THE HON. ATTORNEY GENERAL OF ONDO STATE v. MOSES TENE & ORS (2015)

THE HON. ATTORNEY GENERAL OF ONDO STATE v. MOSES TENE & ORS

(2015)LCN/8021(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of November, 2015

CA/B/135/2008

RATIO

COURT: JURISDICTION; WHEN CAN THE ISSUE OF JURISDICTION BE RAISED

That it’s trite law, that issue of jurisdiction can be raised at any time and in the just time on appeal, even at the Supreme Court. See UCHEGBU v. SPDC LTD (2010) 2 NWLR (Pt. 1178) 285; SAPO v. SUNMONU (2010) 4 NWLR (Pt. 1205) 374; GEORGE v. FRN (2010) 12 NWLR (Pt. 1184) 381. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

APPEAL: ISSUE FOR DETERMINATION; WHETHER ISSUE FOR DETERMINATION RAISED IN A BRIEF OF ARGUMENT MUST BE DISTILLED FROM, OR PREDICATED UPON, A COMPETENT GROUND OF APPEAL
Indeed, it is a trite fundamental principle, that an issue for determination raised in a brief of argument must be distilled from, or predicated upon, a competent ground of appeal. Thus, where an issue is not distilled or predicated upon a competent ground of appeal, it’s deemed at large, it’s liable to be discountenanced and/or struck out. See MOBIL PRODUCING (NIG) UNLTD v. MONOKPO (2003) 18 NWLR (Pt. 852) 346 at 442 – 443 H-A; CHIME v. CHIME (2001) 3 NWLR (Pt. 701) 527 at 550 paragraph. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

COURT: JURISDICTION; UPON WHICH MATTER IS A COURT OR TRIBUNAL COMPETENT TO ENTERTAIN AND ADJUDICATE

It’s a trite fundamental doctrine, that a court or tribunal is competent to entertain and adjudicate upon any matter only when –
(i) it is properly constituted regarding the requisite numbers and qualifications of the members thereof;
(ii) the subject matter of the case or matter is within its jurisdictional competence, and there is no any feature therein preventing it from exercising the jurisdiction thereof; and
(iii) the matter is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; AKEEM v. UNIVERSITY OF IBADAN (2003) 10 NWLR (Pt. 829) 584; AFRIBANK (NIG.) PLC v. BANK IND. LTD. (2006) 5 NWLR (Pt. 973) 300; OLORIODE v. OYEBI (1984) 1 SCNLR 390; NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272; EZOMO v. OYAKHIRE (1984) 1 NWLR (Pt. 2) 195; OLORUNTOBA – OJU v. ABDUL-RAHEEM (2009) 13 NWLR (Pt. 1157) SC 83 @ 124 paragraphs E – G. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

COURT: JURISDICTION; HOW IS JURISDICTION CONFERRED AND DETERMINED

In the notorious case of BUKAR MANDARA v. FRN, the Apex Court aptly postulated that –
Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive? Jurisdiction is a power clearly visible to all beholders of the constitution and the law [that] confers it. Microscopic eyes are not required in order to unearth it. See (1984) LPELR – 8048 (SC) per Obaseki, JSC (of blessed memory) @ 42. Indeed, the issue of jurisdiction is determined by the reliefs sought by the Plaintiff in the originating processes thereof, (be it the Writ of Summons, originating summons or motion, as the case may be), and the Statement of Claim. See ADEYEMI v. OPEYORI (1976) 9 – 10 SC 31; ONUORAH v. KADUNA REFINING PETROCHEMICAL CO. LTD (2005) 6 NWLR (Pt. 921) 393, et al. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

COURT: JURISDICTION; HOW TO DETERMINE THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT VIS-A-VIS THE PROVISIONS OF SECTION 251(1) OF THE 1999 CONSTITUTION

In order to determine the exclusive jurisdiction of the Federal High Court vis-a-vis the provisions of Section 251(1) of the 1999 Constitution, it behoves the court to accord a careful regard upon the facts and circumstances surrounding the case as pleaded in the originating processes in question. See TRADE BANK PLC v. BENILUX (NIG) LTD (2003) 9 NWLR (Pt. 825) 416.
By virtue of the said Section 251(1) of the 1999 Constitution, most especially Subsection (1) (p), (q) and (r), notwithstanding anything to the contrary contained in the constitution, and in addition to such powers as may be conferred thereupon by the Act of the National Assembly, the Federal High Court has and exercises jurisdiction to the exclusion of any other court or tribunal in civil causes or matters relating to-
(a) The administration or the management and control of the Federal Government or any of its agencies.
(b) Subject to the provisions of the constitution, the operation and interpretation of the constitution in so far as it affects the Federal Government or any of its agencies;
(c) Any action or proceedings for declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
Thus, consequent upon a community reading of the foregoing provisions of Section 251(1) (a) (b) and (c) of the 1999 Constitution (Supra), it is obvious that the Federal High Court is conferred with the power to adjudicate upon any action, matter or cause seeking declaratory or injunctive reliefs. Thus, undoubtedly, Section 251(1) of the 1999 Constitution (supra) has created a situation whereby, to invoke jurisdictional competence of the Federal High Court, one of the parties must be an agency of the Federal Government, and that the subject matter be for an action for a declaration, or injunction affecting the validity of any executive, or administrative action or decision by either the Federal Government itself and/or any of the agencies thereof. See NEPA v. EDEGBERO (2002) 18 NWLR (Pt. 798) 79; OLORUNTOBA-OJU v. ABDUL-RAHEEM (Supra) @ 126 – 127 paragraphs F – C. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

COURT: JURISDICTION; THE ACTION OR PROCEEDING A FEDERAL HIGH COURT IS CLOAKED WITH JURISDICTIONAL COMPETENCE TO ENTERTAIN

Indeed, it’s a trite fundamental principle, that where any action or proceeding for a declaratory or injunctive relief, the validity of any executive or administrative action, or decision by the Federal Government or any of the agencies thereof, the Federal High Court is cloaked with jurisdictional competence to entertain and adjudicate upon the matter. See Section 251(1)(r) of the 1999 Constitution, as amended (Supra); OSAKWE v. FCE ASABA (2010) 10 NWLR (Pt. 12011) 1; FMBN v. LAGOS STATE GOVT. (2010) 5 NWLR (Pt. 1188) 570; GODWIN v. OKWEY (2010) 16 NWLR (Pt. 1219) 309; OHAKIM v. AGBASO (2010) 7 NWLR (Pt. 1226) 173. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

PRACTICE AND PROCEDURE: LOCUS STANDI; WHEN IS A PLAINTIFF SAID TO HAVE A LOCUS STANDI TO SUE

PRACTICE AND PROCEDURE: ORIGINATING SUMMONS; WHAT IS THE MERITS OF THE ORIGINATING SUMMONS PREDICATED UPON

It is trite that the merits of the originating summons is predicated upon the fact that proceedings initiated thereby are very expeditiously dealt with. The reason being that pleadings are not required to be filed. Thus, witnesses are very rarely examined in the course of the proceedings. Rather, affidavit evidence is very often not [largely] used. Hence, originating summons is usually in cases involving questions of law rather than disputed issues of facts. Contrariwise, where the proceedings involve disputed issues or questions of facts [hostile proceedings], an originating summons should not be resolved to. In that case, a Writ of Summons should be most ideal for the commencement of the action. See DOHERTY v. DOHERTY (1969) NMLR 24; TAIWO v. AKINWUNMI (1975) 4 SC 143 @ 172; STANDARD PATTERN CO. LTD v. IVEY (1962) 1 All 452; GILL v. LEWIS (1956) 1 ER 844. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

COURT: JURISDICTION; WHEN IS A COURT SAID TO BE COMPETENT TO ASSUME JURISDICTION IN A MATTER

Indeed, it is a trite fundamental principle, that a court can only be competent to assume jurisdiction in a matter, when-
i) It is properly constituted as regards numbers and qualifications of the members thereof, and no member is disqualified for one reason or the other.
ii) The subject matter of the case is within the court’s jurisdiction and there is no feature in the case which prevents the court from exercising the jurisdiction thereof and
iii) The case comes before the court initiated by due process of law, and upon fulfillment of any condition
iv) precedent to the exercise of jurisdiction.
See MADUKOLU v. NKEMDILIM (supra) 341. See also ACTION CONGRESS v. INEC (2007) 18 NWLR (Pt. 1065) 50 at 71-72 paragraphs E-A; ISHOLA v. AJIBOYE (1994) 6 NWLR (Pt. 352) 506; AG ANAMBRA STATE v. AG FEDERATION (1993) 6 NWLR (Pt. 302) 692; ONOFIN v. AGU (1992) 3 NWLR (Pt. 229) 350. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

THE HON. ATTORNEY GENERAL OF ONDO STATE Appellant(s)

AND

1. MOSES TENE
2. WILLIAM ANUKUN
3. DR. (CHIEF) CHARLES D. IKOMI
(For themselves and on behalf of the Descendants of Prince Etseye Awoyo Sansan Onuje and the Ugbene Community)
4. THE HON. ATTORNEY GENERAL OF THE FEDERATION
5. THE NATIONAL BOUNDARY COMMISSION
6. BARRISTER D.O. ANOMUOGHARAN
7. MAJEMITE EKELE
(For themselves and on behalf of Moheme Community in Warri North Local Government Area of Delta State)
8. RICHARD EGEMUGE
9. MONDAY OROFIN 6
(For themselves and on behalf of Eketie Community in Warri North Local Government Area of Delta State)
10. FAKE PLUTSE
11. HENRY JAYE MADAMEDON
(For themselves and on behalf of Ekekpo Community in Warri North Local Government of Delta State)
12. ALFRED OMAGBEMI
13. S.A. EDUN
(For themselves and on behalf of Ebokiti Communtity in Warri North Local Government of Delta State)
14. YETSI NEJERE
15. ASOFOR PERRY
(For themselves and on behalf of Ototo Community in Warri North Local Government of Delta State)
16. THE HON. ATTORNEY GENERAL OF DELTA STATE Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is a fall-out of the Judgment of the Federal High Court, Benin Judicial Division, delivered on June 10, 2008 in Suit No. FH/B/C5/118/2006. By the Judgment in question, the court below, coram: Chukura Nnamani, J; dismissed the Appellant’s preliminary objections and entered judgment for the 1st – 3rd and 6th – 15th Respondents (1st and 2nd sets of Plaintiffs), respectively.

BACKGROUND FACTS:
The facts and circumstances surrounding the appeal are gleanable from the records of appeal. Indeed, the genesis of the appeal is traceable to July 10, 2006. That was the day the 1st set of Respondents (1st set of Plaintiffs) instituted the said suit, vide a Writ of Summons, seeking some declaratory and injunctive reliefs against the Appellant, 4th and 5th Respondents, respectively. By the Statement of Claim filed along with the Writ of Summons thereof, the 1st – 3rd Respondents sought the following reliefs against the Defendants jointly and severally:
a. A declaration that the boundary between the Plaintiffs’ Ugbege Community lands is at a point after Ubale fishing

camp in Delta State 15 miles from ObeOgbaro in Ondo State as shown in Map No. M/GA/62/73 prepared by Surv. G.A. Obianwa, a registered Surveyor being the area verged green; and other references pleaded herein. And that the following settlements namely, Ebighan, Makin, Maha, Ulitoton, Ekekporo, Eketie, Ototo, Ewoleba (i.e. Ugbege Market), Ubajekere, Ajango, Ajaogori, Ajajiringho, Molume and Ubale are settlements in the Ugbege Community lands in Warri North Local Government Area, Delta State of Nigeria.
b. A declaration that the Defendants have no right whatsoever to fix the boundary between the Plaintiffs’ Ugbege Community lands in Delta State and Ondo State at Ebighan Fishing Camp which is in the middle of Plaintiffs’ Ugbege Community lands in Delta State.
c. A declaration that the map prepared by the 2nd Defendant in collaboration with the 3rd Defendant and all the steps taken towards fixing the boundary between the Plaintiffs’ Ugbege Community lands in Delta State and Ondo State at Ebighan Fishing Camp has altered and undermined the existing boundary after Ubale in Delta State, 15 miles to Obe Ogbaro in violation of Section 8(2) of the 1999

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Constitution of the Federal Republic of Nigeria and therefore is null and void and of no effect whatsoever.
d. An order of perpetual injunction restraining the Defendants by themselves, agents, privies, servants from undermining the original boundary between Plaintiffs’ Ugbege Community lands in Delta State which is 15 miles to ObeOgbaro in Ondo State and from fixing the boundary between the Plaintiffs’ Ugbege Community lands in Delta State and Ondo State at Ebighan Fishing Camp in Delta State. See pages 13 – 14 of the Record of Appeal.

