GOV OF ADAMAWA STATE & ANOR v. SHADRACK & ANOR (2021)

GOV OF ADAMAWA STATE & ANOR v. SHADRACK & ANOR

(2021)LCN/15170(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, June 07, 2021

CA/YL/37/20

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

1. THE GOVERNOR OF ADAMAWA STATE 2. ATTORNEY-GENERAL ADAMAWA STATE APPELANT(S)

And

1. HON. NGYAMANU SHADRACK 2. ADAMAWA STATE HOUSE OF ASSEMBLY RESPONDENT(S)

RATIO

WHETHER OR NOT WHERE AN OBJECTION HAS BEEN RAISED AGAINST THE COMPETENCE OF SOME OF THE GROUNDS/ISSUES RAISED, THE SAME MUST BE RESOLVED FIRST BEFORE THE REST OF THE MATTER

COMPETENCE OF A COURT TO HEAR A MATTER

A Court is competent to hear a matter when:
i. It is properly constituted as regard members and qualification of members of the bench and no member is disqualified for one reason or the other.
ii. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
iii. That the case before the Court was initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See, PETROJESSICA ENTERPRISES LTD & ANOR VS. LEVENTIS TECHNICAL CO. LTD (1992) LPELR – 2915 (SC) PP. 23 – 24, PARAS. E – C, MARTINS VS. NICANNAR FOOD CO. LTD & ANOR (1988) LPELR – 1844 (SC) PP. 15 – 16, PARAS. G – A and EZE VS. PDP & ORS (2018) LPELR – 44907 (SC) PP. 21 – 22, PARAS. E – C. PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The 1st Respondent as the claimant at the trial Court took out this action via Originating Summons Procedure against the Appellants and the 2nd Respondent herein as defendants seeking declaratory reliefs in respect of his appointment as Member III of the Adamawa State House of Assembly Service Commission. The 1st Respondent also sought a perpetual injunction restraining the defendants or anyone acting through them from interfering with the claimant’s appointment as Member III of the Adamawa State House of Assembly Service Commission.

The parties filed and exchanged their processes with exhibits. At the close of the trial, the National Industrial Court, sitting in Yola presided over by K.D. Damulak, J. (hereafter referred to as the lower Court) entered judgment in favour of the 1st Respondent and granted all the reliefs claimed.
The appellants were dissatisfied with the decision thus this appeal.

The background facts are that the 1st Respondent as claimant by way of Originating Summons sought to be determined by the trial Court the following questions:

“Whether from the combined reading of Sections 4(3) & (5), and 6(1) & (2) of the Adamawa State House of Assembly Service Commission Law 2002, the claimant who has been appointed as Commissioner or member of the Adamawa State House of Assembly Service Commission by the then Governor of Adamawa State upon confirmation by the Adamawa House of Assembly, is not entitled to a guaranteed tenure of five years, removable only by reasons of inability to discharge the functions of his office or by misconduct?
2. Whether in the light of the clear provisions of Sections 4(5), and 6(1) & (2) of the Adamawa State House of Assembly Service Commission Law 2002, the Defendants can validly dissolve or suspend, remove or terminate the appointment of the Claimant as Commissioner or member of Adamawa State House of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office?
3. Whether the purported dissolution and/or suspension of the appointment of the Claimant as Commissioner or member of Adamawa State House of Assembly Service Commission by the 1st Defendant without any allegation of misconduct or for

inability to discharge the functions of his office is not ultra vires the powers of the 1st Defendant and therefore, unlawful, null and void and of no effect whatsoever.”

The 1st Respondent thereafter prayed for the following reliefs upon the consideration of the above questions:
(a) “A declaration that the claimant as Commissioner or Member III of the Adamawa State House of Assembly Service Commission, having been so appointed by the then Governor of Adamawa State upon confirmation by the Adamawa State House of Assembly, is entitled to a guaranteed tenure of five years removable by the 1st or 2nd defendants only by reasons of inability to discharge the functions of his office or by misconduct.
(b) A declaration that by the clear provisions of Section 4(5) and 6(1) & (2) of the Adamawa State House of Assembly Service Commission Law 2000, the Defendants cannot validly dissolve, suspend, remove or terminate the appointment of the claimant as commissioner or member III of Adamawa State House of Assembly Service Commission without any allegation of misconduct or inability to discharge the functions of his office.

