DR. SHIRISH TANKSALE v. RUBEE MEDICAL CENTRE LIMITED
(2013)LCN/6412(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of July, 2013
CA/I/220/2010
JUSTICES
M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
DR. SHIRISH TANKSALE Appellant(s)
AND
RUBEE MEDICAL CENTRE LIMITED Respondent(s)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Jurisdiction has been held to be a threshold matter and a court of law which is required to guard its jurisdiction jealously, must also be circumspect not to assume jurisdiction where none exists.
Thus, the issue of jurisdiction can be raised suo moto by the learned Judge who has placed before it, a process which clearly divests it of jurisdiction (See Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt.1346) 1, Osademe v. Aghadamu (2012) Vol. 51 WRN 163). In this appeal, an MOU of far reaching Constitutional consequences was placed before the learned trial Judge.
His lordship’s judicial powers were invoked in the execution of the MOU. It was therefore incumbent upon his lordship to consider ex facie, if there were any features of the MOU which divested the court of its jurisdiction. (Madukolu v. Nkemdilim (1962) 2 SCNLR 341). See Peter Obi v. INEC (2007) NSCQLR Vol. 31 page 753 at 776-777 SC 123/2007 as per Aderemi, JSC.
“Jurisdiction is the legal power or legal authority that enables a Judge to enter into adjudication in a matter before him. It should however be noted that the jurisdiction should be examined not when it is invoked but when the cause of action arose. I wish further to say that a court is said to have original jurisdiction in a particular matter when that matter can be initiated before it and as a corollary, a court is said to have appellate jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a court of first instance. It follows therefore, that where a court takes upon itself to exercise power under jurisdiction which it does not possess its decision is tantamount to nothing. Let it be noted that an action of a Judge which relates not his office, is of no force; there can never be obedience to any order he may make. The question may then be asked what determines the jurisdiction of a court? The answer is this: generally, it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same.” PER DONGBAN-MENSEM, J.C.A.
WHETHER OR NOT A CONTRACT ROOTED IN ILLEGALITY CAN BE PLEADED
In the case of Nnadozie v. Mbabwu (2008) ALL FWLR (Pt. 405) 1613 at 1639 the court held:
“A contract or an agreement rooted in illegality must not be pleaded and if pleaded, it cannot be enforced by any court of law. An agreement is illegal if the consideration or the promise involves doing something illegal or contrary to public policy. In the instant case, the plaintiff’s evidence of proclamation of ownership of the land by an oracle was wrong in law and the trial court erred to have given it any legal recognition which was rightly set aside on appeal”
See also Onyiuke v. Okeke (1976) 10 NSCC 146, Onwuchekwa v. N.D.I.C (2002) FWLR (Pt. 101) 1615. (2002) 5 NWLR (Pt. 760) 371, Olaniyan v. Aroyechun (1991) 5 NWLR (Pt.194) 652 @ 656. Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505 @ 535.
Judicial officers are cautioned to study the processes placed before the court before proceeding one way or the other (Refer Adeleke v. O.S.H.A (2006) 16 NWLR (Pt.1006) p.608). PER DONGBAN-MENSEM, J.C.A.
M.B. DONGBAN-MENSEM, J.C.A (Delivering the Leading Judgment): On the 13th day of May, 2013, the Hon. Justice M. A. Ojo J., of the Ogun State High Court of Justice holden at Sango Ota Judicial Division, delivered a judgment against the Appellant as Defendant and in favour of the Respondent as Claimant. In this judgment the Claimant is referred to simply as the Appellant and the Defendant simply as the Respondent.
In the trial court, the Respondent claimed as per his Originating Summons dated the 6th of August, 2009, (Pages 1-3 of the record).
The appellant responded to the application with a Notice of Preliminary Objection challenging the jurisdiction of the trial Court on the grounds inter alia, that the Memorandum of Understanding (hereafter simply referred to as the MOU) is tainted with illegality and therefore void and unenforceable. The Appellant also contends that the MOU is against public policy, repugnant to natural justice good conscience and ineffective, that the MOU is not an enforceable cause of action against the Appellant.
The processes were supported by affidavits, counter affidavits and numerous annexures as exhibited and transmitted in the records for this appeal (See pages 4-14 & 15-64).
