THE HONOURABLE FEMI GBAJABIAMILA v. THE CENTRAL BANK OF THE FEDERAL REPUBLIC OF NIGERIA & ORS
(2014)LCN/6996(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of March, 2014
CA/L/721/10
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
THE HONOURABLE FEMI GBAJABIAMILA Appellant(s)
AND
1. THE CENTRAL BANK OF THE FEDERAL REPUBLIC OF NIGERIA
2. THE GOVERNOR OF THE CENTRAL BANK OF THE FEDERAL REPUBLIC OF NIGERIA.
3. THE ATTORNEY GENERAL OF THE FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RATIO
WHETHER OR NOT AFFIDAVITS IN ORIGINATING SUMMONS ARE CONSIDERED AS PLEADINGS
Affidavits in originating summons are considered to be pleadings. The claimant’s affidavit is taken as the statement of claim. While the defendant’s counter affidavit is taken as statement of defence. See Ports and Cargo Handlings services company Ltd. and Ors. v. Migfo Nigeria Ltd. and Anor. (2012) 18 NWLR (pt.1333) 555 at 609 per the judgment by Ariwoola, J.S.C., as follows:- “Surely, the deposition and averments in an affidavit in support of an originating summons are like the averments contained in the statement of claim or pleadings in support of a general writ of summons in an action commenced by such writ of summons.” Again, in the case on N.N.P.C. and Ors. v. Famfa Oil Ltd. (2012) 17 NWLR (pt.1328) 148 at 189 it was stated in the lead judgment by Rhodes-Vivour, J.S.C., inter alia that – “When an originating process (as in this case) is an originating summons, the affidavits filed in support serve as the statement of claim, while the counter affidavits serve as statement of defence. The affidavits are the pleadings for the case.” (My emphasis). See also Uwazuruonye v. Governor of Imo State and Ors. (2013) 8 NWLR (Pt.1355) 28 at 56. PER IKYEGH, J.C.A.
WHETHER OR NOT THE ISSUE OF LOCUS STANDI CAN BE RAISED UNDER ORDER 22 RULE 4 OF THE HIGH COURT CIVIL PROCEDURE RULES OF LAGOS STATE
One of the preliminary objections taken to the action by 1st respondent at the court below in page 35 of the record was based on locus standing of the appellant to bring the action. The Supreme court case of Disu v. Ajilowura (2006) 14 NWLR (pt.1000) 783 at 809 cited by Mr. Adio for the appellant decides it per the judgment of Kutigi, J.S.C., (later CJN) that –“There is no doubt, demurrer proceedings have been abolished in view of the clear provision of Order 22 rule 1 of the High Court Civil Procedure Rules of Lagos State (same as Order 16 rule 1 of the Rules of the Court below). I think it is settled that the issue of locus standi or jurisdiction being a point properly of law cannot be raised under Order 22 rule 4 (same as Order 16 rule 4 of the Rules of the court below) as was done by the appellants in this case. However, the issue may be raised under rules 2 and 3 (same as Order 16 rules 2 and 3 of the Rules of the court below) by pleadings… The defendants/appellants can only effectively challenge them (the Plaintiff/respondent) by filing their own pleadings, i.e. the statement of defence and joining issue with them. They cannot be permitted to revive demurrer which has since been buried through the back door.” PER IKYEGH, J.C.A.
WHETHER OR NOT RULES OF COURT MUST BE OBEYED
Be that as it may, it has to be stressed that Rules of court like Order 16 rule (1) of the Rules of the court below must be obeyed. See the Nigerian Navy and Ors. v. Labinjo (2012) 17 NWLR (Pt.1328) 56 at 84 thus –
“The rules of court are meant to be obeyed. The purpose of the rules of court is to regulate matters in court and assist parties to any suit or appeal to present their cases for the purpose of a fair and quick hearing. Where the rules are quickly complied with, there will be quick dispensation of justice. Wellington v. Registered Trustees Ijebu Ode (2000) 5 NWLR (Pt.647) pg. 130. University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) pg.143.” PER IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A.(Delivering the Leading Judgment): The appeal complains about the decision of the Federal High Court sitting in Lagos (the court below) by which it struck out the originating summons filed by the appellant against the respondents on the grounds sponsored by the 1st – 2nd respondents on a preliminary objection that the originating summons had no affidavit to support it as the paragraphs of the affidavit that accompanied it were defective and were struck out together with the originating summons.
The pith of the dispute that brought about the filing of the originating summons at the court below was that the 1st respondent in the course of auditing under capitalized banks which financially were impaired and required to be revamped therefore the 1st respondent decided to infuse N620 billion naira into the ailing banks to keep them financially afloat and avert their collapse. The appellant, an honourable member of the Federal House of Representatives representing the Surulere 1 Constituency of Lagos State and also the Minority Whip in the Federal House of Representatives launched the originating summons action on 13.10.2009 at the court below seeking declaratory and injunctive reliefs against the 1st respondent from disbursing the N620 billion on the main plank that the 1st respondent did not obtain the approval of the National Assembly by way of Appropriation for using the public funds of N620 billion for bail out of the affected ailing banks.
The court below held that the appellant as an honourable member of the National Assembly had the locus standing to bring the originating summons; but that as the paragraphs 5 – 14 of the affidavit that should
have supported the originating summons were defective and had been struck out by the court below, the originating summons had no legs to stand on. Consequently, the court below struck out the originating summons. Concerning the preliminary objection to the remaining issues the court below held that it was taken care of by the ruling on the incompetence of the suit and that the applicant’s interlocutory injunction could no longer call for determination on account of the striking out of the action.
Unhappy with the ruling of the court below striking out the originating summons, the appellant filed a notice of appeal containing six (6) grounds of appeal on 17.5.2010. A brief of argument was filed on 22.10.10 by the appellant.
At the hearing of the appeal, the 1st respondent moved its preliminary objection to grounds 1, 2 and 6 of the notice of appeal filed on 27.4.11. The 1st respondent adopted the arguments for the preliminary objection in pages 1 – 9 of the 1st respondent’s brief of argument filed on 31.3.2011 but deemed properly filed on 21.3.2012 to the effect that ground 1 of the notice of appeal on Order 16 of the Federal High Court (Civil procedure) Rules, 2009 (the Rules of the court below) was nor raised in argument in the preliminary objection at the court below, not did the court below rule on it, so it did not arise from the ruling of the court below and should be struck out together with issue 3 of the appellant’s issues for determination citing in support the cases of Nwankwo v. E.D.C.S.U.A (2007) 5 NWLR (Pt.1027) 377 at 395, Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 183 – 184, UBA Plc v. BTL Ind. Ltd. (2006) 19 NWLR (Pt.1013) 61 at 107, Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (pt. 326) 252 at 261, Akpan v. Bob (2010) 5 – 7 MJSC (Pt.111) 42 at 72, Agbaka v. Amadi (1998) 11 NWLR (Pt.572) 16 at 24 and Nwachukwu v. State (2007) 17 NWLR (Pt.1062) 31 at 61 – 62.
The preliminary objection attacked ground 2 of the notice of appeal on the premise that the particulars do not flow from nor relate to the ground of appeal and should be struck out along with issues 1, 2 and 3 of the appellant’s issues for determination citing in support the cases of Honika sawmill (Nig) Ltd. v. Hoff (supra), Laah v. Opaluwa (2004) 9 NWLR (1978) 558 at 569 – 570, Nwachukwu v. state (supra), Korede v. Adedokun (2001) 15 NWLR (Pt.236) 483 at 500.
The complaint on the appellant’s ground 6 of the notice of appeal hinged on the issue that the particulars 6.1, 6.2, 6.5 and 6.6. thereof do not have nexus with the ground of appeal and should be struck out together with issue 4 of the appellant’s issues for determination ties to it citing in support Honika Sawmill (Nig) Ltd. v. Hoff (supra), Laah v. Opaluwa (supra) and Nwachukwu v. State (supra).
