TRAXYS EUROPE SA v. ALI & ORS
(2022)LCN/16494(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, April 07, 2022
CA/A/1020/2019
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
TRAXYS EUROPE SA APPELANT(S)
And
1. BASEM EL ALI 2. INSPECTOR GENERAL OF POLICE 3. COMMISIONER OF POLICE, FEDERAL CAPITAL TERRITORY, ABUJA RESPONDENT(S)
RATIO
WHETHER OR NOT PROCEEDINGS CONDUCTED WITHOUT JURISDICTION IS A NULLITY
It is settled law, and there are no longer any contrary contentions on this, that any proceedings conducted without jurisdiction is a nullity since jurisdiction is the soul and life blood of adjudication. Thus, for an action or cause or mater to be competent before the Court to be heard and determined on the merit, it must have fulfilled all condition precedent for the invocation of and the assumption of jurisdiction by the Court. A failure in any of the condition precedent would result into lack of jurisdiction, which would rob the Court of its competence and any Court which proceeds on the face of an incompetent action or cause or mater before it to hear and determine such an incompetent action or cause or matter on the merit would merely have acted in vain. In law, all such proceedings, no matter how meticulously conducted, and any resultant decision or judgment, no matter how ostensibly sound, are all a nullity. Indeed, nullity upon nullity all is nullity! SeeMadukolu V. Nkemdilim (1962) 2 SCNLR 341. See also Idemudia V. Igbinedion University, Okada (2015) LPELR – 24514(CA), Emeje V. Positive (2008) LPELR- 4102 (CA). PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON AN ACTION OR CAUSE TO BE COMPETENT UNDER THE PROVISIONS OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009
It is therefore the law that for an action or cause or matter to be competent under the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 as an application for enforcement of and or securing the enforcement of the fundamental rights, the principal or main claim must be one for the enforcement of fundamental right, failing which such an action is and must be held to be incompetent by the Court. Thus, for an application for the enforcement of fundamental right to be competent, it must be shown that the breach of a Fundamental Right is the main claim. It follows therefore that if the claim or violation of a Fundamental Right is only incidental or ancillary to the main claim or relief sought, it would be incompetent to institute the action as one for the enforcement of a Fundamental Right. See Princess V. Governor of Ogun State & Ors (2018) LPELR – 44986(CA), where this Court had stated inter alia thus:
“Now, the settled law, as decided in plethora of authorities is that, for an Application for the Enforcement of any of the Fundamental Rights entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to be grounded,… In other words, the main or principal relief sought must be shown to be one for the enforcement of a Fundamental Right, otherwise, the action initiated by ‘Nay of enforcement of Fundamental Rights under the Fundamental Rights (Enforcement Procedure) Rules 2009 would be incompetent and liable to be struck out.”
See also JACOB V. Commissioner, Ministry of Environment and Mineral Resources, Akwa Ibom State & Anor (2018) LPELR – 45182 (CA) where this Court had reiterated inter alia thus:
“The position of the law has not yet changed. It is that for any claim to qualify as fallen under the fundamental rights, it must be clear that the principal relief claimed is for the enforcement of a fundamental right as known under Chapter IV of the Constitution and not to redress any grievance that is ancillary to the principal relief. When that happens, the claim will be incompetent.” PER GEORGEWILL, J.C.A.
THE POSITION OF LAW IN DETERMINING WHETHER OR NOT A PROCEEDING OR JUDGEMENT OF A COURT WAS IN BREACH OF THE RIGHT TO FAIR HEARING OF A PARTY
My Lords, the fulcrum of issue two for determination in this appeal is the vexed issue of when in law can the proceedings and or judgment of a Court be said to be in breach of the right to fair hearing as constitutionally guaranteed in the determination of the civil rights and obligations of the parties to a case? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276. See also Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595, Ovunwo & Anor V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522, Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 AT p. 593. However, in considering whether or not a proceeding or judgment of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Georgewill JCA. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja, Coram: A. I. Charles J, in Suit No. FHC/ABJ/CS/06/2019: Basem El Ali V. Inspector General of Police & Ors delivered on 28/62019, in which the claims of the 1st Respondent as Applicant were granted against the 2nd and 3rd Respondents and the Appellants as Respondents.
The Notice of Appeal was filed on 27/9/2019 on seven grounds of appeal. See pages 302 – 308 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 31/10/2019. The Parties filed and exchange their brief, which were adopted as their arguments at the hearing of this appeal on 3/3/2022. Whilst, the Appellant was represented by B. Salihu Esq. appearing with D. Idokor Esq., the 1st Respondent was represented by Chief Duro Adeleye SAN, appearing with Joyce K. Adeleye Esq. On their part, the 2nd and 3rd Respondents were represented by R. F. Dimka Esq. The 2nd and 3rd Respondents did not file any brief.
By an Originating Application filed before the Court below, the 1st Respondent as Applicant claimed against the Appellant and the 2nd and 3rd Respondents the following reliefs, to wit:
1. A Declaration that the 3rd Respondent is bound by the terms of its contract with the Applicant’s Company, represented by the Applicant whereby they submitted any dispute calling for resolution in their business relation, material to the complaint that led to this Suit, to the “exclusive jurisdiction” of the Courts of England and Wales”, for the Cassiterite 2018 Purchase Contract, and to Arbitration to be conducted at Paris in French Language, for the Pre-Export Financing Agreement.
2. A Declaration that the issue in dispute between the 3rd Respondent and the Applicant’s Company whether the consignment of materials shipped to the 3rd Respondent by the Applicant’s company, Sodexmines Nigeria Limited was tin or something else or whether the 3rd Respondent received same cannot ground any criminal complaint as to necessitate any Complaint/Petition that the 1st and 2nd Respondents and their men, in exercise of their statutory duties, can look into or investigate.