(c) A declaration that the purported dissolution and or suspension of the appointment of the claimant as commissioner or member III of the Adamawa State House of Assembly Service Commission without any allegation of misconduct or inability to discharge the functions of his office is ultra vires the powers of the 1st defendant and therefore unlawful, null and void and of no effect whatsoever.
(d) An order setting aside the purported dissolution and/or suspension of the appointment of the Claimant as Commissioner or Member III of the Adamawa State House of Assembly Service Commission as null and void and of no effect and a further order of perpetual injunction restraining the Defendants jointly and severally from interfering with the claimant’s performance of the duties of his office.
(e) An order restraining the 1st Defendant or anyone acting through him from appointing any other person as Commissioner or Member III of the Adamawa State House of Assembly Service Commission whether in acting or permanent capacity while the appointment of the Claimant is still subsisting.
(f) An order directing the 1st and 2nd Defendants to pay the Claimant his

salaries and other entitlements effective from the month of April when he assumed office.
(g) Any other or better orders the Court may deem fit to make in the circumstance of this suit.”

The Appellants from their four (4) grounds of appeal filed before this Court formulated three (3) issues for the determination of the appeal thus:
(1) “Whether the learned trial Judge was right in law when it assumed jurisdiction to hear and determine a matter of contract of employment initiated by way of originating summons in which the facts are disputable in nature thereby occasioning a miscarriage of justice. (Distilled from ground one).
(2) Whether the learned trial Judge was right in law when he imported the word ‘suspension’ into Section 6 and Section 4(3) of the Adamawa State House of Assembly Service Commission Law, 2002 and held that “whether the claimant was removed or suspended is therefore immaterial” which occasioned miscarriage of justice. (Distilled from grounds 3 & 4).
(3) Whether the learned trial Judge was right in law and fact when he held that, Exhibit “A”, the Radio and

Television text speech of the Governor, a document tendered by both parties which suspended the Claimant in office is equally a dissolution and same occasioned a miscarriage of justice. (Distilled from ground 3).

In response, the 1st Respondent filed a Motion on Notice on 30/10/2020, in which he challenged the competence of ground one of the Appellants’ Notice of Appeal as well as issue one distilled therefrom and the arguments in its support as contained in the Appellants’ brief of argument filed on 9/10/2020. In the said motion, the following reliefs were sought:
1. AN ORDER OF COURT striking out for incompetence ground one of the Appellants’ Notice of appeal as well as issues one distilled therefrom and the arguments in support thereof contained in the appellants’ brief of argument filed on the 09/10/2020.
2. Any other order(s) the Honourable Court may deem fit to make in the circumstances of this case.”

The grounds upon which the application was brought were as follows:
1. “The applicant commenced an action before the National Industrial Court of Nigeria, Yola Division in Suit No.

NICN/YL/10/2019 against the Respondents herein claiming amongst others; an Order setting aside the dissolution and/or suspension of his appointment as member III of the Adamawa State House of Assembly Service Commission; and an order restraining the 1st Respondent from appointing another person as member III of the Adamawa State House of Assembly Service Commission while applicant’s appointment is still subsisting.
2. Judgment was delivered in the above case in favour of the applicant on the 18th September, 2019 and the trial Court declared that applicant is entitled to a guaranteed tenure of five years removable only by reason of inability to discharge the functions of their offices or for misconduct.
3. This Honourable Court granted leave to the appellants to appeal against the judgment of the trial Court delivered on the 18/9/2019 on the 22/11/2019.
4. The appellants filed their notice of appeal on the 05/12/2019 against the decision of the trial Court as contained in the judgment dated 18/09/2019.
5. The appellants’ grounds one which questions the mode of commencement of the Applicant’s suit at the trial Court is a new issue

which is being raised in this Court for the first time without leave of Court.
6. That issue one in the Appellants’ Brief of Argument was distilled and argued from ground one without the leave of this Court.
7. Ground one of the appellants’ Notice of appeal as well as issue one in the appellants’ brief do not arise from the judgment of the trial Court appealed against but rather, on a new issue which the trial Court was not opportune to decide on.
8. That Ground one in the appellants’ Notice of appeal is not a complaint against a ratio in the judgment appealed against but on a new issue and not therefore competent.”

The application was supported by a twelve paragraph affidavit deposed to by the 1st Respondent to which were attached Exhibits “A” (the judgment of the lower Court) and “B” (the Appellants’ Notice of Appeal). The argument in support of the motion was incorporated in the 1st Respondent’s brief of argument also filed on 30/10/2020. The learned counsel to the 1st Respondent, T.H. Shabo Esq. adopted and relied on his grounds for the application, the affidavit in support

with the attached Exhibits and his argument contained in the 1st Respondent’s brief of argument, pages 6 – 10. A sole issue was raised therein as follows:
“Whether ground one of the Appellants’ Notice of Appeal as well as issue one distilled therefrom and the arguments in support thereof contained in the appellants’ brief of argument are not all together incompetent and liable to be struck out?