The 1st respondent concluded by urging for the appellant’s brief as well as the appeal itself to be struck out as issues 1, 2, 3, 4 and 5 thereof are not covered with competent grounds of appeal citing in support the cases of Adehi v. Atega (1995) 5 NWLR (Pt.398) 656 at 666 – 667.
The appellant reacted to the preliminary objection in a reply brief filed on 27.3.12 but deemed properly filed on 15.10.12 in which it was argued that the 1st respondent introduced the issue of Order 16 of the Rules of the court below in the preliminary objection it took at the court below and the issue affected the competence of the court below to take the preliminary objection when the respondents did not file defence to the action. Anwadike v. Administrator-General, Anambra State (1997) 7 NWLR (Pt.460) 315 at 332 on the need to obey rules of court, Madokolu v. Nkemdilim (1962) 1 All NLR 587 at 589 on the competence of the preliminary objection, Disu v. Ajilowura (2006) 14 NWLR (1000) 783 at 809 and Tabiowo v. Disu (2008) 7 NWLR (Pt.1087) 533 at 550. On the impropriety of raising an issue of locus standing without filing defence to an action where it should be raised; and that even if Order 16 is a fresh issue, being an issue of jurisdiction it may be raised and argued for the first time on appeal without the leave of the court vide Obiakor v. State (2012) 10 NWLR (Pt.776) 612 at 626 and 627 and Uor v. Loko (1988) 2 NWLR (Pt.77) 430.
The appellant further replied that a cursory look at ground 4 of the notice of appeal reveals that the particulars thereof flow from the ground of appeal, or that, in the alternative, only the particulars that do not tally with the ground of appeal should be struck down in the spirit of substantial justice vide Ushie v. Edet (2010) 6 NWLR (pt. 1190) 386 at 402, Adekeye v. Adesina (2010) 18 NWLR (pt.1225) 449 AT 472, Ozigbo v. P.D.P. (2010) 1 NWLR (Pt.1200) 601 at 631, Akpan v. Bob (2010) 17 NWLR (Pt.1223) 421 at 516 – 517.
The appellant finally urged that issues 1, 2, 3, 4, and 5 of the appellant’s brief and grounds 1, 4, and 6 of the notice of appeal are competent and should not be struck out.
The 2nd respondent’s brief filed on 27.4.11 but deemed properly filed on 21.3.12, attacked ground 1 of the notice of appeal for raising a fresh issue not agitated at the court below without obtaining the leave of the court to do so and should be struck out vide Oloruntoba-Oju and Ors. v. Abdul Raheem and Ors.(2009) 13 NWLR (Pt.1157) 53 at 121, Kalu v. Uzor (2006) 8 NWLR (pt.981) 66 at 85, Edjekpo v. Osia (2007) 9 NWLR (pt.1037) 360 at 378, Fadare and Ors. v. A – G, Oyo State (1982) NSCC 52 at 57, Brifina Ltd. v. Intercontinental Bank Plc. (2003) 5 NWLR (Pt.814) 540 at 560; that the appellant’s third issue for determination which was distilled from the said incompetent first ground of appeal should be struck out vide Nwankwo and Anor. v. (EDSC) U. A. (2007) 1 – 2 S.C. 145 at 161. It was also contended on preliminary objection to ground 6 of the notice of appeal to the effect that particulars 6.1. and 6.2. thereof are anchored on alleged admission made in the 1st and 2nd respondent’s respective depositions in counter affidavits to the appellant’s motion for interlocutory injunction which was not considered or heard by the court below and that, notwithstanding, an issue of jurisdiction or competence of the substantive suit taken along with a motion for interlocutory would entail the consideration of the issue of competence first before considering the application for interlocutory injunction vide Ebodaghe v. Okoye (2004) 18 NWLR (Pt.905) 472 at 487 and Jeric Nig. Ltd. v. Union Bank Plc (2000) 15 NWLR (pt.447) at 456; so ground 6 of the notice of appeal which is “inextricably intertwined” with the appellant’s motion for interlocutory injunction vide Ibator and Ors. v. Barakuro (supra) at 10 – 11; and that ground 2 of the notice of appeal has no “real relationship” with the appellant’s third issue for determination and same should be struck out vide Ibiyemi v. FBN Plc. (2003) 17 NWLR (Pt.848) 196 at 205-206 and N.
The appellant responded to the preliminary objection in his reply brief to the 2nd respondent’s brief filed on 27.3.12 but deemed duly filed on 15. 10.12 to the effect that ground 1 of the notice of appeal and the issue built on it emerged from a live issue on Order 16 of the Rules of the court below at the said court and cannot be said to be a fresh issue vide Obiakor v. State (2002) 10 NWLR (Pt.776) 612 at 626- 627, Uor v. Loko (1988) 2 NWLR (Pt.77) 430; that issue 3 of the appellant is related to ground 2 of the notice of appeal in that both of them are to the effect that the court below after holding that the appellant had the locus standing to file the suit, it ought to have proceeded to schedule the suit for hearing on the merits, not striking it out; that the ground 6 of the notice of appeal and issue 4 of the appellant’s issues for determination support the appellant’s application to the court to invoke section 15 of the Court of Appeal Act to determine the substantive suit on the merit and that the admissions made by the 1st and 2nd respondents in the application for interlocutory injunction should be considered for the purpose of granting the application of the appellant for the court to invoke the court of Appeal Act; consequently the preliminary objection should be overruled.
Grounds 1, 2, 4 and 6 of the notice of appeal read –
“1. The learned trial Judge erred in law in striking out the suit based on incompetent preliminary applications and objections raised by the Respondents.
PARTICULARS OF ERROR
1.1. Order 16 Rule 1 of the Federal High Court (Civil Procedure Rules) 2009 has abolished demurrer.
1.2. The Respondents did not file pleadings in response to the Originating Summons as specially required by order 16 Rule 2 of the Federal High court (Civil procedure Rules) 2009 before filing and being permitted by the trial court to argue their Notices of Preliminary Objections.
1.3. The preliminary objections were raised and determined in violation of the Federal High Court (Civil procedure Rules) 2009.
1.4. The preliminary objections were raised and determined without due process.
1.5. The Appellant was severely prejudiced by the dismissal of the suit without a hearing on the merits.
2. The learned trial Judge erred in law and denied the Appellant a fair hearing by holding that the Appellant’s Originating Summons was incompetent based on the court’s erroneous holding that the Affidavit in support of the originating summons was substantially defective.
2.1. The learned trial Judge after having held that the Appellant has the locus standi to institute the action, ought not to have struck out the suit at the preliminary stage on the basis of the Respondents’ contention that he Affidavit in support of the Originating Summons was defective, without scheduling a hearing on the merits.
2.2. The striking out of paragraphs 5 – 15 of the Affidavit in support of the originating summons did not render the originating Summons incompetent and without a supporting affidavit.
2.3. The originating summons was not heard or determined along with the Notices of Preliminary Objections.
2.4. The trial court having struck out the supposed defective paragraphs of the supporting Affidavit ought to have set the Originating Summons down for a hearing on the merits.
4. The learned trial Judge erred in law when the court held that:
“Paragraphs 5-14 of the affidavit in support of the Originating Summons are facts allegedly told the deponent Adeteju (sic) Ajimotokan by the plaintiff Honourable Femi Gbajabiamila. However, a close reading of the averment will also show that the averment are such that they are outside the personal knowledge of the plaintiff himself. The deponent does not stand in the same stead as the Plaintiff. The deponent cannot depose to Paragraph 15 of the affidavit as the deponent does not have the locus standi to bring this suit to court.
6. The learned trial Judge erred in law the by holding that averments in the Affidavit in support of the Originating Summons contravened the Evidence Act that the deponent did not state the date, time and place of receiving the information deposed to though the Respondents admitted averments.