On August 7, 2006, upon being served with the Originating Processes (Writ of Summons and Statement of Claim), the Appellant entered a conditional appearance. Thereafter, on December 18, 2006, the Appellant filed in the court below a Notice of Preliminary Objection challenging the jurisdiction of the court on the following grounds:
1. The Plaintiffs have no locus standi to institute this suit.
Particulars:
(i) The boundary in dispute is Ondo/Delta State boundary
2. The Federal High Court has no jurisdiction to entertain this suit.
Particulars:
(i) The Suit pertaining to the boundary between

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Plaintiffs’ Community in Delta State and Ondo State.
(ii) The Suit pertains to title to land or boundary dispute between the Plaintiffs and the Defendants.
(iii) Title to land or boundary delineation or declaration is not one of the items the Federal High Court has jurisdiction over.
3. The suit does not disclose a reasonable cause of action against the 3rd Defendant.
Particulars
(i) The 3rd Defendant has no boundary and could not have had any boundary with the Plaintiffs not being the state in the Federation of Nigeria. See pages 114 – 115 of the Record of Appeal.

Written Addresses regarding the preliminary objections were filed and duly adopted on March 5, 2008 by the learned counsel to the respective parties, thereby resulting in the case being adjourned to April 9, 2008 for ruling. However, on March 17, 2008, the 1st – 3rd Respondents filed in the court below an application seeking an order transferring the suit to another Judge on the ground of crises of confidence arising from a series of orders constituting a denial of right of fair hearing to the Respondents.
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Prior to the hearing of the said motion, the [erstwhile]

?4 Presiding Judge of the Lower Court, Okeke, J.; was transferred and succeeded by Nnamani, J. Not surprisingly, on April 8, 2008, the said motion was withdrawn by 1st – 3rd Respondents. Thus, Nnamani, J. ruled directing the respective parties to the following effect:
At instance of counsels(sic) case is adjourned to Tuesday 22-04-08 for hearing issues for determination to be filed by counsels and exchanged before the next adjourned date. Issues to be determine(sic) include (1) the jurisdiction of this court if it is a land matter and (2) the act or mission (sic) of the 2nd Defendant whether it is constitutional or unconstitutional. See pages 287 – 288, Record.

Learned counsel filed and adopted their respective written addresses, thereby resulting in the Lower Court delivering a ruling on May 13, 2008 to the following conclusive effect:
I must say it loud and clear that this court is interested on (sic) expeditious trial and without breaching any principle (sic) of law…
Court only emphasises the taking of issue of jurisdiction first because it (1) gives life to an action, (2) determines the necessary of other issues and again (3) minimizes or

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forestall waste of time of court as taking other issues when the issue of jurisdiction can wholly dispose of the matter will amount to embarking on exercise or trial in futility.
However, being seized of all the processes in the case and the circumstances of the case, I fully endorse UWAIS JSC (as he then was) statement in AMADI v. NNPC (2000) 10 NWLR part 674.
From the foregoing, the matter is adjourned to 06-06-2008 for Judgment.

Dissatisfied with the said ruling, Appellant filed in the court below a Notice of Appeal dated May 26, 2008. He equally filed a motion (CA/B/135M/2008), in this court seeking to stay the [delivery of] Judgment on June 21, 2008, which was fixed for hearing on July 17, 2008. However, on June 10, 2008, the Lower Court proceeded to deliver the vexed Judgment inspite of the pendency of the motion in question.

Not unnaturally, dissatisfied with the said Judgment, the Appellant filed a notice of appeal, dated June 12, 2008 in the court below. Consequent upon the entering of the appeal in this court, the parties filed the respective briefs of argument thereof.
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At pages 12 – 13 of the Appellant’s brief filed on

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18/4/11, five issues have been raised for determination, viz:
i. Having regard to the fact that this action was commenced by a Writ of Summons and no evidence, oral or documentary, was led in support of the facts pleaded, whether or not the trial judge was right in giving judgment for the 1st set of Plaintiffs (1st – 3rd Respondents) – Ground 1.
ii. Considering the fact that the 2nd set of Plaintiffs (6th – 15th Respondents) had no competent claim before the trial court as they were joined as parties the very day the judgment complained of was delivered, whether or not the trial Judge was right in granting declaratory and injunctive reliefs in their favour – Ground 6.
iii. Whether the learned trial Judge was right in determining the Appellant’s Notice of Preliminary Objection together with the substantive suit and in assuming jurisdiction over the Appellant’s motion for stay of proceedings pending before this Honourable Court – Grounds 2, 3 & 5.
iv. Whether, having regard to the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 , the entire proceedings of the learned trial Judge were not a

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nullity, same having been conducted without the Appellant being accorded a fair hearing (grounds 4 & 7).
v. Whether the trial court was right in dismissing the Appellant’s Preliminary Objection to the competence of this suit – Ground 8.

On the other hand, the 1st – 3rd Respondents’ brief was filed on 16/5/11 but deemed properly filed and served on 13/5/15. At page 4 of the said brief, a total of seven issues have been raised, viz:
1. Whether the 5th Respondent’s (National Boundary Commission’s) attempt to vary or alter the boundary between Plaintiffs’ (1st – 3rd Respondents’) communities (in Delta State) and Ondo State does not constitute a violation of the Constitution?
2. If in the opinion of a Court, the decision on a point of law can substantially dispose of the whole of an action, can the court set it down for Hearing at any time before or at the Trial?
3. Whether a party that is given an opportunity to state its case, but defiantly rejects that opportunity in disobedience of a Court Order, can complain of not being given a fair hearing. Also whether Appellant had a competent motion for stay of proceedings pending before this

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Honourable Court.
4. Whether Declaratory Reliefs can be granted in an action commenced by Writ of Summons.
5. Whether a Court has the power to take and determine interlocutory (preliminary issues) and substantive issues together.
6. Whether a procedural defect in an order of joinder is fatal to the whole action, or is a mere irregularity which does not affect the cause of action of the Petitioner on Record.
7. Whether the subject matter of this suit is within the jurisdiction of the Federal High Court and whether the 1st – 3rd Respondents and their Communities had locus standi and a Reasonable Cause of Action to bring this suit at the Lower Court.

The 4th Respondent’s brief, dated 11/9/11, was deemed properly filed on 10/3/15. At page 5 of the said brief, the 4th Respondent opted to adopt the Appellant’s issues for the determination of the appeal. Contrariwise, the 5th Respondent chose not to file any brief.
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The 6th – 15th Respondents’ brief was filed on 18/5/11. At page 6 of the said brief, the 6th – 15th Respondents equally opted to adopt the Appellant’s issues for determination. They also filed a reply brief to the 4th

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Respondent’s brief and a reply to Cross-Appellant’s brief.

The 16th Respondent’s brief was filed on 30/4/12. At page 2 of the said brief, five issues have been raised, viz:
1. WAS THERE ANY MISCARRIAGE OF JUSTICE OCCASIONED TO THE APPELLANT HAVING REGARD TO THE METHOD AND OR PROCEDURE ADOPTED BY THE TRIAL JUDGE IN ARRIVING AT THE JUDGMENT APPEALED AGAINST. GROUND 1.
2. WAS THERE ANYTHING SUBSTANTIALLY WRONG IN LAW IN THE DECISION OF THE LEARNED TRIAL JUDGE HEARING THE PRELIMINARY OBJECTION ALONG WITH THE MAIN CASE PARTICULARLY WHEN THERE WAS NO COURT ORDER STOPPING THE COURT FROM DOING SO. GROUNDS 2, 3, 4, 5 AND 6 OF GROUNDS OF APPEAL.
3. DID THE TRIAL JUDGE BREACH THE PRINCIPLE OF FAIR HEARING AGAINST THE APPELLANT.
4. DID THE JOINDER OF THE 2ND SET OF PLAINTIFFS HAVE ANY LEGAL EFFECT THAT WOULD HAVE PREVENTED THE GRANT OF THE RELIEFS CLAIM BY PLAINTIFFS IN THE JUDGMENT.
5. WAS THE LEARNED TRIAL JUDGE RIGHT IN DISMISSING THE PRELIMINARY OBJECTION OF THE APPELLANT AGAINST THE ACTION OF THE PLAINTIFFS.

Also noteworthy, is the fact that a Cross-Appellant’s Brief of Argument was filed by Mr. Bamitale Baiyeunsi for the National

?10 Boundary Commission (the 5th Respondent in the main appeal).

The Appellant’s brief of argument, filed on 18/4/11, spans a total of 56 pages. Issue No. 1 is canvassed at pages 13 – 20 of the said brief. In a nutshell, the submission on this issue is to the effect that the suit was commenced by a writ of summons and also a statement of claim. That the facts that could only be proved by oral evidence were pleaded therein. In support of averments thereof, documents were also pleaded by the Plaintiffs.

That the 5th Respondent (2nd Defendant) joined issues with the original Plaintiffs in their statement of defence. Likewise, the Appellant (3rd Defendant) raised a preliminary objection to the jurisdiction of the court below to entertain the suit.

It was contended, that the trial court should have commenced with the hearing of the Notice of Preliminary Objection raised by the Appellant. See GAFAR v. GOVERNMENT OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375 at 403 paragraphs G – H.
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Further contended, that instead of adjourning the matter for trial, the Lower Court adopted an irregular procedure by converting the writ of summons to an originating

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summons. Allegedly, the court does not have power or jurisdiction to suo motu convert a writ of summons to an originating summons and proceed to determine same without taking oral evidence, more particularly where the facts in issue are contentious , as in the instant case. See EJURA v. IDRIS (2006) 4 NWLR (Pt. 971) 538 @ 560 – 561.

It was argued, that the originating summons upon which the Lower Court delivered the vexed Judgment was incompetent. Therefore, the court has no jurisdiction to determine an originating summons without an affidavit attached thereto: FESTUS KEYAMO v. HOUSE OF ASSEMBLY, LAGOS STATE (2002) 18 NWLR (Pt.799) 605 paragraphs F – G.

Further argued, that the pronouncement at page 323 lines 17 – 19 of the Record amounts to descending into the arena and making a case for a party in gross violation of settled principles: S.S. STEEL (NIG) LTD v. GOVT OF ANAMBRA STATE (2001) 3 NWLR (Pt. 715) 454 @ 467 paragraphs B – C; OGOLO v. OGOLO (2006) 5 NWLR (Pt. 972) 163 SC @ 184 paragraphs C – E. The court is urged to resolve the first issue in favour of the Appellant.
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The Issue No. 2 is canvassed at pages 21 – 23 of the said brief.

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Alluding to the 6th – 15th Respondents’ application for joinder (pages 82 – 113 of the Record), it was submitted, that the said application was granted by the Lower Court without amending the Plaintiffs’ originating process, to enable the 16th Respondent (joined as 4th Defendant) to file pleadings thereof. In the vexed Judgment, the Lower Court granted six reliefs in favour of the new set of Plaintiffs and orders prejudicially affecting the interest of both the Appellant and 16th Respondent. It was contended, that after joinder of a party, the court ought to have ordered for the amendment of the originating processes. See UCHENDU v. OGBONI (1999) 5 NWLR (Pt. 603) 337 @ 352 paragraphs A – C; ODADIE v. OKAJENI (1973) 11 SC 343.

