CHIJIOKE v. COBHAM & ANOR (2022)

CHIJIOKE v. COBHAM & ANOR

(2022)LCN/16267(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, June 24, 2022

CA/C/24/2017

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

UGOCHUKWU CHIJIOKE APPELANT(S)

And

1. DR. (MRS.) EKANEM COBHAM 2. HIS WORSHIP E.E. ITAM (MRS) CHIEF MAGISTRATE COURT 2, CALABAR RESPONDENT(S)

RATIO:

JUDGES OF THE HIGH COURT OF A STATE HAS EQUAL POWERS ARE OF COORDINATE JURISDICTION

The provisions of Section 270 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) establishes a High Court for each state. Furthermore, Section 273 thereof, provides that for the purpose of exercising any jurisdiction conferred upon it under the constitution or any law, a High Court of a state shall be duly constituted if it consists of atleast one judge of that Court. Instructively, judges of the High Court of a state has equal powers and are of coordinate jurisdiction. Conversely, a Court of coordinate jurisdiction has no constitutional powers to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. Thus, even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court. See GANI V A.G. LAGOS STATE NO.1 (1989) 3 NWLR (prt.112) 707 at 274 and UBA & ANOR V AUTA (2021) LPELR – 54907 (CA). MUHAMMED LAWAL SHUAIBU, J.C.A.

THE APPLICATIONS FOR OBTAINING AN ORDER OF CERTIORARI

To obtain an order of certiorari, two applications are necessary. The first is an application for leave of the Court to apply for the order which is made exparte to the judge and must be supported by a statement setting out the names and description of the applicant and the relief and grounds on which it is sought and an affidavit verifying the facts relied on. The second application is for the order of certiorari itself and it is made on notice to the other parties after the leave sought in the first has been granted. See CAMEROON OFFSHORE SYSTEM (NIG) LTD V AKWA IBOM ENVIRONMENTAL PROTECTION & WASTE MANAGEMENT AGENCY & ANOR (2021) LPELR – 41490 (CA). MUHAMMED LAWAL SHUAIBU, J.C.A.

A VALID DECISION OF A COURT MUST BE BASED ON ISSUES BEFORE IT

The law is firmly settled that a valid decision of a Court of trial or appellate must be based on issues submitted to it by the parties and canvassed before it. If the Court is of the view that the issue before it is not capable of justly settling the dispute between the parties, it can reframe the issue from the facts and/or the grounds of appeal. In effect, the Court is limited in its decision making to the issues before it, and any pronouncement outside the issues cannot be justified in a Court of law or is regarded as obiter dictum. See E.F.C.C. V CHIDOLUE (2019)2 NWLR (prt.1657) 442. MUHAMMED LAWAL SHUAIBU, J.C.A.

THE COURT AND THE PARTIES ARE BOUND BY THE RECORDS

In JIYA V STATE (2020) 13 NWLR (prt.1740) 159 at 188, the apex Court has re-affirmed the already settled position that the Court and parties are bound by the records. Thus, the contents of a record are presumed correct unless the contrary is proved. In the instant case, the appellant did not challenge the record but rather wiping away sentiments that lacks functional support or basis. The 2nd issue is also resolved against the appellant. MUHAMMED LAWAL SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Cross River State sitting at Calabar in Suit NO HC/MSC.286/2014, delivered by Hon. Justice Eyo E. Ita on 15th December, 2016 dismissing the application for an order of certiorari and restoring the earlier order granted by the 2nd respondent in Suit NO. MC/RT/1216/2014 and the execution levied pursuant thereto.

Miffed by the said decision, appellant filed this appeal through a notice of appeal of 29/12/2016. The notice of appeal contains eight grounds of appeal.

Parties filed and exchanged their respective briefs in compliance with the rules of this Court. At the hearing of the appeal on 17/5/2022, Chief Onyebueke, F. O. adopted and relied on the appellant’s brief filed on 13/2/2017 in urging the Court to allow the appeal. Godwin U. Oyong, Esq., adopted and relied on the 1st respondent’s brief filed on 14/5/2019 in urging the Court to dismiss the appeal. The 2nd respondent did not file any process and will therefore not be heard on this appeal.