6.1 The 1st Respondent in paragraph 10, 11 and 12 of its Counter-Affidavit to the Plaintiff’s/Appellant’s Motion for Interlocutory Injunction admitted the crux of the facts deposed to in the Affidavit in support of the Originating Summons, to wit the spending of the sum of SIX HUNDRED AND TWENTY BILLION NAIRA (N620,000,000,000.00) without appropriation by the National Assembly.
6.2 The 2nd Respondent in paragraphs 5 and 7 of its Counter-Affidavit to the Plaintiff’s/Appellant’s Motion for Interlocutory injunction also admitted the crux of the facts deposed to in the Affidavit in support of the Originating Summons, to wit – the spending of the sum SIX HUNDRED AND TWENTY BILLION NAIRA (N620,000,000,000.00) without appropriation by the National Assembly.
6.3 The deponent swore that she also became familiar with the facts through her reading of Newspaper reports, viewing of Television coverage, reading of Internet reports, and from other multimedia coverage. See Affidavit of Adeteju Ajimotokan in Support of Originating Summons, paras. 2, 10-14
6.4. The authority of FORSON v. CALABAR MG (2004) 9 NWLR (Pt.878) 227, 245 paragraphs E – F and Ratio 4, holds that a party to an action or a deponent may dispense with a disclosure of the sources of his information or other particulars related thereto where the suit seeks a declaratory interpretation of the referenced constitutional and/or statutory provisions.
6.5. It was grossly unfair, highly prejudicial, and not judicious or judicial for the learned trial judge to have dismissed the Plaintiff’s Originating Summons despite the uncontroverted facts presented by the Plaintiff/Appellant to the trial court.
6.6. It was grossly unfair, highly prejudicial, and not judicious or judicial for the learned trial Judge to have struck out paragraphs 5 – 14 of the Affidavit in Support of the Originating Summon.”
The 1st respondent’s notice of preliminary objection at the court below begins in page 35 of the record and was said to have been brought inter alia pursuant to order 16 rule 4 of the Rules of the court below and in page 48 of the record the 1st respondent’s argument on the notice of preliminary objection at the court below concluded –
“We therefore urge the court under order 16 rule 4 and the court’s inherent powers to dismiss the suit”.
So, the 1st respondent brought in order 16 rule 4 of the Rules of the court below in its preliminary objection which it used along with other statutory provisions and the inherent powers of the court below to move the preliminary objection at the court below, therefore the appellant is entitled to raise or frame a ground of appeal based on the said rule of court. The preliminary objection to ground 1 of the notice of appeal has no force and is hereby overruled.
The court below struck out the preliminary objection on account of the defective paragraphs 5 – 15 of the supporting affidavit vide page 178 of the record which ground 2 of the notice of appeal is challenging on the premise that with the holding of the court below that the appellant had the locus standing to institute the action, it should have allowed the action to proceed to hearing, as the striking out of the said paragraphs of the affidavit did not render the originating summons incompetent which, I most respectfully, consider relate to the ground of appeal in question.
The 1st respondent’s preliminary objection to ground 2 of the notice of appeal equally lacks force and is hereby overruled.
I would agree with the appellant that the particulars of ground 4 of the notice of appeal (supra) flow from the ground of appeal, therefore the preliminary objection to the said particulars lacks merit and is hereby overruled. The same goes for ground 6 of the notice of appeal as its particulars tally with the ground of appeal and is on that basis a competent ground of appeal. At any rate, particulars that have death-wounds can now be separated from the good ones and by surgical exercise from the offending particulars to leave the valid particulars to sustain the ground of appeal on the basis of substantial justice. See the cases cited on the issue by the appellant (supra).
There is, however, substance in the preliminary objection of the 2nd respondent to particulars 6.1 and 6.2 of ground 6 of the notice of appeal as the alleged admissions were not live issues in the preliminary objection taken at the court below, in that the motion for interlocutory injunction in which the alleged admissions were made was not heard by the court below, so both the said particulars and the third issue for determination together with the arguments built on them are of no effect and are hereby struck out.
The appellant’s brief of argument filed on 22.10.10 but deemed properly filed on 2.12.10 identified these issues for determination –
“1. Whether the lower court was right in striking out the suit on the ground that the Affidavit in Support of the Originating Summons was defective, when the said Affidavit complied in material terms with the Evidence Act. GROUNDS 3 and 4.
2. Whether the lower court was right in suo motu an issue and, without affording the plaintiff/Appellant an opportunity to respond to same by way of oral or written in argument since it was raised for the first time the court’s Ruling, concluding that: (i) Paragraphs 5-14 of the Affidavit in support of the Originating Summons are facts outside the personal knowledge of the plaintiff, and (ii) that the deponent cannot depose to paragraph 15 of the Affidavit in support of the Originating Summons as she does not have the locus standi to bring the suit to Court. GROUNDS 5 AND 4.
3. Whether the lower court was right in striking out the suit based on the incompetent Preliminary Objections of the 1st and 2nd Defendants/Respondents. GROUNDS 1 AND 2.
4. Whether the deposition by the Defendant/Respondents [in their counter Affidavit to the Motion for Interlocutory injunction,] that they had disbursed the stated amount to the banks, and that they did not require any approval from the National Assembly, did not amount to an admission of the facts deposed to by the plaintiff/Appellant in the Affidavit in support of the Originating Summons. GROUND 6.
5. Whether the fact that the originating summons hinges on the explicit provisions of the Constitution of the Federal Republic of Nigeria, and to a lesser extent certain statutes and, specifically, the Central Bank of Nigeria [Establishment] Act, 2007, and the Banks and other Financial Institutions Act, 2004, as well as the unequivocal admissions of the 1st and 2nd Respondents as to their respective conduct dispensed with any need for time and place disclosures in the Affidavit in support of the Originating Summons, based on the authority of FORSON v. CALABAR MG [2004] 9 NWLR (Pt.878) Page 227, at page 245, paragraphs E – F and Ratio 4. GROUND 4”
It was argued on the first issue that paragraph 2 of the affidavit in support of the originating summons on matters that were in the public domain deposed to the source of information of the deponent and paragraph 17 thereof deposed to the belief of the deponent in the information in question in compliance with sections 86, 88 and 89 0f the Evidence Act, 2004 which made paragraph 5 – 15 of the supporting affidavit valid, more so the action was on intervention of the constitution and statutory provisions therefore the court below was wrong to strike out paragraphs 5 – 15 of the affidavit on the ground that they are defective and offend sections 86, 88 and 89 of the Evidence Act vide Forson v. Calabar MG (2004) 9 NWLR (Pt.878) 227 at 245 and section 14 (1) (c) and (2) of the Evidence Act on matters of which the court can take judicial notice.
Arguing on the second issue the appellant referred to paragraphs 2, 4, 10, 11, 12, 13, 14, and 17 of the affidavit in support of the originating summons together with the arguments on the first issue for arguments on the first issue to urge that the affidavit was in substantial compliance with the provisions of the Evidence Act and the court below should not have struck out paragraphs 5 – 15 thereof citing in support the cases of Lone Star Drilling Ltd. v. Triveni England Ind. (1999) 1 NWLR (pt.588) 622 at 628 – 629, Forson v. Calabar MG (supra) at 245 and Alamieyeseigha v. Igoniwari (No.2) (2007) 7 NWLR (Pt.1034) 524 at 577 and 583, on the restraint the court should exercise in striking out an originating summons on the interpretation of constitutional provisions on “hyper-technical grounds.