The court is urged to so hold, and accordingly resolve the issue No. 2 in favour of the Appellant.
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The Issue No. 3 is argued at pages 23 – 32 of the brief. It’s submitted, inter alia, that what the Lower Court did was to consolidate the preliminary objection with the substantive action and determine them together, relying on AMADI v. NNPC (2000) 10 NWLR (Pt. 674) 76; INAKOJU v. ADELEKE (2007) 4 NWLR (Pt. 1025) 423; and SENATE

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PRESIDENT v. NZERIBE (2004) 9 NWLR (Pt. 878) 251.

That, the trial court was wrong when it failed to determine the issue of jurisdiction first before proceeding to determine the substantive suit. See CONTINENTAL INDUSTRIAL GASES LTD v. ONAFEKO (2003) 7 NWLR (Pt. 820) 497 @ 490 paragraphs B – C; 495 A; ORIZU v. OFOMATA (2007) 13 NWLR (Pt. 1052) 487 @ 504 A – E; GAFAR v. GOVT KWARA STATE (Supra); OBI v. INEC (2007) 11 NWLR (Pt. 1024) 436 @ 482; MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; IHECHUKWU v. STATE (2004) 15 NWLR (Pt. 896) 296; UGWUANYI v. NICON INSURANCE PLC (2004) 15 NWLR (Pt. 897) 612.

Regarding the motion pending before the Court of Appeal (CA/B/135M/2006), it was contended that the court below was wrong, and acted beyond its powers, by assuming jurisdiction over the motion that was not before it. See ACTION CONGRESS v. INEC (2007) 18 NWLR (Pt. 1065) 50 @ 71 – 72 E – A; MADUKOLU v. NKEMDILIM (Supra); MIL. ADMIN. BENUE STATE v. ABAYITO (2001) 5 NWLR (Pt. 705) 19; ISHOLA v. AJIBOYE (1994) 6 NWLR (Pt. 352) 506; AG ANAMBRA STATE v. AG FED. (1993) 6 NWLR (Pt. 302) 692; ODOFIN v. AGU (1992) 3 NWLR (Pt. 229) 350.
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The court is urged to

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resolve the said Issue No. 3 in favour of the Appellant.

The Issue No. 4 was canvassed at pages 33 – 40 of the brief. It was submitted, in the main, that it’s clear from the records, that the Appellant was deliberately shut out of the proceedings of April 8, 2008, the very day the Lower Court formulated issues suo motu for determination, and upon which the Judgment of June 10, 2008 was substantially based.

Further submitted, that the entire proceedings and all issues relating thereto, including the vexed Judgment are a nullity, same having been conducted in utter breach of the Appellant’s right to fair hearing as guaranteed by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria. See WAPPAH v. MOURAH (2006) 18 NWLR (Pt. 1010) 18 @ 48 – 49 paragraphs B – A; UDO v. STATE (1988) 3 NWLR (Pt. 82 (316); OTAPO v. SUMMONU (1987) 2 NWLR (Pt. 58) 587; AGBAEZE v. CC ITEMS DISTRICT (2007) 7 NWLR (Pt. 1032) 196 @ 207; AGBU v. AGBU (2007) NWLR (Pt. 1016) 528 @ 538 – 539 G – A; NEPC v. BOMBA CO. LTD (2008) 24 WRN 142 @ 168.
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Alternatively, it was contended that even if the Lower Court was right in deferring the consideration of the

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preliminary objection in the final Judgment, it was wrong to foreclose the right of the Appellant to defend the action. The court is urged to so hold, resolve the Issue No. 4 in favour of the Appellant, and accordingly set aside the proceedings and Judgment of the court below.

The Issue No. 5 is canvassed at pages of the said brief. It was submitted that any matter not listed in Section 251 of the 1999 Constitution and Section 7 of the Federal High Court Act CAP. F12 Laws of the Federation of Nigeria 2004, is not within the jurisdiction of that court: ONUORAH v. KRPC LTD (2005) 6 NWLR (Pt. 94) 393 @ 408 – 409; ACHEBE v. NWOSU (2003) 7 NWLR (Pt. 818) 103 @ 128 – 129.

Equally submitted, that it’s the Plaintiffs’ claim that vests jurisdiction upon a court: ONUORAH v. KRPC LTD (Supra); MUSTAPHA v. GOV. OF LAGOS STATE (1987) 2 NWLR (Pt. 58) 539; TUKUR v. GOVT, GONGOLA STATE (1989) 4 NWLR (Pt 117) 592; OHMB v. GARBA (2002) 14 NWLR (Pt. 788) 538.
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Allegedly, by the endorsements on their writ of summons and statement of claim, the 1st – 3rd Respondents asked the court below to relocate some of the communities in Ondo State to Delta State. Thus, by virtue

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of the First Schedule to the Constitution relating to Ondo and Delta States, the court below does not have jurisdiction to adjudicate on the matter. See EXPARTE ADESHINA (1996) 4 NWLR (Pt. 2442) 254 @ 262; OGUNNIYI v. DARAMOLA (1973) ALL NLR 900.

Secondly, the issue of Locus Standi goes to the competence of the court to adjudicate on a matter: OLORIDE v. OYEBI (1994) SCNLR 390; FAWEHINMI v. PRESIDENT FRN (2008) 23 WRN 65 @ 109; ADESANYA v. PRESIDENT FRN (1981) 2 NCLR 358 @ 384; THOMAS v. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669 – 690 paragraphs H – F.

It is postulated that in the instant case, it’s clear that the Plaintiffs are mere busybodies and at best meddlesome interlopers, as the subject matter being predicated on is a boundary dispute between Delta and Ondo States.
The Land Use Act vests the ownership of land within a particular state in the Governor of that State: SECTION 1, LAND USE ACT CAP. L6 LFN, 2004. See FAWEHINMI v. PRESIDENT (Supra); OWODUNNI v. REGISTERED TRUSTEES OF CCC (2000) 6 SC (Pt. 111) 60; AKWA IBOM STATE v. ESSIEN (Supra); ADESOKUN v. ADEGOROLU (1997) 3 NWLR (Pt. 493) 261 @ 278; BOLAJI v. BAMGBOSE (1986) 4 NWLR (Pt. 37)

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632 @ 646.

Regarding the issue of reasonable cause of action, it was submitted that, in the instant case, the Plaintiffs’ action as constituted, fails to disclose any cause of action against the Appellant. See THOMAS v. OLUFOSOYE (Supra) @ 242; 1976 WHITE – THE SUPREME COURT PRACTICE, Volume 1 @ page 161; LETANK v. COOPER (1965) 1 QB 222 @ 242; RINCO CONST. CO. LTD v. VEEPEE INDUSTRIES LTD (2005) NWLR (Pt.929) 85 @ 95.

Further submitted, that the issue of Section 8(2) of the Constitution does not arise on this case, since what is at stake is a boundary dispute between two States of the Federation. The court is urged to resolve the issue No.5 in favour of the Appellant.

Conclusively, the court is urged to allow the appeal, set aside the Judgment of the court below, dismiss or strike out the plaintiffs’ suit.

On the other hand, the 1st – 3rd Respondents’ brief, deemed properly filed on 15//3/13, spans a total of 65 pages.
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Issue No. 1 is canvassed at pages 5 – 13 of the brief. In a nutshell, it was submitted, that the 5th Respondent’s attempt to alter the legal boundary in question is not only a matter of public knowledge, but also

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expressly admitted in paragraphs 6 and 18, of the 5th Respondent’s counter affidavit. See pages 25 – 66 of the Records.

Allegedly, what the 5th Respondent proceeded to do was an attempt to replace the de jury boundary with shade what it calls Option ‘B’ or Political Solution to the boundary problem based on an agreement between the Governors of Delta, Ondo States and the Federal Government. See paragraphs 9 – 17, 22 – 25 and 27 of the 5th Respondent’s counter affidavit (pages 26 – 29 of the Records).

Further submitted, that the 5th Respondent has commenced taking further steps towards the implementation of the so called Option B Consensus. Thus, the instant suit was instituted to stop the said steps at establishing a new and illegal boundary between the 1st – 3rd Respondents’ community lands (in Delta State) and Ondo State in violation of the constitution: Section 8(2) of the Constitution.

It was contended, that in the light of the provisions of Section 8(2) of the Constitution, it is clear that all the steps taken by the 5th Respondent, with or without the support and collaboration of the Appellant or 4th Respondent, were unconstitutional, null

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and void. See Section 1(1) & (2) of the Constitution.
See ABIA STATE v. AG. FED. (2002) 3 SC 106 @ 152; PHOENIX MOTORS v. NPFMB (1993) 1 NWLR (Pt. 272) 718 @ 730 paragraphs B – C; ACB v. LOSADA (1995) 7 NWLR (Pt. 405) 26 @ 52 – 53 paragraphs F – G.

The court is urged to grant the reliefs (i) – (iv) sought by the 1st – 3rd Respondents and 6th – 15th Respondents in the Statement of Claim thereof.

It was submitted, in the main, that in the light of the 1st – 3rd Respondents’ repeated reference to the 5th Respondent’s violation of Section 8(2) of the Constitution, that the court below decided that the issue of violation of the constitution was a fundamental one whose resolution would dispose of the whole action one way or the other; for any act of breach of the constitution is automatically null, void and of no effect.

Further contended, that the court below did not convert the Writ of Summons into an Originating Summons. And that apart from Order 25 Rules 1, 2 and 3 (Supra), a court has an inherent jurisdiction to do so in the interest of justice. See ORUOBA v. ANOKWE (1997) 5 NWLR (Pt. 506) 608 @ 632 – 633; ADESUYI v. MUSTAPHA (2011) 2

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WRN 93 @ 113, lines 35 – 40; KOLAWOLE v. FOLUSHO (2009) 5 WRN 68 @ 109; ATOYEBI v. BELLO (Supra); ACB v. NBISIKE (1995) 8 NWLR (Pt. 416) 725 @ 742 – 743.

Conclusively, it was posited, that in this case the issue already existed in the pleadings, and all the Lower Court did was to lift it out for resolution and disposal of the case, one way or the other.

The Issue No. 3 is canvassed at pages 20 – 26 of the said brief. It was submitted, inter alia, that in wilful disobedience of court orders, the Appellant’s counsel insisted that his Preliminary Objection had to be taken first and separately, before considering the issue of the constitutional validity of the boundary adjustment. That, the Appellant also in gross breach of Order 26 Rule 2(1) of the Federal High Court Rules, 2000, refused to file the Statement of Defence thereof. It was a strategy of buying time and frustrating the Plaintiffs, which the court below detected and stopped successfully to enable the court to go to the real issues and do justice in the case. See ARIORI v. ELEMO 1 SCNLR.
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Regarding the issue of Arrest of Judgment, it was submitted that by Order 7 Rule 4 of the Rules of

?21
this Court 2007, application for ‘arrest’ of Judgment or stay of proceedings must first be filed and heard in the court below. See NEWS WATCH COMMUNICATIONS LTD v. ATTA (2006) 34 WRN 1 @ 41 paragraphs 5 – 15 per Oguntade, JSC @ 29 – 30 per Niki Tobi, JSC and 36 per Kalgo, JSC.

