to discharge the burden placed upon him to prove his claim in the light of the evidence before the Court. Now the fact that only one witness, namely, the plaintiff was called in support of his case is not to be regarded as the reason for setting aside the judgment of the trial Court. In this regard, it must be borne in mind that section 179 (1) of the Evidence Act (1990), Laws of Nigeria, Cap 112 provides that no particular number of witnesses shall be required to prove any fact except in some special circumstances. It bears repetition to say that the case for the appellant failed because the evidence led at the trial did not prove what was alleged in the Statement of Claim. It must also be noted that several documents were tendered pursuant to the claim. But it must be borne in mind that admitted documents useful as they could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport.
For all the above reasons, it is therefore my view that the appellant has not satisfied me that the Court below was wrong to have set aside the judgment of the trial Court. It follows that I will also dismiss this appeal and also for the fuller reasons given in the leading judgment. The respondent is awarded costs in the sum of N10,000.00 only.
- C. PATS-ACHOLONU, JSC:
I have read the judgment in draft of my learned and noble Lord Musdapher, JSC and I agree with him. There is really no substance or merit in the case given the facts assiduously canvassed and agitated. To my mind this appeal stands dismissed and is hereby dismissed.
I abide by the consequential orders in the lead judgment.
- A. AKINTAN, JSC:
The appellant instituted this action at Ilorin High Court against the respondents. His claim was inter alia, for declaration that the plaintiff was the Oluo of Oke-Oyi having been so appointed by the king-makers and approved by the Kwara State Government; declaration that the 2nd defendant (now 2nd respondent) had no power to appoint an Oluo for the Oke-Oyi; injunction prohibiting the 1st defendant (now 1st respondent) from parading himself as the Oluo of Oke-Oyi. The dispute was in respect of a chieftaincy stool. The trial court granted the declarations sought. But on appeal, the Court of Appeal set aside the judgment on the ground that the plaintiff failed to lead sufficient evidence in support of his claim. The present appeal is against the decision of the Court of Appeal.
The plaintiff had pleaded, inter alia, in paragraph 1 of his statement of claim that:
“The plaintiff was appointed the Oluo of Oke-Oyi by the Oke-Oyi kingmakers who are the traditional appointers for the office of Oluo”
The above averment was denied by the 1st defendant in paragraph 1 of the 1st defendant’s statement of defence. The 1st defendant (now 1st respondent) was the person selected and installed as the holder of the dispute chieftaincy. Apart from denying the facts pleaded by the plaintiff in paragraph 1 of the statement of claim, the 1st defendant also pleaded as follows in paragraphs 14, 18, 20, 22 and 25 of the 1st defendant’s statement of claim:
“14. The 1st defendant avers that there are 4 ruling houses to the stool of Bale of Oke-Oyi, viz: Ile Baale Isale, Ile Tuntun, Ile Bale Oke, and the Odebode all hailing from Oluo (the 1st settler of Oke-Oyi.
18.The 1st defendant hails from the Olukuewu (i.e the Tuntun) ruling house
20.The 1st defendant states that the 5 king-makers in Oke-Oyi, namely: Elemoso, Akogun Jagun, Baba Gbogbo and the Balogun recommended him to the 2nd defendant as the Bale of Oke-Oyi
22.The 1st defendant states that the plaintiff is not a member of any of the ruling houses to the Baaleship of Oke-Oyi. He is from Okuta-Ila village in Moro Local Government, Kwara State.
25.The 1st defendant states that on 20/11/90, the 2nd defendant invited all the people of Oke-Oyi to the Emir’s palace and the 1st defendant was in the presence of all present (including the plaintiff) appointed, presented and turbaned before the people of Oke-Oyi by the then Emir as the new Bale of Oke-Oyi.”