At the close of the case, the trial court gave a considered judgment as stated above (pages 154-175 of the record). Distraught with the decision, the Appellant, through a Notice of Appeal dated the 13th day of May, 2010 and filed 14th May, 2010 brought this appeal with its grounds as contained at pages 176-180 of the records.
The learned Counsel for the Respondent O.O. Olutalayo Esq. raised a preliminary objection on the competence of issue two as formulated by the Appellant. Counsel submits that issue (ii) is grossly incompetent as it does not arise from grounds 3, 5 and 6 of the Notice of Appeal. That the Appellant’s issue (ii) at page 5 of the Appellant’s Brief of Argument has raised two fresh issues which were neither canvassed at the lower Court nor covered by any of the grounds of appeal from which the issue was allegedly distilled.
Counsel submits that none of grounds of appeal contains a complaint on failure to make Shirish Clinics a party to the MOU or a party to the suit filed at the High Court decided by the trial judge; that it is mandatory for the Appellant to obtain the leave of this Court which he did not, to raise such points. That it is settled law that an issue for determination which does not flow from a ground(s) of appeal is incompetent and must be discountenanced by the Court. (Refer Agbakoba v. INEC & Ors. (2008) 12 S.C. (Pt.111) 171 @ Pg.198, John Bankiole & Ors. v. Mojidi Pelu & Ors. (1991) 8 NWLR (Pt.24) 523 @ 537, Dweye & Ors. v. Iyomahan & Ors. (1983) NSCC Vol. 14, 393 @ Pg.396, Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 4-5 S.C. (Pt.1) 116 @ Pg. 139 – 140, Tahir v. Kapital Ins. Co. Ltd. (2006) 13 NWLR (Pt.997) 452 @ 470.
In response to the Notice of preliminary objection, the learned Counsel for the Appellant submits that in law, and in a loose sense, every point in controversy between the Parties in an appeal is an issue, but for purposes of a brief, an issue is one which is so crucial that if decided in favour of a Party he is entitled to win the appeal. (Refer Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 542).
Counsel also submits that the complaint of the Appellant in his Ground three (3) which questions an injunctive order issued by the learned trial Judge is an issue on appeal and was well captured in the argument of the Appellant in his issue No. 2 for determination. That in law, an application for injunction has, and will always be granted to support a legal right and no such threat was established. (Refer:-Akapo v. Hakeem (1992) 6 NWLR (Pt. 26) 39 1.10
Counsel further submits that raising an issue for determination which arose from an extant decision of the trial Judge cannot amount to the Appellant raising fresh issues on appeal.
That grounds 5 & 6 are also borne out of the decision of the trial court.
See pages 170 & 173 of the records.
Counsel submits that the Preliminary Objection of the respondent is frivolous, academic and wasteful and urges this Court to discountenance same. Maintains that the legal authorities cited are irrelevant inapplicable and of no consequences.
Counsel further submits that this Court can suo motu formulate issues from the Appellant’s Ground of Appeal for the proper and Judicious determination of the Appeal. (Aduku v. Adejoh (1994) 5 NWLR (Pt.346) 582; Ikegwuoha v. Owawuchi (1996) 3 NWLR (Pt. 435) 146; FRN v. Obegolu 2006 18 NWLR (Pt.1010) 188 at 223; Dada v. Dosumu (2006) 18 NWLR 134 at 165.
The learned Counsel urges us to uphold the preliminary objection and discountenance issue two.
The said grounds and their particulars are hereby reproduced to facilitate reference and adequate comprehension of the arguments raised thereon.
Grounds 3, 5, & 6 and particulars:-
“GROUND 3:
The learned trial Judge erred in law when he ordered by way of an injunctive order that the Appellants Clinic- SHIRISH CLINIC that has been operating for years be closed down forthwith.
PARTICULARS
a) There was no existing legal right of the Respondent threatened or said to be capable of being threatened by the operation of the Appellant’s clinic.
b) An injunction does not lie to restrain a completed act.
c) The Respondent in their Originating summons did not offer any materials either by affidavit evidence or documentary or argument on why an injunction should be granted against the Appellant’s interest
d) Evidence not led on pleaded facts goes to no issue.
e) The balance of convenience was not in favour of the Respondent but the Appellant.
GROUND 5:
The learned trial judge erred in law when he assumed jurisdiction and gave effect to the Respondent’s Memorandum of Understanding restraining the trade of the Appellant and after he has left the employment of the Respondent.
