THE HOUSE OF REPRESENTATIVES & ORS. v. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA & ANOR.
(2010)LCN/3707(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of April, 2010
CA/A/36/08
RATIO
APPEAL: EFFECT OF AN ISSUE NOT SUPPORTED BY ANY GROUND OF APPEAL
It is trite that an issue, which is not supported by any Ground of Appeal is incompetent and will be struck out or at least be disregarded in the determination of the Appeal. See: Republic Bank Ltd. v. C.B.N. (1998) 13 NWLB Pt.581 page 306; Labuyi v. Anretrola (1992) 8 NWLR Pt.258 page 139; Odife v. Aniemeka (1992) 7 NWLR Pt.251 page 25; Kalu v. Odili (1992) 5 NWLR Pt.240 page 130; Ceekay Raders Ltd. v. General Motors Co. Ltd (1992) 3 NWLR Pt.276 page 1. PER ABDU ABOKI, J.C.A.
APPEAL: WHETHER A COURT HAS POWERS TO FORMULATE ISSUES THAT WOULD DETERMINE THE COMPLAINT OF AN APPEAL
This Court has the powers to adopt or even formulate issues that would determine the complaint in an Appeal before it. See: Ndayako v. Mohammed (supra) at page 680; Ikegwuoha v. Ohawmhi (1996) 3 NWLR PT.435 at 146; Aduku v. Adejoh (1994) 5 NWLR PT.346 page 582.
WORDS AND PHRASES: MEANING OF A PUBLIC DOCUMENT
A Certificate of Incorporation of a company is a public document within the provisions of section 109 (b) of the Evidence Act. A public document is a document made for the purpose of the public making use of it especially in a judicial or quasi-judicial duty. The features of a public document is that it is created over a public matter, preserved for good of the public and always accessible for public inspection and use especially by all those having something to do with it. See Cross River Property Development & Investment Company Limited v. Eno I. Obongha (2000) Pt. 670 page 751 at 768. PER ABDU ABOKI, J.C.A.
PROCEDURE: PURPOSE OF AN AMENDMENT
In Ogboru v. Ibori (2004) 7 NWLR Pt.871 page 192 at 224, the Court held thus:
“It is settled that where there is an error as to the name of a party to a suit, an amendment properly sought will be allowed by the Court.”
See also Njoku v. U.A.C. Foods (1999) 12 NWLR PT.632 page 557 at 564.
The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which may arise from inadvertence of Counsel. See: Adesanoye v. Adewole (2004) 11 NWLR Pt.884 page 414: Ehidimhen v. Musa (2004) 4 SC. (Pt.II) 116 at 184. PER ABDU ABOKI, J.C.A.
PROCEDURE: EFFECT OF AN AMENDMENT AND WHEN WILL IT TAKE EFFECT
An amendment takes effect not from the date when the amendment is made but from the date of the original document which it amends.
The effect of an amendment is that what stood before the amendment is no longer material before the Court and no longer defines the issues to be tried. See:
U.B.A. Plc, v. Abdullahi (2003) 3 NWLR Pt.807 page 359;Osita C. Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR Pt.135 page 688;
Enigbokan v. A.I.I. Co. (Nig.) Ltd. (1994) 6 NWLR Pt.348 page 1. PER ABDU ABOKI, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. THE HOUSE OF REPRESENTATIVES
2. THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
3. HON. NZE CHIDI-DURU
4. HON. MOROOF AKINWALE
5. HON. OSITA EGWULATU
6. HON. TITILAYO AKINDAHUNSI Appellant(s)
AND
1. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA
2. THE ATTORNEY-GENERAL OF THE FEDERATION Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This Appeal against the decision of Abimbola Osarugue Ogie J. of the Federal High Court, Abuja, delivered on 27th July, 2007.
The Plaintiff at the lower Court took out an Originating Summons challenging the constitutionality of the 1st Appellant’s Committee on Public Petition which was about to investigate the allegations of Ogbako Etche socio-cultural organization in a Petition dated 29th May, 2007 against the 1st Plaintiff which had decided to site its Integrated Hazardous Radioactive Waste Management Facility (IWMF) in Etche, Rivers State.
The Plaintiff in its Originating Summons also claimed for an Order of Perpetual Injunction restraining the Defendants from commencing or continuing with the investigative hearing of the Petition. It also invited the lower Court to interpret the provisions of Section 88 of the Constitution of the Federal Republic of Nigeria 1999.
The 2nd and 3rd Defendants filed a counter-affidavit in opposition to the Originating Summons, together with a Motion on Notice praying inter alia that the suit be struck out and/or in the alternative strike out the names of the 2nd and 3rd Defendants/Applicants from the action on the ground that:-
(i) The Court lacks jurisdiction to entertain the action.
(ii) The Plaintiff is not a juristic personality capable of suing or being sued.
(iii) The 2nd and 3rd Defendants/Applicants are unknown to the Constitution of the Federal Republic of Nigeria, 1999.
(iv) The suit cannot be determined without a resolution of disputed facts and so Originating Summons is inappropriate in the circumstance.
In opposition to this application, the Plaintiff filed a counter-affidavit and a further affidavit and exhibited a certified true copy of its Incorporation. In an effort to quicken proceedings the lower Court heard arguments on the Defendants’ application and the Originating Summons together.
In its judgment, the lower Court first considered the Defendants’ application and dismissed it, and later considered the Originating Summons in which it granted the reliefs sought in its entirety.
Dissatisfied with the judgment of the lower Court the Defendants appealed to this Court.
The Defendants who are now the Appellants filed their Notice of Appeal containing 4 Grounds of Appeal dated 25th October, 2007 at the Registry of the Federal High Court Abuja,
The grounds of Appeal are hereby adumbrated as follows:-
GROUNDS OF APPEAL
“GROUND 1:-
The learned trial Judge erred when he held that the Plaintiff is a juristic personality capable of suing or being sued.
PARTICULARS
i. Counsel to the 2nd and 3rd Defendants (now Appellants) contended that the Plaintiff is not a juristic personality,
ii. That the Plaintiff is not capable of suing or be sued.
iii. The Plaintiff never tendered any original or certified true copy of its certificate of incorporation.
GROUND 2:-
The learned trial Judge erred when he held that the 2nd and 3rd Defendants are known to the Constitution of the Federal Republic of Nigeria, 1999.
PARTICULARS
i. The 2nd and 3rd Defendants (now Appellants) contended that they are not known to the Constitution as same do not exist under the Constitution of the Federal Republic of Nigeria, 1999.
ii. The Court held same to be an honest misnomer.
GROUND 3:-
The learned trial Judge erred in law by holding that the fact of the case is not within the power of investigation of the 2nd and 3rd Defendants (now Appellants) as envisaged under Section 88 of the Constitution of the Federal Republic of Nigeria, 1999.
PARTICULARS
i. The learned trial Judge held that the power of investigation vested on the 2nd and 3rd Appellants by Section 88 of the Constitution cannot be exercised over the Plaintiff.
ii. That since the subject matter is located in Rivers State, it has to do with local government planning authorities and not within the powers of the Federal legislature.
iii. The Court held that the 2nd and 3rd Appellants lack the power to order an investigation into a petition brought before it.
iv. The Court held that the 2nd and 3rd Appellants have an authority to invite private agencies and companies to appear before it.
GROUND 4:-
The judgment is against the weight of evidence.
It is from these four grounds of Appeal that the Appellants distilled four issues for determination in this Appeal reproduced as follows:-
“1. Whether the Respondent has discharged its burden of proving that it is a juristic personality, same having been challenged by the Appellants, (based upon Ground 1 of the Appeal).
2. Whether the 2nd and 3rd Defendants (as described by the Respondent in its Originating Summons) are known to the Constitution of the Federal Republic of Nigeria, 1999 (based upon Ground 2 of the Appeal).
3. Whether the (Federal) House of Representatives is clothed with the constitutional power to investigate the petition against the Respondent, which petition touches upon the safety of the environment (based upon Ground 3 of the Appeal).
4. Whether the evidence of the parties were properly evaluated
(Ground 4 of the Appeal)”.
The 1st Respondent in its Brief of Argument raised a Preliminary objection on two fronts.
The first leg of the Preliminary objection urged the Court to strike out the names of the 3rd- 6th Appellants herein (the 4th-7th Defendants at the lower Court) as parties to this Appeal; on the grounds that the lower Court pursuant to an application by the 1st Respondent had struck out their names as parties to the suit (at pages 220-221 of the Record), and that there is no appeal against the lower Court’s Order striking out the names of the 4th-7th Defendants at the lower Court (now the 3rd-6th Appellants herein).
The second leg of the Preliminary objection attacks the jurisdiction of the lower Court and the competence of Grounds 1 and 2 of the Notice of Appeal (at page 281 of the Record) against the ruling dismissing their Preliminary Objection. The grounds on which this objection is premised are that:
“(i) Grounds 1 and 2 of the Notice of Appeal, which attacked the lower Court’s ruling dismissing the Appellant’s Preliminary objection, involves issue of fact or mixed law and fact. Thus, the Appellants are required by Section 242(1) of the CFRN 1999 to seek the leave of either the lower Court or this Honourable Court before they can appeal against the ruling.
