Daniel J. Matinja & Ors. V. The Military Administrator, Plateau State & Ors. (1998)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
This appeal stemmed from the dispute over the selection of a successor to the Ogoma Pangana which is the stool of a chiefdom comprising three communities, viz., Amo, Buji and Jere communities in Bassa Local Government Area of Plateau Slate. The stool became vacant following the death on 19/4/93 of the last incumbent Mallam Akinfa Kaduwa. In an election exercise conducted on 19/11/93, Bawa Samba (5th defendant/respondent) from Amo was selected the successor. Thereafter, a set of 15 persons from Jere community after obtaining the leave of the court below to sue for themselves and as representatives of the Jere community on 17/8/94 commenced an action before the Plateau State High Court, Jos in suit No. PLD/194/94 against the respondents herein as defendants challenging the validity and legality of the election of the successor and the Legal Notice No.5 of 1991 on the strength of which the selection was made. In their reaction, the defendants/respondents raised a preliminary objection to the effect that the plaintiffs in that suit had no locus standi and that the action was incompetent. The objection was heard by Naron J, who in a ruling delivered on 22/9/95 upheld the objection and accordingly struck out the action.
Thereupon, another set of people from the same Jere community herein appellants as plaintiffs commenced another action viz suit No. PLD/J641/95 culminating in this appeal. The action was against the respondents herein as defendants in which they (appellants) also challenged the validity and legality of the selection of a successor to the Ogomo Pangana and the validity of the instrument of the selection. As adumbrated in their statement of claim, they sought for the following reliefs:
(a) A declaration that the Plateau State Legal Notice of 1991 – the Chiefs (Appointment and Deposition) Law Cap 20) is a nullity and of no effect whatsoever as the plaintiffs who are substantially affected by the operation of the said Gazette were neither party to its codification nor was their consent thereto obtained, hence the name was not made according to law.
(b) A further declaration that the selection of Mr. Bawa Sambo, i.e. the fifth defendant, having been done contrary to the valid custom, tradition and unwritten constitution of the Pangana chiefdom was illegal, unconstitutional null and of no effect whatsoever.
(c) A further declaration that pursuant to the unwritten constitution, tradition and custom of the Pangana chiefdom it is the right and turn of the plaintiffs in accordance with customary principles of rotation of the stool of Ogomo Pangana applicable in the chiefdom to produce a qualified candidate for the immediate ascension of the throne of the Ogomo Pangana.
Alternatively
An order directing the first, second and third defendant herein to set in motion a machinery for the selection and installation of a new Ogomo Pangana in accordance with the relevant laws, customs and tradition of the chiefdom.”
The defendants/respondents in response filed a joint statement of defence dated 19/1/96 followed by a notice of preliminary objection dated 23/1/96 praying for the dismissal of the plaintiffs’/appellants’ suit on the following grounds.
“1. That the plaintiffs did not comply with a statutorily mandatory condition precedent before bringing this action against the 3rd defendant.
- The plaintiffs lack the locus standi to institute and maintain this suit.
- That the plaintiffs are estopped from relitigating on the subject matter of this suit same having been litigated upon by the same parties before a court of co-ordinate jurisdiction and no appeal has been lodged against the court’s decision which, consequently, is still valid, subsisting and binding on the parties.”
In support or the notice of objection, one Joseph Gosim a litigation clerk in the Ministry of Justice, Jos swore to an affidavit of eight paragraphs.
While the notice of preliminary objection was still pending, the plaintiffs/appellants by a motion on notice dated 30/1/96 prayed the court for an order or orders, to wit.
“(a) Granting applicants leave to amend their joint statement of claim as per the amended copy of the same attached to the affidavit and marked Exhibit ‘A’ and to deem same as duly filed and served.”
An affidavit of 8 paragraphs in support of the motion to amend the statement of claim was sworn to by Limah Mamman, as administrative secretary in the law firm of Solomon Umoh Esq, counsel to the plaintiffs/appellants, On 26/2/96, both the plaintiffs/appellants’ motion for amendment and the defendants/respondents’ notice of preliminary objection came up for hearing before Ahinche J. As to what transpired in court, the minutes of the proceedings read thus:
“Counsel for the plaintiffs says the motion for amendment should first be taken. But defendants’ counsel says preliminary objection can dispose of the action, his motion should be taken first because the amendment can be rendered unnecessary if the objection succeeds.
I hold that it is proper to take the preliminary objection first”
Upon the view, the learned trial Judge heard arguments from counsel on both sides on the defendants/respondents’ notice of preliminary objection and in upholding same, dismissed the plaintiffs’ /appellants’ suit in a considered ruling delivered on 8/3/96 in which he encapsulated his findings on page 64 of the records, thus:
“On the whole the preliminary objection succeeds in all the grounds for the following reasons:
(1) The 3rd defendant was not served with the mandatory notice which is a condition precedent to sue him as required by section 175 of the Local Government Edict No. 19 of 1977.
(2) The action against the 2nd defendant was commenced after 6 months contrary to section 174 of the same Edict and for that reason it is not maintainable and the suit against him was dismissed.