The Issue No. 4 was extensively canvassed at pages 26 – 35 of the said brief. Without much ado, it was submitted that the Declaratory Reliefs are not limited to actions commenced by Originating Summons. That there is nothing mysterious or recondite about declaratory relief. See MUHAMMED v. DANTATA (1996) 8 NWLR (Pt. 469) 745 @ 752 paragraph C per Uwaifo, JCA (as he then was); 750, F – G; 753 paragraph G; ADEBIYI v. OKEBURUN (2009) 10 WRN 137 @ 147 per Nweze, JCA (as he then was); INTERNATIONAL ILES INDUSTRIES (NIG) LTD v. ADEREMI (1999) 8 NWLR (Pt. 614) 268; OGOLO v. OGOLO (2006) 2 SC (Pt. 1) 61.
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The court is urged upon to interprete OGOLO’s case in a manner that would prevent a startling and unequitable result bearing no relationship to Nigerian Civil Procedure and Practice. See COURTS AND COMPANY v. INLAND REVENUE COMMISSIONERS (1953) AC 267 @ 281; KALU v. ODILI (1992)

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5 NWLR (Pt. 240) 195 – 196 paragraph H; 196 paragraph A; MINISTER OF LOCAL GOVT (EN) v. AKPAGU (1964) 1 ALL NLR 208; (1964) 1 SCNLR 352; LADOJA v. INEC (2007) 7 SC 99 @ 155 – 156.

It was contended, nowhere in all the foregoing cases was there a requirement for oral evidence. All that was required was a substantial point by law between two opposing parties which requires a judicial resolution. That the cases were decided purely on points of law. See AMAECHI v. INEC (2008) 10 WRI; PETER OBI v. INEC (2007) 1 NWLR (Pt. 1046) 505; AG LAGOS STATE v. AG FEDERATION (No. 1) (2005) 3 WRI; INAKOJU v. ADELEKE (2007) 4 NWLR (Pt. 1025) 423; AG OF LAGOS STATE v. AG FEDERATION (No. 1) (2003) WRN 1, et al.

Issue No. 5 is argued at pages 35 – 39 of the said brief. It was submitted, inter alia, that the question of joinder of an intervener as joint or Co-Plaintiff is a complex one giving rise to problems. Cited and relied upon FADAYOMI v. SADIPE (1986) 2 NWLR (Pt. 25) 736 @ 742; AROMIRE v. AWOYEMI (1972) 2 SCC (Reprint) 1 @ 6; NWADIALO, CIVIL PROCEDURE IN NIGERIA 2nd Edition 1990 @ 148.
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It was postulated, that inspite of the sustained opposition by the

?23
Appellant, the court below in its wisdom still granted the application of the 2nd set of Plaintiffs. In the event that the joinder is held defective, this court is urged to exercise the power thereof under Section 15 of the Court of Appeal Act 2004 to convert the status of the 2nd set of Plaintiffs to that of Defendants and uphold all the reliefs in their favour, on the ground that justice of the case should not be sacrificed on the altar of technicality. See CHINWENDU v. MBAMALI (1980) 3 – 4 SC 31, OLUNTOBA-OJU v. ABDUL-RAHEEM (2009) 26 WRN 1 @ 33; OLUFEAGBA v. ABDUL-RAHEEM (2009) 12 SC (Pt. 11) 1 @ 68 – 69; KALU v. ODILI (1992) 5 NWLR (Pt. 240) 130 @ 185 paragraphs D & E; ORDER 9 RULE 14(1) of the Federal High Court Rules, 2009.
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Issue No. 7 was argued at pages 44 – 56 of the brief. It was submitted that, contrary to paragraphs 8(4), 8(6) and 8(7) of the Appellant’s brief, the 1st – 3rd Respondents’ action has nothing to do with title to land. That their cause of action can easily be determined by examining the reliefs they and the 2nd set of Plaintiffs are seeking at the end of their Statement of Claim. That issue has already been determined in

?24
favour of the Plaintiffs in Suit No. W/48/77: MOSES TENE & ORS v. EDEMA OMABUWA & ORS, 14/01/81, wherein the 1st – 3rd Respondents were granted title to the land in dispute.

Further submitted, that the Plaintiffs’ claim is about the arbitrary and unconstitutional attempt to transfer part of their communities from their historical and cultural base in Delta State to Ondo State, and the grave injuries this illegal act would inflict thereupon.

It was contended, that Section 25 of the Constitution in its ordinary meaning is intended to give exclusive jurisdiction to the Federal High Court in matters specified therein. See ALI v. CBN (1997) 4 NWLR (Pt. 498) 192; UNIVERSITY OF ABUJA v. OLOGE (1996) 4 NWLR (Pt. 445) 706; ONYENUCHEYA v. MIL. ADMIN. IMO STATE (1997) 1 NWLR (Pt. 482) 429 @ 452; UNIVERSITY OF ILORIN v. OLUTOLA (1998) 2 NWLR (Pt. 576) 72; OKOROMA v. UBA (1999) 1 NWLR (Pt. 587) 359 @ 379-380 paragraphs H-A; UNIVERSITY OF ABUJA v. OLOGE (1996) 4 NWLR (Pt. 445) 706.

Regarding the 1st – 3rd Respondents’ locus standi, it was submitted that in the light of the principles enunciated in OLAGUNJU v. YAHAYA (1998) 3 NWLR (Pt. 542)

?25
501; OLAGBEGI v. OGUNNOYE (1996) 5 NWLR (Pt. 448) 332 @ 352, et al, it is clear the Plaintiffs have established their locus standi to institute this action. This is because they have shown sufficient interest in the action by establishing that their civil rights and obligations have been or are in danger of being infringed.

On reasonable cause of action, it’s submitted that a close look at the Statement of Claim thereof, shows that their communities located in Warri Province, Delta State, since the beginning of the 20th Century, were being unlawfully and arbitrarily transferred to Ondo State by the 2nd Defendant, an agency of the Federal Government. Clearly, the 1st – 3rd Respondents have a reasonable cause of action against the Defendants in this case.

Conclusively, the court is urged upon to dismiss the appeal in its entirety.
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The 4th Respondent’s brief deemed properly filed on 10/3/15. The 4th Respondent therein adopted and conceded to the issues raised by Appellants, in the brief thereof. The court is urged to accordingly allow the appeal, set aside the Judgment and Orders of the court below, and remit the case for a retrial to enable all the

?26
parties in the suit to have their grievances examined.

The 6th – 15th Respondents’ brief, filed on 18/5/11, spans a total of 30 pages. At page 6 of the said brief thereof, the Respondents adopted the five issues raised in the Appellant’s brief. Issue No. 1 is canvassed at pages 6 – 9 of the said brief. It was argued, inter alia, that the Appellant did not challenge the procedure of commencing the suit by writ of summons and statement of claim. Further submitted, that breach of the rule of practice and procedure is an irregularity, thus cannot make the suit a nullity. See HON. GOZIE AGBAKOBA v. INEC & ORS (2008) 12 SCNJ 619 @ 627; 651 – 562.
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It was contended, that in the said Judgment, the court below held that the problem posed in the suit was a constitutional problem, and that the reliefs claimed by the 1st – 3rd Respondents was based on Section 8(2) of the 1999 Constitution. See pages 303 – 304 of the Record. Whilst the 1st – 4th Respondents agreed to reduce the issues in the case to legal issues, the Appellant was concerned with issue of jurisdiction which the Lower Court took together to expedite the decision in the suit which had suffered

?27
delay. It was contended, that this can be done. See INAKOJU v. ADELEKE (2006) 4 NWLR (Pt. 1025) 450; AMADI v. NNPC (2000) 10 NWLR (Pt. 674); Order 25 Rules 2 and 5 of the Federal High Court (Rules); ALHAJI BABA v. SALEH (2006) 7 SCNJ 236 @ 241, 255 – 256; 257 – 257.

The court is urged to hold that the court below was right in giving Judgment as it did, and accordingly resolve the Issue No. I in favour of the 1st – 3rd Respondents and 6th – 15th Respondents.

The Issue No. II is canvassed at pages 10 – 14 of the brief. In a nutshell, it was submitted that the agreement by counsel to reduce the arguments to legal issue was reached on 08/4/08, and the court below proposed two issues of law and constitution. None of the parties raised any objection. See AGBAKOBA v. INEC (Supra).
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Apart from the Notice of Preliminary Objection, the Appellant did not file a Statement of Defence. The joinder of the 6th – 15th Respondents did not change Appellant’s position on the preliminary objection. He had no oral evidence to give as filed no defence. It was equally argued that the Appellant Issue No. II was not founded on any ground of appeal and does not arise

?28
from Ground 6 as stated. Therefore, the issue is not fit for consideration of the court. See AKPAN v. STATE (2001) 7 SCNJ 567 @ 568.

The Issue No. III is canvassed at pages 11 – 14 of the brief. Allegedly, it is difficult, otherwise impossible, to determine or argue which of the two issues mixed up into Issue III can be said was distilled from Ground 2, or Grounds 2, 3 and 5 as alleged by the Appellant. See NIKI TOBI: THE BRIEF SYSTEM IN NIGERIAN COURTS 1999 @ 67 – 68.

Further postulated, that Issue 3 does not relate to Grounds 2, 3 and 5 of the Notice of Appeal.

In the vexed Judgment, the court below relied on INAJOKU v. ADELEKE (Supra) and AMADI v. NNPC (Supra). See pages 303 – 324 of the Record. That the Preliminary Objection was not pending at the time of Judgment as alleged in Ground 2 (pages 343 – 345). See BHOJSONS PLC v. KALIO (2006) 2 SCNJ 156 @ 157 – 158; EZOMO v. AG BENDEL STATE (1996) 4 NWLR (Pt. 36) 448 – 469.
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Therefore, the motion in question not first filed at the trial court, was not before that court on which to assume jurisdiction. The court is urged to resolve Issue III in favour of the 1st – 3rd and 6th – 15th

?29
Respondents.

The Issue No. IV is argued at pages 14 – 19 of the brief. It was submitted, inter alia, that the Appellant was not denied fair hearing throughout the proceedings in the case, in breach of Section 36(1) of the 1999 Constitution. The Appellant failed to file the Statement of Defence thereof in compliance with Order 25 Rules 2(1), 2 and 5 of the Federal High Court, Rules (supra). Thus, the Appellant was deemed to have admitted the Statement of Claim of the 1st – 3rd Respondents, and cannot be heard to complain denial of fair hearing. See INAKOJU v. ADELEKE (2007) 1 SCNJ 1 @ 161 & 162. MBADINUJU v. EZUKA (1994) 10 SCNJ 109 @ 111; AGBAKOBA v. INEC (2008) 12 SCNJ 619 @ 627.

Lastly, the Issue No. V was extensively canvassed at pages 19 – 27 of the said brief. It is submitted, inter alia, that the issue of whether an action is properly within the jurisdiction of the court can be determined on the subject matter of the claim as endorsed on the Writ of Summons. See NDIC v. CBN (2002) 3 SCNJ 75 @ 79 & 89; OSUN STATE GOVT v. DALAMI NIG. LTD (2007) 3 SCNJ 28 @ 30 & 39.
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It was submitted, that as the Federal Government and its

?30
agent, the 5th Respondent, were involved in the suit, it’s the Federal High Court that had jurisdiction to hear the case. That the State High Court is completely divested of jurisdiction in respect of matters involving the Federal Government and any of its agencies as parties. See Section 251 of the 1999 Constitution. PROFESSOR AD OLUTOLA v. UNIVERSITY OF ILORIN (2004) 12 SCNJ 236.

It was submitted, that this is not a case of land dispute. Therefore, the Respondents had the right to sue the 4th and 5th Respondents as well as Ondo and Delta States in the court below which has the exclusive jurisdiction in the subject matter, to seek redress for breach of their constitutional right. See ADAH v. NYSC (2004) 7 SCNJ 374 @ 374.

It was submitted that 1st – 3rd and 6th – 15th Respondents have locus standi in the case. And that the said Respondents have shown, vide the Writ of Summons, thereof, that they have a reasonable cause of action in the suit. The said Writ of Summons and Statement of Claim thereof, clearly show the time the cause of action arose. Therefore, the court is urged to resolve the issue in favour of the 1st – 3rd and 6th – 15th

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Respondents.