(ii) The Appellants are required by Section 25(1),(2), & (3) of the Court of Appeal Act to seek leave of the lower Court within 14 days of the lower Court’s ruling on the Preliminary objection because the appeal involves issues of mixed law and facts,
(iii) The Appellant’s failure to seek leave of either the lower Court or this Court to appeal against the lower Court’s interlocutory ruling renders Grounds 1 and 2 of the Notice of Appeal incompetent and liable to be struck out.”
It is trite that, where a Preliminary objection is raised as to the jurisdiction of a Court to entertain a dispute either at first instance or on appeal the issue must first be examined and disposed of before going into the merit of the matter. The reason for this approach is that any matter however well decided without jurisdiction is null and void and of no effect. Jurisdiction of a Court is the foundation on which every adjudication rests. See: Manson v. Halliburtion Energy Services Ltd, (2007) 2 NWLR Pt. 1018 page 211; Lufthansa Airlines v. Odiese (2006) 7 NWLR Pt. 978 page 39: Adeleke v. Osun State House of Assembly (2006) 7 NWLR Pt. 978 page 39; Nonye v. Ayiche (2005) 2 NWLR Pt. 910 page 623; Inah v. Ukoi (2002) 9 NWLR Pt. 773 page 563: Messrs NV Scheep & Anor v. The MV ‘S’ Araz & Anor (2000) 4 NSCOR page 116: Jeric Nig. Ltd. v. Union Bank of Nig. Plc. (2000) 4 NSCOR page 255: Kato v. Central Bank of Nigeria (1991) 9 NWLR Pt. 214 page 126.
In the instant case the Preliminary Objection raised in the 1st Respondent’s Brief of Argument will be first considered as a matter of priority.
Advancing the argument of the 1st Respondent on the Preliminary objection Oluwole Akoni SAN submitted that the lower Court acted prudently when it heard arguments on the Appellants’ objection and the originating summons together. He referred the Court to the cases of Dapianlong v. Dariye (2007) 8 MJSC 140 at 184; Senate President v. Nzeribe (2004) 9 NWLR Pt. 878 page 251; Inakoju v. Adeleke (2007) 4 NWLR Pt. 1025 page 423.
He argued that the judgment delivered in the suit contains two distinct parts.
The first part of the judgment contains the lower Court’s decision on the Appellant’s application challenging its jurisdiction, and same was dismissed.
The second Part of the judgment contains the lower Court’s decision on the Originating Summons, which effectively determined the rights of the parties and brought the proceedings to an end as well as granted the reliefs sought by the 1st Respondent.
Learned Senior Counsel submitted that the lower Court’s decision on the Originating Summons is a final decision of the Court on the matter.
He further submitted that the first part of the judgment, which contains the lower Court’s decision dismissing the Appellants’ application is an interlocutory decision. Learned Senior Counsel maintained that even though the interlocutory decision contained in the judgment, the decision did not finally dispose of or determine the substantive rights of the parties or bring the proceedings to an end. He referred the Court to the cases of Nwosu v. Offor (1997) 2 NWLR Pt.487 page 274 at 282; Akinsanya v, UBA Ltd. (1997) 4 NWLR Pt.35 page 273 at 270 – 291;
Maduabuchukwu v. Marinabuchukwu (2006) 10 NWLR Pt 989 page 475 at 494.
Learned Senior Counsel further maintained that the lower Court, after the interlocutory decision still proceeded to consider and decide the Originating Summons. He again referred the Court to the case of
Ogolo v. Ogolo (2006) 5 NWLR Pt. 972 page 163 at 186-187.
Olawole Akoni SAN submitted that Grounds 1 and 2 of the Notice of Appeal arise from this interlocutory decision which dismissed the Appellant’s application challenging the lower Court’s jurisdiction. He argued that both grounds complain about the lower Court’s ruling on the issues of the juristic personality and existence of the 1st Respondent and the 1st and 2nd Appellants respectively.
Learned Senior Counsel submitted that the lower Court’s decision dismissing the said application involved its consideration of fact (as contained in the 1st Respondent’s counter and Further Affidavit and its certificate of Incorporation (Exhibit HS3) which was exhibited thereto) and the law.
He further submitted that any ground of appeal that would require the appellate Court questioning the evaluation of facts by the lower Court before the law is applied thereto is, undoubtedly, a question of mixed law and facts. He cited the case of Ansa v. Ishie (1997) 7 NWLR Pt. 610 page 277 at 289.
Learned Senior Counsel contended that theAppellant’s appeal against the interlocutory decision vide Grounds 1 and 2 of the Notice of Appeal, is an appeal against an interlocutory decision on issues of fact or, at best, mixed law and fact. He maintained that such an appeal ought only to be filed with the prior leave of either the lower Court (within 14 days of the ruling) or this Court sought and obtained. He cited Sections 241(i) (a) (b) and 242 of the Constitution of the Federal Republic of Nigeria 1999 and Section 25(1) (2) and (3) of the Court of Appeal Act and submitted that the Appellants in this appeal failed to seek the requisite leave to appeal against the interlocutory decision within 14 days of the lower Court’s ruling. He referred the Court to the cases of Onwe & Ors. v. Oke & Ors (2001) 3 NWLR Pt. 700 page 406 at 417 Maduabuchukwu v. Maduabuchukwu (supra) at page 495.
Learned Senior Counsel argued that the failure to obtain the requisite leave renders Grounds 1 and 2 of the Notice of Appeal incompetent and liable to be struck out. The Court was referred to the cases of:
Irhabor v. Ogaiamien (1999) 8 NWLR Pt. 616 page 571 at 524: Oluwole v. L.S.D.P.C. (1983) 5 SC 1; Ojemen v. Momodu II (1983) 1 SCNLR 188: Welle v. Bogunjoko (2007) 6 NWLR Pt. 1029 page 125 at 135;
UBN v. Sogunro (2006) 16 NWLR Pt. 1006 page 504 at 524.
He urged the Court to strike out Grounds 1 and 2 of the Notice of Appeal for these reasons.
It is curious to note that instead of the Appellants confronting the Preliminary Objection raised by the 1st Respondent in its Brief of Argument headlong, they instead raised a Preliminary Objection in answer to the Preliminary objection filed by the 1st Respondent.
The Appellants prayed the Court to strike out or disregard the argument on the Preliminary Objection for its failure to bring same as required by the mandatory provisions of Order 10 rules 1 and 3 of the Court of Appeal Rules, 2007, and cited the case of Din v. Attorney-General of the Federation (1988) 9 SCNJ 14 at 49.
It was argued in the alternative on behalf of the Appellants that supposing (but not conceding) that the Preliminary Objection were competent, Grounds 1 and 2 of the Appeal which challenged the judgment of the lower Court that it had jurisdiction to entertain the matter are competent because:
(i) An issue of jurisdiction can be raised at any time without leave,
(ii) The issue of jurisdiction was decided by the trial Court in its final judgment together with other issues; and so, the period within which to appeal is 3 months from the date the judgment was delivered,
(iii) The grounds 1 and 2 touching on the issue of jurisdiction are grounds of law as they are based upon undisputed affidavit evidence and interpretation of documents before the trial Court.
In support of their argument learned Counsel referred to the case of Extraction System & Commodity Services Ltd. v. Nigbel Merchant Bank Ltd. (2005) 7 NWLR Pt. 924 page 215 at 251
Learned Counsel for the Appellants Yusus Ustaz Usman SAN argued that once it is either an issue of admissibility of documents or jurisdiction, it can be raised after the final judgment without leave and within 3 months after the final judgment even if that ruling was not delivered as the final judgment.
Learned Senior Counsel submitted that once the trial Court decides to hear the substantial Originating Summons together with the Defendant’s Preliminary objection challenging the jurisdiction of Court to hear the Originating Summons (as in this case), there is no need to file separate Notice of Appeal, one on the ruling on jurisdiction and another against the decision on the merit. He argued that the aggrieved party can file only one Notice of Appeal without leave within 3 months after the decisions challenging both decisions. He referred the Court to the cases of: Robin Anyoha & 10 ors. v. Lawrence Chukwu (2008) 4 NWLR Pt. 1074 page 34 at 48-49; Senate President v. Nzeribe (2004) 9 NWLR Pt.878 page 257 at 272-274; All Nigeria Peoples Party (ANPP) v. The Returning Officer, Abia South Senatorial District & 2 Ors. (2005) 6 NWLR Pt.920 page 140 at 170 – 171; Amadi v. Nigerian National Petroleum Corporation (2000) 10 NWLR pt.674 page 76 at 110 – 111.
Yusus Ustaz Usman SAN distinguished the present case from the case of Onwe v. Oke (supra) relied upon by the 1st Respondent. He argued that the distinguishing features in that case are that the Preliminary Objection was:-
(i) raised and ruling delivered before the substantive matter was heard;
(ii) the Preliminary objection was not on jurisdiction but on the competence of the grounds of Appeal [see page 408 lines 26-30]
(iii) in that case, the judgment was not delivered at the same time, place and date with the ruling on the Preliminary objection.