In the argument of the learned counsel to the 1st Respondent/Applicant, we were urged to strike out ground one of the Notice of Appeal and issue one distilled therefrom, with the argument in its support. It was submitted that ground one of the Notice of Appeal (Exhibit “B”) challenged the mode of institution of the present action which was not raised at the trial Court, therefore, a new issue being raised on appeal that requires the leave of this Court. See, BICHI VS. SHEKARAU (2009) ALL FWLR (PT. 500) 682 at 708, PARAS. F – G; AGBOOLA VS. U.B.A. PLC (2011) ALL FWLR (PT. 574) 91, G – H; 103 E – G and ONYE MAIZU VS. OJIAKO (2010) ALL FWLR (PT. 523) 1870 at 1886, PARA. C. It was argued that the mode of

commencement of the 1st Respondent’s suit at the trial Court was raised for the first time without leave of this Court first sought and obtained. We were urged to strike out ground one of the Appellants’ Notice of Appeal and issue one and argument in its support. In the alternative, without conceding that the 1st Respondent’s/Applicant’s suit at the trial Court was commenced contrary to the express provisions of the Rules of the trial Court, Order 5 Rule 1 of the Rules of the trial Court. It was submitted that it should be regarded as an irregularity which the trial Court could give direction as it deems fit.

It was argued that the Appellants failed to raise the issue before the trial Court, therefore, waived their right to complain. See, DUKE VS. AKPABUYO LOCAL GOVERNMENT (2006) ALL FWLR (PT. 294) 559 at 570, F – G and 578, A – B; KOSSEN VS. SAVANNAH BANK (1995) 12 SCNJ 29 at 37, PARAGRAPHS 25 – 40, GARBA VS. MOHAMMED (2017) ALL FWLR (PT. 867) 420 at PAGE 422 and OKORO VS. EGBUOH (2006) ALL FWLR (PT. 332) 1569 at 1588, A – C. It was argued that the appellants cannot take a gamble in alleging that it borders

on jurisdiction and could be raised at any time. We were urged to consider it a procedural irregularity which should not nullify the judgment of the lower Court and should be overlooked, not having been raised timeously.
The learned counsel to the 2nd Respondent Chief L.D. Nzadon filed no process in respect of the motion.

In response, the Learned Attorney General of Adamawa State, A.K. Jingi Esq. filed and relied on his Counter Affidavit of eighteen (18) paragraphs deposed to by one Abdulmalik Hayatu of his Chambers and adopted his argument contained in his reply brief filed on 12/11/2020, at pages 3 – 8 in which he adopted the sole issue as formulated by the 1st Respondent, in which it was submitted that leave to appeal was sought and obtained from this Court on 22/11/19 for the Appellants to appeal against the decision of the lower Court in that the ruling and judgment were delivered on the same day and hour. The word “decision” was defined as in Section 318(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (hereafter referred to as the Constitution) meaning any determination of that Court which includes

judgment, decrees, order, conviction, sentence and recommendation. See IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (PT. 1492) P. 147, USMAN VS. KADUNA STATE HOUSE OF ASSEMBLY (2007) 11 NWLR (PT. 1044) PAGE 144 at 190, PARAS. A – B. The Black’s Law Dictionary, 6th Edition definition was also given along the same line.

It was submitted that the issue of jurisdiction is a threshold matter and could be raised for the first time even on appeal at the Supreme Court. See,BUREMOH VS. AKANDE (2017) 7 NWLR (PT. 1563) PAGES 95 – 96, PARAGRAPHS H – C. It was argued that the issue of jurisdiction could be raised orally or suo motu by the Court at any level of adjudication, otherwise the proceedings would be a nullity. The Learned Attorney General (AG) enumerated the conditions precedent for a Court to assume jurisdiction thus:
1. It is properly constituted with respect to the members;
2. The subject matter of the action is within its jurisdiction;
3. The action is initiated by due process of the law;
4. Any condition precedent to the exercise of its jurisdiction must have been fulfilled.