It is quite clear from the above averments of the 1st defendant that the 1st defendant not only denied the plaintiffs averment that he (plaintiff) was appointed the Oluo of Oke-Oyi. He (the 1st defendant) went further to plead that the plaintiff was not a member of any of the 4 ruling houses from where the Baale could be selected. But surprisingly, the only evidence led by the plaintiff in support of his claim was from him alone. It is as follows:
“I was the appointed Oluo or Bale of Oke-Oyi by the kingmakers of Oke-Oyi and that body of kingmakers has never appointed Issa Akano as Bale or Oluo of Oke-Oyi.”
The plaintiff failed to plead the names of the kingmakers that appointed him and call any of them as witnesses in support of his case. In fact he called no other witness apart from himself.
There is no doubt that at the close of pleadings, the parties joined issues on the very important questions whether the plaintiff was entitled to be selected as the Bale of Oke-Oyi and whether he was in fact selected by the king-makers. The law is settled that where issues are joined on any averment in the pleadings but no evidence is led to support such averment, the result is that such averment in the pleadings is either to be struck out or be dismissed. In other words, such averment could be treated as having been abandoned: See Balgoun V. UBA (1992) 6 NWLR (Pt. 247) 336 at 344; and Omoboriowo V. Ajasin (1984,) 1 SCNLR 108 at 113.
In the instant case, the onus was on the plaintiff to establish that he was not only qualified and entitled to be selected for the chieftaincy stool by the kingmakers, but that he was in fact selected. To do that, he should have called as witnesses some of the kingmakers who selected him and show which of the chieftaincy ruling house nominated him. The appellant failed to do all these. It was therefore wrong of the trial court to have entered judgment for him.
I was privileged to have read the leading ruling prepared by my learned brother, Musdapher, JSC. I entirely agree with his reasoning and conclusion that there is no merit in the appeal. For the reasons
I have given above and the fuller reasons given in the leading judgment, I also dismiss the appeal with costs as assessed in the leading judgment.
Cases referred to in the judgment
7-UP Bottling Co. Ltd. vs. Abiola and Sons Ltd  113 NWLR (Pt 730) 469, (2001) 8 SCM, 1
Adah V. N.Y.S.C  7 SC (Pt. 11) 139, (2004) 8 SCM 1
Balgoun V. UBA (1992) 6 NWLR (Pt. 247) 336
Chukwuma V. Shell  4 SCNJ 1
Egba V. Agodo [19841 1 SCNLR.
Egbonike V. Muonweokwu  ALL NLR 46
Etim V. Ekpe  1 SCNLR 120.
Kate Enterprises Ltd. V. Daewo Nig. Ltd (1985) 2 N.S.C.C. 842
Mogaji & Ors V. Madam R. Odofin (1978) 4 S.C. 91, 93
Ndayako V. Dantoro  13 NWLR (Pt. 889) 187, (2004) 5 SCM 68
Okonji V. Njokanma  5 NWLR (Pt. 202) 131
Omoboriowo V. Ajasin (1984,) 1 SCNLR 108
Owoade V. Omitola 1988 2 NWLR (Pt. 77) 413
P.T.I. V. Aderemi  6 SCNJ. 46
Yaduba V. Nigerian Renowned Trading CO. LTD.  5 NWLR (Pt 243 535]
- O. Ijaodola for the Appellant
A.O. EJIWUNMI, JSC
(Delivering the Judgment of the Court)
Before the High Court of Lagos State, the respondent as plaintiff commenced this action with a writ of summons dated 6th June 2000 under the undefended list procedure against the appellants claiming against the 1st appellant the sum of USD3,138,122.81 being outstanding fees due to the respondent on work already executed on behalf of the Rivers State Government of Nigeria since 27th April, 1995. Interest was also claimed on the said sum at the rate of 21% per annum from 27th April, 1995 until the total liquidation of the entire debt. The writ
of summons referred to above was accompanied by an affidavit headed “Affidavit in Support for undefended list” and dated 6th June 2000. The appellants’ address for service as endorsed on the face of the Writ of Summons was “c/o Rivers State Government Liaison Office, 26 Bishop Oluwole Street, Victoria Island, Lagos.” On the 7th of June 2000, the respondent filed an application seeking directions that “the suit formulated in the writ of summons together with the affidavit in support with the relevant annexes be set down for hearing on the undefended list. On the 11th of October 2000 the Court, Humponu-Wusu, J granted leave to the respondent and directed that the suit as formulated in the writ of summons together with the affidavit in support with the relevant annexes be set down for hearing as undefended list. The Writ of Summons was thereafter allegedly served on one Mrs. Marcus, a clerk at the said Bishop Oluwole Street, Victoria Island address on or about 26th day of October 2000 and a return date for the hearing was then fixed for the 13th of November 2000. On the 13th of November 2000, the Court, presided over by Humponu-Wusu J., entered judgment in favour of the respondent against the appellants for the sum of US $3,138,122.81 claimed together with 21% interest as claimed until judgment, and thereafter at 6%.