Learned Senior Counsel contended that, the law, facts and circumstances of Onwe’s case are totally and irreconcilably different from the circumstances of this case on appeal.
It will be appropriate at this point to examine Grounds 1 and 2 of the Notice of Appeal which ate the subjects of the Preliminary Objection and same are adumbrated as follows:
“GROUND 1:-
The learned trial Judge erred when he held that the Plaintiff is a juristic personality capable of suing or being sued.
PARTICULARS
i. Counsel to the 2nd and 3rd Defendants (now Appellants) contended that the Plaintiff is not a juristic personality.
ii. That the Plaintiff is not capable of suing or be sued,
iii. The Plaintiff never tendered any original or certified true copy of its certificate of incorporation.
GROUND 2:-
The learned trial Judge erred when he held that the 2nd and 3rd Defendants are known to the Constitution of the Federal Republic of Nigeria, 1999.
PARTICULARS
i. The 2nd and 3rd Defendants (now Appellants) contended that they are not known to the Constitution as same do not exist under the Constitution of the Federal Republic of Nigeria, 1999.
ii. The Court held same to be an honest misnomer”.
Where an appeal is against an interlocutory decision, the Appellant has fourteen days to file his Notice of Appeal. Section 24(2)(a) of the Court of Appeal Act 2007 stipulates that the period for giving Notice of Appeal or notice of application for leave to appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
In the instant case the lower Court gave its decision on the Preliminary objection challenging the jurisdiction of the lower Court to entertain the Suit as well as the decision on the substantive matter on 27/7/09. The Appellants’ Notice and Grounds of Appeal was dated 25th October, 2007 and filed on 26th October, 2007.
With regard to Grounds 1 and 2 of the Notice of Appeal which are appeal against the interlocutory decision of the lower Court, the Appellants exceeded the mandatory 14 days stipulated by Section 24(2)(a) of the Court of Appeal Act as at the time the Notice and Grounds of Appeal was filed.
Learned Senior Counsel for the Appellants has argued that once the lower Court decides to hear the substantive Originating Summons together with the Defendant’s Preliminary Objection challenging the jurisdiction of the Court to hear the Originating Summons, there is no need to file separate Notice of Appeal on the ruling on jurisdiction and another against the decision on the merit.
The aggrieved party, the learned Senior Counsel for the Appellants argued can file only one Notice of Appeal and without leave within three months after the decisions.
However learned Senior Counsel for the Respondent opined that the procedure adopted by the Appellants in raising their Grounds of Appeal against the interlocutory decision (vide Grounds 1 and 2 of the Notice of Appeal) and the final judgment together is quite proper. What is improper though in his opinion is that the Appellants failed to seek the requisite leave to appeal within 14 days of the interlocutory decision.
In Onwe & Anor v. Oke & Anor. (supra) at page 417 Ejiwumi J.S.C (of blessed memory) held:
“It is clear from the judgment of this Court, in Ogigie v. Obiyan (1997) 10 NWLR Pt.524 page 179 at 195 per Uwais CJN, that by Section 25(2)(a) of the Court of appeal Act 1976, the period prescribed for appealing against a final decision is three months. It therefore follows that, where an appellant has failed to appeal within the period of time so stipulated, he must, to have a competent appeal, obtain leave to appeal out of time against the interlocutory ruling. Having said that, it must also be noted that in that passage it was also observed that an appeal against an interlocutory may be included in the appeal against the final decision of the Court. This would, it was further noted help to avoid unnecessary delay in the determination of the main issues joined by the parties in the consideration. An appellant wishing to adopt that procedure would however need to obtain the leave of Court”
In the instant case, the Appellants failed to seek and obtain leave of Court before filing an appeal against the interlocutory decision of the lower Court delivered on 27/7/07. The Grounds 1 and 2 were also filed outside the 14 days stipulated by the Law. The Grounds 1 and 2 of the Appeal filed against the said interlocutory decision are therefore incompetent and are hereby struck out accordingly. See Peter v. State (1992) 1 NWLR Pt. 265 page 323. The Preliminary Objection raised by the 1st Respondent is meritorious On the Preliminary Objection raised on behalf of the Appellants, learned Senior Counsel has argued that supposing (but not conceding) that the Preliminary Objection were incompetent, the said Grounds 1 and 2 of the Appeal which challenged the judgment of the lower Court touches upon the issue of jurisdiction and are therefore grounds of law based upon disputed affidavit evidence and interpretation of documents before the lower Court. The Court was referred to the case of Extraction System & Commodity Services Ltd. v. Nigbel Merchant Bank Ltd. (2005) 7 NWLR Pt. 924 page 215 at 250 where the Supreme held thus:
“A ground of appeal that complains about the wrong application of the decision and/or principle of a case in a subsequent case is a case of law and not fact, as it is the duty of the judge to interpret and apply the law specially the decision of a higher Court.”
I am of the opinion that the manner Grounds 3 and 2 in this Appeal were couched does not seem to attack the jurisdiction of the lower Court. Furthermore both Grounds of Appeal have not complained of any wrong application by the lower Court of the decision or principle of law in any case decided by either the Supreme Court or this Court on any issue of law. The case of Extraction System & Commodity Services Ltd. v. Nigbel Merchant Bank Ltd (supra) cited is not apposite to the present case. The argument of learned Senior Counsel to the Appellants is misconceived and is hereby dismissed.
In arguing the substantive issue on Appeal, it has been submitted on behalf of the Appellants that culled from the Grounds of Appeal, the following issues are raised for determination:-
“1. Whether the 1st Respondent has discharged its burden of proving that It is a juristic personality, same having been challenged by the appellants (based upon Ground 1 of the Appeal).
2. Whether the 2nd and 3rd Defendants (as described by the Respondent in its originating Summons are known to the Constitution of the Federal Republic of Nigeria, 1999 (based upon Ground 2 of the appeal),
3. Whether the (Federal) House of Representatives is clothed with constitutional power to investigate the Petition against the Respondent which petition touches upon the safety of the environment (based upon Ground 3 of this Appeal).
4. Whether the evidence of the parties were properly evaluated (Ground 4 of the appeal).”
The 1st Respondent on its part submitted two issues for determination in this Appeal which are as follows:-
“i. Whether the lower court was right in overruling the Appellants’ objection to the legal existence of the 1st and 2nd Appellants, and the 1st Respondent herein?
ii. Whether the lower Court was right in holding that the 1st Appellant’s investigative powers under Section 88 of the Constitution of the Federal Republic of Nigeria 1999 cannot be exercised over the 1st Respondent pursuant to the Petition presented against it?”
Earlier in this judgment the Preliminary Objection raised by the 1st Respondent challenging the competence of Grounds 1 and 2 of the Appellants’ Notice of Appeal was upheld and the said Grounds 1 and 2 were declared incompetent. Having declared the said Grounds incompetent, it follows therefore that no competent issue(s) can be distilled from those Grounds of Appeal declared incompetent.
Issues 1 and 2 distilled by the Appellants from their Grounds 1 and 2 of their notice of Appeal are therefore incompetent.
It is trite that an issue, which is not supported by any Ground of Appeal is incompetent and will be struck out or at least be disregarded in the determination of the Appeal. See: Republic Bank Ltd. v. C.B.N. (1998) 13 NWLB Pt.581 page 306; Labuyi v. Anretrola (1992) 8 NWLR Pt.258 page 139; Odife v. Aniemeka (1992) 7 NWLR Pt.251 page 25; Kalu v. Odili (1992) 5 NWLR Pt.240 page 130; Ceekay Raders Ltd. v. General Motors Co. Ltd (1992) 3 NWLR Pt.276 page 1.
Having declared the Appellants issues 1 and 2 incompetent and same struck out, what remains as issues for determination formulated by the Appellants are issues 3 and 4. The complaints of the Appellants as distilled in these issues are the same in substance as those raised for determination by the 1st Respondent
This Court has the powers to adopt or even formulate issues that would determine the complaint in an Appeal before it. See: Ndayako v. Mohammed (supra) at page 680; Ikegwuoha v. Ohawmhi (1996) 3 NWLR PT.435 at 146; Aduku v. Adejoh (1994) 5 NWLR PT.346 page 582.
In the instant case, I prefer the issues as distilled by the 1st Respondent because its issues I and II have properly accommodated the complaint in issues 3 and 4 of the Appellants. I adopt same for the determination of this Appeal
ISSUE 1
“Whether the lower Court was right in overruling the Appellants’ objection to the legal existence of the 1st and 2nd Appellants and the 1st Respondent herein?”
Yunus Ustaz Usman SAN Counsel to the Appellants argued that in paragraph 4 of their affidavit in support of their Motion dated 23rd August, 2006 and filed on 1/9/2006 challenging the juristic personality of the 1st Respondent they deposed that:
“4. There is no personality known as The Shell Petroleum Development Company of Nigeria Ltd.”
Learned Senior Counsel submitted that the position of the law as at today is that once the juristic personality of a party to a suit is being challenged the burden of proving that such a party is a juristic person is on that party whose juristic personality is being challenged and he referred the Court to the cases of: ACB Plc v. Emostrade Ltd. (2002) 8 NWLR Pt. 770 at page 501 at 518-519;
Ndoma-Egba v. Chukwuogor (2004) 6 NWLR Pt.869 page 382 at 426-427.