It was argued that the lower

Court ought to have resorted to Order 5 Rule 1 of the Rules of the lower Court referred to by the learned counsel to the 1st Respondent by giving appropriate direction. Further, that improper mode of commencement of an action is not a mere irregularity of procedural jurisdiction but, rather a subject matter jurisdiction which goes to the jurisdictional competence of the Court in presiding over the matter. See, OBASANJO VS. YUSUF (2004) 9 NWLR (PT. 877) P. 144 at 221, PARAS. A – B. We were urged to hold that the grounds of appeal are competent and formulated from the decision of the trial Court delivered on 18/9/19. We were also urged to strike out the 1st Respondent’s motion on Notice and all the argument in its support.

In respect of the main appeal, in response, the learned counsel to the 1st Respondent formulated three (3) issues for the determination of the Appeal thus:
i. “Whether the Originating process commencing the suit of the 1st Respondent before the trial Court was incompetent and robs the trial Court of jurisdiction to have heard and determine (sic) the suit? (Distilled from ground 1 of the grounds of appeal.)

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Whether the decision of the trial Court that the 1st respondent was both suspended and dissolved while placing reliance on Exhibit A is perverse and has occasioned a miscarriage of Justice? (Distilled from ground 3 of the grounds of appeal).
iii. Whether the Learned trial Judge was not right when he held that by virtue of Section 11(1) (b) (c) of the Interpretation Act, the power to appoint, remove or suspend the 1st respondent must be subject to confirmation by a resolution of the Adamawa State House of Assembly as required for (sic) under Section 6 of the Adamawa State House of Assembly Service Commission Law 2002?” (Distilled from ground 4 of the grounds of appeal).

In arguing his first issue, the learned Attorney General submitted that Originating Summons procedure cannot be used to initiate a suit in a matter challenging dissolution, removal, suspension, or termination of appointment, and that such matter could only be instituted by way of complaint. It was submitted that the mode of commencement of a suit touches on the competence of the suit and the jurisdiction of the Court to hear or determine a matter. It was argued that a

suit or matter must be properly commenced or instituted before a Court can assume jurisdiction to hear and determine it. Further, that the issue of jurisdiction is vital and fundamental to the administration of justice; it touches on the competence of a Court to adjudicate on a matter. It was contended that for this reason where such issue is raised, it should be determined before proceeding to take further steps to avoid embarking on an exercise in futility. See, OHAKIM VS. AGBASO (2010) 9 NWLR (PT. 1726) 172 at 216, PARAS. E – F, IBRAHIM VS. LAWAL (2015) 17 NWLR (PT. 1489) 490 at 524, PARAS. B – D, 525, PARA. C and COTECNA INTERNATIONAL LTD VS. I.M.B. LTD (2006) NWLR (PT. 985) 275 at 297, PARAS. E – G. It was argued that the Respondent did not fulfill the condition precedent that would clothe the trial Court with jurisdiction to entertain the case. Further, reference was made to Order 3 Rule 2 (2) (a) & (b) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 in relation with Section 254C(1) (d) of the 1999 Constitution. It was submitted that the 1st Respondent did not initiate his case at the lower Court through

due process of law which robbed the lower Court of jurisdiction and that the lower Court ought to have struck out or dismissed same. See, NNPC VS. ABDULRAHMAN (2006) 12 NWLR (PT. 993) 202, P. 217, PARAS. E – G. It was argued that the provisions of Order 3 Rule 2 (b) of the Rules of the National Industrial Court is mandatory and not permissive by the use of the word “shall” in the above provision. See, HONEYWELL FLOUR MILLS PLC VS. ECOBANK (NIG) LTD (2016) 16 NWLR (PT. 1539) C.A. 387 at 355 and ONI VS. CADBURY NIG. PLC (2016) 9 NWLR (PT. 1516) 80 at 106, PARAS. E – F. It was reargued that the issue of jurisdiction could be raised at any stage even at this Court for the first time. See, IBRAHIM VS. LAWAL (supra). It was concluded on this issue that the 1st Respondent failed to comply with the extant provisions of Order 3 Rule 2 (b) of the National Industrial Court (Civil Procedure) Rules, 2017 and filed an incompetent process.

In response, the learned counsel to the 1st Respondent submitted that the suit was competently commenced at the lower Court and that the trial Court rightly assumed jurisdiction to hear and determine the

matter while relying on the provisions of Order 3, Rule 16(1) of the Rules of the trial Court. It was submitted that the instrument construed are Sections 4(3) & (5), and 6(1) & (2) of the Adamawa State House of Assembly Service Commission Law, 2002.