PARTICULARS
a) Contract on restraint of trade is enforceable against an employee in favour of his employer in the course of employment.
b) The Memorandum of understanding was purportedly executed when the Appellant has left the Respondent.
c) There was no consideration whatsoever from both sides to enure an enforceable contract.
GROUND 6:
The learned trial judge erred in law when he ignored the role of the Appellant’s Solicitor thereby visiting the iniquity of Counsel on the Appellant.
PARTICULARS
a) The Court cannot visit the iniquity of Counsel on his client.
b) Segun Aderemi advised the Appellant to sign the Memorandum of understanding that it was of no legal effect.
c) The Appellant is not learned at law but a Medical Doctor.
d) The Appellant is currently facing criminal trial instigated by the Respondent before the self same Justice M, A. Ojo J; of the Ogun State Court Sango-Ota in Charge No. HC/15C/2009 and in disregard of the said Memorandum of Understanding.”
Although the Appellant filed a Reply brief on the 13/12/12, the response is more of an attempt to re-argue the appeal. More baffling however of the argument of the learned Counsel to the Appellant is the declaration at page 9 of the Reply brief that:
“…we affirm our position that the legal status of Shirish Clinic was never contested by the Respondent at the lower trial court, nor was shirish clinic a party to the Respondent’s claim at the lower court. The learned trial court was wrong when he gave judgment and injunctive orders against shirish clinics that was never a party to the suit of the Respondent”
In the face of this admission, which has been held to be the best form of evidence, need we continue? (See Registered Trustees, Ecwa Church v. Ijesha (1999) 13 NWLR (Pt.635) P.368). Also Madumere v. Okafor (1996) 4 NWLR (Pt.445) P.637.
This court is circumscribed to sit on appeal and make pronouncement on issues which were not determined by the trial court. (See Agbakoba v. INEC & Ors. (2008) 12 S.C. (Pt.111) 171 @ P.198, Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 4-5 S.C. (Pt.1) 116 @ 139 – 140). Further where fresh issues must of necessity be raised on appeal, the leave of the court must be expressly sought and obtained to raise fresh issues. No application has been shown to have been placed before this court for leave to raise and argue fresh points on appeal, No application was placed before the trial court challenging the inclusion of Shirish Clinic (which is deemed to be a person in law) nor was any application placed before the trial court to quash its decision as its affect the Shirish Clinic which was not heard by the trial court. The Appellant did not also raise a brow at the trial court about the terms or the MOU as it affects Shirish Clinic.
The Appellant having admitted that the status of Shirish Clinic was never contested nor was it a party to the Respondent’s claim, issues cannot now be raised for determination touching on the said clinic,
In the originating summons, reliefs No, 5 and 6 was directed to Shirish Clinics but the Appellant raised no objection to the non-joinder of the said Shirish Clinic, Affidavit, arguments were taken and judgment pronounced. The Appellant did not seek the leave of this court to raise fresh issues on appeal. The filling of a notice of appeal and formulation of issues thereon does not confer the leave of this court on the Appellant to raise fresh issues nor argument on issues which were not dully considered and determined by the trial court. The Apex court is very emphatic on this point. This court is an Appellate court. In the case of Dweye & Ors. v. Iyomahan & Ors. (1983) NSCC Vol. 14 p.393 the Supreme Court held:-
“I think the last point made by Chief Williams is well grounded. It has been well established by a line of authority starting with Abinabina v. Enyimadu, 12 W.A.C.A. 171 through to Ejiofodomi’s case supra) that no substantial point which has been taken in the courts below will be allowed to be raised for the first time before being raised by the Appellants in the ground of appeal argued was not canvassed in either the High court or the Federal Court of Appeal. Learned Counsel for the Appellants had however contended that he made the point in the High Court, but, with respect, this is not altogether correct.”
Further, grounds 3, 5 and 6 of the grounds of appeal each raise completely different issues which should stand on there own, but have been merged together and along with ground three which raises a fresh issue. An issue can be formulated from several grounds of appeal, but not when the said grounds all touch on divergent issues capable of being argued separately.The question then is from which of the three grounds is the subject matter of the issue distilled.
The learned Counsel to the Appellant has cited the case of Fabiyi v. Adeniyi (2000) FWLR (Pt.78) p.196 p.210-211 in support of this submission that the court can formulate issues for the Appellant. The circumstances are not the same. The defect in this appeal go beyond the reformulation of issues. It is a clear case of incompetent grounds of appeal and an issue formulated thereon. The grounds and issue are without the requisite foundation and cannot therefore be remedied by this court.