In the appellant’s brief, the following four issues were nominated for consideration in this appeal:-
1. Whether the learned trial judge in consideration of the motion filed on the 05/12/2014 which was earlier considered by his predecessor and disposed of did not amount to sitting on appeal against the decision of his learned brother made on 05/12/2014 particularly there was no motion on notice filed on 05/12/20-14 but on 8/12/2014 and amended on 10/11/2016 which means the learned trial judge considered a none existing motion.
2. Whether the proceedings and rulings of the learned trial judge did not violate the right of fair hearing of the appellant.
3. Whether the appellant duly challenged the purported service of the processes of the Magistrate Court on him as required by law and what is the effect of the failure of the lower Court to consider the affidavit challenging (sic) was not a breach of the right of the appellant.
4. Whether the lower Court could have come to the conclusion that the appellant did not give reason for paying rent to Captain Akabom instead of the 1st respondent if he had considered the counter affidavit of 28/09/2015 filed by the appellant on pages 79-97 of the record.

On behalf of the 1st respondent, the following four issues are also nominated for consideration of this appeal. These are:-
1. Whether the learned trial judge could be said to have sat on appeal against the ruling or decision of his learned predecessor granting leave for certiorari and orders which carried a substantive and conclusive effect in suit No HC/MSC/286/2014 in an Exparte Application brought by the appellant on 5/12/2014, which in a way set aside a valid judgment of the Chief Magistrate Court 2, Calabar, delivered on 10/11/2014, when the learned trial judge dismissed the suit and discharged the Null Orders.
2. Whether the proceedings and rulings of the learned trial judge which gave a holistic consideration of the case in HC/MSC.286/2014, filed by the appellant even in the face of 1st respondent’s motion of 22/12/2014 objecting to the null Exparte orders granting leave and setting aside a valid judgment of a competent Court, did violate the right to fair hearing of the appellant.
3. Whether the appellant duly challenged the service of the processes of the Magistrate Court on him as required by the law and in what manner and what is the effect of the failure of the lower Court to consider (which was not true) the forged and dubious affidavit challenging record which did not relate Suit NO.HC/MSC.286/2014 filed on 5/12/2014 as it had no suit No of the appellant and the commissioner for oath’s signature were faint.
4. Whether the lower Court could have come to the conclusion that the appellant did not give reason for paying rent to Captain Akabom instead of the 1st respondent if he had considered the counter affidavit of 28/09/2015 filed by the appellant on page 79-97) of the record.

Upon careful perusal of the two sets of issues same are seemingly the same both in form and clumsiness. It is therefore pertinent to state at this juncture that the issues for determination in any appeal must have a direct bearing on the grounds of appeal. They are to project succinctly and clearly the substance of the complaints contained in the grounds of appeal requiring resolution. Counsel for the respective parties did not in my view sufficiently indicate, as required by diligent practice of brief writing in the appellate Court from the grounds of appeal in which the four issues were distilled. As stated earlier that issues distilled from grounds of appeal should be tailored precisely to the points of complaint contained in the grounds so as to enable the Court identify them with ease for determination of real controversy between the parties to the appeal. Issues formulated in the two briefs for both the appellant and the 1st respondent are verbose and which tend to obscure and confuse the crucial points in the grounds of appeal which call for decision by this Court. Furthermore, repeating the terms of a ground of an appeal as arising from the ground for determination does not also meet the requirements of succinct and concise formulation of issues for determination in the appellate Court. See EKONG V ISHIE COMMUNITY BANK (NIG) LTD & ANOR (2014) LPELR – 2296 (CA).

Inspite of the verbose and inelegant nature of the two sets of formulations above, a discrete look at the appellant’s grounds of appeal vis-à-vis the unwieldy issues, same can conveniently be trimmed and condensed into two issues, concisely put thus:
1. Whether the learned trial judge has overreached an earlier decision of a Court of concurrent jurisdiction in Suit No> HC/MISC.286/2014.
2. Whether the learner trial judge had properly and adequately evaluated the evidence presented by the parties before dismissing the appellants’ application for certiorari order.