In alternative argument, it was submitted (without conceding) that assuming the suit at the trial Court was irregularly commenced, contrary to the express provisions of the Rules of the trial Court, same should be regarded as an irregularity which the trial Court could give directives as it deems fit. Further, it was argued that the Appellants filed processes after becoming aware of the supposed irregularity after judgment, therefore waived their right to complain about the mode of commencement of the suit, reliance was placed on DUKE VS. AKPABUYO LOCAL GOVERNMENT (2006) (supra) at P. 578, A – B, P. 570 F – G and KOSSEN VS. SAVANNAH (supra) at P. 37. It was argued that the mode of commencement of an action does not matter but, rather substantial justice. See,DR. YUSUF MUSA NAGOGO VS. C.P.C. & ORS (2013) ALL FWLR PT. (685) 272 at 277, SALEH VS. MONGUNO (2006) ALL FWLR (PT. 332) 1411 at 1437, B – E.

It was argued that by Order 5, Rule (1) and Order 3, Rule 17 (2) of the Rules of the lower Court, non-compliance with the mode of commencement of an action under the Rules of Court is not regarded as a jurisdictional issue contrary to the submissions of the learned Attorney General. It was argued that the Appellants waived their right to complain about the mode of commencement of the suit. See, GARBA VS. MOHAMMED (2017) (supra) at PAGE 422 and OKORO VS. EGBUOH (2006) (supra) at 1588, A – C. It was the contention of the learned counsel that Order 3, Rules 2 (2) (a) and (b) of the Rules of the lower Court are not applicable but, rather Order 3, Rules 16 (1), 17 (1) and (2) of the Rules of the trial Court that regulates the action of the 1st Respondent.

In response to the submissions of the learned counsel to the 1st Respondent in respect of the Appellant’s issue one, the learned Attorney General submitted that the suit that led to this appeal was not properly initiated. Further, that Order 3 Rule 16 of the Rules of the lower Court would be of no assistance to the case of the 1st Respondent since the 1st Respondent

challenged his suspension or removal from office by the 1st Appellant and seeking a declaration against the act of the 1st Appellant. It was submitted that the facts of the case are in dispute and ought not to have been instituted by originating summons, see Order 3 Rule 17(1) and (2) of the Rules of the trial Court and the cases of AGI VS. PDP (2017) 17 NWLR (PT. 1595) PAGE 386 at PP. 469 – 470, PARAS. G – A; DIRECTOR OF SSS VS. AGBAKOBA (1999) 3 NWLR (PT. 595) PAGE 425; ALFA VS. ATTAI (2018) 5 NWLR (PT. 1611) PG. 59 at 95, PARAS. E – G, PAGE 95, PARAS. C – G. It was argued that the dispute between the parties necessitated the calling of witnesses at the trial, which the trial Court ought to have called but, failed to do so. It was argued that mode of commencement of an action is not a mere irregularity of procedural jurisdiction but, rather a subject matter of jurisdiction which goes to the jurisdictional competence of the Court in presiding over the matter. See, OBASANJO VS. YUSUF (2004) 9 NWLR PT. 877, 144 at 221, PARAS. A – B.

The learned counsel to the 2nd Respondent did not file any brief of argument and had nothing

to urge this Court.

It is trite that where an objection has been raised against the competence of some of the grounds/issues raised or the entire case/appeal, whatever the case may be, same has to be resolved first before going into the rest of the matter. See, FBN PLC VS. T.S.A. INDUSTRIES LTD (2010) LPELR – 1283 (SC) P. 13, PARAS. B – E, OKOROCHA VS. UBA BANK & ORS (2018) LPELR – 45122 (SC) P. 13, PARAS. E – F and OLAGBENRO & ORS VS. PRINCE SALIU OLAYIWOLA & ORS (2014) LPELR – 22597 (CA) P. 59, PARAS. B – C. In the present appeal, the 1st Respondent had challenged the competence of the Appellants’ Notice of Appeal as well as issue one distilled therefrom and the argument in its support as contained in the Appellants’ brief of argument. It was argued that the Appellants’ ground one questions the mode of commencement of the 1st Respondent’s suit at the lower Court which is a new issue which is being raised in this Court for the first time without the leave of Court.

I have read the motion papers, the affidavit in support and argument, also the counter affidavit in opposition

and the argument in its support. It was not disputed that the Ruling and judgment of the lower Court were delivered on the same day, at the same time in the same proceedings on 18/9/19. It is also not in dispute that the Appellants sought and obtained the leave of this Court to appeal against the final decision of the lower Court on 22/11/19 in respect of the judgment of the lower Court delivered on 18/9/19 in the suit that led to this appeal. I cannot fault the definition of “decision” as submitted by the learned Attorney General to include any determination of that Court which includes judgment, order, conviction, sentence or recommendation. A Ruling is also included as it is a determination arrived at after consideration of facts or an order pronounced by a Court in settlement of a controversy submitted to it and by way of an answer to the questions raised before it. A decision includes Rulings by the Black’s Law Dictionary definition cited by the learned Attorney General. See, IHEDIOHA VS. OKOROCHA (supra) and USMAN VS. KADUNA STATE HOUSE OF ASSEMBLY (supra).