The Respondent argument that the Shirish Clinics has not been shown to be a legal person is without persuasive drive. He who challenges the legal personality of an entity has the legal burden to establish same. See Bank of Baroda v. Iyalabani Company Limited (2002) 13 NWLR (Pt. 785) 551. See also Veepee Ind. Ltd v. Cocoa Ind. Ltd. (2008) 4-5 S.C. (Pt.1) 116 @ 139 – 140.
The Preliminary objection is accordingly hereby upheld.
Consequentially issue two is hereby discountenanced and grounds 3, 5, & 6 are hereby struck out as incompetent.
Two issues were distilled for determination by the Appellant in this appeal against which the Respondent also extracted two issues from the five grounds of appeal filed.
The issues as formulated by the Appellant for determination are as follows:-
1. Whether the learned trial Judge Coram M. A. Ojo J; had the requisite jurisdiction to entertain the originating summons of the Respondent as constituted to enforce the Memorandum of Understanding when same ex facie illegal, void and unenforceable bothering on unreasonable restrain of trade. (Grounds 1, 2, 4 of the grounds of appeal)
2. Whether the learned trial court Coram M.A. Ojo J., of the Ogun State High Court was right at law when he granted an order of injunction against the Appellant while ordering the closure of Shirish Clinic at No. 102, Joju Road, Sango Ota, when Shirish Clinic was not a party to the memorandum of undertaking purported entered after the Appellant nor was it a party to the Respondent’s suit. (Grounds 3, 5 & 6 of the grounds of appeal.)
While the issues formulated by the Respondent’s for determination are as follows:-
1. Whether the trial Court was not right when it assumed jurisdiction over the Respondent’s Originating Summons which sought to enforce the terms of a Memorandum of Understanding relating to restraint of trade in Ogun and Lagos States having regard to the circumstances under which the Memorandum of Understanding was executed. (Grounds 1, 2, 4 & 5 of the Appeal)
2. Whether the lower Court was not correct when it entered judgment in favour of the Respondent after finding that the Appellant had breached his covenant under the relevant Memorandum of Understanding to which he had willingly and freely subscribed with guidance from his Solicitors. (Grounds 3, 5 & 6 of the Appeal)
Inspite of these seeming few issues raised by the respective parties, arguments run into numerous pages with each issue subdivided into mini subheads in propagation of the respective views of the parties.
As I delved into the heap of shaft amassed by the parties, I found the fine grain which is the crux of this appeal. It lies in an MOU crafted by the Respondent as represented by one Rajan Vaswani, against the Appellant who was an employee of the Respondent.
For purposes of clarity, the terms of the MOU are hereby reproduced from pages 61 – 62 of the records for this appeal:-
“….APOLOGY AND COVENANTS FROM DR. SHIRISH TANKSALE & MRS. JYOTI TANKSALE states:
“1. Without prejudice to the merit or otherwise of the contents of the allegations contained in Rubee Hospital’s claim letter dated September 8, 2008 and Rubee Hospital’s petitions currently being investigated by the Special Fraud unit (SFU) Dr. Shirish Tanksale and Mrs. Jyoti Tanksale admitted in presence of the Elder Doctors that they have committed financial irregularities.
“2. Dr. Shirish Tanksale and Mrs. Jyoti Tanksale tender their unconditional apology to the entire Vaswani family for committing this mistake and also other short coming during their tenure. They also confirm that there was no threat to their lives from Rajan Vaswani and anybody in Veepee.
3. Dr. Shirish hereby agree and undertake to withdraw all complaints filed against Mr. R. V. Vaswani before the commissioner of Police, Eleweran Abeokuta, Ogun State, State Security Service (SSS) Ogun State, Indian High Commission, Lagos, Area Commander, Nigerian Police Force, Ota, Ogun State, and all other places immediately.
4. Dr. Shirish by virtue of this Memorandum, has agreed to intervene and facilitate a discussion between Rubee Hospital and some its ex-employees over the issue of the settlement of their severance pay with a view to make both parties to arrive at an amicable settlement based on the conditions of the hospital and also standard being used by others in the healthcare industry in Ota.