Learned Senior Counsel maintained that in an attempt to discharge the burden of proving its personality, the Respondent caused to be filed an eleven paragraph counter-affidavit annexed to which is a document Exhibit HS3. He also referred the Court to paragraph 4(ii), (iii), (iv), (v), (vi), (vii) of the Respondents’ Further Affidavit of 5/1/2007.
Learned Senior Counsel submitted that the learned trial Judge, construed Exhibit ‘HS3’ which is ‘for Court use only’ thus:
“Exhibit HS3 is (in) proof that the applicant is a duly Registered Company in Nigeria.”
Yunus Ustaz Usman SAN argued that it is only Exhibit ‘HS3’ that the Court construed in holding that the Plaintiff is a legal personality and no other Exhibit. He contended that it is only Exhibit ‘HS3’ that this Court can take a studious look at in order to determine whether the Plaintiff is a legal personality or not as the learned trial Judge relied only upon the said Exhibit ‘HS3’ to prove its legal status.
Learned Senior Counsel submitted that by no stretch of imagination can the document titled ‘for Court use only’ be construed as a certificate of Incorporation of the Respondent within the ambit of the law. Worse still he argued, is the fact that the 1st Respondent who claimed that it has the Original Certificate of Incorporation of the Company refused to produce it and instead filed a certified copy of same.
Yunus Ustaz Usman SAN maintained that even as at 5/1/2007, the Respondent knew and consented to the fact that the document it had annexed to its Counter-affidavit was not certified copy of the Certificate of Incorporation. He referred the Court to paragraph 5(1) of the Respondent’s affidavit of 5/1/2007. He further maintained that the strangest reason of the Respondent in refusing to annex an authentic certified copy of its Certificate of Incorporation to the counter-affidavits was stated at paragraph 4 (iii) of its affidavit sworn to on 5/1/2007.
Learned Senior Counsel submitted that despite this admission of non-exhibition of the authentic certified copy of the 1st Respondent’s Certificate of Incorporation to its Counter-affidavit, the learned trial Judge made a case for the 1st Respondent where none existed.
Yunus Ustaz Usman SAN contended that once the Plaintiff fails to tender or exhibit a certified copy of its Certificate of Incorporation, the case must be struck out. He finally submitted that it is not the duty of a Court of law to make out a case for a party.
In response learned Senior Counsel for the 1st Respondent submitted that the decision of the lower Court is very correct and ought to be upheld by this Court.
Olawale Akoni SAN submitted as a Preliminary point, that the jurisdiction of a Court is determined by the Plaintiffs statement of claim or originating processes. He referred the Court to the cases of:
Adeyemi v. Opayori (1976) 9-10 SC 31 at 51; Izeukwe v. Nnadozie 14 WACA 361 at 363; Tukur v.Government of Gongola (1989) 4 NWLR Pt.117 page 517 at 549; Luthansa Airline v. Odiase (2006) 7 NWLR Pt.978 page 34 at 73.
He argued that for the purpose of determining an objection to a Court’s jurisdiction, the facts in the Originating process are deemed admitted. Learned Senior Counsel contended that with the Appellants’ perceived admission of the fact that the 1st Respondent is a registered company in Nigeria (as contained in Paragraph 5(i) of the originating summons) they are stopped from denying this fact via their objection and he urged the Court to so hold.
Olawale Akoni SAN submitted that it is settled that a Certificate of Incorporation is prima facie evidence of the incorporation of a company in Nigeria. He cited Section 36(6) of the Companies and Allied Matters Act, and the cases of: Ndoma-Egba v. Chukwuogor (2004) 6 NWLR Pt.869 page 382 at 426 – 427; ACB Plc v. Emostrade Ltd. (2002) 8 NWLR Pt.770 page 501; Apostolic Church v. A. G. Mid Western State (1972) 7 NSCC 247.
Learned Senior Counsel further submitted that being a public document within the meaning of Section 109 of the Evidence Act, a certified true copy of the Certificate of Incorporation. He cited section 111(1) and 112 of the Evidence Act. He maintained that the 1st Respondent exhibited a certified true copy of its Certificate of Incorporation as proof of its incorporation in Nigeria.
Learned Senior Counsel drew the attention of the Court to the 1st Respondent’s Further Affidavit to its originating summons which exhibited a certified true copy of its certificate of incorporation (Exhibit ‘HS3’) marked ‘For Court use only’ by the Corporate Affairs Commission (at page 215-217 of the Record). He submitted that Exhibit ‘HS3’ is ex facie an Undeniable Certified True Copy thereof obtained from the Corporate Affairs Commission, which he said is substantially in the proper form and manner prescribed by Section 111(1) of the Evidence Act.
Learned Senior Counsel further submitted that certified true copies are deemed to be Original. He referred the Court to the cases of: Ndayako v. Mohammed (2006) 17 NWLR Pt. 1009 page 655 at 676: Cletus Obun v. Ebu (2006) All FNLR Pt. 327 page 418 at 455.
He argued that Exhibit ‘HS3’ is deemed to be an Original copy of the 1st Respondent’s Certificate of Incorporation and that with the production of Exhibit ‘HS3’, the Ist Respondent successfully discharged the burden of establishing its legal existence in Nigeria.
Learned Senior Counsel submitted that the Appellants by Sections 135, 136 and 137(1) & (2) of the Evidence Act, had a burden to adduce contrary evidence, by way of a Counter-Affidavit, to controvert the authenticity or genuineness of Exhibit ‘HS3′, if they really disputed it, but that they conspicuously failed to do this at the lower Court. He submitted that the arguments of the Appellants’ Counsel against the authenticity of Exhibit ‘HS3’ cannot become or take the place of material evidence which they failed to adduce at the lower Court. He argued that this is because it is settled that arguments or addresses of Counsel cannot become or supplant evidence. He insisted that the lower Court rightly paid no attention to it (at page 267 of the Record), and urged the Court also not to pay any attention to it.
Olawale Akoni SAN submitted that the consequence of the Appellant failure to adduce contrary, evidence to rebut the genuineness of Exhibit H33 is that the genuineness of Exhibit HS3 is deemed admitted by them. He argued that facts in an affidavit which are not controverted by the adverse party are deemed admitted. He referred the Court to the cases of: Forson v. Calabar Municipal Government (supra);
Otto v. Mabamije (supra);Digal v. Nanchong (supra);Agbaje v. Ibru Sea Foods (supra);Zest News v. Wasiri (supra).
Learned Senior Counsel argued that in the absence of any contrary evidence, the lower court was very correct and on a sound legal wicket when, by Section 114 of the Evidence Act, it presumed the genuineness of and relied on Exhibit ‘HS3’ to hold that it was “…proof that Applicant (the 1st Respondent) is a duly registered company in Nigeria…” The presumption of genuineness accorded Exhibit ‘HS3’ by the lower court he contended is supported by the decision of this court in Daggash v. Bulama (2004) 14 NWLR Pt.892 page 144 at 221.
Olawale Akoni SAN opined that, in light of the foregoing, the lower court was clearly right when it overruled the Appellant’s challenge to the 1st Respondent’s incorporation and legal existence in Nigeria [at page 267 (lines 14-17) of the Record]. He urged the court to uphold the presumption of genuineness accorded Exhibit ‘HS3′ and the subsequent reliance thereon by the lower court as proof of the 1st Respondent’s incorporation and legal existence. He maintained that the Appellants’ grouse about Exhibit ‘HS3’ being marked ‘For Court Use only’ is really needless and trivial as it clearly has no legal effect whatsoever on the genuineness accorded Exhibit HS3. He urged the court to discountenance it.
Learned Senior Counsel to the Appellants has referred the Court to paragraphs 4(ii),(iv),(v),(vi) and (vii) in the Affidavit in support of the Motion filed on 5/1/2007 by the Plaintiff/Applicant. The said paragraph is hereby adumbrated as follows:-
“4. I was informed of the folding facts by Sesan Akinsanya, the Corporate Head of Dispute Resolution of the Applicant during a telephone conference on this matter which I attended at the Maitama, Abuja on Thursday 14th December, 2006 at about 11:50 am, and I verily believe him as follows, that:
i.The 2nd and 3rd Respondents filed the following processes in this matter to wit:
a) an application dated 18th September, 2006 seeking to dismiss the Applicant’s Originating Summons inter alia because the Applicant is not a registered company in Nigeria,
b) a Counter-Affidavit dated 18th September, 2006 in opposition to the Applicant’s Originating Summons which states inter alia that the Applicant is not a registered company in Nigeria.
ii. The Applicant is, indeed, a company duly incorporated under the laws of the Federals Republic of Nigeria with registration number RC No: 892 and has, at all material times to this suit, been registered to, known and addressed as The Shell Petroleum Development Company of Nigeria Limited.
iii. The Applicant presently has only one (1) original Certified True Copy of its Certificate of Incorporation (COI) and is not able to exhibit the same in this matter because the need for its ‘COI’ could arise at any time in the course of its business and operations, before the determination of the 2nd and 3rd Respondents’ said application and its Originating Summons in sub-paragraph (1)(a) and (b) above by the court
iv. The preceding paragraph informed the Applicant’s resort, at the time of the hearing of the said application and Originating Summons in sub-paragraph (1)(a) and (b) above on Tuesday 28th November, 2006, respectively, to exhibiting the photocopy of the CTC.
v. At the last adjourned date being Tuesday 28th November, 2006 the 2nd and 3rd Respondents’ Counsel argued strenuously that the photocopy of the Applicant’s CTC of its ‘COI’ was not legal proof of its legal existence.
vi. The Applicant’s Counsel, consequent on the foregoing and mindful of the need to assist the Court in resolving the issue, made further persistent enquiries at the CAC in Abuja about the possibility of obtaining another CTC. The enquiries revealed that a second CTC of Shell’s ‘COI’ cannot be obtained except for litigation purposes only.
vii. Further to the preceding paragraph, the Applicant’s Counsel applied to the CAC and was issued a CTC of the Applicant’s ‘COI’ only for litigation purposes.”