Arguing the 1st issue as paraphrased above, counsel for the appellant submit that the learned trial judge sat on appeal over the already concluded proceedings which the reliefs therein were granted by a Court of concurrent jurisdiction. He referred to the cases of AGHENGHEN & ORS V CHIEF WAGHOREGHOR (2002) FWLR (prt.84) 200 at 209 and NPASF & ANOR V FASEL SERVICES LTD & ORS (2002) FWLR (prt.97) 719 at 742 to the effect that Court of concurrent jurisdiction are incompetent to sit on appeal or review the decision of Court of coordinate jurisdiction.

He submit further that the decision of the lower Court was not based on the issues canvassed by the parties and that Courts are forbidden from giving orders or judgment on issues not canvassed before them, citing and relying on the decision in the case of FASUBA & ORS V MRS. ADUMASHI (2002) FWLR (prt. 119) 1526 at 1536. That failure to consider the application that was canvassed was not only a dereliction of the Court’s sacret duty to consider all the applications pending before it, it also tantamount to breach of the appellant’s right to fair hearing relying on LABOUR PARTY V BELLO (2017)2 NWLR (prt. 1548) 145.

On the 2nd issue, counsel submit that having deposed to an affidavit denying that no process was pasted on the wall of the appellant’s building, the lower was duty bound to consider such affidavit evidence and had the trial judge considered same, he would have come to a different conclusion. In further argument, he submit that failure on the part of the respondents to challenge the averments denying service amounts to an admission relying on the authority in DARAMOLA V A.G., ONDO STATE (2002) 7 NWLR (prt.665) 440 at 446.

Responding to the above, counsel to the 1st respondent submit that the findings/conclusion of the trial judge were predicated on the facts and issues canvassed by the parties. To underscore the point, counsel referred to the entire record to contend that the processes been reviewed and assessed by the trial judge were the 1st respondent’s motion of 22/12/2014 and that of the appellant of 9/11/2016 wherein same were considered together. And nothing in the record depicite any attempt by the trial judge to review the decision of his learned brother.

He submit that the complaint of the appellant pertains only to form and does not affect the substance or merit of the case and the lower Court’s decision in dismissing the appellant’s application neither amount to sitting on appeal nor constituted a miscarriage of justice.

Counsel finally submit on the 1st issue that the appellant has failed to show the exact issues in the motion of 9/11/2016 which the learned trial judge ignored and that there was no existing motion on notice in Suit No. HC/MSC.286/2014 on 10/11/2016 but a motion on notice for the amendment of the process filed on 8/12/2014. Thus, the trial Court did not ignore or overlook any motion in existence on 10/11/2016.

As regards the 2nd issue, learned counsel reiterated his earlier argument that the only motion in contention was the 1st respondent’s motion of 22/12/2014 which raised the issue of abuse of Court process. He submit that a motion filed with an untenable affidavit is incompetent and must be struck out. Therefore, the issue of filing no counter-affidavit to an incompetent processes is of no moment relying on Order 21, Rule 1 of the High Court of Cross River State, 2008 which states that every motion shall be supported by an affidavit. He also referred to paragraph 14 (xii) of the 1st respondent’s Further affidavit of 2019/2016 which clearly controverted the issue of non-service.

He submit further that a proper denial of an affidavit of service should be a counter-affidavit denying service and giving a truthful rebuttal of a deposition in the affidavit of service. Thus, a challenge to record of proceedings is not the means to challenge service of the process of a Court of law. He referred to FATOKUN V SOMADE & ANOR (2003)1 NWLR (prt. 802) 431 at 438.

RESOLUTION
The real issues in contention on the 1st issue is that the decision on appeal overreached an earlier decision by a Court of coordinate jurisdiction. And also the said decision is at variance with the issues raised and canvassed by the parties before the lower Court.
The provisions of Section 270 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) establishes a High Court for each state. Furthermore, Section 273 thereof, provides that for the purpose of exercising any jurisdiction conferred upon it under the constitution or any law, a High Court of a state shall be duly constituted if it consists of atleast one judge of that Court. Instructively, judges of the High Court of a state has equal powers and are of coordinate jurisdiction. Conversely, a Court of coordinate jurisdiction has no constitutional powers to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. Thus, even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court. See GANI V A.G. LAGOS STATE NO.1 (1989) 3 NWLR (prt.112) 707 at 274 and UBA & ANOR V AUTA (2021) LPELR – 54907 (CA).