5. Dr. Shirish has agreed to transfer the ownership of the vehicle with Registration No. AP 569 TTD to Rubee Hospital while he retains the vehicle with Registration No: AD 242 TTD.
6. Dr. Shirish has agreed to forfeit all his financial claims concerning his terminal benefits for his service as an employee of Rubee Hospital, and pleaded the Rubee Management to waive their claims in excess of his terminal benefits.
7. In consideration of agreeing to withdraw the criminal action and waiving refund by Rubee Hospital Management Dr Shirish Tanksale and Mrs. Jyoti Tanksale agree to close down ‘Shirish Clinics” at No, 102, Joju Road, Sango Ota, Ogun State within (thirty) days from the date of this MOU but not later than 31st .December, 2008 Dr. Shirish Tanksale also agrees that he will not establish any clinics/Hospital in future in any of the following 5 (five) local government areas in Ogun State and Lagos State subject to a minimum distance of 25 (Twenty-five) kilometres from Sango-Ota in Ogun State:
Ado-Odo/Ota Local Government – Ogun State
Ifo Local Government – Ogun State
Ipokia Local Government – Ogun State Ijaiye ,Ojokoro Local Government – Lagos State
Alimosho Local Government – Lagos State Dr. Shirish Tanksale also agrees and undertakes that he will not join any hospital in the above stated Local Government Areas nor practice with any individual doctors and or hospital(s) directly or indirectly within the said areas, Dr. Shirish Tanksale and Mrs. Jyoti Tanksale will also shift their residence from Ota on or before 31st December, 2008, but such new residence will be within the area restriction as provided herein.
Dr. Shirish agrees and confirm that he would not handover No. 102 Joju Road to any other Doctor or management to run the hospital in that place.”
Apparently, the Appellant jettisoned the MOU and refused to be bound by same. The Respondent felt aggrieved and by an originating summons taken out at the Ogun State High Court, sought to enforce the terms of the MOU, The originating summons was couched in very intimidating terms as (pages 1-3 of the records) follows:
“LET THE DEFENDANTS both of Shirish Clinic, 102 Joju Road, Sango Ota, Ogun State, within the jurisdiction of this Honourable Court within seven days after service of this summons on them, inclusive of the day of such service, cause an appearance to be entered for them to this summons which is issued upon the application of the Claimant of Km 38 Abeokuta Motor Road, Sango Ota, Ogun state who claims to be a party to the Memorandum of Understanding reached on the 24th day of October, 2008 between the Claimant and the Defendants, for the determination of the following questions:
1. Whether the claimant and the defendants who are parties to the Memorandum of understanding dated 24th October 2008 duly and freely entered into by them are not bound by the terms and conditions of the said Memorandum of Understanding.
2. Whether the Memorandum of Understanding dated 24th of October, 2008 and duly and freely entered into by the claimant and the defendants is illegal, null and void.
3. Whether the Memorandum of Understanding dated 24th of October, 2008 and duly and freely entered into by the claimant and the defendants can be enforced by this Honourable Court.
4. Whether the defendant who duly and freely entered into the Memorandum of Understanding dated 24th October 2008 with the claimant can resile from same.
WHEREAS the Claimant claims as follows:
1. DECLARATION that the Respondent and the Appellants are bound by the terms and conditions of the Memorandum of Understanding dated 24th of October 2008 having been duly and freely entered into by the said parties.
2. DECLARATION that the Memorandum of Understanding dated 24th of October 2008 duly and freely entered into by the Respondent and the Appellants is legal, constitutional and valid.
3. DECLARATION that the Memorandum and Understanding dated 24th of October, 2008 duly and freely entered into by the claimant and the Appellants is enforceable against the parties by this trial court.
4. DECLARATION that neither the claimant nor the defendants can resile from the terms and conditions of the Memorandum of Understanding dated 24th of October 2008 having been duly and freely entered into by the said parties.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the Appellants, their agents, privies, assigns and by whosoever from operating “SHIRISH CLINICS” at 102 Joju Road Sango Ota, Ogun State.
6. AN ORDER OF MANDATORY INJUNCTION, compelling the defendants, their agents, privies and by whosoever from further operating and or closing down SHIRISH CLINICS’ located and or situated at 102 Joju Road Sango Ota, Ogun State and further forbidding them from establishing any Clinic/Hospital in future in compliance with the provisions of Clause 7 Page 3 of the Memorandum.