On the other hand, the learned counsel to the 1st Respondent had argued

that the Appellants ought to have sought the leave of Court to appeal against the Ruling of 18/9/19 separately and not as a whole with the judgment, that is the crux of the challenge of the competence of ground one of the Notice of Appeal and issue one formulated therefrom. It is noteworthy that the Ruling is an interlocutory decision on ground of law alone, which does not require the leave of Court to first be sought and obtained before an appeal against same. See, NIREKO ENTERPRISES LTD. VS. FIRST BANK (2000) LPELR – 6891 (CA) PP. 4 – 12, PARAS. A – E, AUGUSTINE BASSEY ENE VS. CHIEF ASUQUO ASIKPO (2009) LPELR – 8723 (CA) P. 28, PARAS. A – E and OZURUOHA VS. ALOZIE & ORS (2019) LPELR – 46906 (SC) 16 – 19, PARA. B. Thus, there is no mandatory provision compelling the Appellant to seek and obtain the leave of this Court to appeal against the Ruling where the appeal is on point/ground of law alone. See, Section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The appeal is as of right. See also MINISTER FCT VS. ABDULLAHI (2010) ALL FWLR (PT. 57) 179, at 192 AND

KULAK TRADES & INDUSTRIES PLC VS. TUG BOAT M/V JAPUAL B & ANOR (2010) LPELR – 8630 (CA) P. 11, PARAS. A – C. In consequence, the application challenging the competence of the Appellants’ ground one of the Notice of Appeal and issue one formulated therefrom lacks merit, I hereby dismiss it.

I noted that the bulk of the learned counsel to the 1st Respondent’s argument and the response of the learned Attorney General on the competence of ground one of the Notice of Appeal and issue one distilled therefrom centred on the merits of issue one in the substantive appeal, whether the action was properly brought under originating summons or not, the remedy if found to have been improperly brought, whether it vitiates the entire appeal or not and whether it should be considered a procedural irregularity? These submissions should be in support of the resolution of issue one and ought not to have been under the challenge of the competence of ground one of the Notice of Appeal and issue one as argued in the motion papers.

I would utilize the issues as formulated by the Appellants in the determination of the Appeal; they are similar to those of the

1st Respondent. In resolution of issue one, whether the originating process commencing the suit of the 1st Respondent at the trial Court was incompetent and robbed the trial Court of jurisdiction to have heard and determined the suit? It is trite that a suit must be properly commenced or instituted before a Court can assume jurisdiction to hear and determine it, it is prerequisite for a Court to assume jurisdiction to hear and determine a matter. It is therefore essential that where the issue is raised challenging the competence of the processes filed, it ought to be determined before any further step is taken in the proceedings to avoid embarking on an exercise in futility.

the exercise of jurisdiction.
See, PETROJESSICA ENTERPRISES LTD & ANOR VS. LEVENTIS TECHNICAL CO. LTD (1992) LPELR – 2915 (SC) PP. 23 – 24, PARAS. E – C, MARTINS VS. NICANNAR FOOD CO. LTD & ANOR (1988) LPELR – 1844 (SC) PP. 15 – 16, PARAS. G – A and EZE VS. PDP & ORS (2018) LPELR – 44907 (SC) PP. 21 – 22, PARAS. E – C.

The question is: was the action properly initiated procedurally? With a look at the Originating Summons filed by the 1st Respondent at the trial Court which I earlier reproduced in this judgment under the background facts, it clearly shows that the 1st Respondent challenged the dissolution, suspension, removal or termination of his appointment as Commissioner or Member III of the Adamawa State House of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office, which borders on the interpretation of Sections 4 (3) & (5) and 6 (1) & (2) of the Adamawa State House of Assembly Service Commission Law, 2002 from the questions raised to be determined by the trial Court and the reliefs sought, on