Conclusively, the court is urged upon to accordingly dismiss the appeal.

It is noteworthy, that the 6th – 15th Respondents equally filed on 20/3/15 what they termed: –
“6TH – 15TH RESPONDENTS’ REPLY BRIEF TO 4TH RESPONDENT’S BRIEF.”

In the said reply brief, the 6th – 15th Respondents have conclusively urged upon the court thus:
5.0. ? to hold that the 4th Respondent having not filed Notice of Appeal or Cross Appeal has no legal right to challenge and attack the Judgment of the lower trial court, and that without the filing of Notice of Appeal, this court cannot under its jurisdiction entertain and countenance the brief of the 4th Respondent as to set aside the Judgment of the trial court and remit the case to the Lower Court for retrial.
5.1. We urge the court to set aside the 4th Respondent’s purported brief.

The 16th Respondent’s brief spans a total of 39 pages.
The Issue No. 1 is extensively argued at pages 3 – 15 of the brief. It was submitted, inter alia, that the basis of Ground 1 of the Notice of Appeal upon which Issue No. 1 of the Appellant is based, is upon the Judgment delivered on
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10/06/08. However, the decision not to call evidence was taken on 08/04/08 at pages 287 to 288 of the Record of Appeal.

Further submitted, that there is no appeal against that decision relating the said procedure (08/04/08). Consequently, the said Ground of Appeal did not arise from the Judgment itself, which makes it incompetent. See FAAN v. GREEN STORE LTD (2009) ALL FWLR (Pt. 451) 960; ADELUMO v. OGANLA (2009) ALL FWLR (Pt. 451) 992; M.I. LTD v. CDB PLC (2009) ALL FWLR (Pt. 483) 1391; TERIBA v. ADEYEMO (2010) ALL FWLR (Pt. 533) 1868.
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Secondly, it was submitted that no miscarriage of justice was occasioned to the Appellant consequent upon the procedure adopted by the court below at the trial of the suit. The reason being that having not appealed against the said Judgment on the merits of the subject matter, it amounts to mere technicality if in arriving at the correct position of the law the court below breached a rule of procedure but came to a correct decision not appealed against. That courts these days place emphasis on doing substantial justice, as against technicality to truncate the ends of justice: MBADIWE v. INEC (2010) ALL FWLR (Pt.

33 547) 745; AJUWA v. SDPC (2010) ALL FWLR (Pt. 536) 437; OLAFEMI v. AYE (2010) ALL FWLR (Pt. 526) 547; OGUNTAYO v. ADELAJA (2009) ALL FWLR (Pt. 495) 303; UKIRI v. GEO-PRAKLA(NIG) LTD. (2010) 16 NWLR (PT.1220); ONYEMAIZU v. OJIAKO (2010) 4 NWLR (Pt. 1185) 504.

The court is urged not to disturb the Judgment appealed against by dismissing this leg of the appeal.

Thirdly, it was submitted that the Appellant has not shown how the alleged wrong procedure affected his rights or caused injustice or miscarriage of justice thereto.

It was contended, that it’s not an absolute position of the law that when an action is commenced by a Writ of Summons, it automatically means the proceedings is hostile. That it all depends on what is in issue in the case. Pleadings, so to say, may be prolix and long, but that by itself does not presuppose that the proceedings are hostile to warrant that evidence must be taken to resolve conflicting averments in the pleadings of the parties. See BONKOLAN INV. LTD v. CSCS LTD (2010) 5 NWLR (Pt. 1186) 182, et al.
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Copiously alluding to the 1st set of Respondents’ Statement of Claim at page 13 of the Record, most especially paragraph 41 thereof,

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vis-?-vis paragraphs 11, 12, 16, 17, 23, 24, 25, 26, 29, 30, 31, 32 and 33 of 5th Respondent’s Statement of Defence, it was submitted, that no miscarriage of justice was occasioned to the Appellant by the procedure adopted by the court below.

It was contended, that facts admitted need no further proof: MADUABUM v. NWOSU (2010) 13 NWLR (Pt. 1212) 623; EFURIBE v. UGBAN (2010) 14 NWLR (Pt. 1213) 257; OJUKWU v. ONWUDIWE (1984) 1 SC NLR 217; BUNGE v. GOV. RIVERS STATE (2006) FWLR (Pt. 325) @ 3.
Further contended, that the case of OGOLO v. OGOLO (2006) 5 NWLR (Pt. 972) 162 @ 184 referred to by appellant in paragraph 4.13 @ page 20 of the brief thereof does not apply because that Judgment has to do with default of pleadings by the Defendant.

Fourthly, the Appellant has not furnished any material or defence it has against the merits of the case different from that pleaded by the 5th Respondent at the trial.

That since, by a clear reading of the averments in the statement of defence, the defence admits that the provision of Section 8(2) of the 1999 Constitution was not followed, it would amount to a sheer waste of time to set aside a right

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decision of a competent court merely on alleged ground of not following to the letter the Rules of Court in the procedure adopted by court below. That even if evidence were taken, based on parties’ pleadings, the court would have come to the same decision. Therefore no miscarriage of justice to warrant setting aside the said decision.

Fifthly, it was submitted that the Appellant was estopped from complaining against the procedure adopted by court below. The reason being that the Appellant’s counsel, Daniel Onukun, Chief Legal Officer on 08/4/08, agreed with the procedure adopted by the court below now being questioned on appeal. There was no objection or complaint about the procedure adopted on 08/04/08. The court is urged to resolve the Issue No. 1 in favour of the 16th Respondent.

The Issue No. 2 was canvassed at pages 15 – 23 of the said brief. It was submitted, inter alia, that there was nothing wrong in the Lower Court hearing the Preliminary Objection along with the other main issue concerning the unconstitutional act of the 5th Respondent. That all the authorities cited by the Appellant are not applicable, in that the court below did exactly

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what the authorities decided. That it’s trite law, that issue of jurisdiction can be raised at any time and in the just time on appeal, even at the Supreme Court. See UCHEGBU v. SPDC LTD (2010) 2 NWLR (Pt. 1178) 285; SAPO v. SUNMONU (2010) 4 NWLR (Pt. 1205) 374; GEORGE v. FRN (2010) 12 NWLR (Pt. 1184) 381.

The court is urged to resolve the second issue in favour of 16th Respondent.

Further submitted, that Federal High Court Rules (supra) support the Lower Court’s decision to dispose of the whole case on the issue on point of law formulated. Order 16 Rules 1, 2 & 3; Order 28 of the Federal High Court (Civil Procedure) Rules, 2000; DINGYADI v.. INEC (2010) 18 NWLR (Pt. 1224) 1 @ 146; SANNI v. AGBARA (2010) 2 NWLR (Pt. 1178) 371 @ 389 – 399 G – A; ANYA v. OKOYE (2010) 5 NWLR (Pt. 1188) 497.
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Sixthly, it was postulated that from the record there was no motion before the court below from the Court of Appeal. Further postulated, that the only thing that would have prevented the trial court from delivering the Judgment after it had adjourned the case, was if the Appellant had produced an order from the Court of Appeal to that effect. See ODUBA v.

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HOUTMANGRACHI (1997) 6 NWLR (Pt. 508) 185 @ 205 – 206.
That, the mere filing of a motion for stay at the Court of Appeal does not amount to an automatic stay of proceedings. CAPTAIN E.C.C. AMADI v. NNPC (2000) 10 NWLR (Pt. 674) 1 @ 140 E – H. KATIE v. CBN (1991) 9 NWLR (Pt. 214) 126 @ 149; BAKARE v. ACB (1986) 3 NWLR (Pt. 26) 47 @ 58 – 59.

The court is urged to resolve the 2nd Issue in favour of the 16th Respondent.
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The Issue No. 3 is canvassed at pages 23 – 26 of the brief. It was submitted that the fact of 6th – 15th Respondents having been joined to the action on the day the Judgment was delivered did not affect the decision of the trial court as it relates to the only issue arising for determination on the merits of the case. The Appellant did file any appeal against the joinder order made by the grounds of appeal filed in this appeal. That it’s trite, that parties can be joined to a Suit at any time before Judgment. And that the basic rule that the party to be joined must have common interest and present a common front in the prosecution of the claim thereof. See OGOLO v. FUBARA (2003) 11 NWLR (Pt. 831) 231 @ 261; OGUNBULE v. ADEBANJO (2006)

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3 NWLR (Pt. 904) 319.

Conclusively, it’s postulated that the Appellant is crying wolf where there is none and or crying more than the bereaved, who ought to be the 16th Respondent. The court is urged to resolve the Issue No. 3 against the Appellant.

The Issue No. 4 is canvassed at pages 26 – 31 of the brief.
Without much ado, it was submitted that there was no breach of rule of fair hearing against the Appellant. That from the facts of the case, the Appellant cannot be heard to complain that he was not given a fair hearing.
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What’s more, the Appellant’s Issue No. 4 is said to be incompetent on the simple reasoning that there is no appeal against the order of the court below made on 08/04/08. Whereas the instant appeal is against the Judgment delivered on 10/6/08. That the order of the court below made on 08/04/08 being interlocutory, it must have been appealed against within 14 days after obtaining the leave of trial court or Court of Appeal. See Section 242 of (1999) Constitution; Section 24 Court of Appeal Act, 2004. That, it’s clear beyond doubt that the complaint covers Grounds 4, 6 & 7 of the Notice of Appeal directed against the

?39decision of 08/04/08 not Judgment of 10/06/08 now on appeal.

Conclusively contended on the issue, that having been given an opportunity to file a defence by the Rules of Court but Appellant deliberately refused to do so, he cannot be heard to complain of fair hearing. The court is urged to resolve the Issue 4 against the Appellant.

The Issue No. 5 is canvassed at pages 31 – 37 of the said brief. It is submitted that the Federal High Court has jurisdiction to determine the matter as 5th Respondent is a Federal agency. See OSAKWE v. FCE ASABA (2010) 10 NWLR (Pt. 1201) 1; FMBN v. LAGOS STATE GOVT (2010) 5 NWLR (Pt. 1188) 570; GODWIN v. OKWEY (2010) 16 NWLR (Pt. 1219) 309; OHAKIM v. AGBASO (2010) 7 NWLR (Pt. 1226) 173.

The court is urged to so hold, and resolve the issue of jurisdiction against the Appellant.

It was equally submitted, that the Plaintiffs have the locus standi to institute this action: THOMAS v. OLUFOYOSE (1986) 1 NWLR (Pt. 18) 669 @ 689 – 690; et al.
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Further submitted, that if the Plaintiffs did not file this action as they did, their right to remain in Delta State would have been trampled on without following the
?40 procedure for doing so. See SHIBKAU v. AG ZAMFARA STATE (2010) 10 NWLR (Pt. 1202) 312; AG LAGOS STATE v. EKO HOTELS LTD (2006) 18 NWLR (Pt. 1011) 378 @ 418 – 419 E – G, et al.

The court is urged to resolve the issue of Locus Standi against the Appellant.

It was equally submitted that there are more than enough facts to ground the cause of action of the Plaintiffs against each and every Defendant in the instant suit. The court is urged to so hold and resolve all the issues of jurisdiction against the Appellant.

Conclusively, the court is urged to dismiss the appeal and affirm the decision of the trial court.