The appellant contended on the second issue that the court below was wrong to suo motu raise the issue that paragraphs 5 – 14 of the affidavit in support of the originating summons deposed to facts outside the personal knowledge of the appellant as plaintiffs and that the deponent cannot depose to facts in paragraph 15 of the said affidavit as she does not have the locus standi to bring the suit, when these issues were not raised and contested by the respondents citing in support the case of Okelola v. Boyle (1989) 5 NWLR (Pt.119) 46 at 58; and that affidavits and counter affidavits for and against an originating summons, respectively, constitute pleadings binding on the parties and the court thereto, therefore the court below was wrong to suo motu raise and decide the issue that was not part of the pleadings vide Oviawe v. I.R.P. (Nig) Ltd. (1997) 3 NWLR (Pt.492) 126 at 141 – 142, Olomosola v. Oloriawo (2002) 2 NWLR (Pt.750) 113 at 124 – 126, Amasike v. Registrar-General, CAC (2006) 3 NWLR (Pt.968) 462 at 488 – 489; and that the appellant as minority whip of the House of Representatives where the issue was discussed on the floor of the House and from whom the deponent got the information made the information so obtained within the personal knowledge of the deponent and the said information being of public knowledge could be taken judicial notice of by the courts vide the powers of a whip as stated in the book, Law Practice and Procedure of the Legislature (1999 edition) at topic 3.7 by Akinola Jimoh and J.A.G. Griffith and Michael Ryle, parliament, Functions, Practice and Procedure, at pages 206 – 215 read with section 74 (1) (c) and (2) of the Evidence Act together with the cases of Dapianlong v. Dariye (2007) 8 NWLR (Pt.1036) 239 at 293 on the impropriety of a court raising issue suo motu without writing parties to address it on the issue(s). Abiodun v. Chief Judge of Kwara State (2007) 18 NWLR (Pt.1065) 109 at 144 – 145, The M. V. “S. Araz” v. Scheep (1996) 5 NWLR (Pt.447) 204 at 217 on the right of a third party to depose to an affidavit in a suit.
The appellant argued on the third issue that the preliminary objections taken by the 1st respondent and the 2nd respondent to the originating summons at the court below were incompetent as they amounted to demurrer contrary to Order 16 rule 1 of the Rules of the court below read with the cases of Inoma-Biriya v. Omoni (1989) 5 NWLR (Pt.119) 60 at 71, Mobil Oil (Nig) Plc v. IAL 36 Inc. (2000) 6 NWLR (Pt.659) 146 at 173 and 175, Omnia (Nig) Ltd. v. Dyktrade Ltd. (2007) 15 NWLR (Pt.1058) 576 at 628; that order 29 of the Rules of the court below under which the preliminary objection was brought requires that the preliminary objection be taken together with the substantive suit; that the taking of the preliminary objection before the filing of counter affidavit to the originating summons rendered the preliminary objection incompetent vide Disu v. Ajilowura (2006) 14 NWLR (Pt.1000) 783 at 809, Tabiowo v. Disu (2008) 7 NWLR (Pt.1078) 533 at 550; that affidavits in an originating summons constitute the evidence thereof vide Alamieyeseigha v. Igoniwari (No.2) (2007) 7 NWLR (pt.1034) 524 at 589; that rules of court must be obeyed vide Anwadike v. Administrator-General, Anambra State (1996) 7 NWLR (Pt.460) 315 at 332, so the respondents’ refusal to follow the Rules of the court below by not filing counter affidavit to the originating summons before filing the preliminary objection should not have been allowed by the court below; and that if the court below had followed Order 16 rules 2 (1) and (3) of the Rules of the court it would not have entertained the preliminary objection before the respondents joined issues with the appellant on the originating summons by filing their counter affidavits against the originating summons and as the procedure followed by the court below did not comply with its Rules it constituted a grave irregularity and breached the appellant’s right to fair hearing vide Okafor v. Attorney-General of Anambra State (1991) 6 NWLR (Pt.200) 659 at 675.
The appellant contended on the fourth issue that based on the admission of the 1st – 2nd respondents in paragraphs 7, 8, 9 and 10 of the counter affidavits against the motion for interlocutory injunction that the N620 billion without appropriation by the National Assembly was an admission of the grievance in the originating summons, therefore the court below erred in striking out the originating summons in the face of the said admission vide Registered Trustees, Ahmadiya Mission v. Sule (2002) 2 NWLR (Pt.750) 189 at 199 and Socfin Consultants Services v. Asuamah (2002) FWLR (Pt.130) 1729 at 1756 – 1757.
Arguments on the fifth issue urged that the originating summons hinged on the interpretation of certain provisions of the constitution of the Federal Republic of Nigeria which dispensed with a need for the disclosure of sources of information and other particulars related thereto in the affidavit in support of the originating summons vide Forson v. Calabar MG (2004) 9 NWLR (Pt.878) 227 at 245; upon which the appellant advocated for the appeal to be allowed, set aside the decision of the court below and determine the originating summons under section 15 of the court of Appeal Act 2004.
On 31.3.11, the 1st respondent filed its brief which was deemed properly filed on 21.3.12 with these issues for determination –
“1. Whether the Learned trial Judge was right in striking out paragraphs 4 – 15 of the supporting affidavit on the ground that the deposition contained therein are in breach of the Evidence Act.
2. If the answer is in the affirmative, whether or not the suit was properly struck out.”
It was argued on the first issue above that the deponent having failed to disclose in the affidavit the name of the informant and the place, time and circumstances surrounding the information which she allegedly received the court below was right in striking out paragraphs 4 – 15 of the affidavit for offending section 86, 88 and 89 of the Evidence Act citing in support the cases of UBA v. SGB Ltd. (1996) 10 NWLR (Pt.470) 381 at 387, Cedar Stationery Ltd. v. IBWA Ltd. (2000) 15 NWLR (Pt.690) 338 at 349 – 350, Adeleke v. Anike (2006) 16 NWLR (Pt.1004) 131 at 164, A – G., Adamawa State v. A – G., Federation (2005) 18 NWLR (Pt.1065) 109 at 154 – 155; that the originating summons was based solely on the allegation that the 1st and 2nd respondents intend to raise money by printing the sum of approximately N620 billion and to unilaterally spend the money so raised in their executive discretion it was not predicated on interpretation of law only therefore the deponent was obliged to comply with the requirements of sections 86, 88 and 89 of the Evidence Act; that Forson v. Calabar MG (supra) cited by the appellant is inapplicable in that in that case it was held that a deponent relying on interpretation of statutory provisions need mention same in the affidavit without more, whereas the deponent in the instant case did not depose to the statutory provisions in the affidavit that following the case of Bamaiyi v. State (2001) 8 NWLR (Pt.715) 270 at 289, the affidavit in question examined together disclosed that the court below was right in holding that it offended sections 86, 88 and 89 of the Evidence Act; and that the court below did not act suo motu in striking out paragraphs 4 – 15 of the said affidavit.
The 1st respondent contended on the second issue above that after striking out the paragraphs 4 – 15 of the affidavit there was nothing left to support the originating summons as required by Order 3 rule 9 (2) (a) of the Federal High Court (Civil Procedure) Rules, 2009 (the Rules of the court below) read with the cases of Keyamo v. LSHA (2002) 18 NWLR (Pt.799) 605, therefore the court below rightly struck out the originating summons; that the appellant did not raise the issue of the incompetence of the notice of preliminary objection at the court below and same cannot be raised in the appeal here; that the notices of preliminary objection challenged the jurisdiction of the court below to hear the suit making Order 16 of the Rules of the court below wholly inapplicable vide NDIC v. CBN (2002) 7 NWLR (766) 272 at 296 – 297, Elebanjo v. Dawodu (2006) 15 NWLR (Pt.1001) 76 at 115, 136 – 137, Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (199) 501 at 541; that section 15 of the Court of Appeal Act may be invoked only where the matters in controversy arose from the appeal vide Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (pt.39) 1 at 38, Olujimi v. E.S.H.A. (2009) 11 NWLR (pt.1153) 464 at 492 and having regard to the fact that the issue for the determination of the substantive suit on the merit does not arise out of any of the grounds of appeal and the originating summons “has not been heard at all” by the court below, section 15 of the Court of Appeal Act cannot be invoked by the court to determine the originating summons, as the phrased “rehear” in section 15 of the Court of Appeal Act presupposes that the case has been heard by the court below vide Olujimi v. E.S.H.A (2009) 11 NWLR (Pt.1153) 464.