Exhibit HS3 referred to in paragraph 4 of the 1st Respondent’s 2nd Further affidavit sworn to on 5/1/2007 in opposition to the 2nd and 3rd Respondents’ Counter-affidavit dated 18th September, 2006 is pertinent and is hereby reproduced as follows:-
“FOR COURT USE ONLY.
RC; 892
CORPORATE AFFAIRS COMMISSION
FEDERAL REPUBLIC OF NIGERIA
Certificate of the Incorporation of a Company
I hereby certify that THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
(previously called THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
which name was change by Special Resolution and with my Authority on the 29th day of NOVEMBER, 1979 was incorporated under the COMPANIES ORDINANCE
……..
as a Limited Company, on the 11TH day of SEPTEMBER, 1951 Given under my hand at LAGOS, this 13th DECEMBER, 1979.
Certified True Copy
SIGN:
22 December, 2006
Companies Incorporation Officer
Corporate Affairs Commission
(SGD) K. TYCHUS LAWSON (MRS)
Registrar – General”
It has been contended by the Defendants/Appellants at the trial Court as well as before this Court that the Respondent is not a juristic personality known to law.
The Respondent has deposed in paragraph 4(ii) of the Affidavit in support of Motion on Notice sworn to at the Registry of the Federal High Court, Abuja on 5th January, 2007 thus:
“4. ii. The Applicant is, indeed, a company duly incorporated under the laws of the Federals Republic of Nigeria with registration number RC No: 892 and has, at all material times to this suit, been registered to, known and addressed as The Shell Petroleum Development Company of Nigeria Limited.”
The Legal personality of a corporation body can only be established as a matter of law by the production in evidence of the Certificate of Incorporation, admission between the parties notwithstanding. See
Apostolic Church v. A. G. Mid-West (1972) 7 NSCC 2471.
Where as in the instant case, the juristic personality of a corporate body is challenged and issues joined, such a corporate body can only prove its juristic personality by production of its Certificate of Incorporation. See A.C.B. Plc. V. Emostrate Ltd. (supra) page 515 and 517.
By virtue of Section 36(6) of the Companies and Allied Matters Act, a Certificate of Incorporation of a company is prima facie evidence that all conditions precedent and incidental to the registration of a company has been fulfilled and that the company is duly registered under the Act.
A Certificate of Incorporation of a company is a public document within the provisions of section 109 (b) of the Evidence Act. A public document is a document made for the purpose of the public making use of it especially in a judicial or quasi-judicial duty. The features of a public document is that it is created over a public matter, preserved for good of the public and always accessible for public inspection and use especially by all those having something to do with it. See Cross River Property Development & Investment Company Limited v. Eno I. Obongha (2000) Pt. 670 page 751 at 768.
It is trite law that only certified copies of public documents are admissible in evidence in legal proceedings and any objection to the admissibility of copies of public documents not properly certified can be rejected during a trial.
I have earlier said in this judgment that a Certificate of Incorporation of a corporate body is a public document. By virtue of the provisions of Section 112 of the Evidence Act, a public document may be proved by producing a certified true copy of it.
In the instant case the Respondent produced in evidence Exhibit HS3 reproduced in this judgment. The lower Court made the following finding of fact on Exhibit HS3 at page 266 – 267 of the Record of Appeal thus:-
“Also the issue of whether the applicant is a juristic person by virtue of Exhibit ‘HS3’, attached, and can be sued and can sue also will determine its personality as an applicant herein. I see Exhibit ‘HS3’ attached to further and better affidavit of plaintiff. It is marked Certified True Copy signed and dated 22/12/06 by Corporate Affairs Commission and is sealed. It is marked for ‘Courts use only’.
It is a certificate of Shell Petroleum Development Company, previously called Shell-BP Development Company Incorporated in 1951 and it is in the original form of a Certified True Copy.
Exhibit ‘HS3’ is in proof that, Applicant is duly registered in Nigeria and therefore governed by CAMA 1990 and therefore it is a juristic person who can be sued and can sue within the meaning and I so hold. The preliminary objection on this leg fails.”
I have equally perused Exhibit ‘HS3’ and have reproduced same in this judgment. The fact that the Corporate Affairs Commission marked it ‘Court use only’ does not invalidate it from being a Certified True Copy of the Certificate of Incorporation of the 1st Respondent. The marks ‘Court use only’ in my opinion has only restricted the use of the said Certified True Copy of the Certificate of Incorporation of the 1st Respondent for use in Court proceedings only By restricting the document to ‘Court use only” the Corporate Affairs Commission seems to have exonerated itself from any liability that might arise in situations where the document falls into wrong hands and it is used for other purposes not related to the Court business.
Section 114 of the Evidence Act provides for the presumption as to genuineness of certified copies of documents. The intendment of the Section is that where a document is admissible under the law, the law will presume that a certified copy of such document is genuine and that it has been regularity certified as a copy of the original by the office charged with the responsibility of doing so.
See; Cordoso v. Daniel (1986) 2 NWLR PT.20 page 1 at 43; Magnusson v. Koiki (1991) 4 NWLR Pt.183 page 119 at 129;Odubeko v. Fowler (1993) 7 NWLR Pt.308 page 637 at 655;
Ngene v. Igbo (1991) 7 NWLR Pt.203 page 358 at 369; Funso v. Murana (2000) 12 NWLR Pt.68 page 370 at 389.
What is required of a Court of law under the provisions of Section 114(1) of the Evidence Act is to presume a Certified True Copy of a document to be genuine if upon its production, it shows the following features:
(a) that it was duly certified,
(b) that the certifying officer has been duly authorized, and
(c) that it is in substantial form and executed according to law.
The Court upon observing these features stipulated under Section 114(1) would presume the document genuine and admit same subject to any objection raised by opposing party to rebut the presumption.
This opinion of mine has the support of the case of Daggash v. Bulama (2004) 14 NWLR Pt.892 page 144 at 221 where the Court held thus:-
“The presumption of regularity enacted in Section 114(1) of the Evidence Act set out above is commended to trial Courts for consideration when faced with documents from official sources such as Exhibit ‘A’, herein without any evidence rebutting that presumption of regularity enacted in Section 114(1), the piece of evidence to which it applies materializes as genuine and admissible in evidence and of evidential value.”
I have subjected Exhibit ‘HS3’ as contained on page 217 of the Record of Appeal to the provisions of Section 114(1) of the Evidence Act and I have found that it contains all the features required of a Certified True Copy of a public document. I am in no doubt that Exhibit ‘HS3’ is a genuine copy of the Certificate of Incorporation of the 1st Respondent, and I so hold.
The lower Court was therefore correct when in its judgment at page 267 of the Record of Appeal, it held thus:-
“Exhibit HS3 is in proof that Applicant is duly registered company in Nigeria and therefore governed by CAMA 1990 and therefore it is a juristic person which can be sued and can sue within its meaning and I so hold…”
In the instant case the Appellants have not urged anything useful that will make this Court to disturb this finding of fact.
On the second leg of the first issue the Appellant have also attacked the legal existence of the 1st and 2nd Appellants who were the 2nd and 3rd Defendants respectively at the lower court.
It has been argued on behalf of the Appellants that the 2nd and 3rd Defendants (now Appellants) were sued in the matter at the lower Court as: –
2. The Federal House of Representatives,
3. The Honourable Speaker Federal House of Representatives.
that by virtue of Section 4(1) of the Constitution of the Federal Republic of Nigeria 1999, there is no legislative body known as ‘The Federal House of Representatives’.
It was argued that the Constitution recognizes the ‘Speaker House of Representatives’ and not ‘The Honourable Speaker, Federal House of Representatives’.
Learned Senior Counsel for the Appellants contended that to hold, as the lower Court did at page 267-268 of the Record of Proceedings that these names as sued in the Donating Summons is a misnomer which can be corrected is a gross conception. He argued that such an interpretation amounts to the lower Court amending the express provisions of the Constitution which only the Legislature can and not the Court.
He insisted that the way a name is arranged is no, a trifle issue that can be presumed. Learned Senior Counsel referred the Court to the case of-
Esenowo v. Ukpong (1999) 4 SCNJ 109 at pages 113, 114, 116, 117 and 118.