3. A Declaration that the issue between the 3rd Respondent and the Applicant/his Company, Sodexmines Nigeria Limited is purely contractual and therefore, civil whereby the 1st and 2nd Respondents, their agents, servants and/or privies have no business stepping in even when wrongly invited by either party thereto.
4. A Declaration that by inviting the Applicant’s Company’s workers to the Plateau State Police Command Headquarters at the instance of the 3rd Respondent at Jos for two consecutive days thereby preventing them from working, the Respondents illegally disrupted work at the Applicant’s Company known as Sodexmines Nigeria Limited for which they are jointly and/or severally liable in damages.
5. A Declaration that the 1st and 2nd Respondents had no business inviting, talkless of threatening to arrest and detain the Applicant whenever he steps on Nigerian soil or seek Interpol warrant to arrest him on a complaint by the 3rd Respondent who is very well aware that its relationship with the Applicant’s Company, Sodexmines Nigeria Limited, afor-tiori, the Applicant, is purely contractual and that dispute arising out of the said contract can only be looked into by the Courts in England and Wales or taken to arbitration at Paris, France for final resolution.
6. A Declaration that the 1st and 2nd Respondents shall forthwith stop dabbling into civil matters that has nothing to do with their satisfactory mandate to prevent crime and maintain law and order.
7. An order perpetually restraining the 1st and 2nd Respondents, their agents, servants and/or privies from threatening to arrest or in any way disturb the fundamental rights of the Applicant to his ‘dignity of person, personal liberty’ and Freedom of movement guaranteed by Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 5, 6 and 12 of the African Charter on Human and People’s Rights on the basis of the complaint or petition of the 3rd Respondent on issue relating to the contract between the 3rd Respondent and the Applicant’s Company’, Sodexmines Nigeria Limited.
8. An Order of Perpetual Injunction restraining the 1st and 2nd Respondents from visiting the premises of the Applicant’s Company, Sodexmines Nigeria Limited at Jos to disrupt legitimate working operation or from inviting or in any manner arresting or preventing the Applicant’s workers at his office premises from doing their normal legitimate works unhindered and unmolested. See pages 37 – 39 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the 1st Respondent as Applicant before the Court below, as can be gleaned from the depositions in the affidavit and further affidavits and annexed documentary Exhibits relied upon as in the Record of Appeal, inter alia was that the 1st Respondent’s company, Sodexmines Nigeria Limited entered into two contracts with the Appellant to source for specified solid minerals in Nigeria and to export same to the Appellant through Full Bliss Integrated Logistics Limited. However, by the Cassiterite 2018 Purchase Contract, the applicable law thereto is the Laws of England and Wales and before the Courts of England and Wales. In the Pre-Export Financing Agreement disputes arising were to be resolved arbitration under the Rules of Arbitration of the International Chambers of Commerce.
Sometimes in June/July, 2018, disagreement arose between the 1st Respondent and the Appellant over some consignments of solid minerals made up of tin and columbite delivered to the Appellant by the 1st Respondent which consignments were duly inspected and found to be in conformity with the Appellant’s order before it was shipped to the Appellant at Malaysia. Surprisingly, the Appellant raised apprehension that the consignment was not tin ore as agreed between the parties. which allegation the 1st Respondent flatly denied. While the parties were trying to resolve this issue, the Appellant petitioned the 1st Respondent to the 2nd and 3rd Respondents alleging conspiracy, theft and substitution of the tin ore with Ilmenite, who in turn threatened to arrest the 1st Respondent with Interpol and had on 3/12/2018 invited and on 4/12/2018 interrogated staff of the 1st Respondent at Jos on a matter purely civil in nature. The 1st Respondent therefore approached the Court below to enforce his rights to the dignity of the human person, personal liberty and freedom of movement against the Appellant and the 2nd and 3rd Respondents.
On the other hand, the gist of the case of the Appellant as the 1st Respondent before the Lower Court, as can be gleaned from the depositions in the counter-affidavits and annexed documentary exhibits relied upon as in the Record of Appeal, inter alia was that was since 2016, it has regularly purchased concentrates from the 1st Respondent’s company, Sodexmines Nigeria Limited. In 2018, it purchased 38 Containers of cassiterite, tin ore from the 1st Respondent’s company for USD 9,926,754.00, which containers upon arrival at Malaysia were found not to contain the concentrates of tin ore but contained Ilmenite worth only about USD40, 000. 00. With no reasonable explanation as to this turn of event and reasonably suspecting the commission of an offence, the Appellant submitted a Petition to the 2nd and 3rd Respondents, who in course of investigating the Appellant’s allegations invited some employees of the 1st Respondent’s company as well as some employees of the forwarding agent as persons of interest persons of interest for questioning and all whom were released. The 1st Respondent was by a Whatsapp message also invited for questioning, which invitation he failed to honor but rather proceeded to commence the action against the Appellant and the 2nd and 3rd Respondents before the lower Court.
Upon service, the Appellant filed a Counter-Affidavit. The 2nd and 3rd Respondents also filed their Counter-Affidavit. In reply, the 1st Respondent filed a Further Affidavit. The Appellant filed a 2nd Counter-Affidavit. In response, the 1st Respondent filed a 2nd Further Affidavit. The parties filed and exchanged written addresses, which were adopted on 16/5/2019 and on 28/6/2019, the Lower Court delivered it judgment, in which it granted all the reliefs claimed by the 1st Respondent against the Appellant and the 2nd and 3rd Respondents, hence the appeal. See pages 147 – 166, 167 – 190, 191 – 196, 197 – 203, 204 – 212, 213 – 216, 222 – 228. 281 – 301 and 302 – 308 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, six issues were distilled as arising for determination from the six grounds of appeal, namely:
1. Whether the lower Court had jurisdiction to entertain the action? (Distilled from Ground 1)
2. Whether the lower Court violated the Appellant’s right to fair hearing as guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) when it failed to consider the Appellant’s objection raised in the Appellant’s Written Address that accompanied the Appellant’s 2nd Counter-Affidavit against some paragraphs of the 1st Respondent’s Further Affidavit?