The 1st respondent urged that section 15 of the Court of Appeal Act be voided under section 1 (3) of the Constitution of the Federal Republic of Nigeria 1999 for clashing with section 240 of the constitution of the Federal Republic 1999 (1999 Constitution) in respect of jurisdiction to hear a case not heard by the trial court but which is on appeal before it has all the materials for it to be determined on appeal citing in support Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982) NSCC (Vol.13) 477 at 489 and section 315 of the 1999 Constitution, as altered; upon which the 1st respondents solicited for the dismissal of the appeal for lacking in merit with substantial costs.
The 2nd respondent’s brief of argument submitted the following issue for determination –
“Whether the lower court was right in striking out the Appellant’s Originating Summons on the ground that certain paragraphs in the affidavit in support of the originating application were defective – distilled from grounds 3, 4, and 5 of the Notice of Appeal.”
It was contended by the 2nd respondent that paragraphs 4 – 15 of the affidavit in support of the suit were bereft of credibility for lacking the source of information of the deponent and the time, place and circumstances the alleged information was derived contrary to sections 86, 88 and 89 of the Evidence Act read with the cases of Edun v. Commissioner of Agriculture (2000) 12 NWLR (Pt. 681) 316 at 333 – 334, General and Aviation services Ltd. v. Thahal (2004) 10 NWLR (Pt.880) 50 at 73, Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (pt. 1105) 486 at 511, Abiodun v. C. J. Kwara State (2007) 18 NWLR (pt.1065) 109 at 144, consequently, it was argued that the court below was right in striking out paragraphs 4 – 15 of the appellant’s affidavit.
The 2nd respondent further urged that hearsay evidence is inadmissible under sections 77 and 91 of the Evidence Act on account of which sections 18 and 89 of the Evidence Act require that for affidavit evidence not to be hearsay, a deponent relying on information from another source or outside his personal knowledge must give reasonable particulars of the informant and the time, place and circumstances of the information in the affidavit vide the cases of FGN v. A.I.C. Ltd. (2006) 4 NWLR (Pt.970) 337 at 357, Cedar Industries Ltd. v. IBWA Ltd. (2000) 15 NWLR (Pt.690) 338 at 350; that the appellant’s argument that the deponent “know the facts of the case based on newspaper reports, other multi-media” without the identifying which information was derived from what source offended sections 88 and 89 of the Evidence Act; all the more so newspaper reports lack evidential and legal value vide Ojukwu v. Yar’Adua (2009) 12 NWLR (Pt.1054) 50 at 129, Lekwot v. Judicial Tribunal (1997) 8 NWLR (515) 22 at 35; that the appellant did not rely on any law in paragraphs 4 – 15 of the affidavit in support of the originating summons to entitle him rely on the case of Korson v. Calabar MG (2004) 9 NWLR (pt.878) 227 at 245; and that even where the deponent deposed to the Central Bank Act, the Bankers and other Financial Institutions Act and the constitution of the Federal Republic of Nigeria in paragraph 10 of the affidavit it failed to disclose the source of the information thus contravening sections 88 and 89 of the Evidence Act; that by section 113 (b) of the Evidence Act. Judicial notice cannot be taken of proceedings on the floor of the National Assembly which has to be proved by the minutes of that Body; that section 74 (2) of the Evidence Act does not specify “matters of public history” as one of the facts which courts can take judicial notice of as the subsection ends thus –
“in all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.”
and that matters to be taken judicial notice of must be notorious which was not the case here thus making section 74 of the Evidence Act vide Saraki v. Kotoye (1990) 4 NWLR (pt. 143) 144 at 195, Aromolaran v. Oladele (1990) 7 NWLR (162) 359 AT 367.
The 2nd respondent referred to paragraph 15 of the affidavit in support of the originating summons to contend that by deposing therein that the appellant’s action “is a matter of national importance which affects a critical sector of the economy” the deponent reached conclusion on the issue contrary to sections 86 and 87 of the Evidence Act read with the case of Bamaiyi v. state (2001) 8 NWLR (Pt.715) 270 at 389; that the competence of the affidavit was challenged by the respondents in pages 43 – 48 of the record and the appellant had ample opportunity to respond to it and did respond in page 119 of the record to the effect that “the affidavit does not violate the Evidence Act”, showing that the court below did not raise the issue suo motu and the argument of the appellant that he was denied fair hearing on the issue should not be countenanced vide Sokoto v. Danyali (1998) 11 NWLR (pt.575) 656 at 663 – 664; that it has to be noted that whether facts deposed to in an affidavit are within the personal knowledge of the deponent or the informant is for the court where the affidavit is to be used to evaluate the credibility and veracity of the affidavit evidence vide Okoye v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (pt.1110) 335 at 362.
Arguments on the third issue above defended use made of order 29 rule 2 of the Rules of the court below as it was an issue of jurisdiction, not demurrer proceedings under Order 16 rule 3 of the Rules of the court below vide NDIC v. CBN (2002) 7 NWLR (Pt.766) 272 at 297 – 297; that the cases of Mobil Oil Nig. Plc. v. IAL (supra), Disu v. Ajilowura (supra), Taibiowo v. Disu (supra) and Alamieyeseigha v. Igonowari (supra) cited by the appellant are distinguishable from the instant case in that those cases were not decided under Rules of court with provisions of Order 29 of the Rules of the court below; that demurrer proceedings relate to cases commenced by writ of summons, not in an action commenced by originating summons vide Okafor v. A – G, Anambra State (2005) 14 NWLR (Pt.945) 210 at 222; that the originating summons could not have been set down for hearing in the absence of affidavit evidence supporting it as required by Order 3 rule 9 (2) of the Rules of the court below; that striking out of the originating summons did not entail its determination on the merits as wrongly contended by the appellant vide lbok v. Honesty II (2007) 6 NWLR (Pt.1029) 55 at 67.
Discussing the issue of substantial justice raised by the appellant, the 2nd respondent argued that substantial justice also implies that litigants comply with Rules of court vide C.C.C.T.C.S. Ltd. v. Ekpo (2008) 6 NWLR (Pt.1083) 362 at 398; that the case of Lone Star Drilling Ltd. v. Trivei Eng. (1999) 1 NWLR (Pt.588) 622 at 628 – 629 relied upon by the appellant considered the format of a jurat to an affidavit, not non compliance with the provisions of section 89 of the Evidence Act; whilst the case of Alamieyeseigha v. Igoniwari (No.2) (2007) 4 NWLR (Pt.1034) 524 at 577 was on the ouster provision in section 188(10) of the 1999 Constitution, not on non compliance with the provisions of the Evidence Act, showing the two cases are distinguishable from the case in hand, so urged the 2nd respondent.
Reacting to the request by the appellant in the notice of appeal that section 15 of the Court of Appeal Act be invoked by the court to determine the originating summons, the 2nd respondent observed that the appellant did not argue the issue in the appeal and that section 15 of the Court of Appeal Act is not to be highly or automatically invoked except where the parties have joined issue in the court below and the res is in danger of destruction by effluxion of time and, also, where the court below had exercised its original jurisdiction to hear the substantive action which are absent in the instant case, therefore section 15 of the Court of Appeal Act ought not to be invoked in the circumstance citing in support the cases of Dapianlong v. Dariye (2007) 8 NELR (Pt.1046) 332 at 404, 405, Babajide v. Ekerakeya (2001) 2 WRN 137 at 146, A- G Anambra v. Okeke (2002) 12 NWLR (p.782) 575, Ikweki v. Ebele (2005) 11 NWLR (Pt.936) 397 at 425 – 426, Owie v. Ighiwi (2005) 5 NWLR (pt.917) 884 at 224 and Adebanjo v. Brown (1990) 3 NWLR (Pt.141) 661 at 675.