The question here is, did the learned trial judge sit on appeal or overreach an earlier decision of his brother judge? Before exploring for an answer, let me state that neither the Court of Appeal Rules, 2021 nor Court of Appeal Act 2004 gave precise definition to the word appeal. Order 5 of the Court of Appeal Rules 2021 interpreted appeal to mean the filing of notices of appeal, and includes an application for leave to appeal. In the same vein, Section 30 of the Court of Appeal Act interpreted appeal to include an application for leave to appeal. Be that as it may, an appeal in the legal parlance means an application for the removal of a suit from an inferior to a superior Court for re-examination or review.

And to overreach is simply to do something beyond an appropriate limit.

In the context of above, can it be right to say that the learned trial judge had in the decision (now on appeal) reviewed or overreached the earlier decision delivered by his learned brother, B.T. Ebuta, J. on 5/12/2014? I do not think so, given the antecedent of the case right from the initial stage when it commenced at the Chief Magistrate Court in Suit No. MC/RT/1216/2014 presided over by the 2nd respondent.

For the avoidance of any doubt, the judgment of the 2nd respondent as contained on pages 65-66 of the record was to the effect that the appellant shall give vacant possession of the premises of the 1st respondent as well as the payment of arrears of rent and mesne profit, amongst others. The appellant’s immediate reaction as stated elsewhere in this judgment was applying for an order of certiorari to quash the order of the Chief Magistrate Court aforesaid in Suit No. HC/MS.286/2014. Consequently, the order of the Chief Magistrate was interimly set aside and the motion on notice for an Order of certiorari was set down for hearing to 20th December, 2014 by B. T. Ebuta, J. as shown in the drawn order on page 39 of the record. Then on 22/12/2014, 1st respondent filed motion on notice for striking out Suit No. HC/MSC.286/2014 on grounds of abuse of Court processes.

The proceedings of 6/12/2016 as located on pages 189-190 of the record, clearly shows that arguments were adopted in respect of the 1st respondent’s motion on notice of 22/12/2014 and appellant’s motion on notice for certiorari order purportedly filed on 5/12/2014.

It is pertinent to note at this juncture that arguments on the above processes were made before Justice Eyo E. Ita as Justice B. T. Ebuta did not hear the matter any further after granting the Exparte order and entering the matter for hearing to the 20/12/2014. In his ruling on the above, learned trial judge on page 195 of the record found as follows:-
“Having thus reproduced the entire proceedings before the Chief Magistrate’s Court, I do not see that the Magistrate’s Court lacked jurisdiction to entertain the action as it was strictly a claim for possession, arrears of rents and mesne profits. The Chief Magistrate’s Court has jurisdiction to entertain all those claims.
I cannot find any error of law on the fact of the records. I do not see any fraud or collusion in the proceedings leading to the judgment.”

What was therefore filed before B. T. Ebuta, J. and what he granted was an application Exparte seeking leave to apply for an order of certiorari to quash the order of the Magistrates Court. He granted the said order and entered the hearing of the motion on notice to 20/12/2014 which was subsequently heard and disposed of by Eyo E. Ita, J. and which decision is the subject matter of this appeal.

In the instant case, the two applications were heard by different judges and while the first application was heard by B. J. Ebuta, J granting leave to the appellant to apply for the certiorari Order, the second application for the order of certiorari itself was heard and determined by Eyo E. Ita, J. The two applications though conjunctive, but there are by no means the same. In granting the latter, the learned trial judge was neither sitting on appeal on the previous decision nor overreaching same. It is to say the lest, an improvement on the previous decision as permitted by Order 40 Rules 3 and 9 of the High Court (Civil Procedure) Rules of Cross River State, 2008.