Now, the case of the appellants is that they did not participate in these proceedings as they did not have actual notice of the case. The first actual notice they had of it was when they were served with a Garnishee Order Nisi over their bank accounts. The appellants consequently appealed against the said judgment to the Court of Appeal and also sought and obtained a stay of action of the judgment.
In view of the argument that formed the bedrock of the appeal to this Court, it is I think useful to set down the issues upon which the Court below dismissed the appeal. The appellant in that Court raised the following issues:
“2.1 Whether the High Court of Lagos State can exercise jurisdiction in the suit when neither party to the suit resides and/or carries on business in Lagos and the transaction giving rise to the suit did not take place in Lagos.
2.2 Whether the sum of USD 3,138,122.81 claimed by the plaintiff/respondent and awarded by the court in the suit was a liquidated sum outstanding from the defendant/appellant in favour of the plaintiff/respondent upon which the court can grant leave directing that the suit be set down for hearing in the undefended list.
2.3 Whether the contract, if any, between the plaintiff/respondent and the 1st defendant/appellant provided for payment in US Dollars and if so, whether the court was right in awarding judgment in dollars.
2.4 Whether the award of 21% interest in favour of the plaintiff/respondent against the defendants/appellants is proper in law.”
The Court below in resolving that the appellants were properly sued in Lagos reasoned thus: –
“Now, the appellant were served with the Writ of Summons. They did not take advantage of the provisions of the above rule of order 60 by indicating that they wished to defend the suit. Defending the suit implies putting before the lower court all the defences either based on law or facts available to the appellants. On the Writ of Summons, the address of the appellants was shown as “c/o Rivers State Government Liaison Office, Bishop Oluwole Street, Victoria Island, Lagos.” There was nothing on the processes before the lower Court on the Writ of Summons and the affidavit to indicate that neither party to the suit resided in Lagos. The appellants in their brief relied on Order 2 rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994 to bolster up its argument that as the claim of the respondent was in contract, the claim would have been brought in the “Judicial Division in which such a contract ought to have been performed or in which the defendant resides.
However, a close scrutiny of the affidavit in support of the application and the Writ of Summons easily reveal that the claim was for a debt which parties themselves had agreed upon but which was not settled by the appellants. The contract had long been performed. The amount due to the respondent had been ascertained at a meeting between parties and agreed at N4,500.000.00 payable in six equal monthly instalments beginning from May, 1981. Clearly, this was no longer a claim in contract. It had become a debt. This was therefore a claim that fell within the ambit of order 2 rule 4 of the High Court Rules which enabled the suit to be brought in a place where the “defendant resides or carries on business.” The Writ of Summons was served on the appellants at its Liaison Office in Victoria Island, Lagos, which was a place where the defendants carried on business. Accordingly, it is my view that the appellants were properly sued in Lagos.”
Against this judgment and orders of the Court below, the appellants have appealed to this Court. Pursuant to the grounds of appeal filed, the following issues were raised in the appellants’ Amended brief filed by their counsel H. Odein Ajumogobia, SAN, and Attorney General, Rivers State. The issues he adopted and placed reliance upon are as follows: –
“3.1 Whether the learned Justices of the Court of Appeal rightly held that the defendants reside and carry on business in Lagos, Lagos State.