The 2nd respondent concluded by urging the appeal to be dismissed with substantial costs on the premise of the argument advanced (supra).
The appellant’s reply brief to the 1st respondent’s brief stated that the deponent expressed in paragraph 2 of the affidavit that “she believed the information to be true” which complied with sections 86, 88 and 89 of the Evidence Act and the reply brief stayed into discussion of what had earlier been discussed in the appellant’s brief on the case of Forson v. Calabar MG (supra) to arguments earlier canvassed on the other issues in the appellant’s brief where the cases of Obiakor v. State (supra) and Uor v. Loko (supra); the reply brief distinguished the cases of NDIC v. CBN (supra) and Elebanjo v. Dawodu (supra) from the present case on the premise that the said cases did not treat the issue of locus standing, unlike the case of Disu v. Ajilowura (supra), the reply brief pointed out that ground 6 of the notice of appeal and issue 4 of the appellant’s issue for determination discussed section 15 of the court of Appeal Act and that following the cases of Ada v. State (2008) 13 NWLR (Pt.1103) 149 at 169 and Saidu v. Abubakar (2008) 12 NWLR (Pt.1100) 201 at 301, the court can invoke section 15 of the Court of Appeal Act to determine the substantive action, as the appellant complied with the requirements stated in the case of Dapianlong v. Dariye (supra).
The appellant’s reply brief to the 2nd respondent’s brief substantially repeated the arguments in the appellant’s brief of argument with the addition that the case of Babajide v. Eferakeya (supra) cited by the 2nd respondent was initiated by ordinary writ of summons, not on originating summons and is on that score distinguishable from the present case; and that following the cases of Ada v. State (2008) 3 NWLR (pt.1103) 149 at 169 and Saidu v. Abubakar (2008) 12 NWLR (Pt.110) 201 at 301, the court can invoke section 15 of the Court of Appeal Act to determine the originating summons, as the appellant has met all the requirements stated in the case of Dapianlong v. Dariye (supra) cited by the 2nd respondent.
The 3rd respondent, though served the briefs, did not file brief in the appeal.
The issues for determination identified by the appellant are commodious and meet the grounds of appeal as well as the issues formulated by the 1st and 2nd respondents, respectively. Accordingly, I will be guided by the appellant’s issues for determination in the discourse.
Affidavits in originating summons are considered to be pleadings. The claimant’s affidavit is taken as the statement of claim. While the defendant’s counter affidavit is taken as statement of defence. See Ports and Cargo Handlings services company Ltd. and Ors. v. Migfo Nigeria Ltd. and Anor. (2012) 18 NWLR (pt.1333) 555 at 609 per the judgment by Ariwoola, J.S.C., as follows:-
“Surely, the deposition and averments in an affidavit in support of an originating summons are like the averments contained in the statement of claim or pleadings in support of a general writ of summons in an action commenced by such writ of summons.”
Again, in the case on N.N.P.C. and Ors. v. Famfa Oil Ltd. (2012) 17 NWLR (pt.1328) 148 at 189 it was stated in the lead judgment by Rhodes-Vivour, J.S.C., inter alia that –
“When an originating process (as in this case) is an originating summons, the affidavits filed in support serve as the statement of claim, while the counter affidavits serve as statement of defence. The affidavits are the pleadings for the case.”
(My emphasis).
See also Uwazuruonye v. Governor of Imo State and Ors. (2013) 8 NWLR (Pt.1355) 28 at 56.
It appears a defendant to an originating summons is required or expected to raise any issue he intends to take at the preliminary stage of the proceedings in his counter affidavit, which serves as his statement of defence as is done in proceedings by way of ordinary writ of summons. See by analogy the case of Helen Udo v. The Registered Trustees of the Brotherhood of Cross and the Star (2013) 14 NWLR (pt.1375) 488 at 508 per the judgment by Galadima, J.S.C. as follows –
“The complaints by the appellant in the two other proposed grounds (13 and 14) are as follows. In ground 13 the complaint that the lower court has given judgment to the respondent pertains the lower court’s affirmation of the trial court’s judgment in a suit that is statute barred, these two complaints are defences provided for under Order 13 rule 35 (15), of the Rules of the Federal High Court thus –
(15) A defendant to an originating summons shall file a counter-affidavit together with all the Exhibits he intends to rely upon and a written address within 14 days after service of the originating summons.”
I am in total agreement that the defences inspite of the applicants failure to challenge the commencement of respondent’s action by originating summons, could have been raised in her counter affidavit.”
One of the preliminary objections taken to the action by 1st respondent at the court below in page 35 of the record was based on locus standing of the appellant to bring the action. The Supreme court case of Disu v. Ajilowura (2006) 14 NWLR (pt.1000) 783 at 809 cited by Mr. Adio for the appellant decides it per the judgment of Kutigi, J.S.C., (later CJN) that –
“There is no doubt, demurrer proceedings have been abolished in view of the clear provision of Order 22 rule 1 of the High Court Civil Procedure Rules of Lagos State (same as Order 16 rule 1 of the Rules of the Court below). I think it is settled that the issue of locus standi or jurisdiction being a point properly of law cannot be raised under Order 22 rule 4 (same as Order 16 rule 4 of the Rules of the court below) as was done by the appellants in this case. However, the issue may be raised under rules 2 and 3 (same as Order 16 rules 2 and 3 of the Rules of the court below) by pleadings… The defendants/appellants can only effectively challenge them (the Plaintiff/respondent) by filing their own pleadings, i.e. the statement of defence and joining issue with them. They cannot be permitted to revive demurrer which has since been buried through the back door.”
The lead judgment of Mukhtar, J.S.C., (now CJN) in page 808 of the law report also stated inter alia that
“In order to do justice to the case, pleadings should have been completed, and the objections raised therein. In other words, all facts would have been put on the table if the defendants/appellants had filed their statement of defence to enable the trial Judge ascertain and determine whether in fact the plaintiff/respondent had locus standi..”
There are also the prayers on want of jurisdiction of the court below to entertain the action on account of section 53(1) of the BOFIA and that the originating summons does not disclose a reasonable cause of action in the preliminary objection taken by the 1st respondent to the action in pages 35 – 36 of the record which are in reality points of law, in my modest view. An originating summons is in the same way as an application for ordinary writ in the general cause list as each is called ‘summons’ which makes both of them kindred actions and/or collorary of each other as, the affidavits in originating summons are considered as pleadings in the same way as the pleadings in an ordinary action by way of writ of summons. See Ports and cargo Holding services Ltd. & ors v. Migfo Nigeria Ltd. and Anor. (supra), N.N.P.C. v. Famfa Oil Ltd. (supra) and Uwazuruonye v. Governor of Imo State & Ors. (supra).
Order 16 rule 1 of the Rules of the court below abolished demurrer in these curt words –
“No demurrer shall be allowed”
Order 16 rule 2 (1) goes on to state that-
“A Party shall be entitled to raise by his pleading point of any law, and any point of law so raised shall be disposed of by the Judge who tries the cause at or after trial.”
The 1st and 2nd respondents were therefore obliged to raise the points of law in the preliminary objection (supra) in their respective counter affidavits as a said counter affidavit is regarded as statement of defence in an action by originating summons, as earlier stated in the discourse. They failed to do so and raised the points of law in a preliminary objection without first filing a counter affidavit where they should have raised the said objections. The failure of the 1st and 2nd respondents to raise the said points of law in the counter affidavit offended Order 16 rule 1 of the Rules of the court which this court can take judicial notice of and may even rely on it suo motu without hearing arguments on it vide the case of Omokwajo v. Federal Republic of Nigeria (2013) 9 NWLR (Pt.1359) 300 at 332 per the judgment by Rhodes-Vivour, J.S.C., and the case of Finnih v. Imade (1992) 1 NWLR (Pt.219) 511. But in the instant case, the 1st respondent had relied on inter alia on Order 16 rule 4 in the preliminary objection in page 35 of the record and the issue was further argued in the appeal.