The next germane issue is whether the decision of the learned trial judge was outside the issues submitted and canvassed by the parties. The law is firmly settled that a valid decision of a Court of trial or appellate must be based on issues submitted to it by the parties and canvassed before it. If the Court is of the view that the issue before it is not capable of justly settling the dispute between the parties, it can reframe the issue from the facts and/or the grounds of appeal. In effect, the Court is limited in its decision making to the issues before it, and any pronouncement outside the issues cannot be justified in a Court of law or is regarded as obiter dictum. See E.F.C.C. V CHIDOLUE (2019)2 NWLR (prt.1657) 442.

In the instant case, the issues submitted and canvassed by the parties at the lower Court were the 1st respondent’s motion on notice to strike out Suit No. HC/MS.286/2014 and the appellant’s motion on notice for certiorari order to quash the decision and order granted by the 2nd respondent in Suit No. MC/RT/1216/2014. Thus, the decision of the lower was limited and confined to the issues submitted and canvassed before it. Also on the argument of the appellant that the trial judge referred to the motion filed on 5/12/2014 which was earlier disposed of instead of the one filed on 10/11/2016, same is immaterial as the appellant has not shown to have been misled and it does not occasioned any miscarriage of justice. I am therefore of the view that the appellant having been afforded an opportunity to ventilate his grievances cannot complain of denial of fair hearing.

I need to emphasis that the crucial determinant of whether or not a party has been denied fair hearing is whether the parties were afforded an equal opportunity to present their cases before judgment is delivered. The 1st issue is therefore resolved against the appellant.

The appellant’s complaint on the 2nd issue deal with the failure of the trial Court to consider his affidavit evidence denying service of processes culminating in the decision of the 2nd respondent. It is an undisputed facts that non-service of all Court’s processes robs the Court of jurisdiction to hear and determine a matter and any order made thereby against an adverse party who should be served with the hearing notice becomes null and void. See ANDONG V ASUQUO (2020) 11 NWLR (prt.1736) 580. The appellant here is not complaining of non-service of Court’s processes but rather the failure of the lower Court to consider the affidavit denying such service. Contrariwise, the learned trial judge has made a definite findings on page 195 of the record thus:
“There are four (4) affidavits of service attached to the 1st respondent’s motion on notice filed on 22/12/2014 (Exhibits C2, C3, C4 and C4A). Despite those services on the applicant, applicant refused to go to Court and present his case if he had any. On 5/11/2014, the 1st respondent went into the witness box and gave evidence on oath in proof of her claims against the applicant. On 10/11/2016, the Court entered judgment in her favour. That was not a default judgment but one on its merits.”
Learned trial judge continued on page 196 that:-
“On Exhibits C2, C3, C4 and C4A the bailiffs stated the times he did the pasting, what Court process he pasted and that he pasted them all on a door at No.10 MCC/Anansa Road, Calabar. Those are prima facie proof of facts deposed to in those affidavits. There was no meaningful denial of the facts in those affidavits in all the affidavits filed in this matter, beyond the applicant statement that he was not served with any process leading to the judgment and the execution of the judgment.”

In the light of the above, it is preposterous for the appellant to contend, as he did that the learned trial judge has not considered his affidavit denying service of Court’s processes. I endorse the articulated reasoning of the learned trial judge that a proper denial of an affidavit of service should be a counter-affidavit denying service and giving a truthful rebuttal of the deposition in the affidavit of service.

In the result, the appeal is clearly bereft of any substance. It is hereby dismissed with costs which I assessed at N100,000.00 against the appellant and favour of the 1st respondent.

RAPHAEL CHIKWE AGBO, J.C.A.: I have read in advance the judgment delivered by my learned brother, Shuaibu, JCA and I agree with both the reasoning and conclusion that the appeal be dismissed. I abide by the consequential orders contained in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: I was privileged to read before today the judgment prepared by my learned brother. M. L. Shuaibu, JCA. I agree with the reasoning and conclusion reached to the effect that this appeal lacks merit and deserves a dismissal. I too dismiss the appeal. I abide by the order of costs made in the lead judgment.

Appearances:

Chief O. Onyebueke, Esq. For Appellant(s)

G. U. Oyong, Esq. – for 1st Respondent

Ikoi E. Ikonna, Dir. Civil Appeal, CRS – for 2nd Respondent. For Respondent(s)