(Distilled from Ground 2)
3. Whether the lower Court was right when it held that Paragraph 7(ix) – 7 (xvii) of the Appellant’s Counter-Affidavit clearly showed the Appellant’s grievance against the 1st Respondent? (Distilled from Ground 3)
4. Whether the lower Court was right when it concluded, in the absence of any evidence, that the Appellant’s complaint in the Petition, Exhibit B to the Appellant’s Counter-Affidavit, was for breach of contract and same must be referred to arbitration in Paris or to the Courts of England and Wales? (Distilled from Grounds 4 and 5)
5. Whether the lower Court was right to have relied in its judgment on an obiter dictum? (Distilled from Ground 6)
6. Whether the lower Court was right to have ignored the clearly distinguishable facts and features of this case from those of EFCC V. Diamond Bank Plc relied in its judgment? (Distilled from Ground 7)
In the Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the lower Court rightly assumed jurisdiction and rightly granted the reliefs sought by the 1st Respondent before it? (Distilled from Grounds 1, 3, 4, 5 and 7)
2. Whether the lower Court afforded all parties fair hearing? (Distilled from Ground 2)
I have taken time to consider the depositions in the affidavits and counter-affidavits of the parties and the documentary Exhibits relied upon by them as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the Lower Court. I am of the firm view that the apt issues arising for determination in this appeal are the six issues as distilled in the Appellant’s brief, a consideration of which, in my view, would invariably involve a consideration of the two issues as distilled in the 1st Respondent’s brief. However, I shall consider Appellant’s issues one together with Respondent’s issue one and resolve them in one fell swoop. Thereafter I shall consider Appellant’s issues two, three, four, five and six together with Respondent’s issue two and resolve them in one fell swoop.
ISSUE ONE
Whether the lower Court had jurisdiction to entertain the 1st Respondent’s suit?
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that in law any proceedings conducted without jurisdiction is a nullity and contended that for an action to be competent under as an application for enforcement of fundamental rights the principal or main claim must be one for the enforcement of fundamental right failing which such an action is incompetent and urged the Court to hold that the principal claims of the 1st Respondent was for breach of contract and therefore, being not a claim for the enforcement of any fundamental right, notwithstanding the ancillary claims bordering on fundamental right, was incompetent and ought to have been struck out and to allow the appeal, set aside the judgment of the lower Court arrived at without jurisdiction and strike out the 1st Respondent’s Suit for being incompetent. Counsel relied on Madukolu V. Nkemdilim (1962) 2 SCNLR 341, Idemudia V. Igbinedion University, Okada (2015) LPELR – 24514(CA), Emeje V. Positive (2008) LPELR- 4102 (CA), Visitor, Imsu & Ors V. Okonkwo & Ors (2014) LPELR – 22458(CA), Bukar V. Hon. Minister, Federal Ministry of Health & Anor (2018) LPELR – 45381(CA), Princess V. Governor of Ogun State & Ors (2018) LPELR – 44986(CA), JACOB V. Commissioner, Ministry of Environment and Mineral Resources, Akwa Ibom State & Anor (2018) LPELR – 45182 (CA).
It was also submitted that from reliefs sought by the 1st Respondent, it is clear that the principal relief is for the enforcement of contract and not for the enforcement of any fundamental right and contended that out of the eight reliefs sought by the 1st Respondent, only the relief 8 relates to the enforcement of fundamental rights and urged the Court to hold that such an action ought not to have been commenced as an action for the enforcement of fundamental right and was therefore, incompetent and robbed the lower Court of its jurisdiction and to allow the appeal, set aside the null judgment of the lower Court and strike out the 1st Respondent’s suit for being incompetent.
It was further submitted that the mere fact that the 1st Respondent had disguised and described his action as that for the enforcement of fundamental rights does not necessarily make it one since it was action whose principal relief relating to contract and venue for determination of disputes arising therefrom does not relate to the enforcement of any fundamental right and contended that had the Lower Court been discerning it would have discovered that the 1st Respondent’s suit brought under the disguise of an application for the enforcement of fundamental rights, of which it was not, was clearly incompetent and urged the Court to so hold and to allow the appeal, set aside the null judgment of the lower Court and strike out the 1st Respondent’s suit for being incompetent. Counsel relied on Peterside V. IMB (1993) 2 N WLR (Pt. 278) 712, Ezomo V. Oyakhire (1985) 1 NWLR (Pt. 2) 195, Galadima V. Tambia (2000) 11 NWLR (Pt. 677) 1 and Buremoh V. Akande (2017) 1 SCNJ 207 p. 249.
RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review, learned counsel for the Respondent had submitted inter alia that from the grounds relied upon by the 1st Respondent the relief one relating to the contract between the 1st Respondent’s Company and the Appellant was merely introductory to show what the Appellant had relied upon to petition the 1st Respondent to the 2nd and 3rd Respondents and contended that all the other reliefs sought were based on the fact that the 2nd and 3rd Respondents had no business dabbling into civil commercial transaction between parties and urged the Court to hold that there was no relief seeking to enforce any contract when the 1st Respondent’s company, Sodexmines Nigeria Limited, was not even a party to the 1st Respondent’s Suit and to dismiss the appeal and affirm the correct judgment of the lower Court as the 1st Respondent was competent before the lower Court and remained competent before this Court. Counsel referred to Section 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria. 1999 (as amended).