AND such further order or other orders as the Court may deem fit to make in the circumstances.”
Arguments as is the procedure in the originating summons were by deposition in affidavit and counter affidavits all of which are incorporated in the records pages 4 to 14.
After over-ruling the preliminary objection taken out by the Appellant then defendant, the learned trial Judge found for the claimant and pronounced the following orders against the Defendant (pages 174-175 of the records):-
“1. The claimant and the 1st defendant are bound by the terms of the Memorandum of Understanding exhibit RMC9, dated 24th October 2008, duly and freely entered into by them.
2. The said Memorandum of Understanding is valid and legally binding on the claimant and the 1st defendant, save and except the stipulation as to residence, which has been struck down and neither the claimant nor the 1st defendant can resile from same..
It is accordingly DECLARED:
1. That the claimant and the 1st defendant are bound by the terms and conditions of the Memorandum of Understanding, exhibit RMC9 dated 24th October 2008 and neither of claimant nor the 1st defendant could resile from same.
2. That the said Memorandum of Understanding is valid and legally binding on and is enforceable against the claimant and the 1st defendant,
3. An INJUNCTION is hereby granted restraining the 1st defendant either directly or indirectly from operating “SHIRISH CLINICS” located at No. 102, Joju Road, Sango Ota, Ogun State.
4. AN Order of mandatory injunction is also issued directing the 1st defendant to forthwith terminate and discontinue the operations of “Shirish Clinic” located at No. 102, Joju Road, Sango Ota, Ogun State.
5. An injunction is also issued restraining the 1st defendant from committing further braches of any or all of the terms in Clause 7 of the Memorandum of Understanding dated 24th October, 2008.”
Agitated by these orders of the learned trial Judge, the Appellant has come before this court seeking a reversal of the learned trial Judge’s decision as earlier indicated.
It is part of the submission of the learned Counsel for the Appellant that the MOU is illegal and possesses features to stifle due administration of justice, Ex facie, the MOU seeks to condone criminal conduct, an act which clearly puts the general public at risk, though this, surprisingly, is not the point taken out in objection by the Appellant as defendant.
Jurisdiction has been held to be a threshold matter and a court of law which is required to guard its jurisdiction jealously, must also be circumspect not to assume jurisdiction where none exists.
Thus, the issue of jurisdiction can be raised suo moto by the learned Judge who has placed before it, a process which clearly divests it of jurisdiction (See Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt.1346) 1, Osademe v. Aghadamu (2012) Vol. 51 WRN 163). In this appeal, an MOU of far reaching Constitutional consequences was placed before the learned trial Judge.
His lordship’s judicial powers were invoked in the execution of the MOU. It was therefore incumbent upon his lordship to consider ex facie, if there were any features of the MOU which divested the court of its jurisdiction. (Madukolu v. Nkemdilim (1962) 2 SCNLR 341). See Peter Obi v. INEC (2007) NSCQLR Vol. 31 page 753 at 776-777 SC 123/2007 as per Aderemi, JSC.
“Jurisdiction is the legal power or legal authority that enables a Judge to enter into adjudication in a matter before him. It should however be noted that the jurisdiction should be examined not when it is invoked but when the cause of action arose. I wish further to say that a court is said to have original jurisdiction in a particular matter when that matter can be initiated before it and as a corollary, a court is said to have appellate jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a court of first instance. It follows therefore, that where a court takes upon itself to exercise power under jurisdiction which it does not possess its decision is tantamount to nothing. Let it be noted that an action of a Judge which relates not his office, is of no force; there can never be obedience to any order he may make. The question may then be asked what determines the jurisdiction of a court? The answer is this: generally, it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same.”
Indeed, the Appellant, as Defendant before the court, called upon the court to refrain from assuming jurisdiction over the matter. Upon a cursory look at the MOU, the court would have found that ex-facie, the MOU seeks to undermine public policy by the consideration which seeks to condone and cover up an alleged criminal conduct and infringe constitution provisions.
It is interesting that the learned trial Judge made the following distinction in its finding at page 163 of the record for this appeal:-
“In Altimate Investment Limited v. Castle & Cubicles case, the claimant an agreement by which the defendant promised to pay some money which to all intents and purposes looked like gratification or a ‘kick-back’ to the claimant from the proceeds of a contract sum paid by an Agency of Federal Government for a building project at the University of Calabar. The trial court declined jurisdiction on the ground that the contract was ex facie illegal and struck out the case. On appeal the Court of appeal upheld the decision of the trial court. The reason for this decision is not difficult to decipher. The illegality was so patent and palpable that no reasonable court or tribunal will accord such undisguised larceny judicial endorsement, by assuming jurisdiction. That is not the case here.”