In reaction to the submissions of the 1st – 3rd and 6th – 15th, and 16th Respondents contained in their respective briefs thereof, the Appellant files a Reply Brief on 23/05/13.
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The reply to the 1st – 3rd Respondents’ brief is canvassed at paragraphs 2.0 – 2.9 (pages 1 – 10 of the Appellant’s brief.)
1. It was submitted that the 1st – 3rd Respondent’s Issue No. 1 does not arise from [any of] the eight grounds of appeal of the Appellant. Therefore, the said issue is incompetent and the court is urged to strike it out. See MOBIL

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PROD (NIG) UNLTD v. MONOKPO (2003) 18 NWLR (Pt. 852) 346 @ 442 – 423 H-A; CHIME v. CHIME (2001) 3 NWLR (Pt. 701) 527 @ 550, A.
2. Regarding Issue No. 2, it was submitted that the Rules of Court, Order 25 Rules 1, 2 & 3 of the Federal High Court Rules, 2000 and the authorities cited by the 1st – 3rd Respondents in the brief thereof are not applicable to this case. The reason being that the points of law were raised suo motu by the court below on 08/4/08, the day set aside for the hearing of the 1st – 3rd Respondents’ motion which was not served on the Appellant. What is more, the Appellant’s counsel was not in court on that day. That in all the cases cited by Respondents, there was no pending Notice of Preliminary Objection challenging the jurisdiction of the court. The court is urged to so hold and resolve the said issue in favour of the Appellant.
3. It was submitted that the Lower Court erred in law in refusing to entertain the application challenging the jurisdiction thereof. That it’s not the law, that before a Defendant can raise an objection to jurisdiction, he must first of all file a statement of defence; and that failure to do would

?42
amount to a demurer. See RTEAN v. NUTRW (1996) 8 NWLR (Pt. 469) 737; BARRY v. ERIC (1998) 8 NWLR (Pt. 562) 404 @ 418 – 419 B – D. The court is urged to so hold.
4. It is submitted that the Respondents’ submission is misconceived. It is maintained that in an action commenced by a Writ of Summons reliefs being declaratory or equitable in nature must be proved by evidence; and cannot be granted on an admission. See PDP v. ABUBAKAR (2007) 3 NWLR (Pt. 1022) 515 @ 546 – 547 D – A, et al.
Further submitted that all the cases cited by 1st – 3rd Respondents were commenced by Originating Summons with no requirement of oral evidence. Therefore, those (10) cases are not relevant to this case. The court is urged to so hold and resolve the issue in favour of Appellant.
5. It is submitted that both the principle of law and judicial authorities applied thereto cited by the 1st – 3rd Respondents on Issue No. 5 are not relevant to the instant case. The court is urged to so hold and resolve the said issue in favour of the Appellant.
6. It is submitted under Issue 6 that there is an admission by 1st – 3rd Respondents that the joinder of the 6th – 15th

?43 Respondents on the day the judgment was delivered is irregular and/or defective. The court is urged to resolve the said Issue in favour of the Appellant.
7. It is submitted that the case No. W/48/77 referred to by the 1st – 3rd Respondents claiming that it dealt with issue of declaration of title to land, should be disregarded, as it’s not before this court.
Further submitted, that the Appellant is entitled to raise issue of jurisdiction in limine without the necessity to file a statement of defence, and this cannot amount to an admission to Plaintiff’s claim. See ARJA LTD v. AMS LTD (2003) 7 NWLR (Pt. 820) 577 @ 601 D – E; 625 A. The court is urged to so hold and resolve the issue in favour of the Appellant.

REPLY TO 6TH – 15TH RESPONDENTS’ BRIEF OF ARGUMENT:
The Appellant’s reply to the 6th – 15th Respondents’ brief is contained at pages 10 – 13 of the Reply Brief thereof. The Appellant submitted on Issue i, ii, iii, iv and v, to the effect, inter alia, that the 6th – 15th Respondents’ submissions thereon are misconceived, thereby urged upon the court to so hold and accordingly resolve the said Issues in favour of the Appellant.

?44
TO 16TH RESPONDENT’S BRIEF OF ARGUMENT:
The reply to the 16th Respondent’s brief is contained at pages 13 – 16 of the Appellant’s brief. Responding to the 16th Respondent’s submissions on Issues i, ii, iii, iv and v, the Appellant urged the court to resolve the said issues in favour thereof and accordingly allow the appeal and set aside the vexed Judgment of the court below.

I have accorded an ample consideration upon the nature and circumstances surrounding the instant appeal, the submissions of the learned senior counsel contained in the respective briefs thereof vis-?-vis the Records of Appeal, as a whole.

DETERMINATION OF THE PRELIMINARY ISSUE
At this point in time, I have deemed it pertinent to allude to the Appellant’s reply brief where in Issue No. 1, it is contended that the 1st-3rd Respondents’ Issue No. 1 does not arise from the Appellant’s eight grounds of the Notice of Appeal. Therefore, the said issue No. 1 of 1st – 3rd Respondents is deemed incompetent and ought to be struck out.
?
Indeed, it is a trite fundamental principle, that an issue for determination raised in a brief of argument must be distilled from, or

?45
predicated upon, a competent ground of appeal. Thus, where an issue is not distilled or predicated upon a competent ground of appeal, it’s deemed at large, it’s liable to be discountenanced and/or struck out. See MOBIL PRODUCING (NIG) UNLTD v. MONOKPO (2003) 18 NWLR (Pt. 852) 346 at 442 – 443 H-A; CHIME v. CHIME (2001) 3 NWLR (Pt. 701) 527 at 550 paragraph.

It is instructive, that on 30/9/2015, in the course of the hearing of the appeal, the learned Senior Counsel for the 1st – 3rd Respondents submitted that 2nd – 7th issues raised in the brief thereof arose from the Appellants’ issues 1-8. He narrated that (i) Respondents’ Issue No. 4 is a response to Ground 1 (issue 4 of the Appellant); (ii) Respondents’ Issue 3 arose from Grounds 5, 2 & 7; (iii) Respondents’ issue 2 arose from grounds 3 & 5; (iv) Respondents’ Issue 6 arose from grounds 4 & 6; (v) Respondents’ issue 7 arose from ground 8; and (vi) Issue 5 arose from Appellant’s 3, respectively.

The said eight grounds of the notice of appeal of the Appellant are contained at pages 342 – 350 of the records. Most especially, Ground one of the notice of appeal in question is to the following

?46
effect:
The learned trial Judge erred in law when he gave a declaratory Judgment in favour of the Plaintiffs when in fact no evidence was led in proof of the facts contained in the Statement of Claim.
PARTICULARS
1. The Plaintiffs commenced the suit by way of Writ of Summons.
2. The Plaintiffs in their claim are seeking both declaratory and injunctive reliefs.
3. The Plaintiffs did not lead any evidence be it oral or documentary in support of their claim, yet the learned trial Judge gave Judgment in their favour.

Having critically considered the entirety of the eight grounds of the notice of appeal, most especially Ground One and the particulars thereof, it’s rather obvious, that the vexed Issue No. 1 of the 1st – 3rd Respondents is, for all intent and purposes, distilled from Ground 1 of the Notice of Appeal. Thus, I am of the considered view, that the Appellant’s submission Issue No. 1 of the Reply brief thereof is untenable, and same is hereby discountenanced.

DETERMINATION OF THE APPEAL ON THE MERITS
Having amply considered the issues raised by the learned counsel in the respective briefs thereof, I am of the view

?47
that they are not at mutually exclusive. Thus, for the determination of the appeal, I have deemed it appropriate to adopt the Appellant’s five issues, anon. However, due to the fundamental nature thereof, I have deemed it expedient to deal with Issue No. 5, first and foremost.

ISSUE NO. 5
The fifth issue raises the vexed question of whether or not the Lower Court was right in dismissing the Appellant’s preliminary objection to the competence of the suit. For all intent and purposes, issue 5 raises the very fundamental question of jurisdiction.

?48
SCNLR 341; AKEEM v. UNIVERSITY OF IBADAN (2003) 10 NWLR (Pt. 829) 584; AFRIBANK (NIG.) PLC v. BANK IND. LTD. (2006) 5 NWLR (Pt. 973) 300; OLORIODE v. OYEBI (1984) 1 SCNLR 390; NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272; EZOMO v. OYAKHIRE (1984) 1 NWLR (Pt. 2) 195; OLORUNTOBA – OJU v. ABDUL-RAHEEM (2009) 13 NWLR (Pt. 1157) SC 83 @ 124 paragraphs E – G.

Indeed, the issue of jurisdiction is determined by the reliefs sought by the Plaintiff in the originating processes thereof, (be it the Writ of Summons, originating summons or motion, as the case may be), and the Statement of Claim. See ADEYEMI v. OPEYORI (1976) 9 – 10 SC 31; ONUORAH v. KADUNA REFINING PETROCHEMICAL CO. LTD (2005) 6 NWLR (Pt. 921) 393, et al.
?
In

?49 order to determine the exclusive jurisdiction of the Federal High Court vis-?-vis the provisions of Section 251(1) of the 1999 Constitution, it behoves the court to accord a careful regard upon the facts and circumstances surrounding the case as pleaded in the originating processes in question. See TRADE BANK PLC v. BENILUX (NIG) LTD (2003) 9 NWLR (Pt. 825) 416.
By virtue of the said Section 251(1) of the 1999 Constitution, most especially Subsection (1) (p), (q) and (r), notwithstanding anything to the contrary contained in the constitution, and in addition to such powers as may be conferred thereupon by the Act of the National Assembly, the Federal High Court has and exercises jurisdiction to the exclusion of any other court or tribunal in civil causes or matters relating to-
(a) The administration or the management and control of the Federal Government or any of its agencies.
(b) Subject to the provisions of the constitution, the operation and interpretation of the constitution in so far as it affects the Federal Government or any of its agencies;
(c) Any action or proceedings for declaration or injunction affecting the

50
validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
Thus, consequent upon a community reading of the foregoing provisions of Section 251(1) (a) (b) and (c) of the 1999 Constitution (Supra), it is obvious that the Federal High Court is conferred with the power to adjudicate upon any action, matter or cause seeking declaratory or injunctive reliefs.

Thus, undoubtedly, Section 251(1) of the 1999 Constitution (supra) has created a situation whereby, to invoke jurisdictional competence of the Federal High Court, one of the parties must be an agency of the Federal Government, and that the subject matter be for an action for a declaration, or injunction affecting the validity of any executive, or administrative action or decision by either the Federal Government itself and/or any of the agencies thereof. See NEPA v. EDEGBERO (2002) 18 NWLR (Pt. 798) 79; OLORUNTOBA-OJU v. ABDUL-RAHEEM (Supra) @ 126 – 127 paragraphs F – C.

As alluded to above, the reliefs sought by the Plaintiffs have been set out in paragraph 41 (a) (b) (c) & (d) of the Statement of Claim in question.
?
I would want

?51 to uphold the 16th Respondent’s postulation, especially at page 33 paragraphs 15.7 – 15.9 of the brief thereof, to the effect that the cause of action is not a case of land simpliciter but conditions precedent under which the 5th Respondent, as a Federal Government Agency, can exercise its constitutional functions to adjust the boundary of the two states of Delta and Ondo in question. Section 8(2) of the 1999 Constitution (Supra).
?
The Appellant has posited at paragraph 42 of the brief thereof thus:
From the nature of the Plaintiffs’ claim in the instant case, it is clear that the subject matter of this action relates substantially to a land dispute involving the Appellant and the 1st – 3rd Respondents who are claiming to be indigenes of some communities in Delta State?
8.9. By the endorsements on their Writ of Summons and Statement of Claim, the Plaintiffs (1st – 3rd Respondents) were asking the Lower Court to relocate some of the communities in Ondo State to Delta State. We humbly refer to the First Schedule to the Constitution, particularly the portions relating to Ondo and Delta States, to the effect that the Lower Court does not have

?52
jurisdiction to adjudicate on the matter submitted to it by the Plaintiffs.

I would want to hold, that the above postulation is misconceived, and rather preposterous, to say the least, for some obvious reasons. Most undoubtedly, the 5th Respondent being a Federal Government Agency, within the purview of Section 251(r) of the 1999 Constitution, the Federal High Court has an exclusive jurisdictional competence to entertain and adjudicate upon the matter.