In response, Olawale Akoni SAN argued that the 1st and 2nd Appellants who challenged their own existence, interestingly in Paragraph 2 of their Affidavit in support of the application (at page 191 of the Record) the deponent curiously stated that he had the authority of the non-existent 1st and 2nd Appellants to depose to the Affidavit. The deponent also stated that he knew that the 1st and 2nd Appellants whose authenticity he claimed to have, were non-existent.
Learned Senior Counsel maintained that the simple question that arises in the midst of the confusion created by the Appellants, is how a non-existent body or person could, in fact, have instructed a Counsel? In other words, how could ‘nobody’ have instructed ‘somebody’ to act on ‘nobody’s behalf’? He submitted, this is mutually contradictory, logically incongruous and incredible.
Learned Senior Counsel maintained that the Appellants’ application challenging their legal existence ought to have been dismissed for this reason alone, but that the lower Court was patient with them and considered the application.
Olawale Akoni SAN contended that the Ist Respondent filed a Counter-affidavit in opposition to the application (at pages 193-196 and 201-203 of the Record) learned Senior Counsel said that the Ist Respondent in paragraphs 5, 6, 8, and 9 thereof (at page 194 of the Record), stated that the inclusion of the words ‘Federal’ and ‘Honourable’ in the names of the 1st and 2nd Appellants was a mere misnomer which did not mislead either the House of Representatives, its Speaker and the lower Court and was not capable of occasioning any miscarriage of justice to them.
Learned Senior Counsel argued that the Ist Respondent stated in Paragraph 7 that the House of Representative, being unhappy with the Order made by the lower Court on 17th July, 2006 against it, actually authored a petition to the National Judicial Counsel, against the learned trial Judge. He maintained that the 1st and 2nd Appellants were clearly under no illusion that they were sued by the 1st Respondent. Learned Senior Counsel contended that, the Appellants did not controvert the 1st Respondent’s depositions by way of a further affidavit
He submitted that the only legal reason for the Appellants’ action is that the depositions were correct and the Appellants believed them to be so. Learned Senior Counsel cited in support of his arguments the case of:Forson v. Calabar Municipal Government (2004) All FWLR Pt.234 page 561 at 574.
Learned Senior Counsel for the 1st Respondent urged the Court to hold that Appellants believed Paragraphs 5, 6, 7, 8 and of the 2nd Respondent, Counter-affidavit to be correct.
Olawale Akoni, SAN maintained that the lower Court also observed the preceding fact and consequently held that it agreed with the 1st Respondent’s depositions that the inclusion of the words ‘Federal’ and ‘Honourable’ in the names of the 1st and 2nd Appellant were an “…honest misnomer which does not cause any injustice or hardship” (at page 268 of the Record).
He submitted that, this decision by the lower court is right in law and ought to be upheld by this Court. He argued that it is settled law that “Any averment in an affidavit not countered or denied is deemed admitted and should be relied upon by this court.”
Learned Senior Counsel cited in support of his submission the cases of:Otto v. Mabamife (2004) 17 NWLR Pt.903 page 489 at 509;Digai v. Nanchang (2004) All FNLR Pt.240 page 41 at 65;
Agbaje v. Ibru Sea Foods (1972) SC 50 at 55;Zest News v. Waziri (2004) 8 NWLR Pt.875 page 267 at 278 and urged the Court to uphold the decision of the lower Court.
Learned Senior Counsel maintained that, having found that there was a misnomer in the names of the 1st and 2nd Appellants the lower Court, pursuant to an application by the 1st Respondent, Counsel to amend the 1st and 2nd Appellants names, rightly granted the amendment (at page 269 of the Record). He submitted that the decision of the lower Court is valid in law and ought to be upheld by the Court. He maintained that the amendment was granted simply to correct the names of the 1st and 2nd Appellants. He referred the Court to the cases of: Ogboru v. Ibori (2004) 7 NWLR Pt.871 page 192 at 224;
Njoku v. VAC Foods (1999) 12 NWLR PT.632 page 557 at 564.
Learned Senior Counsel urged the Court to uphold the amendment of the names of the 1st and 2nd Appellants by the lower Court to correct the misnomer.
Olawale Akoni, SAN drew the attention of the Court to the heavy reliance placed by the Appellants on Esenowo v. Ukpong (1999) 6 NWLR Pt.608 page 611 in pages 16 to 21 of their Brief and submitted that, in the clear circumstance of the instant case at the lower court, the case is most unhelpful to them.
Learned Senior Counsel urged the Court not to rely on it. He argued that the ratio m Esenowo’s case bordered on the consequence of the registration of a person’s name improperly or wrongly in the register of a Professional body.
The Court has been referred to paragraphs 5, 6, 7, 8 and 9 of the Counter-affidavit filed by the 1st Respondent (at page 194 of the Record). The said paragraphs of the Counter-affidavit are pertinent and are hereby adumbrated as follows:-
“5. I know as a fact that:
(i) The 2nd Defendant is one and the same entity as the House of Representatives created under the Constitution of the Federal Republic of Nigeria 1999 and the inclusion of the word ‘Federal’ in its title in the proceedings is a mere misnomer.
(ii) The 3rd Defendant is one and the same Speaker of the House of Representatives created under the Constitution of the Federal Republic of Nigeria 1999 and the inclusion of 32 the word ‘Federal’ in his title in this proceedings is a mere misnomer.
6. From the facts deposed to above, I verify believe that the inclusion of the Word ‘Federal” in the titles of the House of Representatives and us Speaker (both sued in this matter as 2nd and 3rd Defendants) has not misled either of them or the Court.
8. From the facts deposed to above and the entire circumstances of this case, I verily believe that the House of Representatives and its Speaker are in no doubt of the fact that they have been sued in this action for the reliefs sought against them.
Further to paragraph 8 above, I also verily believe that this misnomer has not and is not capable of occasioning any prejudice or miscarriage of justice against the either or both the House of Representatives and its Speaker.”
Where a party files an affidavit deposing to certain vital facts which are material to the case in dispute, the opposing party has the duty to counter those facts by way of a Counter-affidavit and failure to do so those facts must be deemed unchallenged. See Malgit v. Dachen (1998) 5 NWLR Pt.550 page 384.
It has been held in the case of Forson v. Calabar Municipal Government (2004) All FWLR Pt.234 page 561 at 574 that –
“When a party disbelieves an assertion in an affidavit, the best way is to file Counter Affidavit and if it is a Counter Affidavit, he should file further or better affidavit…”
In the instant case, the Appellants neglected to discharge their legal duty to controvert the above depositions by way of a further affidavit. It follows therefore that the deposition filed by the 1st Respondent in their Counter-affidavit which are uncontroverted and unchallenged are deemed as the truth of the matter See: Eze Chukwu v. Onwuka (2006) 2 NWLR Pt. 963 page 151;
FGN v. AIC Ltd. (2006) 4 NWLR Pt. 970 page 337; FMCT v. Eze (2006) 2 NWLR Pt. 964 page 221; Adamu v. Akukaha (2005) 11 NWLR Pt.936 page 263;Otto v. Mahamije (2004) All FWLR Pt. 262 page 597 at 609;Zest News v. Waziri (2004) 8 NWLR Pt. 875 page 267 at 278; Digai v. Nanchang (2004) All FWLR Pt.240 page 41 at 65; A. G. Lagos State v. Purification Tech. (Nig) Ltd. (2003) 15 NWLR Pt.845 page 1;
Long-John v. Blakk (1998) 6 NWLR Pt. 555 page 524 at 532 ;Agbaje v. Ibru Sea Foods (1972) 5 SC 50 at 55.
There is also the deposition on behalf of the Appellants in paragraph 2 of their Affidavit in support of the application which supports the suggestion that what has been deposed by the Respondent is the correct position of the matter.
The said paragraph 2 of the Affidavit in support is hereby reproduced thus:
“2. That I have the authority of the 2nd and 3rd Defendants/Applicants as well as that of my aforesaid employers to dispose to this Affidavit.”
Arising from the above paragraph of the Defendants/Appellants’ Affidavit, is the pertinent question, can a non-existent body or person instruct a Counsel? Is it possible for nobody to instruct somebody to act on ‘nobody’s behalf’? The answer to both questions is No.
The Defendants/Appellants at the lower Court were in no doubt as to whom the Plaintiff/Respondent named in its suit as Federal House of Representatives and the Honourable Speaker, Federal House of Representatives, i.e. 2nd and 3rd Defendants respectively.
The 2nd and 3rd Defendants at the lower Court who are now the 1st and 2nd Appellants were clearly in no doubt that they were sued by the 1st Respondent
This must have accounted for why they failed to controvert paragraphs 5, 6, 8, and 9 of the Respondent’s Counter-affidavit reproduced earlier in this judgment, in which the 1st Respondent deposed that the inclusion of the words Federal and Honourable” in the names of the 2nd and 3rd Defendants were a mere misnomer which did not mislead either the House of Representatives or its Speaker.