determination of the questions. The questions for determination and reliefs sought require interpretation and the application of the Adamawa State House of Assembly Service Commission Law. The 1st Respondent did not only seek interpretation of the law but, its application, for instance it was made out that the law stipulates a guaranteed tenure of the 1st Respondent’s appointment as five years, removable only by reasons of inability to discharge the functions of his office or by misconduct. By the Rules of the lower Court, Order 3 Rule 2(2) (a) & (b) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides that matters relating to Section 254C (1) (d) of the 1999 Constitution (as amended) is to be filed before the Court, if it relates to interpretation and application shall be by way of complaint but, if it relates to only interpretation, it shall be by way of Originating Summons. It is clear that the 1st Respondent’s suit which involved interpretation and application of the provisions of Sections 4 (3) & (5) and 6(1) & (2) of the Adamawa State House of Assembly Service Commission Law, 2002, ought to have been

filed by complaint. Further, the above provision is mandatory by the use of the word “shall”, it is not permissive or discretionary. See, HONEYWELL FLOUR MILLS PLC VS. ECOBANK (NIG) LTD (2016) (supra). The rule must be observed. See,ONOCHIE & ORS VS. ODOGWU & ORS (2006) LPELR – 2689 (SC) P. 25, PARAS. B – D, IWUNZE VS. FRN (2014) LPELR – 22254 (SC) P. 38, PARAS. C – F and MOBILE TELECOMMUNICATIONS NETWORK (MTN) VS. H.R.H. OBA RAPHAEL SUNDAY ARE & ORS (2014) LPELR – 23807 (CA) P. 24, PARAS. A – F. I am of the view that looking at the law, the reasons for the removal of the 1st Respondent would be better looked into by a suit filed by complaint and evidence adduced, to be able to determine whether the 1st Respondent’s removal from office falls under the conditions stipulated under the law sought for interpretation and application, not under a suit filed under Originating Summons as did the 1st Respondent. The facts are also in dispute, looking at the Appellants’ issues two and three, these cannot be properly determined without pleadings being filed. The Appellants’ issues two and

three also challenged the interpretation and application of the law in question making out that the suspension of the 1st Respondent’s appointment cannot be termed as removal and alleged a miscarriage of justice if the suit is determined by way of Originating Summons if both parties are unable to properly ventilate their cases by filing pleadings and calling evidence in proof of their respective cases. Further, suspension, removal, termination of appointment etc. would be better determined by the filing of a complaint, pleadings ordered, where witnesses would be called to testify rather than reliance on affidavit evidence.

The learned counsel to the 1st Respondent had argued that the challenge of the mode the suit was filed ought to have been timeously raised and alleged that the Appellants had waived their right to do so now, this is erroneous. The Appellants had challenged the mode the 1st Respondent’s suit was instituted at the trial Court, which gave rise to the Ruling in which the trial Court decided that the action was properly instituted by Originating Summons procedure.

The learned counsel to the 1st Respondent had argued that

his action did not come under Chapter IV of the 1999 Constitution (as amended) but, with a careful look at the above chapter, it clearly included “any other matter which the Court has jurisdiction to hear and determine.” The trial Court had the jurisdiction to hear and determine the questions raised by the 1st Respondent and to grant the reliefs sought, the only challenge being the mode the suit was instituted.

The learned counsel to the 1st Respondent had submitted that the Rule of the trial Court that is appropriate is Order 3 Rules 16 (1) and 17 (1) & (2) of the Rules of the lower Court and not Order 3 Rule 2 (2) (a) & (b) of the Rules of the trial Court relied upon. The argument supports the stand of the Appellants. Order 3 Rule 17(1) & (2) provide as follows:
(1) “Provided that where a suit raises a substantial dispute of facts or is likely to invoke substantial dispute of facts, it shall not be commenced by way of Originating Summons, but by complaint as provided in rules 8 and 9 of this Order.
(2) Where in the opinion of the Court, a suit commenced by Originating Summons raises substantial issues and disputes

of facts, the Court shall not strike out the matter, but may order its conversion to a complaint and direct parties to file and exchange pleadings and conduct the trial of the case in accordance with the rules of Court governing trial.”
Order 3 Rule 17 (1) above shows clearly that where the facts of a case are disputed or likely to involve substantial dispute of facts, the suit shall not be commenced by way of Originating Summons but, by complaint as provided in Rules 8 and 9 of the same Order, while Rule 17(2) provides a remedy where Rule 17(1) is not complied with, it provides that the suit would not be struck out by the Court but, the Court may order its conversion to a complaint and direct the parties to file and exchange pleadings and conduct the case with the rules of the trial Court. The Originating Summons is not appropriate for hostile proceedings. The 1st Respondent claimed that his appointment was wrongfully terminated which was disputed by the Appellants. Further, from the affidavit evidence deposed by the Appellants and the 1st Respondent at the trial Court, there was a serious dispute between the parties that would entail calling