Regarding the question of whether or not the 1st – 3rd Respondents have locus

?53
standi to file the action, my answer to that is equally in the affirmative. The Respondents as citizens have every right to belong to a State within the Federation. Their rights are being threatened and/or violated by the 5th Respondent’s attempt to relocate them from Delta State to Ondo State in breach of the provisions of Section 8(2) of the 1999 Constitution.

It is well settled, that for a Plaintiff to have a locus standi to sue, he must establish sufficient interest in the action before the trial court. One of the factors determining locus standi is whether he could be made a party to the suit; or he would suffer some injury or hardship arising from the litigation. The interest of the Plaintiff must be a tangible and real one in law, not a caricature sort of an interest.
?
In the instant case, it’s obvious, that the Respondents, especially the 1st – 3rd Respondents, were in an imminent danger of the conduct of the 5th Respondent who’s likely to cause the relocation of the Respondents from Delta State to Ondo State without their consent. So the Respondents, in the instant case, clearly have justifiable interests in the attempted boundary adjustments

54
and the likely relocation thereof from Delta State against their consent. See AG LAGOS STATE v. EKO HOTELS LTD (2006) 18 NWLR (Pt. 1011) 378 @ 418 – 419 paragraphs E – G. See also SHIBKAU v. AG ZAMFARA STATE (2010) 10 NWLR (Pt 1202) 312; NYA ANOZIA v. AG. LAGOS STATE (2010) 16 NWLR (Pt. 1219) 243 @ 265 – 266 paragraphs G – B.

Regarding the question of whether or not there is a cause of action or [reasonable] cause of action, there is every cogent reason for me to believe that the 5th Respondents’ statement of defence vis-?-vis the documentary evidence relied upon, are to the effect that there indeed exist some boundary marks between Delta and Ondo States. And that the 5th Respondent would want to embark upon boundary adjustments as pleaded in paragraphs 16 – 27 of the Statement of Defence thereof.

In the circumstance, I would want to hold, that the Issue No. 5 ought to be, and same is hereby, resolved against the Appellant.

ISSUE NO. 1
The Issue No. 1 raises the very vexed question of whether or not having regard to the fact that this action was commenced by a writ of summons and no evidence, oral or documentary, was led in

?55
support of the facts pleaded, the trial court was right in giving judgment for the 1st set of plaintiffs (1st – 3rd Respondents). The issue is stated to have been distilled from Ground 1 of the Notice of Appeal of the Appellants.

It’s obvious from the record of appeal, that the 1st – 3rd Respondents, very much conscious of the hostile nature of their case, deemed it appropriate to commence same vide a writ of summons. They equally filed along with the said writ of summons a statement of claim spanning a total of 41 paragraphs. See pages 2-14 of the record of appeal. On the part thereof, the 5th Respondent (2nd Defendant) filed a 37 paragraph statement of defence (pages 40 – 46 of the Record), thereby joining issues with the 1st – 3rd Respondents. On the part thereof, the Appellant (3rd Defendant) filed a notice of preliminary objection challenging the jurisdiction of the Lower Court to entertain the matter on the following grounds:
1. The plaintiffs have no locus standi to institute this suit:
PARTICULARS
(i) The boundary in dispute is Ondo/Delta States boundary
2. The Federal High Court has no jurisdiction to entertain this suit:

56 PARTICULARS
(i) The suit pertains to the boundary between plaintiff’s community in Delta State and Ondo State.
(ii) The suit pertains to title to and or boundary dispute between the plaintiffs and the defendants.
(iii) Title to land or boundary delineation is not one of the items the Federal High Court has jurisdiction over.
3. The suit does not disclose a reasonable cause of action against the 3rd defendants.
PARTICULARS
(i) The 3rd defendant has no boundary and could not have any boundary worth the plaintiffs not being a State in the Federation of Nigeria.

However, instead of proceeding with trial on the preliminary objection, the Lower Court, in its wisdom, converted the writ of summons to originating summons and proceeded to determine the suit without taking oral evidence.

At the outset of the vexed judgment at page 303 of the record, the court adverted its mind to the fact that –
“This problem posed in this suit is a very simple one. It is as to whether or not the boundary adjustment reflected in ‘the map prepared by 2nd defendant and dated August, 2004, was in compliance with the constitutional provision

57
of the Nigerian Constitution of 1999 and particularly as provided for in Section 8(2) of the said Constitution .”

At page 314 of the said record, the Lower Court came to the conclusion, thus-
From the foregoing, I do not hesitate in re-emphasizing the dismissal of all the preliminary objections of the defendants. The Statement of Defence of the 2nd Defendant has no merit. I find in favour of the plaintiffs and my judgment is of the effect that relief ‘C’ in the first set of plaintiffs statement of claim is hereby granted while reliefs 4, 5, 6, 7, 8 and 9 of the 2nd set of plaintiffs are hereby granted.

This judgment is consequent upon the 1st defendant preliminary objection and written submission, the 2nd defendant preliminary objection counter affidavit/statement of sentence and the 2nd defendant written address on the status and constitutionality of the boundary and judgment of the 3rd defendant preliminary objection and its written address, the plaintiffs’ statement of claim and the 2nd set of plaintiffs’ statement of claim and written address to defendants’ preliminary objection.

Thus, at that point in time, the Lower Court had determined the

?58
suit on the basis of the preliminary objections of the defendants vis-a -vis the statement of claim of the plaintiffs in question (page 314 of the record).

From the foregoing highlight, it’s obvious that the Lower Court merely decided the suit upon the basis of the preliminary objections vis-a-vis the statements of claim of the plaintiffs. Undoubtedly, the Lower Court did not expressly make any order or pronouncement converting the writ of summons to originating summons. All that the Lower Court said is to the effect thus-
On a reflection of the whole action, it amazes me why the plaintiff’s counsel did not bring this action by way of originating summons for the simple resolution of the constitutional issue. Originating summons is the ideal process to commence proceedings where there is no dispute on questions of fact or the likelihood of such disputes.

59
proceedings. Rather, affidavit evidence is very often not [largely] used.

Hence, originating summons is usually in cases involving questions of law rather than disputed issues of facts. Contrariwise, where the proceedings involve disputed issues or questions of facts [hostile proceedings], an originating summons should not be resolved to. In that case, a Writ of Summons should be most ideal for the commencement of the action. See DOHERTY v. DOHERTY (1969) NMLR 24; TAIWO v. AKINWUNMI (1975) 4 SC 143 @ 172; STANDARD PATTERN CO. LTD v. IVEY (1962) 1 All 452; GILL v. LEWIS (1956) 1 ER 844.
There is no doubt that the procedure adopted by the Lower Court in determining the suit on the basis of the preliminary objections is most irregular, and rather outrageous, to say the least!
?It is a trite fundamental principle, that where there is dispute on questions of fact or the likelihood thereof, then the best ideal procedure to be adopted is by filing a writ of summons. However, where there is no likelihood of dispute on questions of fact, originating summons is the ideal process to commence proceedings: EJURA v. IDRIS (2006) 4 NWLR (Pt. 971) 538 @ 560 –

?60
561.

In the instant case, by the writ of summons and statement of fact thereof the plaintiffs have raised very serious disputes on questions of facts, thus, in most appropriate cases necessitating the conversion of writ of summons to originating summons, for the trial court to exercise the discretion thereof one way or the other, it behoves the court to grant the respective parties the opportunity to be heard on the issue, by way of filing and exchanging pleadings, written addresses, etc. See EJURA v. IDRIS (supra) @ 561 paragraph.
What is more, in the instant case, there was nothing before the Lower Court by way of evidence, documentary (or affidavit) or oral, prior to the conversion of the writ of summons to the purported originating summons and delivering of the judgment in question. See KEYAMO v. HOUSE OF ASSEMBLY, LAGOS STATE (2002) 8 NWLR (Pt. 799) 605 @ 614 paragraphs F-G; OGOLO v. OGOLO (2006) 5 NWLR (Pt. 972) 163 SC @ 184 paragraphs C – E.
?Undoubtedly, the conversion of the writ of summons to originating summons suo motu by the Lower Court, has amounted to descending into the arena, thereby making a case for the Plaintiffs in gross

?61 violations of settled principles forbidding such a course. See SLEEK (NIG) LTD. v. GOVT. OF ANAMBRA STATE (2001) 3 NWLR (Pt. 715) 454 @ 467 paragraphs B-C. In the circumstance, Issue No. 1 is hereby resolved in favour of the Appellant.

ISSUE NO. 2
The second issue raises the vexed question of whether or not considering the fact that the 2nd set of plaintiffs (6th – 15th Respondents) had no competent claim before the trial court, as they were joined as parties the very day the vexed judgment was delivered, the lower Court was right in granting the declaration and injunctive reliefs in their favour.

The 6th – 15th Respondents’ application for joinder was dated and filed on 04/12/06. By the said application, the 6th – 15th Respondents prayed for the following reliefs:
1. Appellants to bring this action in a pre-presentative capacity for their communities.
2. Joining the 2nd set of plaintiffs/applicants as joint or alternative plaintiffs in this suit No. FHC/B/C5/118/06 for themselves and in representative capacity. Further communities which have a right to relief against the defendants in respect of then subject matter of this suit.

62
3. An order that the Delta State Government should be joined as defendant in this case as a necessary party.
4. Deeming exhibit 4 “DD” in the affidavit as duly filed and properly served on the appropriate parties. See pages 83-113 of the record.

On 10/06/08, Prof. I.G. Sagay, SAN, S.A. Okoh, Esq. & Tunji Salawu, Esq., appeared for the plaintiffs, 2nd Defendant and 3rd Defendant, respectively. While D.O. Anonmoghanran, Esq., appeared for party seeking to be joined as 2nd set of plaintiffs or alternative plaintiffs.

After Anomuogharan, Esq., alluded to the said motion thereof, Prof. Sagay, SAN, told the court that he was opposed to the application, Okoh, Esq., said he had no objection, while Salawu, Esq., objected only to the procedure adopted by court as application was not ripe for hearing in view of issue of stay of proceedings. Accordingly, the Lower Court, in its wisdom, found and ordered, thus:-
I have looked at the submission of counsel for joinder of 2nd set of plaintiffs and the application, and affidavit annexed thereto to that effect. I am of the view that there is common ground between the plaintiffs on record and

63 plaintiffs wanting to be joinder. As admitted by plaintiff counsel on record both plaintiffs on record and plaintiff wanting to be joined as co-plaintiffs or 2nd set of plaintiff have their territory arbitrary annexed without due compliance to Section 8(2) of the 1999 Constitution. As far as this court is concerned, this is the main ground of this cause of action either by the plaintiffs on record and the plaintiffs seeking to be joinded…. From the foregoing, the application for joinder is ordered and the 2nd set of Plaintiffs are now formally on record for all intents and purposes.

Consequent where upon, the Lower Court, without much ado, proceeded to deliver the vexed judgment thereby dismissing the preliminary objections of all the respective Defendants (the Appellant inclusive) and finding in favour of the Plaintiffs (1st – 3rd and 6th – 15th Respondents) to the effect that:
“relief ‘C’ in the first set of Plaintiffs’ statement of claim is hereby while reliefs 4, 5, 6, 7, 8 and 9 of the 2nd set of Plaintiffs are hereby granted.” See page 314 of the Records

As alluded to above, it is obvious from the records, that on the said

64
10/6/08, the Lower Court granted the application of the 6th – 15th Respondents for joinder as the second set of plaintiffs. The 16th Respondent was equally joined as 4th defendant (necessary party) to the suit. Most strangely, however, the Lower Court immediately proceeded to deliver the judgment without according to the much needed opportunity to the plaintiffs to amend the original processes and the Appellant and 16th Respondent (3rd and 4th Defendants) to file the pleadings thereof.