The lower Court at page 268 of the Record agreed with the Plaintiff/1st Respondent’s depositions above and said of the inclusion of the words “Federal and Honourable” in the name of the 1st and 3rd Defendants now 1st and 2nd Appellants thus:
“I also find that as put in the Counter affidavit by the Plaintiff which was not controverted/denied by the Respondent that they had taken steps when an order was made against them by Adah J. confirming that there is no doubt as to Identity. Therefore I am in agreement that it’s a honest misnomer which does not cause any injustice or hardship,”
Where an error or mistake of a party is not fraudulent or intended to over reach, the Court would permit an amendment to correct same if such amendment will not cause injustice to the other party. See
Bankole v. Dada (2003) 11 NWLR Pt.830 page 174.
In Ogboru v. Ibori (2004) 7 NWLR Pt.871 page 192 at 224, the Court held thus:
“It is settled that where there is an error as to the name of a party to a suit, an amendment properly sought will be allowed by the Court.”
See also Njoku v. U.A.C. Foods (1999) 12 NWLR PT.632 page 557 at 564.
The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which may arise from inadvertence of Counsel. See: Adesanoye v. Adewole (2004) 11 NWLR Pt.884 page 414: Ehidimhen v. Musa (2004) 4 SC. (Pt.II) 116 at 184.
An amendment takes effect not from the date when the amendment is made but from the date of the original document which it amends.
The effect of an amendment is that what stood before the amendment is no longer material before the Court and no longer defines the issues to be tried. See:
U.B.A. Plc, v. Abdullahi (2003) 3 NWLR Pt.807 page 359;Osita C. Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR Pt.135 page 688;
Enigbokan v. A.I.I. Co. (Nig.) Ltd. (1994) 6 NWLR Pt.348 page 1.
In the instant case the learned Senior Counsel for the Plaintiff/1st Respondent on 25/11/06 made an oral application (page 228 of the Record of Appeal) to amend the process by deleting the word ‘Federal’ from the title of the 2nd and 3rd Defendants and same was granted because the Defendant’s Counsel offered no reply to the amendment sought and also failed to controvert paragraphs 5(i) & (ii), 6 and 9 of the Counter-affidavit filed to Preliminary Objection.
The lower Court granted the Plaintiff/1st Respondent leave to amend its Originating Summons to correct the names of the 1st and 3rd Defendant. It gave its reasons for granting the application for the amendment at page 269 of the Record of Appeal thus:-
“…I am Satisfied that it is an honest mistake and nobody has been misled therefore I grant an amendment of the names of the 2nd and 3rd Defendants by deleting the Federal, therefore to enable the Court determine the real question in the suit”
I am of the view that the lower Court was correct in allowing the to reflect the correct statutory names of the 2nd and 3rd Defendants who are the 1st and 2 Appellants in this Appeal. This opinion of mine is sheltered by the decisions in the cases of:Ogboru v. Ibori (2004) 7 NWLR Pt.871 page 192 at 224;Njoku v. U.A.C. Foods (1999) 12 NWLR Pt.632 page 557 at 564;
Fawehinmi v. NBA (No.2) (1989) 2 NWLR Pt.105 page 558.
Learned Senior Counsel for the Appellants had placed much reliance on the case of Esenowo v. Ukpong (supra) page 611 in pages 16-21 of the Appellants’ Brief of Argument. Esenowo’s case bordered on the consequences of registration of a person’s name improperly or wrongly in the register of a professional body.
The court held in that case at page 617 thus:-
“There is a world of difference between S.F. Esenowo and E. J. Esenowo for the purpose of registering a name in a professional register sanctioned by law. It allows for crooks and quacks to filtrate into the profession if at random a person can rearrange his initial or order in which his names are written.”
(Underlining mine).
I am of the opinion that Esenowo’s case is most unhelpful to this Appeal. This first issue is resolved in favour of the Respondents.
ISSUE TWO
“Whether the lower Court was right in holding that the 1st Appellant’s investigative powers under Section 88 of the Constitution of the Federal Republic of Nigeria 1999 cannot be exercised over the 1st Respondent pursuant to the Petition presented against it?”
Learned Counsel for the Appellants in his argument on this issue submitted that the subject matter of the suit concerns the objection of the Petitioners to the citing of the hazardous waste dump in their locality.
The Court was referred to Sections 13, 20 of Chapter II (Fundamental Objectives and Directive Principles of State Policy and item 60 of the First Schedule of the Constitution).
Learned Senior Counsel submitted that by virtue of these provisions, it is within the constitutional ambit of the House of Representatives to enact laws or do such things as will protect the environment and health of the citizens.
He argued that though the provisions of Chapter II of the Constitution are not justiciable which means that the Petitioners cannot sue the Respondents for citing hazardous waste dump in their area even when Chapter II of the Constitution says that it is their right to be so protected. He contended that, the lower Court was not correct when it held at page 276 (lines 11-15) of the Record that:-
“I have searched Part II of the current Legislature List of the Constitution and nowhere does Environmental issues appear within the con of the Federal and State Legislative Powers.”
Learned Senior Counsel argued that, item 60 of the Exclusive Legislative List read together with Sections 13, 14(2)(b) and 20 of the Constitution shows that the National Assembly (which include the House of Representatives) has the power to investigate the Petition with a view to ensuring that the environment of the Petitioners’ community is not polluted or made a health hazard. He referred the Court to the case of: A.G, Lagos State v. A.G. Federation & Anor (2003) 12 NWLR Pt.833 at pages 175, 177, 178-180, 187-190, 234-238.
Yunus Ustaz Usman, SAN submitted that the oversight functions of the National Assembly (House of Representatives) is not and can never be construed as being limited to the provisions of Section 88 of the 1999 Constitution. He argued that the USA, UK etc. Legislatures have oversight functions which cover every aspect of human endeavour and that they are construed as constitutional.
He contended that, to hold that oversight functions of the House of Representatives are limited to Section 88 of the Constitution will be tantamount to a clear breach of the primary function of the Legislature as enshrined under the Second Preamble, Sections 13, 14(1)(b) 20,21,67,68, and 318 of the Constitution.
He cited the case of A.G. Lagos State v. A. G. of the Federation (supra) on which he argued that the decision alone has anchored that oversight functions of the National Assembly (which includes the Appellants) extend to environments issues and not limited to Section 88 of the Constitution alone.
The Court was referred to the Preamble and Sections of the Constitution particularly Sections 13, 14, 20,21,67,68,318 and the cases of:A.G. Federation v. A. G., Abia (2001) 11 NWLR
Alamieyeseigha v. Crown Prosecution Service (Unreported Judgment of Queen’s Bench Division) delivered on Friday, 25th November, 2005, where Silber (delivering the lead judgment) held at page 7 that
“It is noteworthy that the Supreme Court of Nigeria has not viewed the Federating States within Nigeria such as Bayelsa State as sovereign States.”
He argued that, since the House of Representatives is already dealing with the Petition on the principle of ‘covering the field’, the State Houses of Assembly can no longer deal with the Petition cedit questio. Learned Senior Counsel urged the Court to allow the Appeal, set aside the decision of the lower Court and dismiss the Originating Summons with cost.
Olawale Akoni, SAN Counsel for the Respondent submitted that the lower Court was right when it held that the Legislature lacked the authority to invite Private agencies and companies to appear before it save as provided for under Section 88(2) of the Constitution of the Federal Republic of Nigeria 1999.
He argued that, the subject of the Environment was outside the legislative competence of the 1st Appellant, whether on the Exclusive or Concurrent Legislative Lists in light of Part 1 and II of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999.
Learned Senior Counsel submitted that the subject of environment is within the legislative competence of a State.
He maintained that the 1st Respondent was clearly not contemplated by Section 88(2) of the 1999 Constitute and that the subject matter of the Petition was outside the legislative competence of the 1st Appellant.
Learned Senior Counsel submitted that the lower Court was right when it held that the 1st Appellant lacks power to conduct the said investigative hearing and also lacks power to exceed the limit of its investigative powers provided under the Constitution. He argued that the purpose of the said investigation was clearly inconsistent with any of the purposes prescribed under Section 88(2) of the Constitution. He insisted that the goal/objective of the investigation was the 4 prayers sought by the Petitioners at page 12 of the Petition from the 1st Appellant. He urged the Court to consider the 4 prayers.
Olawale Akoni, SAN submitted that those 4 prayers are in the nature of perpetual functions, and Orders which only a Court is empowered to make. He argued that those prayers clearly show that the purpose of the investigation is inconsistent with any of the purposes prescribed under Section 88(2) of the Constitution.
Learned Senior Counsel contended that the kernel of the Appellants’ grouse with the preceding decision is that, in their opinion, by the provisions of Sections 13 and 20 of the Constitution and item 60 of the Exclusive Legislative List of the 1999 Constitution, the 1st Appellant is empowered to investigate the Petition because it can make laws on the environment.
Olawale Akoni, SAN submitted that this argument, though fanciful, is most specious, for clearly, Section 20 of the Constitution of the Federal Republic of Nigeria 1999 admonishes the State to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria.
He maintained that item 60 empowers the National Assembly to make laws for the establishment and regulation of authorities to protect and enforce and observance of the Fundamental Objectives and Directives Principles contained in the Constitution.