witnesses for clarity, the parties have nothing to lose if witnesses are called to clarify issues, whereas as has happened, the Appellants are of the view that their side of the case would be better ventilated if pleadings are exchanged and witnesses called to adduce oral evidence. See, DOHERTY & ANOR VS. DOHERTY (1967) LPELR – 25506 (SC) P. 10, PARAS. A – B, OLOMODA VS. MUSTAPHA & ORS (2019) LPELR – 46438 (SC) P. 16, PARAS. A – E and OGAH VS. IKPEAZU & ORS (2017) LPELR – 42372 (SC) P. 33, PARAS. A – C. I hold that the trial Court ought to have ordered that the suit be instituted by complaint and for pleadings to be filed and exchanged by the parties.
The learned counsel to the 1st Respondent was right when he submitted in the alternative, that if the express provisions of Order 5 Rule 1 of the Rules of the trial Court was flouted by non-compliance with the Rules, it should be treated as an irregularity and that the trial Court was empowered to have given any direction as it deemed fit to remedy the anomaly. I am at one with the alternative submission of the learned counsel to the 1st Respondent that

instituting the action by Originating Summons is an irregularity which at this stage can be remedied by this Court and it would not vitiate the entire action if the end of justice is to be met, after all “justice” is for both parties. I place reliance on my earlier decision in a similar situation in the case of COMRADE EFE P. KWAKPOVWE & ORS VS. NATIONAL ASSOCIATION OF DELTA STATE STUDENTS & ORS (2017) LPELR – 45659 (CA) PP. 19 – 20, PARA.D where I held thus:
“The learned counsel to the appellants had prayed that the claim of the respondents be dismissed. In a similar situation, in PDP & ORS VS. ATIKU ABUBAKAR (2007) 3 NWLR (PT. 1022) P. 575 at P. 542, PARAS. A – B; (2007) 41 WRN P. 61 at P. 89 – 90 in respect of the proper thing for a Court to do when an action is wrongly commenced by an originating summons instead of writ of summons, I held thus: “when a suit is commenced by an originating summons instead of writ of summons, the appropriate order to be made by the Court is to direct the suit to proceed with filing of pleadings for proper determination of the issues before the Court.

EMEZI VS. OSUAGWU (2005) 12 NWLR (PT. 939) P. 340.” My view in this respect has not changed. See, the Apex Court’s decisions in SULEIMAN ATAGO VS. MR. IBISO NWUCHE & ORS (2012) LPELR – 19656 (SC) and NATIONAL BANK OF (NIG) LTD VS. ALAKIJA (1978) 9 – 10 SC 59. The proper order would be and is that the case that gave rise to this appeal, case No. OUHC/48/07 is remitted back to the Chief Judge of Delta State High Court for trial de Novo by another Judge other than Ebiowei Tobi, J. Parties are to file pleadings and the matter given accelerated hearing considering the fact that the judgment of the trial Court was delivered ten (10) years ago.”
In the same vein, I hold that the 1st Respondent’s case was not properly instituted by originating summons procedure, considering the nature of the matter and the rules of the trial Court, the action ought to have been commenced by complaint, the facts are in dispute. Issue one is resolved in favour of the Appellants. Having resolved issue one in favour of the Appellants, there would be no need to go into resolution of issues two and three, therefore, the appeal succeeds on issue one alone.

The appropriate order is that the suit that gave rise to this appeal, Suit No. NICN/YL/10/19 is hereby remitted back to the trial Court for trial de Novo by another Judge of the National Industrial Court other than Damulak, J. The parties are to file and exchange pleadings, the matter is to be given accelerated hearing considering the nature of the matter where term of office is in issue, time is of the essence the judgment of the trial Court having been delivered on 18th September, 2019, time has been lost, two (2) years have gone by.
Parties to bear their respective costs.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother CHIDI NWAOMA UWA, J.C.A. afforded me the opportunity of reading before today the draft of the judgment just delivered.
I agree with the reasoning and conclusions contained therein and I adopt the judgment as mine.

Appearances:

K. Jingi, Esq. (Attorney General, Adamawa State) with him, Samuel Yaumande, Esq. (Solicitor General, Adamawa State) and Ibrahim Mohammed, Esq.(Director Legal Drafting, Adamawa State Ministry of Justice) For Appellant(s)

H. Shabo, Esq. – for 1st Respondent.
Chief L. D. Nzadon, Esq. with him, T. J. Ojo, Esq. – for 2nd Respondent. For Respondent(s)