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review. learned counsel for the Appellant merely reiterated his earlier submissions but in law the reply brief is not an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the chewy. The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016. See also Olafisoye V. FRN 2004 1 SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).
I shall therefore review albeit briefly, only those submissions that are in response to submissions in the 2nd and 3rd Respondents’ brief, while leaving out all the repetitions. It was submitted that the fact that Sodexmines Nigeria Ltd was not a named party to the 1st Respondent’s Suit does not take away the fact that the Suit action was for the enforcement of the dispute resolution clauses in the agreements between the Appellant and the Respondent’s company, Sodexmines Nigeria Limited and contended that in law companies acts only through its agents, particularly its alter ego whose actions binds the Company and urged the Court to hold that the 1st Respondent being the alter ego of his Company, Sodexmines Nigeria Limited, in reality sued for and on behalf of his said company, a party to the contract with the Appellant and to allow the appeal, set aside the null judgment of the lower Court, in which the 1st Respondent was even in some passages interchanged with his Company Sodexmines Nigeria Limited and to strike out the 1st Respondent’s Suit for being incompetent. Counsel relied on NNSC V. Sabana (1988) NWLR (Pt. 74) 23).
RESOLUTION OF ISSUE ONE
My Lords, at the lower Court, the 1st Respondent as Applicant had commenced an action against the Appellant and the 2nd and 3rd Respondents seeking to enforce his fundamental rights to dignity of the human person, liberty and freedom of movement. In support of the application was a statement in support as well as a 43 paragraphs affidavit sworn to by one Ibrahim Badiko Pashi. There was also a Further Affidavit of 28 paragraphs and a 2nd further affidavit of 21 paragraphs, both of which were deposed to by the 1st Respondent. On 5/3/2019, the 2nd and 3rd Respondents filed a 16 paragraphs Counter-Affidavit deposed to by one Inspector Joshua Yohanna. On 4/3/2019, the Appellant filed a 10 paragraphs Counter-Affidavit deposed to by one Barka Bitrus and on 29/03/2019, the Appellant filed a 9 paragraph further Counter-Affidavit deposed to by one Emmanuelle Farhat.
I have taken time to review and consider the affidavit evidence of the parties and carefully scrutinized the avalanche of documentary Exhibits relied upon by them as showing the terms of the contract and the petition written by the Appellant to the 2nd and 3rd Respondents. I have also reviewed the submission of the parties in the light of the reliefs claimed by the Respondent as Applicant against the Appellant and the 2nd and 3rd Respondents before the lower Court.
Now, by Section 46 (1) and (2) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.”
While, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, it is provided thus:
“Any person who alleges that any of the Fundament Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress.”
It is settled law, and there are no longer any contrary contentions on this, that any proceedings conducted without jurisdiction is a nullity since jurisdiction is the soul and life blood of adjudication. Thus, for an action or cause or mater to be competent before the Court to be heard and determined on the merit, it must have fulfilled all condition precedent for the invocation of and the assumption of jurisdiction by the Court. A failure in any of the condition precedent would result into lack of jurisdiction, which would rob the Court of its competence and any Court which proceeds on the face of an incompetent action or cause or mater before it to hear and determine such an incompetent action or cause or matter on the merit would merely have acted in vain. In law, all such proceedings, no matter how meticulously conducted, and any resultant decision or judgment, no matter how ostensibly sound, are all a nullity. Indeed, nullity upon nullity all is nullity! SeeMadukolu V. Nkemdilim (1962) 2 SCNLR 341. See also Idemudia V. Igbinedion University, Okada (2015) LPELR – 24514(CA), Emeje V. Positive (2008) LPELR- 4102 (CA).
Interestingly, because actions for enforcement of fundamental rights are very special, due to the sacrosanct nature of the rights conferred by Chapter IV of the Constitution of Nigeria 1999 (as amended), which can only be derogated from as permitted by law, the procedure for enforcement of these rights are also somewhat sui generis of their own special kind governed principally by the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009. A procedure which, in law, can only be used for the enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), and other domesticated provisions on international treaties on Human Rights none other. In other words, if a claim is not for or touching on or concerning the securing and or enforcing of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), then such a claim is not one that is capable of being competently commenced under the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009.
It is therefore the law that for an action or cause or matter to be competent under the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 as an application for enforcement of and or securing the enforcement of the fundamental rights, the principal or main claim must be one for the enforcement of fundamental right, failing which such an action is and must be held to be incompetent by the Court. Thus, for an application for the enforcement of fundamental right to be competent, it must be shown that the breach of a Fundamental Right is the main claim. It follows therefore that if the claim or violation of a Fundamental Right is only incidental or ancillary to the main claim or relief sought, it would be incompetent to institute the action as one for the enforcement of a Fundamental Right. See Princess V. Governor of Ogun State & Ors (2018) LPELR – 44986(CA), where this Court had stated inter alia thus:
“Now, the settled law, as decided in plethora of authorities is that, for an Application for the Enforcement of any of the Fundamental Rights entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to be grounded,… In other words, the main or principal relief sought must be shown to be one for the enforcement of a Fundamental Right, otherwise, the action initiated by ‘Nay of enforcement of Fundamental Rights under the Fundamental Rights (Enforcement Procedure) Rules 2009 would be incompetent and liable to be struck out.”
See also JACOB V. Commissioner, Ministry of Environment and Mineral Resources, Akwa Ibom State & Anor (2018) LPELR – 45182 (CA) where this Court had reiterated inter alia thus:
“The position of the law has not yet changed. It is that for any claim to qualify as fallen under the fundamental rights, it must be clear that the principal relief claimed is for the enforcement of a fundamental right as known under Chapter IV of the Constitution and not to redress any grievance that is ancillary to the principal relief. When that happens, the claim will be incompetent.”