The 1st respondent had also relied on Order 29 of the Rules of the court below for the preliminary objection (page 35 of the record). The 2nd respondent too relied inter alia on Order 29 rule (1) of the Rules of the court below for the preliminary objection (page 35 of the record). The said Order 29 rule 1 of the Rules of the court below is a cost/time saving device or provision by which preliminary objection to jurisdiction could be taken together with the substantive suit where oral evidence is not required to resolve the issues in the substantive suit. The preliminary objections of the 1st and 2nd respondents at the court below were, therefore, premature and should only have been heard and determined by the court below after parties had joined issue on the originating summons.
It follows that issues should be joined by exchange of processes for the substantive suit like affidavit and counter affidavit which stand for pleadings in an action on originating summons., as in this case, where the substantive suit does not involve the taking of oral evidence and both the preliminary objection and the substantive suit heard and determined together, rather than split the litigation and take it bit by bit or by instalment by way of preliminary objection first, then, in the event it fails, move to the substantive suit, more or less like a ping-pong game which savoured of the squander of public time.
The time/cost saving provision in Order 29 rule 1 of the Rules of the court below if followed at the court below, as the 1st – 2nd respondents’ reliance on it in the preliminary objection showed oral evidence would not be necessary for the determination of the substantive action would have expedited the entire litigation for the benefit of the parties and saved public time. See Senate President v. Nzeribe (2004) 9 NWLR (Pt.878) 251 at 274; Amadi v. N.N.P.C. (2000) 10 NWLR (pt.674) 76 at 100; Olorunkunle and Anor. v. Adigun and Ors. (2012) 6 NWLR (Pt.1297) 407 at 426, per the lead judgment of Okoro, J.C.A., (now J.S.C.) which was concurred in by Bage and Pemu, JJ.C.A.).
Be that as it may, it has to be stressed that Rules of court like Order 16 rule (1) of the Rules of the court below must be obeyed. See the Nigerian Navy and Ors. v. Labinjo (2012) 17 NWLR (Pt.1328) 56 at 84 thus –
“The rules of court are meant to be obeyed. The purpose of the rules of court is to regulate matters in court and assist parties to any suit or appeal to present their cases for the purpose of a fair and quick hearing. Where the rules are quickly complied with, there will be quick dispensation of justice. Wellington v. Registered Trustees Ijebu Ode (2000) 5 NWLR (Pt.647) pg. 130. University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) pg.143.”
I conclude that there is substance in the appellant’s contention that the 1st – 2nd respondents were bound to raise their objections in their respective counter affidavits serving as their respective statements of defence to the originating summons as required by Order 16 rules (1) and (2) of the Rules of the court below and the same should have been heard together with the substantive action under Order 29 rule 1 of the Rules of the court below for the purpose of saving time and expense or costs of litigation. The issue is enough to allow the appeal.
Since it appears that the objections may likely be taken by the 1st – 2nd respondents at the opportune time at the lower court, I would most respectfully refrain from pronouncing on the other issues raised in the appeal, as to do so would pre-empt the lower court’s determination of the issues when raised and argued before it. I would allow the appeal.
By an order for extension of time to file cross appeal granted by the court on 14.2.1 1, the 1st respondent filed a cross appeal with three grounds of appeal followed with a cross-appellant’s brief filed on 15.10,12 and deemed properly filed on the same date conveying these issues for determination –
i. Whether the learned trial Judge was right when she held that the Respondent/Appellant had locus standi in spite of the finding that the 1st Respondent/Appellant’s suit was on all fours with the case of senator Adesanya v. The President of the Federal Republic of Nigeria.
ii. Whether the learned trial Judge was right when her Ladyship failed to consider and determine all the issues raised by the cross-Appellants’ in its Notice of Preliminary Objection.
iii. Whether the learned trial Judge was right in not holding that the court lacked jurisdiction to entertain the suit as constituted against the Cross-Appellant on the other grounds raised in the objection and in not striking out the suit on those ground.
The cross-appellant argued on the first issue that the court below having found that the case of Senator Adesanya v. The president of the Federal Republic of Nigeria (1981) 5 SC 69 was on all fours with the present case on the issue of locus standing, the court below should have adhered to stare decisis and judicial precedent by following the binding supreme court case of Adesanya v. The President (supra) instead of later the court of Appeal decision in Fawehinmi v. The Federal Republic of Nigeria and the Federal High court case of Inupe Trustees of the NBA and Ors. v. Attorney General of the Federation FHC/ABJ/761/2009; and that the failure of the court below to follow the binding supreme court case of Adesanya v. President (supra) violated the principle of stare decisis and was wrong in the circumstance vide Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 310 at 336, Atolagbe v. Awuni (1997) 9 NWLR (Pt.552) 536 at 564; and that based on the case of Senator Adesanya v. President of (supra) and Owodunni v. Registered Trustees of C.C.C. (2000) 6 SC (Pt.111) 60, the cross-1st respondent/appellant had no standing to file the originating summons which merited striking out of the originating summons on that ground.
The cross-appellant referred to some of the prayers in the notice of preliminary objection to wit argue that the originating summons does not disclose a reasonable cause of action; that having regard to the true and proper meaning and intendment of section 53 (1) of the Banks and other Financial Institutions Act cap B3 LFN 2004 (BOFIA) the court has no jurisdiction to entertain the suit; and that the suit is not properly constituted, and is otherwise wholly incompetent, to contend that the court below was in error in not considering and pronouncing on the arguments proffered on the said issues which occasioned a miscarriage of justice to the cross-appellant vide the cases of Brawal Shipping v. Onwadike (2006) 6 SCNJ 508 at 522 and Ovunwo and Anor. v. Woko (2011) LPELR SC.279/2005.
The cross-appellant argued on the third issue that the originating summons did not reveal that the cross-appellant acted in bad faith in implementing the provisions of sections 53 (1) of BOFIA and section 57 (1) of the CBN Act therefore the failure of the appellant to disclose positive element of bad faith as condition precedent robbed the court below of the jurisdiction to entertain the originating summons which it should have struck out for want of jurisdiction vide NDIC v. CBN (2002) 7 NWLR (Pt.766) 272, Savannah Bank of Nigeria Plc. v. CBN and Ors. (2009) 6 NWLR (Pt.1137) 232 at 314 and 376; that the suit did not disclose reasonable cause of action and had no chance of success having regard to the paragraphs of the affidavit that were struck out leaving the originating summons with nothing to support it, therefore the court below ought to have also struck out the originating summons on the ground that it disclosed no reasonable cause of action vide Rinco Construction Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (pt.929) 85 at 99, Ibrahim v. Osim (1989) 3 NWLR (pt.820) 257, Drummond Jack v. BMA (2970) 1 All ER 1094 at 110.
The cross-appellant urged that since the court below did not decide the said issues which were argued before it and re-argued in the appeal and no other material is needed for their resolution the court should invoke section 15 of the Court of Appeal Act, 2004, and resolve the said issues in favour of the cross-appellant by striking out the originating summons at the court below following the case of C.G.G. (Nig) Ltd. v. Ogu (2005) 8 NWLR (pt.927) 366 at 382.
The 1st cross-respondent’s brief was filed on 26.2.13 but deemed properly filed on 8.4.14 in which these issues were submitted for determination –
“1. Whether the lower court was right in holding that the Respondent has locus standi to institute the suit; and
2. In view of its decision, whether it was necessary for the trial court to determine the remaining issue raised by the cross-appellant in its preliminary objection.”