3.2. Whether the learned Justices of the Court of Appeal rightly held that the defendants were properly served in Lagos, Lagos State.
3.3 Whether the learned Justices of the Court of Appeal rightly held that the High Court of Lagos State had jurisdiction to hear and determine the suit and that the defendants were properly sued in
Lagos, Lagos State.
3.4. Whether the learned Justices of the Court of Appeal were right in their decision that the High Court of Lagos State had jurisdiction to entertain the respondent’s suit having regard to the subject matter of the respondent’s action being a civil cause or matter connected with or pertaining to foreign exchange and the effect of s.251(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999.
3.5. Whether the service of the Writ of Summons and other Court processes on appellants “c/o Rivers State Government Liaison Office, Bishop Oluwole Street Victoria Island, Lagos” was good and proper service having regard to the mandatory provisions of Order 7 Rule 13 of the High Court of Lagos (Civil Procedure) Rules 1994 with regard to service of processes on an agent.
3.6. Whether service of the Writ of Summons, “c/o Rivers State Government Liaison Office, Bishop Oluwole Street, Victoria Island, Lagos” was valid and proper service on the appellant without an order of substituted service.
3.7. Whether the Writ of Summons was returnable within 8 days and not 30 days as required by S.99 of the Sheriff and Civil Process in respect of a writ for service out of jurisdiction having regard to the residence and/or place of business of the appellants in Port Harcourt, Rivers State by virtue of s.3(3) of the Constitution of the Federal Republic of Nigeria.
3.8. Whether the plaintiff/respondent was entitled to judgment in the sum of $3,138,122.81 having regard to the lower Court’s express finding that the amount agreed between the respondent and the appellant to be paid to the respondent, as constituting the debt owed to the respondent was N4.5 million.
3.9. Whether the respondent was entitled to interest at the rate of 21% per annum from 27th April 1995 until judgment as affirmed by the Court of Appeal.”
Mercifully, the respondent in the brief filed on its behalf by its counsel, Gbolahan Olufon, did not raise any issue of his own. Rather, he adopted the issues set down by the appellants in their brief. But he decided to raise a preliminary objection against the grounds of appeal filed by the appellant. The reason given for the objection so raised was because he thought that as the grounds of appeal were of mixed law and facts, the appellant needed to have obtained the leave of Court and which they failed to obtain. At the hearing of the appeal, the preliminary objection was withdrawn when it was brought to the attention of learned counsel that the appellants had duly obtained the requisite leave. The preliminary objection was accordingly struck out.
However, it is pertinent to remark that though the appellants duly obtained leave to file the several grounds of appeal in pursuit of this appeal, I must say that the several issues raised thereon are simply unduly repetitive of one another. In my. humble view, the two questions that call for determination in this appeal are (1) whether the Court below was right to have held that the appellants were properly served, and secondly, that the trial Court had the jurisdiction to determine the case.
In view of what I have said above, I intend to consider together issues 1-4. The first point made by counsel is that it must be noted that Port Harcourt is the capital city of Rivers State and that is where the Chief Law Officer of the State and Commissioner for Justice of the Government has his offices and it is also the seat of Government. And submits that though the Rivers State Government has a property at Bishop Oluwole Street, service of processes in respect of this matter on a person called Mrs. Marcus in an office in that building cannot by any stretch of imagination be proper service on the Government and the Attorney General. Next, he argued that in accordance with the provisions of Order 7 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 1994, the Writ of Summons was itself not properly endorsed as the Writ did not provide an address for personal service on either of the defendants. In support of his submissions, he referred to these cases: Sken Consult (Nigeria) Ltd. V. Ukey (1981) 1 S.C. 6 at 26’ ACB Plc. V. Losada (Nig) Ltd (1995) 7 N.W.L.R. (pt. 405) 26 at 44’ N.B.N. Ltd. V. Guthrie (Nig.) Ltd (1993) 3 N.W.L.R. (pt.284) 643 at 659 and also for the principle that non-service of the Writ of Summons is a fundamental defect in the proceedings. Any judgment obtained in such a situation has always been declared a nullity. Reference was also made to the provisions of section 99 of the Sheriffs and Civil Process Act (Cap 189) Law of the Federation of Nigeria 1990, its provisions that any writ issued from Lagos for service outside its jurisdiction must be complied with for effective service on the defendant. The return date in such a case should not be less than 30 days. It is also the contention of learned counsel for the appellant that as the subject matter of the suit is one sounding in contract, the High Court of Lagos State has no jurisdiction to hear the suit, having regard to Order 2 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994. And if, as held by the Court below that the suit was one sounding in debt, it is the submission of leaned counsel that the Lagos State High Court still lacks jurisdiction having regard to the provisions of Order 2 Rule 4 of the Lagos State High Court (Civil Procedure) Rules, 1994.