Now, having considered the totality of the deposition of the 1st Respondent in all the Affidavits and Further Affidavits relied upon by him in the Suit before the lower Court, it does appear to me that the case of the 1st Respondent is simply that his company, Sodexmines Nigeria Limited entered into two separate contracts with the Appellant for the supply of concentrates of tin ore at Malaysia and that some disputes arose over the quality and or item actually delivered to the Appellant by the 1st Respondent through the forwarding agent nominated by the Appellant. However, the contracts between the parties contained agreements to refer disputes arising therefrom exclusively to the Courts of England and Wales and to international Arbitration respectively but in total disregard of which the Appellant had petitioned the 1st Respondent to the 2nd and 3rd Respondents giving rise to a criminal investigation which the 1st Respondent had by his Suit sought to be stopped before the lower Court.
Yet, so curiously, the very first relief of the 1st Respondent as Applicant in an application for enforcement of his fundamental right was for a declaration that the Appellant is bound by the terms of its contract with the 1st Respondent Company to submit any dispute arising to the exclusive jurisdiction of the Courts of England and Wales, and or to Arbitration to be conducted in Paris.
So, is the principal claim of the 1st Respondent, going by the very first relief put forward by him, one for the enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) as would confer competence on the 1st Respondent’s Suit and jurisdiction on the lower Court to have heard and determined same on the merit under the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 as an application for enforcement of fundamental rights? I think not! Here is an Applicant, the 1st Respondent, who had on his own volition approached the lower Court seeking the very first declaration that the Appellant is bound by the terms of its contract with the 1st Respondent Company to submit any dispute arising therefrom to the exclusive jurisdiction of the Courts of England and Wales, and or to Arbitration to be conducted in Paris. What Section or Sections of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) if I may ask is this principal claim related to and or founded upon to render the 1st Respondent’s Suit one for the enforcement of the fundamental rights of the 1st Respondent pursuant to the provisions of Section 46 (1) and (2) of the Constitution of Nigeria 1999 (as amended) and the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009? None of Section and or Sections of Chapter IV of the Constitution of Nigeria 1999 (as amended) I can think of!
I consider, and indeed it is true, all the other reliefs founded on relief one were at best merely ancillary claims and even though they border on fundamental rights but since the main and or principal relief on which they were all based and drew their strength from is not for the enforcement of any of the fundamental rights of the 1st Respondent as Applicant before the lower Court, the 1st Respondent’s Suit was and remained incompetent, notwithstanding the presence of the ancillary reliefs. See Section 46(1) of the Constitution of Nigeria 1999 (as amended). See also Alhaji Umaru Abba Tukur V. Government of Gongola State(1989) 4 NWLR (Pt. 117) 517, Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA) and Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA).
I find therefore, and as aptly and unassailably submitted by the learned counsel for the Appellant, that the mere fact that the 1st Respondent had disguised and described his action as that for the enforcement of fundamental rights does not necessarily make it one since it was an action whose principal relief relating to the venue for resolution of disputes arising from the contracts entered into between the Appellant and the 1st Respondent’s Company, does not in any way and howsoever relate to the enforcement of any fundamental right of the 1st Respondent. I hold firmly therefore, that from the very first and principal relief sought by the 1st Respondent, which is not for the enforcement of any fundamental rights of the 1st Respondent but one clearly for the determination of the proper venue for the resolution of disputes arising from the contracts entered into between the Appellant and the 1st Respondent’s Company, ought not to have been commenced as an action for the enforcement of fundamental right before the lower Court. The 1st Respondent’s Suit was clearly incompetent and thereby robbed the lower Court of its jurisdiction. See Princess V. Governor of Ogun State & Ors (2018) LPELR – 44986(CA), JACOB V. Commissioner, Ministry of Environment and Mineral Resources, Akwa Ibom State & Anor (2018) LPELR – 45182 (CA), Peterside V. IMB (1993) 2 NWLR (Pt. 278) 712, Ezomo V. Oyakhire (1985) 1 NWLR (Pt. 2) 195, Galadima V. Tambia(2000) 11 NWLR (Pt. 677) 1 and Buremoh V. Akande (2017) 1 SCNJ 207 AT p. 249.
My Lords, I am aware that this issue of crucial and vital jurisdictional importance, was not raised before the lower Court and though it can and has already been brought up before this Court on appeal for the first time as allowed by law, being an issue dealing with the competence of the 1st Respondent’s Suit and the jurisdiction of the lower Court, I have no doubt in my mind that had this issue been raised before the lower Court, it would with a discerning mind have seen through the facade of the disguise of the 1st Respondent’s Suit as an application for the enforcement of fundamental rights, of which it was not, and come to the only inevitable conclusion that the 1st Respondent’s Suit was incompetent. However, in law, every proceeding conducted without jurisdiction is a nullity and thus, liable to be set aside. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341. See also Emeje V. Positive (2008) LPELR – 4102 (CA), Visitor, Imsu & Ors V. Okonkwo & Ors (2014) LPELR – 22458 (CA), Bukar V. Hon. Minister, Federal Ministry of Health & Anor (2018) LPELR – 45381(CA).
In the light of all I have stated and found as above, issue one is hereby resolved in favor of the Appellant against the 1st Respondent. Having therefore resolved issue one for determination in favor of the Appellant against the 1st Respondent, I hold firmly that the 1st Respondent’s Suit is incompetent and is thus liable to be struck out. In law, once the requisite jurisdiction is found to be lacking that is indeed the end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court had per Kayode Eso JSC, (God bless his soul) put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.”