Learned Senior Counsel submitted that in the light of these two provisions and Part I and II of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999, the subject of environment is actually outside the direct legislative competence of the 1st Appellant.
Olawale Akoni, SAN submitted that from the forgoing provision, the 1st Appellant has the constitutional power to make laws only for the establishment of an agency with specific functions to ‘protect’ the environment. He argued that, it cannot enact any laws directly affecting the environment. In addition he submitted that the purpose of the said investigation by the 1st Appellant has to be shown to be consistent with the purpose prescribed under Section 88(2) of the 1999 Constitution which purpose include making laws on any matter within its competence (including the enactment of laws pursuant to item 60 of the Exclusive Legislative List of the 1999 Constitution.
Learned Senior Counsel maintained that none of the 4 prayers include the establishment of any agency by the 1st Appellant with functions to protect the environment of Ogbako-Etche.
Learned Senior Counsel urged the Court to uphold the decision of the lower Court that the 1st Appellant lacks power to conduct the said investigative hearing and also lacks power to exceed the limit of its investigative powers provided under the Constitution. He submitted that this Appeal is misconceived and lacking in merit and ought to be dismissed. He urged the Court to so hold.
On this issue presented for determination, both parties referred to Sections 13, 14(2)(b), 20, 88 and item 60 of the Exclusive Legislative List of the Constitution of the Federal Republic of Nigeria 1999. The provisions of these Sections of the Constitution are hereby reproduced for ease of reference:-
Section 13 states:
“It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of the Chapters of this Constitution.”
In the instant case the 1st Respondent Shell Petroleum Development Company of Nigeria Ltd. is not an organ of government, authority or person exercising legislative, executive or judicial powers, therefore the provisions of Section 13 of the Constitution reproduced above does not apply to the 1st Respondent.
Section 14 provides:
“(2) It is hereby accordingly, declared that –
(a) …
(b) the security and welfare of the people shall be the primary purpose of government.”
As said earlier in this judgment, the 1st Respondent which is a limited liability company is neither a government nor an agency of any government in Nigeria.
Section 20 provides:
“The State shall protect and improve the environment and safeguard the water, air and land, forest and Mid life of Nigeria.”
The interpretation Section of the Constitution under Section 318(1) defines the word State thus: ‘State’ when used otherwise than in relation to one of the component parts of the Federation, includes government Section 20 of the Constitution in my opinion merely protect and improve the environment.
Section 88 provides:
“(1)) subject to the provisions of the Constitution, each House of the National Assembly shall have power by resolution published in its Journal or in the official Gazette of the Government of the Federation to direct or cause to be directed an investigation into –
(a) any matter or thing with respect to which it has power to make laws; and
(b) the conduct of affairs of any person, authority, Ministry or government department charged, or intended to be charged, with the duty of or responsibility for:
(i) executing or administering laws enacted by the National Assembly and
(ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly.
(2) The powers conferred on the National Assembly under the provisions of this Section are exercisable only for the purpose of enabling it to –
(a) make laws with respect to any matter within its legislative competence and correct any defect in existing laws; and
(h) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of Funds appropriated by it”
Item 60 of the Exclusive Legislative List provides:
“60. The establishment and regulation of authorities for the Federation or any part thereof-
(a) to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in the Constitution;
(b) to identify, collect, preserve or generally look after ancient and historical monuments and records and archaeological sites and remains declared by the National Assembly to be of National significance or National importance;
(c) to administer museums and libraries other than museums and libraries established by the Government of a State;
(d) to regulate tourist traffic; and
(e) to prescribe minimum standards of education at all levels”
At pages 12-23 of the Record of Appeal is the Petition of Ogbako Etche (a Socio-cultural organization of Etche Nationality embracing the two Local Government Areas of Etche and Omuna in Rivers State) addressed to the Honourable Speaker, Federal House of Representatives Abuja, inviting the House of Representatives to what it described as ‘another impending catastrophe about to explode in the already volatile Niger Delta: The location of Integrated Waste Management Facility (IWMF) in Etche Rivers State’.
Part of that Petition at page 22 reads inter alia:
“…As expert findings have shown the project is unfriendly. Technically, the EIA is faulty and therefore rejected by our people.
OUR PRAYER.
In view of these facts and figures presented above, Honourable Speaker Sir, we pray that you use your good offices to take the following resolutions on the project.
1. The House should order Shell to stop action permanently on the project site in Etche land.
2. Shell should search for a more remote location, a waste land that is environmentally friendly away from greater Port-Harcourt Master plan.
3. Having paid for the land, Shell should develop the site for residential purpose, the original reason why the place was sold to them.
4. Should Shell be allowed to site this hazardous waste dump on the proposed site they should relocate the people of Etche Ethnic Nationality to an environmentally safe area.
Not to do this would mean that government (the House inclusive) is an accomplice in the effort to expose the lives of its citizens to danger. Etche people are almost out of patience. We have no doubt in our minds that the House will take the right decision in this matter.”
In Mc Gvain v. Daugherty 273 U.S. (1927) the United State Supreme Court settled the question of the right of the U.S. Congress to conduct investigations when it said that:
“The power of Congressional inquiry with the process to enforce it is an essential and appropriate ancillary to the legislative function.”
Also in Walkins v. United States, (1957) U.S. 17, the United States Supreme Court said that:
“The power of the Congress to conduct investigations is inherent in the legislative process.”
See also Anderson v. Dunn 19 U.S. 204 (1821).
Under the 1999 Constitution of the Federal Republic of Nigeria, Section 88(1)(a) & (b) confer on the National Assembly the power to conduct investigation into any matter or thing with respect to which it has power to make laws as well as into the conduct or affairs of any person, authority, ministry or government department charged or intended to be charged with the execution or administering such laws made by the National Assembly as well as disbursement or administering moneys appropriated or to be appropriated by the National Assembly.
The National Assembly is only to exercise its power of conducting investigation for the purpose of enabling it to make law or to expose corruption, inefficiency in the disbursement or administration of funds appropriated by it.
Section 88(2)(a) & (b) further provides that the power conferred on the National Assembly to conduct investigation are only exercisable for the purpose of enabling it to make laws with respect to any matter within its legislative competence to correct any defect in existing laws and to expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.
It follows therefore that the National Assembly can only conduct investigation into areas where it has competence to make laws and that such investigations should strictly be for the purpose of making laws.
I have diligently examined Second Schedule to the Constitution, Part I containing the Exclusive Legislative list and Part II the Concurrent Legislative list. I am unable to trace ‘Environment’. Since Environmental matters are not included in either the Excusive Legislative list or the Concurrent Legislative list, it could be concluded that the National Assembly has no competence to make law in the matter. However, the Supreme Court in the case of A. G. Lagos v. A.G. Federation (supra) at page 163, Kalgo J.S.C said:
“Although S.20 of the 1999 Constitution gives the National Assembly the legislative jurisdiction on environment generally, it did not give it the power to legislate on planning and development control over land in the States or Local Government, this cannot in the circumstances of this case be implied.
It is not the function of the National Assembly under the 1999 Constitution to exercise any legislative powers of planning and development control of land in the jurisdiction of the State or Local Government as this is not necessarily incidental or ancillary to effective legislation under S. 20 and item 60(a) of the Exclusive Legislative list of the said Constitution. And under Federal system of Government which we practice in the 1999, the National Assembly, except where the Constitution so provides, cannot legally impose any responsibility by legislation on a State in respect of any land in the territory of the State as it has no supervisory power or authority to do so under the 1999 Constitution. See A.G, Ogun State v. A. G. Federation (1982) 3 NCLR 166, (1982) 13 NSCC 1”.
The dispute between the parties at the lower court giving rise to this Appeal has to do with citing of a waste management facility on a land in River State. It is a matter for land administrators and the planning authorities in Rivers State, both of which are outside the jurisdiction of the National Assembly, to make law.
It can be gleaned from the prayers of the Petitioners that what they invited the National Assembly to do for them is to adjudicate over a dispute between them and the Respondent; both of whom are private individuals. By the provisions of section 6(1) of the 1999 constitution, adjudicatory functions are assigned to the judiciary as represented by the courts established for the Federation.
The 1st Appellant will be doing violence to the provisions of sections 88(2)(a) & (b) and 6(1) of the Constitution of the Federal Republic of Nigeria, if it embarks on an investigative hearing on the Petition of Ogbako Etche Ethnic Nationality in Rivers State against the 1st Respondent or grant the prayers sought by them.
This issue is also resolved in favour of the 1st Respondent. The entire Appeal lack merit and it is hereby dismissed. The decision of the lower court delivered on the 27th day of July, 2007 is affirmed. There shall be no Order as to Costs.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of My Lord, ABDU ABOJI, J.C.A, just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that this appeal lacks merit and it is dismissed by me.
HON. JUSTICE AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
J. J. Usman with J. A. Oyibo (Miss), R. A. Akpala (Miss) and S. ApenjaFor Appellant
AND
O. Akoni SAN with A. Oyinloye, K. Osuh and F. Badmus (Miss)
2nd Respondent absent and unrepresented.For Respondent