Learned counsel for the appellants also submitted that having regard to the fact that the subject matter of the action being a civil cause or matter connected with or pertaining to foreign exchange, the Lagos State High Court lacks jurisdiction to deal with the matter, having regard to the provisions of section 251(1) (d) of the Constitution of the Federal Republic of Nigeria, 1999. Generally, the argument of the respondent to this appeal on the other hand, is that this appeal be dismissed. This is because it is the contention of its learned counsel, G.K. Olufon Esq., and as argued in the brief of the respondent, that the Court below was right to have held that the appellants were duly served with the Writ of Summons and that the trial Court had the necessary jurisdiction to hear and determine the claim before It.
It is my respectful view that the first question that must be determined in this appeal is, whether the appellants were properly served. In order to determine this question and as this matter proceeded under the Undefended List procedure, it is necessary to refer to Order 60 of the High Court Rules of Lagos State, 1994, which lays down the procedure for cases entered in the Undefended List. It reads: –
“A plaintiff who is suing for recovery of a debt, a liquidated money demand, or any other claim in the case of Lagos State; may ask for summary judgment. The procedure for doing this is as follows:
His application for the issue of a writ of summons in respect of any of these claims should be supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the belief of the deponent there is no defence to the claim. The court, if satisfied that there are good grounds for believing that there is really no defence to the claim enters the suit for hearing in a list which is called the “Undefended List” and then marks the writ of summons accordingly and enters on it a suitable date for hearing the suit. The affidavit should not merely state the deponent’s belief but also the facts on which such beliefs is based so as to satisfy the court that “there are good grounds for” the belief that there is no defence to the action. The plaintiff must deliver to the registrar upon the issue of the writ of summons as many copies of this affidavit as there are defendants to be served. To each copy of the writ a copy of the affidavit is annexed. The defendant or, where there are two or more defendants, each of them is therefore served a copy of the writ together with a copy of the affidavit attached to it. On the service of these documents on him, the defendant has two options. He may either concede the claim if he has no defence as maintained by the plaintiff or he may wish to defend the action.”
It is my humble view following a careful perusal of this Order that it is imperative that a plaintiff who wishes to proceed against a defendant for a claim under the Undefended List must provide at least affidavit evidence that he served each of the defendants with the Writ of Summons and the affidavit filed with the Court Registry and other documents he wished to rely upon to obtain judgment. It was alleged that a certain Mrs. Marcus of the Liaison Office of the appellant was served with the Writ of Summons and the supporting documents. However, I have looked through the record and I cannot find any affidavit filed by the respondents that each of the appellants were duly served with the documents as stipulated under Order 60 (supra). In ordinary cases, the Courts have always insisted on the evidence of the service of Courts’ processes before the hearing of any matter or cause. It is my view that the procedure by which a judgment would be obtained by a plaintiff under the Undefended List procedure must place no less a burden on the plaintiff. It is clear from the latter provisions of Order 60 underlined above that it is after the defendants (appellants) have been properly served that they would be required to exercise the options open to them to defend or not to defend the action.