My Lords, with the above inescapable conclusion that the Respondent’s Suit is incompetent, the issue of the perennial battle for supremacy between ‘substantial justice’ and technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance technicality bordering on incompetence of the 1st Respondent’s Suit and consider the other issues in this appeal on the merit or should we give effect to the settled principle of law that nothing worth can ever come out from an incompetent Suit? See African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365 – 366, where this Court had cause to consider the place of substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had per Georgewill JCA, opined inter alia thus:
“My Lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”
I do not think I can improve on the above statement of the law I made and thus, I cannot but bow to it. I frilly subscribe to its truism and so it is with the 1st Respondent’s Suit filed without competence. In law, once a Suit is found to be incompetent the proper order to make is one striking it out. See NPA Plc. V. Lotus Plastics Ltd & Anor (2005) 19 NWLR (Pt. 959) 258. Consequently, the 1st Respondent’s Suit No. FHC/ABJ/CS/06/2019: Basem E1 Ali V. Inspector General of Police & Ors, is hereby struck out for being incompetent.
My Lords, having struck out the 1st Respondent’s Suit for being incompetent that ought to be the end of the matter. It is truly a closed chapter! A Court which has no jurisdiction to hear and determine a Suit would do so only in vain as every proceeding and or decisions emanating therefrom are all nullities upon nullities. I am therefore minded to end this judgment here but then it registered on my mind at once that this Court in which we proudly sit and render justice to all manner of person and cause and matters that are brought before us without fear or favor, ill will or affection is but only the penultimate Court in the land, whose decisions are still subject to appeal to the Apex Court in the land, the Supreme Court which had in several of its decisions enjoined, or should I say admonished, this Court to endeavor to consider all issues placed before it by the parties. It is thus, only in deference to the above that I shall proceed to consider issue two and resolve it one way or the other according to law.
ISSUE TWO
Whether the lower Court violated the Appellant’s right to fair hearing as guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)?
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on issue two, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that in law fair hearing is a fundamental right of every litigant and goes to the root of every proceeding and contended that a breach of a party’s right to fair hearing renders the entire proceedings a nullity and urged the Court to hold that the lower Court breached the Appellant’s fundamental right to fair hearing when it refused to consider and determine its objection to the competence of some of the paragraphs in the 2nd Further Affidavit of the 1st Respondent and to allow the appeal and set aside the null judgment of the lower Court reached in breach of the right to fair hearing of the Appellant. Counsel referred to Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on Yakubu V. Governor of Kogi State (1995) 8 NWLR (Pt. 414) 386, Eze V. UNIJOS (2017) LPELR – 42345(SC) and Ejeka V. State (2003) 7 NWLR (Pt. 819) 408.
It was also submitted that the 1st Respondent had in its reply on points of law raised a Preliminary Objection against some paragraphs of the Appellant’s Counter-Affidavit, which objection the lower Court had duly considered and dismissed in the judgment appealed against but contended that the same Court failed to consider and determine the preliminary objection raised by the Appellant against some of the paragraphs in the 1st Respondent’s Further Affidavit by virtue of Section 115 (1) and (2) of the Evidence Act 2011 and urged the Court to hold that by its failure the lower Court had breached the right of the Appellant to be heard on its preliminary objection and thereby rendered the entire judgment a nullity having been reached in breach of the sacrosanct provisions of the Constitution guaranteeing the right of the Appellant to fair hearing and to allow the appeal and set aside the null judgment of the lower Court. Counsel relied onShekete V. NAF(2007) 14 (Pt. 1053) 159 p. 190 and Ukwuyok V. Ogbulu (2010) 5 NWLR (Pt. 1187) 316 AT P. 346.
RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on issue two, which I have taken time to review, learned counsel for the Respondent had submitted inter alia that assuming but not conceding that the lower Court failed to rule on the objection of the Appellant to some of the paragraphs in the 1st Respondent’s Further Affidavit, the real question is whether such a failure had in any way affected its decision and or in which wav has such a failure occasioned a miscarriage of justice to the Appellant and contended in answer that such an alleged failure did not affect the decision of the lower Court in that the Appellant has not alleged that the lower Court relied on any of the allegedly offending paragraphs of the 1st Respondent’s Further Affidavit to reach its decision and urged the Court to hold that the failure to was therefore, inconsequential even as the issue of fair hearing was merely academic and unrelated in any way to the decision of the lower Court and to dismiss the appeal for lacking in merit.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review, learned counsel for the Appellant had as he did in his reply under issue once again merely repeated and reiterated his earlier submissions, all of which find brought nothing different from his earlier submissions on the issues as already joined in the submissions of the parties under issue two, save the citing of some new decisions, to wit: Odebunmi & Anor V. Oladimeji & Ors (2012) LPELR – 15419 (CA), Professor Olajide Nwachukwu & Ors V. Dimgba & Ors (2009) LPELR – 8414(CA) and Nyawen V. Badon & Ors (2016) LPELR – 40825 (CA).
However, since a reply brief is neither a list of additional authorities nor an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry, all the repetitive submissions in the Appellant’s reply brief are hereby discountenanced. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016. See also Olafisoye V. FRN 2004 1SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61 and Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).
RESOLUTION OF ISSUE TWO
My Lords, the fulcrum of issue two for determination in this appeal is the vexed issue of when in law can the proceedings and or judgment of a Court be said to be in breach of the right to fair hearing as constitutionally guaranteed in the determination of the civil rights and obligations of the parties to a case? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276. See also Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595, Ovunwo & Anor V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522, Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 AT p. 593.
However, in considering whether or not a proceeding or judgment of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Georgewill JCA.
Thus, the term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically become vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case or in the judgment of the Court. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu(1987) 2 NWLR (Pt. 58) 587, Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co. Ltd (1972) All NLR 413 and Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.