Yet, the law is well settled, that where an order of joinder of parties is made, it behoves the court to order that the originating processes be amended in consonance with the said order of joinder. See UCHENDU v. OGBONI (1999) 5 NWLR (Pt. 603) 330 @ 352 paragraph A-C, wherein it was aptly held by the Apex Court, thus –
“Where a court orders joinder of a person who was not originally a party to the proceedings, it must be insisted that the writ of summons and Statement of Claim be amended pursuant to the order of joinder and served.” Per UWAIFO, JSC. See also ODADU v. OKAJENI (1973) 11 SC 343.
The failure of the Lower Court to be properly and strictly guided by the

65 procedure enunciated in UCHENDU v. OGBONI (supra) is fatal to the validity of the proceedings of 10/6/08, thereby rendering the entire Judgment a nullity, and liable to be set aside by this court.

In the circumstance, the second issue is equally hereby resolved in favour of the Appellant.

ISSUES NO. 3 & 4
The third issue raises the question of whether or not the Lower Court was right in determining the Appellant’s Notice of Preliminary Objection together with the substantive suit, and in assuming jurisdiction over the Appellant’s motion, for stay of proceedings pending before this court. On the other hand, the fourth issue raises the question of whether or not having regard to the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, the entire proceedings of the Lower Court were not a nullity, same having been conducted without the Appellant being accorded a fair hearing.
?
On 06/06/08, the Appellant’s learned counsel brought to the notice of the court a copy of the motion filed in the Court of Appeal on 02/05/08 seeking stay of delivery of judgment and further proceedings of the Lower Court. Attached to the

?66
affidavit supporting the motion is a copy of the Notice of appeal filed on 27/05/08.

Yet, in spite of the said processes being served thereon the court below proceeded to consolidate the Notice of preliminary objection and substantive suit and delivered judgment on the said 10/06/08. The Lower Court relied on AMADI v. NNPC (2000) 10 NWLR (Pt. 674) 76; INAKOJU v. ADELEKE (2007) 4 NWLR (1025) 423 and SENATE PRESIDENT v. NZERIBE (2004) NWLR (Pt. 878) 251.

Most ironically, however, the facts and circumstances surrounding the above three cases are not on all fours with the present case. Undoubtedly, the said cases are distinguishable from the instant case, for some obvious reasons.

It is obvious that the approach by the court below could only be properly adopted in a matter duly commenced by an originating summons (or originating motion as the case may be) where all the necessary materials, by way of affidavit evidence, are already available before the court. In the case of INAKOJU v. ADELEKE (supra), the apex court authoritatively held that-
“Where the objection is raised to the jurisdiction of the court in a matter commenced by originating

?67 summons where the evidence required is in the form of affidavit, it may be prudent to hear together the arguments as to jurisdiction and the merits of the
case. Per Niki Tobi, JSC @ 622 para B-C. See also CONTINENTAL INDUSTRIES GASES LTD v. ONAFEKO (2003) 7 NWLR (Pt. 820) 497 @ 490 paragraphs B-C 495 para A-B; ORIZI v. OFONMATA (2007) 13 NWLR (Pt. 1052) 487 @ 504 para A-E; GAFAR v. GOVT OF KWARA STATE (supra) @……. OBI v. INEC (2007) 11 NWLR (Pt. 1024) 436 @ 482; MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341 et al.

Regarding the motion for stay of [Judgment] and proceedings thereof, the court below has this to say:
I have patiently listened to the submissions of counsel and I am of the view that the justice of this matter requires expeditious trial?.. Accordingly, the motion for stay of judgment in proceedings fixed for hearing at the Court of Appeal is incompetent and its tendering in this court is irregular as no application is lying before this court. It must be stressed that Court of Appeal is an appellate court and counsel should desist from degrading to a trial court rendering is hereby refused and we now move on to the judgment

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of this Honourable Court. See page 301 of the record.

It is my considered and firm view, that the court below has erred and acted beyond the jurisdictional competence thereof for having assumed jurisdiction over the said motion on notice that was not filed before it [but was in fact] pending before the Court of Appeal. Undoubtedly, the said motion having been duly filed and fixed for hearing to 17/07/2008 before the Court of Appeal, the Lower Court was devoid of jurisdictional competence to pronounce as it did, that it was incompetent and proceed to adjudicate thereupon. Indeed, it is a trite fundamental principle, that a court can only be competent to assume jurisdiction in a matter, when-
i) It is properly constituted as regards numbers and qualifications of the members thereof, and no member is disqualified for one reason or the other.
ii) The subject matter of the case is within the court’s jurisdiction and there is no feature in the case which prevents the court from exercising the jurisdiction thereof and
iii) The case comes before the court initiated by due process of law, and upon fulfillment of any condition
iv) precedent to

?69
the exercise of jurisdiction.
See MADUKOLU v. NKEMDILIM (supra) 341. See also ACTION CONGRESS v. INEC (2007) 18 NWLR (Pt. 1065) 50 at 71-72 paragraphs E-A; ISHOLA v. AJIBOYE (1994) 6 NWLR (Pt. 352) 506; AG ANAMBRA STATE v. AG FEDERATION (1993) 6 NWLR (Pt. 302) 692; ONOFIN v. AGU (1992) 3 NWLR (Pt. 229) 350.

In the instant case, it’s so obvious that the said motion was not filed before the Lower Court. Thus the Lower Court had acted without jurisdiction when it deemed it expedient to throw caution to the winds and blatantly proceeded to adjudicate thereupon, and hold that same was incompetent.

In the case of COLE v. MATTINS, the Apex Court was recorded to have aptly and most authoritatively held to the effect, thus:
It is most desirable that if a court considers after hearing argument of counsel that a matter before it can in fact be decided on a technical point on which it has not been addressed by counsel, then the Judge should have the matter re-opened and give counsel on each side the opportunity to address on the point which he thinks may decide the matter before he gives Judgment in regard to it. It is only after so acting that a court

?70should adjudicate on a technical point taken by the court itself, particularly when the defect, if there was one, could be cured if the court in its discretion, give leave to amend.
See (1968) 1 All NLR per Lewis, JSC at 161-162.
See also THE REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA v. AKINDELE (1967) NMLR 263.

I think, the trite doctrine ought to be reiterated at this point in time for the avoidance of doubt, that the right to fair hearing in administration of justice is not merely a technical principle. Indeed, it’s a rule of substance that every court or tribunal has an onerous duty to uphold and strictly observe in the exercise of the judicial powers thereof under Sections 6(6) (1) – (5) and 36(1) of the 1999 Constitution, as amended. See BAMAIYI v. THE STATE (2001) FWLR (Pt. 46) 956 at 974 paragraphs D – F; (2001) 2 NWLR (Pt. 698) 435; KOTOYE v. CBN (1989) 1 NWLR (Pt. 98) 419; ATANO v. AG BENDEL STATE (1988) 2 NWLR (Pt. 75) 201.
In the case of GOVERNOR, IMO STATE v. AMUZIE, this court had the privilege of once more reiterating the significance of upholding the fundamental principle of fair hearing in justice

?71 administration, thus:
It should be reiterated, for the avoidance of doubt, that the exercise of the court’s power under Section 6(6)(b) of the 1999 Constitution has correlation with the provisions of Section 36(1) of the same Constitution which cherishingly provides thus:
“36(1). In the determination of his civil rights and obligations including any question by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

In the instant case, there is no doubt that the attitudinal disposition of the Lower Court has most regrettably resulted in truncating the fundamental right to fair hearing cherishingly accorded the Appellant under Section 36(1) of the 1999 Constitution (Supra). Yet, the court has an onerous duty to balance the need not to delay justice with a far more fundamental requisite in the administration of justice – non-denial of justice. I think it was in the case of CEEKAY TRADERS LTD v. GENERAL MOTORS COY LTD, that the Apex Court had cherishingly postulated

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the immutable doctrine, thus:
Delay of justice is bad, but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice. It is for this reason that when a case is not fought and heard on merits, the order to be made must be one that does not shut out a party permanently from obtaining justice. See (1992) LPELR – 834 (SC) per Olatawura, JSC (of blessed memory) at 47 paragraphs B – E.

Thus, against the backdrop of the foregoing postulations, the third and forth issues are hereby resolved in favour of the Appellant.

I think, before putting the very last dot to this Judgment, I have deemed it compellingly expedient to reiterate that by determining the case in limine on the Preliminary Objections of the Appellant vis-?-vis the Statement of Claims of the 1st – 3rd and 6th – 15th Respondents, the court below had embarked upon a voyage of impunity, what the House of Lords would call – an exercise of a crooked cord of discretionary power for the golden met-wand of the law. See PETTITT v. PETTITT (1971) HC 777 per Lord Hodson, at 808.

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Yet, the judiciary has a duty not to unwittingly shirk its sacred duty to the Nation to maintain and uphold the rule of law. Indeed, the law is even handed between the Government and the citizen alike. See GOVERNOR OF LAGOS STATE v. OJUKWU (1986) 1 NWLR (Pt. 18) 621. Recall the legendary CICERO who some 2000 years ago re-echoes: “Amid the clash of arms, the law is silent.”
However, Lord Aitken, that fearless and erudite common law Jurist of all time, had some seven decades ago most cherishingly postulated thus:
In this country (England) amid the clash of arms, the laws are not silent. They speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the Judges are no respecter of persons and stand between the subject and any attempt attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified by law. See LIVERSIDGE v. ANDERSON (1942) AC 20 at 24. See also GOV. LAGOS STATE v. OJUKWU (Supra) 621.

Hence, having resolved Issues 1-4 in favour of the Appellant and the

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Issue 5 against him, there is every cogent reason for me to hold that the instant appeal succeeds in part, and it’s accordingly hereby allowed by me in part.

Consequently, the Judgment of the Federal High Court, Benin Judicial Division delivered by Nnamani J; on June 10, 2008 in Suit No. FHC/B/CS/118/2006, is hereby set aside.

Consequent whereupon, it’s hereby ordered that the said Suit be and is hereby remitted to the Federal High Court to be reassigned by the Chief Judge to another Judge for trial denovo on the merits.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of my Lord IBRAHIM MOHAMMED MUSA SAULAWA, JCA just delivered.

My Lord has adequately dealt with all the issues in the appeal and I agree entirely with the reasons given therein as well as the conclusion reached.

I adopt the judgment as mine.

I abide by the consequential orders made in the lead judgment.

PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in advance the draft of the judgment just delivered by my learned brother Ibrahim Mohammed Musa Saulawa, JCA. His Lordship has indeed painstakingly delved

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into all the salient issues canvassed by learned Counsel for both parties. I am in tandem with his Lordship’s reasoning and conclusions and I adopt same as mine in this judgment.

Consequently, the judgment of the Federal High Court, Benin delivered on June 10th 2008 in Suit No. FHC/B/CS/118/2006 is hereby set aside.

I abide by his Lordship’s consequent orders of remitting the said suit to the Chief Judge of Federal High Court to be assigned to another Judge for trial de novo on the merits.

Appearances
CHIEF WOLE OLANIPEKUN, SAN For Appellant
with him DR. IFEOLU KONI

PROFESSOR I. E. SAGAY SAN For 1st – 3rd Respondents
with P. B. A. ADEMI-AIPETO

DR. NASIRU ALIYU For 4th Respondent

MARY BAMITALE BAIYEKUSI For 5th Respondent

CHIEF I. O. JEMIOLE For 6th – 15th Respondents

A. AKPOMUJE, SAN ESQ; For 16th Respondent
with I. D. TUGGEN and N. O. ASABOZO

Appearances

Chief Wole Olanipekun, SAN with him Dr. Ifeolu KoniFor Appellant

AND

Professor I. E. Sagay SAN with P. B. A. Ademi-Aipeto For 1st – 3rd Respondents.
Dr. Nasiru Aliyu For the 4th Respondent
Mary Bamitale Baiyekusi For 5th Respondent
Chief I. O. Jemiole For 6th – 15th Respondents
A. Akpomuje, SAN Esq; with I. D. Tuggen and N. O. Asabozo For the 16th RespondentFor Respondent

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