The question that agitates my mind is not whether the appellants failed to defend the action upon being served as held by the lower Court, but whether there was satisfactory evidence of such service on each of the appellants as required by Order 60. It is my humble view that my reading through the proceedings of the trial Court has not revealed to me that though it was claimed that processes were served on one Mrs. Marcus at the Rivers State Liaison Office at 26 Bishop Oluwole Street, Victoria Island, Lagos, there is no evidence, such as an affidavit in this regard to prove that each of the appellants were served in the Records.
Further, though it was not satisfactorily established that service was effected by an affidavit as observed, it is in any event now settled that where a service is effected in the Liaison Office, it is presumed that that service was properly effected. It must be noted that in several of the cases that had been brought to this Court, parties were apparently served through the Liaison Offices of their various States and they duly responded to such service without taking any exception to the fact that they were served through their State Liaison Offices. See Attorney General of Ondo State V. Attorney General of the Federation & 35 Ors. (2002) 6 S.C. (Pt. 1) 1; (2002) 9 SCM 1; Alhaji Mohammed DikkoYusuf & Anor V. Chief Olusegun Aremu Okikiola Obsanjo & 56 Ors (2003) 9-10 S.C. 53, (2003) 11 SCM 167 and Attorney General of the Federation V. Attorney General of Abia State & 35 Ors. (2002) 4 S.C.(pt.1) 1, (2002) 6 SCM 1. In the instant case, there is uncontradicted evidence that the appellants were served at No. 26 Bishop Oluwole Street, the Liaison Office of the Rivers State Government at the time. The only reasonable inference that can be raised is that the appellants were duly served at the said Liaison Office, No. 26 Bishop Oluwole Street, Victoria Island, with the Court processes as claimed by the respondent. I must therefore resolve this issue against the appellants.
Now, the other question that will now be considered is, whether the Court below was right to have held that High Court of Lagos State was properly seized of the case. The particular point that moved the Court below to reach that conclusion is the view held that the subject matter of the suit sounded in “debt” and not contract as argued by the appellants before the Court below. As this argument has again been raised in this appeal, it must be considered again in the light of the reasoning of the Court below. In this context, Oguntade, JCA (as he then was) at p.130 of the Printed Record said thus:
“However, a close scrutiny of the affidavit in support of the application and the Writ of Summons easily reveal that the claim was for a debt which parties themselves had agreed upon but which was not settled by the appellants. The contract had long been performed. The amount due to the respondent had been ascertained at a meeting between parties and agreed at N4,500,000.00
payable in six equal monthly instalments beginning from May 1981. Clearly, this was no longer a claim in contract. It had become a debt. This was therefore a claim that fell within the ambit of order 2 rule 4 of the High Court Rules which enabled the suit to be brought in a place where The “defendant resides or carries on business.” The Writ of summons was served on the appellants at its Liaison Office in Victoria Island, Lagos, which was a place where the defendants carried on business. Accordingly, it is my view that the appellants were properly sued in Lagos.”
The above excerpt from the judgment of the Court below compels me to consider the following aspects of the reasoning of that Court. The first point that I wish to make is, whether the Court below was right to have held that the parties had agreed that the debt sum was settled at N4,500,000.00. Reference was made to the affidavit filed in support of the Writ of Summons, see pages 131 & 132. And I will refer particularly to paragraphs 5,6 & 10, thereof:
“5. In April 1981 a special committee of the 1st defendant and the plaintiff agreed that the total value of works already executed on the projects by plaintiff was N4.5 million Naira and that 60% of that amount were dominated in foreign currency. See Exh. ‘A’ minutes of meeting dated April 5 1981.
- By its exchange control approval letter of 19th June 1991 the Federal Ministry of Finance approved the transfer of 60% of the above mentioned contract sum of N4.5 million at the pre-SFEM rate by the Rivers State Government to plaintiff- See Exh. ‘C’.
- The 1st defendant subsequently in 1995 paid the sum of N3.5 million as a deposit towards the remittance of the balance of the 60% foreign content of the contract into an escrow account with the Swedish Embassy on behalf of plaintiff. The Rivers State Commi-ssioner for Finance then wrote to the Federal Ministry of Finance to approve the outstanding amount of USD 3,138,122.81 at the pre-SFEM rate. See Exhibit ‘E’ letter from defendants’ Commissioner for Finance dated 27th April 1995.”