The right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit. The issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adegbesin V. The State (2014) 9 NWLR (Pt. 1413) 609 Pp. 641 – 642. See also Uzodinma V. Izunaso (No. 2) (2011) 17 NVVLR (Pt. 1275) 30, Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 AT p. 531 and Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 AT p. 40.
Now, on the one hand, the 1st Respondent had contended that some paragraphs of the Appellant’s Counter-Affidavit filed on 3/4/2019 were hearsay and offend Sections 115(2) and 117(1)(c) of the Evidence Act 2011 and should therefore be struck out. The parties in their written addresses joined issues on this objection and in its judgment, the lower Court had on this objection held inter alia thus:
“I have carefully examined paragraphs of the 3rd Respondent’s Counter-Affidavit and it clearly shows that there was a sufficient compliance with the provisions of Section 117(1) (c) of the Evidence Act 2011 …Again, the law is trite that a deponent of an affidavit can get an information from another, however such deponent must state the name, time and place where such information was gotten. See Section 115(4) of the Evidence Act, 2011…. These paragraphs clearly complied with the provision of the Evidence Act and this cannot amount to hearsay or the information so gotten a conclusion. In this circumstance, the Counter-Affidavit of the 3rd Respondent is competent. I so hold.” See pages 289 – 290 of the Record of Appeal.
However, on the other hand, the Appellant as 3rd Respondent before the lower Court had in its written address in support of its Counter-Affidavit objected to the competence of some of the paragraphs of the Respondent’s Further Affidavit and contended inter alia thus:
“…It is respectfully submitted that the contents of paragraphs 11, 13, 18, 20, 25 and 26 are not statements of fact. They are conclusions which have no place in an affidavit… Furthermore, we submit that paragraphs 8, 9, 12, 14, 16, 22, 23 and 26 should be expunged track out as same are legal arguments which have no place in an affidavit…On the strength of the foregoing, we respectfully urge this Court to discountenance and strike out the aforementioned paragraphs of the Applicant’s Further affidavit. which… therefore contravene Section 115 (1) and (2) of the Evidence Act 2011.” See pages 200 – 203 of the Record of Appeal.
My Lords, regrettably, having combed through the length and breadth of and the entirety of the judgment of the Lower Court, I am unable to see and or find where it even merely referred to and or considered and resolved this very grave objection rooted in the succinct provisions of Section 115 (1) and (2) of the Evidence Act 2011 in the light of the settled position of the law that where an affidavit offends the provisions of, amongst others. Section 115 (1) and (2) of the Evidence Act 2011, same must be struck out. See Isedonmwen V. Union Bank Plc. (2011) LPELR 4020(CA), where this Court per Okoro JCA, (as he then was but now JSC) had stated inter alia thus:
“Affidavit evidence must as a general rule deal with facts and avoid matters of inference or conclusion which fall within the province of the Court, or objection, prayer or legal argument which must be left to counsel. If, therefore, affidavit evidence is in the form of conclusion, inference, legal argument, prayer or objection, it raises no fact which needs to be controverted but is simply regarded as extraneous to the determination of factual disputes.”
See also Josien Holdings Limited V Lornamead Limited & Anor (1995) 1 NWLR (Pt. 317) 254; AG. Anambra State V. AG. Federation (2007) 12 NWLR (Pt. 1047) 1.
Curiously, whilst the lower Court found it convenient to consider and resolve the objection of the 1st Respondent against the competence of paragraphs of the counter-affidavit of the Appellant as objected to by the 1st Respondent and had arrived at the finding that those paragraphs were competent, the same lower Court did not even as much as spare a thought to the objection by the Appellant to the competence of some of the paragraphs of the 1st Respondent Further affidavit as required of a Court which is under a duty to treat and afford both parties equal opportunities to have issues submitted by them to be considered and determined by the Court, but why?
My Lords, it is now settled law that a Court must consider and pronounce on all issues arising and properly submitted before it for determination by the contending parties. So, did the Lower Court in its judgment consider these very pertinent objections challenging some of the depositions in the further affidavit of the 1st Respondent? The answer is an overwhelming No! The lower Court neither even referred to it nor considered and resolved it, notwithstanding whether it was meritorious or unmeritorious. Indeed, this is very wrong and unfair. It exhibits a lack of equal treatment of the parties, whilst affording the 1st Respondent as the opportunity to have his objection considered and resolved but denying the Appellant the same opportunity of having its objection also considered and resolved one way or the other.
It is therefore true as alleged and proved by the Appellant, and I so find as fact that the lower Court neither considered nor determined the objection by the Appellant to the competence of paragraphs 8, 9, 11, 12, 13, 14, 16, 18, 20, 22, 23, 25 and 26 of the 1st Respondent’s Further Affidavit as dutifully required of it as an impartial arbiter and thereby breached the right of the Appellant to fair hearing as guaranteed to it by the organic law of the land, the Constitution. See Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides thus:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
In the determination of matters and or issues put forward before it by the parties, a Court of law must hold the balance on an even keel and must afford both parties equal opportunity to be heard and have their matters determined according to law. In the litigation battle no one party, no matter his status or pedigree, is higher than the other as all are to afforded equal opportunity to be heard and have their matters and or issues determined impartially. It is thus wrong for the lower Court to consider and resolve the objection to the competence of some of paragraphs of the Appellant’s Counter-Affidavit as raised by the 1st Respondent, whilst failing to give any thought to and ending up not determining similar objection of the Appellant to the competence of some of the paragraphs of the 1st Respondent’s Further – Affidavit. In law, once the right to fair hearing is breached, the issue of the merit or otherwise or even the correctness and soundness of the judgment pales into insignificance in the resultant nullity of the judgment reached in breach of a party’s right to fair hearing. See Ejeka V. State (2003) 7 NWLR (Pt. 819) 408, where the Supreme Court per Niki Tobi JSC, (God bless his soul) had stated inter alia thus:
“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing.”