The 1st cross-respondent contended that the current position on locus standing is the liberal stand taken by the Supreme Court in Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) 797 at 847 followed by the court in Fawehinmi v. FRN (2007) 14 NWLR (Pt.1054) 343 and Williams v. Dawodu (1988) 4 NWLR (pt.87) 189 at 218 which extended the ambit of locus standing from the case of Senator Adesanya v. President (supra) to embrace the 1st cross-respondent who is fighting the action for public good, so the court below was right in the conclusion it reached on the locus standing of the 1st cross-respondent to maintain the action to protect public funds.
The 1st cross-respondent argued on the second issue that the court below having determined that the action was incompetent, it was unnecessary for it to determine the other issues which became moot, as it would have become duplication for the court below to do so vide Mikagbatse v. Opuye (2010) 14 NWLR (Pt.1213) 50, at 101 -102, Julius Berger (Nig) Plc. v. TRC Bank Ltd. (2010) 9 NWLR (Pt.1198) 80 at 115, Help (Nig) Ltd. v. Silver Anchor (Nig) Ltd. (2006) 5 NWLR (pt. 311) 1833 at 1855 56, UBN v. Penny Mart Ltd. (1992) 5 NWLR (Pt.240) 228 at 241; that the heart-beat of the originating summons is section 80, 82, and 83 of the 1999 Constitution, not section 53 (1) of the BOFIA, so the BOFIA is irrelevant to the substantive suit and the court is entitled to strike out any statutory provision that is in conflict with the 1999 constitution vide Onagoruwa v. IGP (1991) 5 NWLR (Pt.193) 593 at 641 – 642 and Momoh v. Senate of the National Assembly and Ors. (1981) 1 SCNLR 21.
The 1st cross-respondent made the points that the cross-appellant had invited the court in the main appeal to strike out section 15 of the Court of Appeal Act for unconstitutionality, so it is curious for the cross-appellant to argue in favour of section 15 of the Court of Appeal Act in the cross-appeal but that in the interest of justice and as the marrow of the case is on issues of law which do not need affidavit evidence the court can invoke section 15 of the Court of Appeal Act to determine the entire case on the merits vide Etim v. Obot (2010) 12 NWLR (Pt.1207) 108 at 156, Pam v. Mohammed (2008) 10 NWLR (Pt.1112) 1 at 50 – 51, Din v. Attorney-General of the Federation (1986) 1 NWLR (Pt.17) 471, Amah v. Nwankwo (2007) 12 NWLR (Pt.1049) 552 at 578.
The cross-appellant’s reply brief to the 1st cross-respondent’s brief filed on 3.4.13 stressed that Fawehinmi v. Akilu (supra) was a criminal case and was decided on the peculiar facts and circumstances of the case, while in Williams v. Dawodu (supra) the Court of Appeal still recognized the dictum of Bello, J.S.C., in Adesanya v. President (supra) to be the law on the issue of locus standing in civil cases, and that Fawehinmi v. FRN (supra) states that an individual suing personally can only have locus standing where he has suffered damage over and above the one suffered by the generality of the public.
The cross-appellant’s reply brief sought to distinguish the cases cited by the 1st cross-respondent on the contention that it would have been duplication of effort to resolve the other issues and to strike out the case on those issue when the other issue took care of the striking out of the suit and that the other unresolved issues were not alternative prayers, so the court below was bound to consider and decide them; and that the failure of the court below to decide the other prayers was enough miscarriage of justice requiring a cross-appeal for the court to pronounce on them the said issue vide Ohieari v. Akabueze (1992) 2 NWLR (Pt.221) 1 at 22; that pages 17 – 18 of the record contain the 1st cross-respondent’s discussion on BOFIA which brought in the issue of good faith and took the substantive action beyond interpretation of laws; and that section 15 of the court of Appeal Act can be invoked to re-hear the objection of the cross-appellant because it has not been heard before at the court below as it was rejected silentio by the court below.
In respect of the cross appeal, I believe the pronouncement on the issues raised therein would pre-empt the determination of the matters raised therein when it is raised anew at the lower court by the parties concerned, so it is not advisable to determine it and; on the said basis the cross-appeal is merely struck out. See by analogy Orunwo and Anor. v. Woko and Ors. (2011) 17 NWLR (Pt.1277) 522 at 549 – 550.
Section 15 of the court of Appeal Act would not apply to the appeal and the cross-appeal as the parties have not joined issues on the originating summons and the court is on that account not presented with complete materials to determine the dispute under section 15 of the Court of Appeal Act.
Further, I agree with the 1st respondent’s learned senior counsel and the 2nd respondent’s learned counsel that the substantive action at the court below is not on appeal in the proceedings, therefore section 15 of the Court of Appeal Act cannot be invoked to re-hear what is not the subject matter of the appeal. See Attorney-General of Anambra State and Ors. v. Okeke and Ors. (2002) 12 NWLR (Pt.782) 575 at 620, Igboho Irepo Local Government Council v. The Boundary Settlement Commission and Ors. (1999) 2 S.C. (Pt.1) 28 at 132.
Similarly, section 15 of the Court of Appeal Act cannot be deployed to determine the other prayers in the 1st cross-appellant’s preliminary objection that were not pronounced upon by the court below on the ground that the preliminary objection was brought prematurely, therefore the unresolved prayers therein are not yet ripe for determination.
In the final analysis, the appeal is hereby allowed, while the cross appeal is struck out. The Ruling of the court below is hereby set aside. The suit is remitted to the Hon. Chief Justice of the Federal High Court for re-assignment to another learned Judge of the Federal High Court (other than Nyako, J.) for determination.
Parties bear their costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, IKYEGH JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. My learned brother covered all the grounds. Just by way of emphasis, the law abolishing demurrers is good law. It saves time. Any party who wishes to raise a point of law is required to do so in his pleadings or counter-affidavit in the case of originating summons. That way all the facts necessary to determine the point of law are put before the trial Judge. DISU v. AJIOWURA (2006) 14 NWLR (Pt.1000) 783. The 1st and 2nd Respondents instead of filing their counter affidavit and raising their objections therein filed a preliminary objection only. I agree with my learned brother that the preliminary objections were premature.
I agree that the appeal has merit. I also allow the appeal and strike out the cross-appeal. I abide by the consequential orders in the lead judgment.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft, the judgment just delivered by my learned Brother Joseph Shagbaor Ikyegh JCA.
In his usual manner, he has addressed all the issues canvassed by the parties and I agree with the reasoning and conclusions contained therein.
As per section 15 of the Court of Appeal, it seems to me that the primary objective is to enable this court to make any order or give such judgment which the court below ought to have given for the speedy and satisfactory dispensation of justice without having to remit the suit back to the trial court for the trial as the circumstance of the case may demand.
I am therefore of the humble view that the whole purport of the power conferred on this court by section 15 is to enable it exercise all the jurisdiction of a court of first instance with particular reference to the appeal before it.
Accordingly, this court may only make orders or give such judgments which the court of first instance at all material times is entitled under the applicable statutes and Rules to give but not otherwise. See JADESINMI VS OKOTIE EBOH (1986) 1 NWLR (PT.16) 264 at 276 and FALEYE VS OTAPO (1995) 3 NWLR (PT.381) 1. It follows therefore that the power of this court to assume full jurisdiction over a matter in appeal for the purpose of hearing it and making any order as necessary does not include what the trial court could not have done.
For this and the fuller reasons given in the lead judgment. I too allow the appeal and order that the cross appeal be struck out. I also abide by the consequential orders made in the lead judgment including that of cost.
Appearances
Mr. Seni Adio (with Mr. Sope Omisore) for the Appellant/1st Cross-Respondent.For Appellant
AND
Mr. K. Awodein SAN, (with Mr. P. Omiji and Mr. D. C. Omuna-Amadi) for the 1st Respondent/Cross-Appellant.
Dr. K. U. K. Ekwueme (with Mr. O. Makonjuola; Miss M. Olafuyi; and Miss M. Obia) for the 2nd Respondent/2nd Cross-Respondent.
3rd Respondent/3rd Cross-Respondent unrepresented and did not file brief.For Respondent