A careful reading of these paragraphs seem to show that a sum of N4, 500,000.00 was agreed as the debt. But clearly the respondent, has by its Writ of Summons gone ahead to claim the sum of USD3,138,122.81, and which the appellants are now disputing. The Court below took the view that the appellants should have raised that as a defence to the action when they were served with the Writ of Summons. The position taken by the Court below is no doubt understandable having held that they were properly served with the Writ of Summons. But having regard to what I have said concerning the service of this Writ of Summons, I do not think that the Court below was right to have held that the actions sounded in debt. It is enough to say that having recognised that there is a dispute as to the sum claimed, the Court below should not have held that a contract no longer subsists between the parties. It seems to me that as the dispute as to terms of settlement has not been resolved, it cannot be said that the action can be described as a recovery of a debt due simpliciter.
The next question is, whether it can rightly be said that the appellants were doing their business in Lagos merely because they had a Liaison Office at 26 Bishop Oluwole Street, Victoria Island, Lagos where they were purportedly served. I think not. In my respectful view, it is quite untenable for a Court to hold that a State Government is operating from a Liaison Office. Nor can it be similarly considered tenable and within good reason to hold also that the Attorney-General of a State is operating and had its offices within the confines of a Liaison Office. In my respectful view, it is preposterous to hold that a State Government and principal Officers of a State such as the Attorney General are carrying out the businesses of their offices in a Liaison Office. In any event, the determination of where the appellants have as their business place ought to be determined by virtue of the provisions of s.3 (3) of the Constitution of Nigeria 1999 which states inter alia, that the headquarters of each State shall be known as the Capital City of that State: and which in the case of Rivers State is Port Harcourt.
Although the respondent was silent in the affidavit filed in support of the Writ of Summons about where the transactions concerning the alleged agreement on the amount owed, it is however my view from a careful reading of the affidavit and in the other supporting documents that all the transactions that resulted in this action took place in Port Harcourt. With what I have said above, I am afraid it is not possible for me to subscribe to the view held by the Court below that the appellants were carrying on their business in Lagos.
This takes me to the provisions of Order 2 Rule 3 of the High Court of Lagos (Civil Procedure) Rules, 1994 which reads: –
“All suits for the specific performance or upon breach of any contract may be commenced and determined in the Judicial Division in which such a contract ought to have been performed or in which the defendant resides.”
By the above provisions of Order 2 Rule 3, it is manifest that this action having regard to my conclusion, that the appellants reside and have their business in Port Harcourt, it is my view that had the Court below adverted to the above provisions and the facts as analysed above, it would not have held that the action was properly commenced and heard in Lagos. It follows therefore that the decision of the Court below that the appellants reside and do their business in Lagos is hereby overturned.
From what I have said above, this appeal ought to succeed. It is unfortunate though, that this matter ought to have been properly concluded before now had the respondent taken proper steps as provided by the Rules to prosecute the claim. I think I ought to add that it is not always profitable
for a seeker after justice to do so by shutting out the other party unfairly in the determination of the matters in dispute.
In the result and for all the reasons given above, this appeal is allowed by me. The judgment and orders of the Court below are set aside and I award costs to the appellants in the sum of N10,000.00 only.
M L. UWAIS, CJN
I have had the opportunity of reading in draft the judgment read by my learned brother Ejiwunmi, JSC. I agree that the service on the Appellant’s through the Rivers State Liaison Office in Lagos was proper since the office had been established by the Rivers State Government for the purposes of conducting some of its business in Lagos. On jurisdiction, there is no doubt that the High Court of Lagos State by its Rules could not hear the Respondent’s claim even on the undefended list.
Accordingly, I too allow the appeal and award N10,000.00 costs to the Appellants.
S.U. ONU, JSC:
1 have had the advantage of reading before now the Judgment just delivered by my learned brother, Ejiwunmi, JSC and I agree with his reasoning and conclusion that the appeal succeeds. It is accordingly allowed by me and I make similar consequential orders inclusive of costs as therein awarded.