Ex-facie, that is clearly the case here, contrary to the finding of the learned trial Judge. At page 171-172 of the record, the court found that:
“In other words, the object of exhibit RMC9 is for both parties to let the sleeping dog lie. The covenants in exhibit RMC9 are not one-sided; the claimant on its part in consideration of the defendants’ covenants agreed to waive the monetary claims against the 1st defendant. It also agreed to withdraw it petition and allegation of fraud against the 1st defendant being investigated by the Special Fraud Unit of the Nigerian Police. Finally, the claimant agreed not to take any criminal or civil actions against the 1st defendant account of the complaints and petition provided the 1st defendant kept his own part of the bargain under the agreement”
This pronouncement clearly takes away the legal flavour from the MOU which is paraded as a trade restraint -agreement. In the case of Alao v. ACB Ltd (1998) 3 NWLR (Pt. 542) p.339 @ 355; Kutigi JSC, (as he then was), held that:-
“… a contract is illegal if the consideration or the promise involves doing something illegal or contrary to public policy…”
A trade restrain agreement which imposes far reaching restraints including a restriction of constitutional rights is one which should be viewed with suspicion in the interest of the larger society whose norms must not be compromised in such an agreement, Public policy demands that crimes should be investigated and culprits dully prosecuted not made to enter into MOU to shield them in one breath and divest them of their constitutional rights in another while also exposing the general public to the danger of their conduct, which if not exposed could be repeated.
Suspicion no matter how strong does not take the place of hard facts/legal prove which must be established in accordance to law. In the circumstance, the learned trial Judge should have declined jurisdiction rather than convert what should be a criminal matter into a civil matter in order to assume jurisdiction. That is ex-facie the process placed before the learned trial Judge. In the case of Nnadozie v. Mbabwu (2008) ALL FWLR (Pt. 405) 1613 at 1639 the court held:
“A contract or an agreement rooted in illegality must not be pleaded and if pleaded, it cannot be enforced by any court of law. An agreement is illegal if the consideration or the promise involves doing something illegal or contrary to public policy. In the instant case, the plaintiff’s evidence of proclamation of ownership of the land by an oracle was wrong in law and the trial court erred to have given it any legal recognition which was rightly set aside on appeal”
See also Onyiuke v. Okeke (1976) 10 NSCC 146, Onwuchekwa v. N.D.I.C (2002) FWLR (Pt. 101) 1615. (2002) 5 NWLR (Pt. 760) 371, Olaniyan v. Aroyechun (1991) 5 NWLR (Pt.194) 652 @ 656. Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505 @ 535.
Judicial officers are cautioned to study the processes placed before the court before proceeding one way or the other (Refer Adeleke v. O.S.H.A (2006) 16 NWLR (Pt.1006) p.608)
Upon the perusal of the process, if the Judge discovers any aspect of the case which divests it of jurisdiction, the court should invite the parties via their respective learned Counsel to address it on the state of the processes filed before the court. This way, precious time and resources would be conserved and not expended on a null proceeding. In this matter, the parties and the learned trial Judge turned blind eyes to the attempt to divest the Hon. Attorney-General of Ogun State and the Police of their respective powers to control criminal proceedings and to investigate and prosecute persons suspected of crime.
The learned Counsel however raised an objection to the illegality of the terms of the MOU which seeks to undermine the Constitutional rights of the defendant. Sections 40 and 43 of the 1999 Constitution have been put forward as being contravened by the terms of the MOU His lordship agreed with the submission of the claimant that there was no infraction of the constitutional rights of the Appellant as Defendant by the MOU
It is instructive to highlight some salient characteristics of this appeal and the entire suit of the Respondent which the learned trial Judge described as “peculiar and which peculiarities cannot be over looked” (pg 172 of this records).
The MOU purports to be in the realm of a trade restraint. The term trade restraint is defined in (Sagay-Nigerian Law of Contract, 2nd Edition at page 427) as:
“A contract in restraint of trade is one in which a party covenants to restrict his future liberty to exercise his trade, business or profession in such a manner and with such persons as he chooses. Prima facie such contracts are void. But where it can be established that such restrictions are justifiable in the circumstance as being reasonable from the points of view of the parties and the public, they are valid and binding.”