See also Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276, Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595, Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144, Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Georgewill JCA, Shekete V. NAF (2007) 14 NWLR (Pt. 1053) 159 AT p. 190; Ukwuyok V. Ogbulu (2010) 5 NWLR (Pt. 1187) 316 AT p.346.
It is thus, now firmly settled in law that a deliberate failure by a Court to consider all pertinent and relevant issues arising from and submitted by a party would readily and justifiably be characterized as amounting to a failure to perform its statutory duty and a breach of the right to fair hearing of the party. So it is with the failure of the lower Court to consider and resolve the objection of the Appellant to the competence of some of the paragraphs in the Further Affidavit of the 1st Respondent. See AG Federation V. Nse (2016) LPELR – 40518 (CA). See also Adebayo V. AG of Ogun State (2008) 7 NWLR (Pt. 1055) 201, Atanda V. Ajani (1989) 13 NWLR (Pt. 111) 511 p. 339, Okonji V. Njokanma (1991) 7 NWLR (Pt. 202) 131 AT Pp. 150 – Katto V. CBN (1991) 9 NWLR (Pt. 214) 126 p. 49.
In the light of all I have stated and found as above, issue two is hereby resolved in favor of the Appellant against the 1st Respondent.
ISSUES THREE, FOUR, FIVE AND SIX TAKEN TOGETHER
My Lords, I have reviewed the submissions of the parties on issues three, four, five and six. I have already held under issue one that the 1st Respondent’s suit was incompetent and struck out the same. I have also already held that the judgment of the lower Court was a nullity having been reached in breach of the Appellant’s constitutionally guaranteed right to fair hearing. In law, jurisdiction is the life wire and the very soul of every cause or matter before the Coulis. A Court is therefore competent only and only when all the conditions precedent to the exercise of the Court’s jurisdiction have been fulfilled. In Petro Jessica Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR 244) 693. The Supreme Court puts it so succinctly thus:
“Jurisdiction is the very basis on which any Tribunal tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity.”
See also Madukolu V. Nkemdilim (1062) All NLR 581 and Onuorah V. Kaduna PRC Ltd (2005) All FWLR (Pt. 256) 1.
Having therefore firmly held that the 1st Respondent’s Suit was incompetent and thereby robbed the lower Court of its competence and jurisdiction, issues three, four, five and six dealing with the merit or otherwise of the claims of the 1st Respondents have become merely academic. Indeed, the Courts are loath to and do not saddle themselves with the consideration of matters which had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of jurisdiction of the Courts over matters which are no longer live would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.”
Thus, for a Court to continue to exercise its jurisdiction over matters pending before it, the matters must have in them issues which remain live for determination and of utilitarian value to one or more of the parties. See Uba Plc V. Dana Drugs Ltd (2018) LPELR – 44103 (CA), per Georgewill JCA. See also Action Congress v INEC (2007) LPELR – 8988 (CA); Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497; Adeogun V. Fashogbon (2008) 17 NWLR (Part 1115) 149 AT p. 180.
Indeed, issues three, four, five and six for determination have become spent and I refuse to be drawn into the determination of issues which are no longer live and with no utilitarian value except for its academic illumination and entertainment which a consideration of issues three, four, five and six would entail. Consequently, issues three, four, five and six for determination are hereby discountenanced. In Global Fleet Oil & Gas Ltd V. Allen (2021) LPELR – 54583(CA), this Court had per Georgewill JCA, had cause to reiterate inter alia thus:
“Courts are loath to spend their precious and scarce judicial time considering and resolving merely academic questions in its judgment, which are better left for scholars in the Faculties of Law in our Universities to grapple with. An issue becomes merely academic once it is no longer of any utilitarian value to the determination of the appeal one way or the other.”
On the whole therefore, having resolved issues one and two for determination in favour of the Appellant against the 1st Respondent and having discountenanced issues three, four, five and six for determination as being no longer live issues. I hold that the appeal has merit and ought to be allowed. Accordingly, the appeal is hereby allowed.
In the result, the judgment of the Federal High Court, Abuja, Coram: A. I. Chikere J, in Suit No. FHC/ABJ/CS/06/2019: Basem El Ali V. Inspector General of Police & Ors delivered on 28/62019, in which the claims of the 1st Respondent as Applicant were granted against the 2nd and 3rd Respondents and the Appellants as Respondents, is hereby set aside.
In its stead, the 1st Respondent’s Suit No. FHC/ABJ/CS/06/2019: Basem El Ali V. Inspector General of Police & Ors is hereby struck out for being incompetent.
There shall be no order as to cost.
PETER OLABISI IGE, J.C.A.: I read in advance the leading judgment of my learned brother, GEORGEWILL, JCA and I agree that issues 1 and 2 sufficiently addressed the live issues in the appeal. I am also of the view that the appeal has merit and should be allowed.
I too allow the appeal and set aside the judgment of the lower Court.
I also strike out the suit of 1st Respondent for being incompetent.
BATURE ISAH GAFAI, J.C.A.: I have had the advantage of reading before now the draft of the judgment just delivered by my learned brother, Sir Biobele Abraham Georgewill, JCA.
I agree entirely with the profound reasonings expressed therein and the conclusions reached thereby. I adopt those reasonings as mine, by which I too allow this appeal and in consequence set aside the judgment of the trial Court for being nothing but a null exercise.
Appearances:
B. Salihu, Esq with him D. Idokor Esq. For Appellant(s)
Chief Duro Adeleye SAN, with him Joyce K. Adeleye Esq., for the 1st Respondent
R. F. Dimka Esq., for the 2nd and 3rd Respondents For Respondent(s)