NIKI TOBI, JSC
I have read the judgment of my learned brother, Ejiwunmi, JSC, and I agree with him. I want to add this bit of mine and it will be on the issue of jurisdiction.
Learned Senior Advocate for the appellants, Mr. H. O. Ajumogobia, sought leave of this Court to raise the issue of jurisdiction which was not raised either in the High Court or in the Court of Appeal. The question of jurisdiction, being radically fundamental, can be raised at any stage of the proceedings and even for the first time in this Court. See Management Enterprises Ltd. V. Otusanya (1987)2 NWLR (Pt. 55) 179.
The action was filed by the plaintiff/respondent against the defendants/appellants for contract executed by the plaintiff/respondent rendering engineering consultancy services to Rivers State Government in Port Harcourt between 1974 and 1981.
Why was the action filed in the High Court of Lagos State when there is no nexus between the contract and Lagos State? A court in one State does not have jurisdiction to hear and determine a matter which is exclusively within the jurisdiction of another State. In actions based on contract, jurisdiction depends generally on one of the following three alternatives, namely: (a) Where the contract was made; (b) where the contract ought to have been performed; or (c) where the defendant or one of the defendants resides. There is also another settled procedure and it is this. The venue for the trial of a suit based on a breach of contract could also be determined by (a) where the contract ought to have been performed; or (b) where the defendant resides; or (c) where the defendant carries on business. I do not see the jurisdiction of the High Court of Lagos State in any of the above.
Can the appellants be said to have carried on business in Lagos as held by the Court of Appeal? I think not. With respect, I do not agree with the Court of Appeal that the appellants carried on business in Lagos State merely because a liaison office is located there. A liaison office is merely for administrative convenience and cannot qualify as carrying on business of a State Government. While a liaison office may be good enough for purposes of service (an issue I will take later) it is certainly not good enough as a place where the appellants carry on business.
The Court of Appeal invoked Order 2 Rule 4 of the High Court of Lagos State Rules. While it does not appear to me that jurisdiction of a court can be determined by Rules of Court, as it is a matter of either the Constitution or the enabling statute. I shall take the rule here. It provides:
“All other suits may be commenced and determined in the Judicial Division in which the Defendant resides or carries on business.”
I am in total agreement with learned Senior Advocate for the appellants that both appellants reside at their administrative headquarters in Port Harcourt, and if I may add, they also carry on business there.
Let me also deal with the issue of service as it affects the jurisdiction of the court. The essence of service in our procedural or adjectival law is to ensure that the party is put on notice of the pending litigation, and this can be achieved through a liaison office. The word “liaison” means a working association or connection, to ensure that each side is well informed about what the other is doing
Communications are usually sent through liaison offices to their State Governments in named cities and towns. Can the 1st appellant really argue that it has never received any communication by way of letters and all that through the Lagos Liaison Office? Why should a writ of summons be different? The point raised by learned Senior Advocate for the appellants sounds rather technical and abstract. With respect, I do not agree with him that service on the liaison office of the 1st appellant is not personal service. The liaison office is clearly an administrative arm of the 1st appellant and service can be effected through it. I am of the view that service on the liaison office of the 1st appellant, if there is service at all, is proper personal service on the appellants, and I so hold.
In view of the fact that the High Court of Lagos State had not the jurisdiction in the matter, the
appeal is allowed. The claim before the High Court of Lagos State is struck out. I award N10,000.00 costs in favour of the appellants.
D.O. EDOZIE, JSC
By a writ of summons in suit No. LD/1664/2000 filed in the Registry of the High Court of Lagos on 6th June 2000, the Respondent as Plaintiff claimed against the Appellants as Defendants reliefs formulated in the following terms:
“ The Plaintiff claims against the 1st Defendant the sum of USD 3,138,132.81 cents (Three million one hundred and thirty eight thousan
I. Olorundare with him A. F. Yakub for the 1st Respondent 2nd & 3rd Respondents are not represented.