All the cases cited and relied upon by the learned trial Judge are on a master-servant relationship. The learned trial Judge alluded to this fact when his lordship said at pg. 170 that:-
“Strictly speaking therefore, the restraints undertaken in this case cannot be equated with those in cases where master/servant relationship still subsisted and the master who imposed such covenants on the employee is required by law to prove the existence of some proprietary interests which needed to be protected from the activities of the employee.”
What then is the rationale for the MOU The learned trial Judge answered this question as follows pages 170-171 of the records
“The affidavit evidence before me shows that the 1st defendant was at the helm of affairs for about 18 years combining both professional duties with the administration of the claimant hospital. The 1st defendant claimed in paragraph 2(d) of his counter-affidavit that the Late Pa Vaswani brought him in to establish the claimant hospital. There is also evidence which I accept that the 1st defendant failed to render account to the claimant’s GMD when asked to do so. I arrived at this conclusion because the 1st defendant merely denied generally the allegation that he failed to render account for several years, he did not specifically assert that he did render accounts as at when due or required. He did not attach copy or copies of any such statements of account even though he averred in paragraph 29(h) “that the operational account of the claimant was at all times made available to whoever demanded for same.” Exhibit RMC1, the 1st defendant’s Letter of Resignation shows that the 1st defendant wanted to disengage from the claimant employment ‘with immediate effect’ without handing over to any professional subordinate.”
Here is a clear case of a suspected criminal breach of trust, fraud or criminal conversion being masqueraded as a breach of contract!
The learned trial Judge acknowledged this much in the finding to the effect that (p.171 of the records)
“In other words, the object of exhibit RMC9 is for both parties to let the sleeping dog lie. The covenants in exhibit RMC9 are not one sided; the claimant on its part in consideration of the defendants covenants agreed to waive the monetary claims against the 1st defendant. It also agreed to withdraw its petition and allegation of fraud against the 1st defendant being investigated by the Special Fraud Unit of the Nigerian Police. Finally, the claimant agreed not to take any criminal or civil actions against the 1st defendant account of the complaints and petition provided the 1st defendant kept his own part of the bargain under the agreement.”
In spite of these peculiarities, the learned trial Judge held that (pg. I70 – 171 of the records)
“‘…the reference to sections 40 and 43 of the 1999 Constitution by the defendant’s counsel is inappropriate. Section 40 relates to freedom of association and I do not see how exhibit RMC9 has impacted negatively on the right of the defendants to freely associate. Similarly, section 43 guarantees ownership of property and it has not been shown how that provision is relevant to this case. I hold that these provisions do not apply to this case.”
It is well established in law that Parties cannot by consent/agreement repose/confer jurisdiction on the court neither can parties by consent turn a criminal matter into a civil agreement and then invoke the coercive powers of a court of law to enforce same.
A contract which is tainted with illegality is not enforceable and the courts have no jurisdiction to adjudicate on such contracts. (See Alao v. ACB Ltd (1998) 3 NWLR (Pt.542) p.339). The courts must however look into the agreement to be able to decline and withdraw its jurisdiction in proceeding further with the matter.
This explains why the claim of party initiating the proceedings must be perused by the judge as a starting point.
The suit with features as highlighted above and dully identified by the trial court belongs to the archives of the court upon inception.
The learned trial Judge should have declined jurisdiction and struck out the originating summons of the Respondent which seeks to enforce an agreement patently injurious to the interest and welfare of the public.
The MOU sought to be enforced is tainted with illegality which seeks to undermind the hallowed provisions of the Constitution of Nigeria particularly Sections 211, 40 & 43, of the 1999 Constitution of the Federal Republic of Nigeria. The said MOU is hereby struck out as illegal and unenforceable.
The decision of the trial court is hereby set aside. I make no order as to cost.
This appeal succeeds.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother M.B. DONGBAN-MENSEM, J.C.A.
I agree with the reasoning and conclusion arrived at in allowing the appeal, I allow same.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my lord M.B. Dongban-Mensem, J.C.A. I agree with the reasoning and conclusions reached.
Appearances
Nelson O. ImohFor Appellant
AND
O.O. Ojutalayo with A.A. IsiolaotanFor Respondent