(3) The respondent having been represented in the previous suits by the 15 plaintiffs are deemed to have participated in the issue which was determined, that is, locus standi, and the court having decided that they have none, it was final decision on point of law by a competent court of co-ordinate jurisdiction with me. The respondents are caught by the issue estopped and res judicata. They cannot bring a fresh action on the issue. My court being a court of co-ordinate jurisdiction with that of Justice Naron J., cannot set (sic) over his decision in which he declared that the plaintiffs have no locus standi. To do otherwise will amount to sitting on appeal against his judgment. This suit is hereby dismissed.”
Dissatisfied by the above ruling, the plaintiffs/appellants lodged the instant appeal and in their (appellants’) brief of argument they set down four issues for determination which were adopted by the respondents in their (respondents) brief of argument. The four issues are as follows:
Issue No I
Whether the learned trial Judge exercised his discretion judiciously by preferring an application to dismiss the suit to an application to amend the statement of claim on the ground that ‘should the application to dismiss the suit succeed, there will be nothing to amend.’
Issue No II
Whether the learned trial Judge was right having regard to the peculiar circumstances of this case in dismissing the appellants’ case for want of locus standi.
Issue No III
Whether the learned trial Judge followed or adopted the right procedure in dealing with or dismissing the appellants’ case under the principle of res judicata.
Issue No IV
Whether the learned trial Judge followed or adopted the right procedure in making an order dismissing the suit against the 3rd respondent for want of pre-action notice.”
In the appellants’ brief of argument, it was contended in respect to the first issue, that in the circumstances of the case in which the trial Judge had before him the notice of preliminary objection and the motion to amend the appellants’ statement of claim the latter application ought to have been taken first before the respondents objection. Referring to the case of A.G. Federation v. A.I.C. Ltd (1995) 2 SCNJ 119; (1995) 2 NWLR (Pt.378) 388 counsel submitted in his brief that where there are two adversely competing motions before the court, one constructive and the other potentially destructive the court would normally proceed to hear the former motion first. It was further argued that there was nothing inequitable in the court hearing the motion to amend the statement of claim prior to the motion for dismissal. Counsel complained that the refusal of the court below to entertain the motion to amend the statement of claim offended the rules of natural justice particularly the audi alteram partem principle.
In reply to the above submission, it was pointed out in the respondents’ brief of argument that the court below was faced with not just with two adversely competing motions simpliciter but with a notice of preliminary objection filed on 19/1/96 and a motion to amend the statement of claim filed on 31/1/96. It was then submitted on the authority of the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341 that the questions raised in the notice of preliminary objection touch on the very foundation on which the suit was based and which the court was bound to consider on assuming jurisdiction. It was further contended that whenever an objection touching on jurisdiction is raised, by a defendant, that issue must be dealt with and resolved one way or the other first before the court proceeds to deal with any other matter in the case. Finally, in supporting the course adopted by the court below it was argued that the case of A.G. Federation v. A.I.C Ltd supra is not applicable in the instant case. Undoubtedly, the order of treating multiple applications that come up simultaneously before a trial court is a matter of the discretion of that court but certain guidelines have been laid down in considering such multiple applications.
In the case of Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Part 212) 652 at 667, the Supreme Court, per Nnaemeka-Agu, J.S.C observed as follows:
“The simple question raised by the first issue in this appeal is therefore, whether the rule as to the priority of hearing opposing application where one side seeks to strike out or dismiss a case on ground of an irregularity in procedure and the other seeks to extend time to regularize the irregularity is applicable in a case like this …. It appears to me that for a proper resolution or the real issue raised by this aspect of the appeal, it is necessary to bear in mind the fact that where the complaint is as to failure to take a step as provided by the rules or in accordance with an order of court made under the rules there is already in existence a valid proceeding before the court. In such a case, if there are two motions, one seeking to raise a point of non-compliance with a rule or an order of court and the other seeking to strike or dismiss the proceedings on the ground of the non-compliance, a court of justice and equity ought to take the motions which seeks to regularize’ the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably, in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs.”
In his own contribution on p.676 of the report, Karibi-Whyte, J.S.C. had this to say:
“It is an elementary and fundamental principle of administration of justice to hear all applications properly brought before our courts. Accordingly, where an application is properly brought before the court, the principle of fair hearing demands that it should be heard on its merit. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. I agree entirely with the well settled proposition that where there are two motions before a court requiring to be heard, the interest of justice demands that the motion the determination or which would save the substantive action should first be heard. The principle is founded on the reasoning that where the application succeeds, then the other application can be taken.”
Later at the bottom of page 676 and at the beginning of page 677, His Lordship continued thus:
“In the exercise of its discretion to hear applications before it, the court is guided by considerations of doing justice before the parties, and to ensure ultimately that the dispute between the parties was decided on its merit. See Khawaum v. Elias (1960) F.S.C. 224; (1960) SC NLR 516. Where in the exercise of its discretion an application to dismiss the action was first heard resulting in the action being struck out, justice would not have been done to an applicant whose application to regularize his appeal, the basis for the application to dismiss the appeal is still pending. This will tantamount to a wrongful exercise of discretion. See Abegbe & Ors v. Ugbodume & Ors (supra).”
The above principle was re-echoed more recently in the case of A.G. Federation v. A.I.C Ltd and Ors (1995) 2 NWLR (Pt. 378) 388 at 397 where Kutigi J.S.C stated:
“I would have thought that Professor Kasunmu ought to have been aware of the general practice by now that where in the same case there are two adversely competing motions before a court, one ‘constructive’, and the other potentially ‘destructive’, the court will normally proceed to take the former motion first unless it will be inequitable to do so, so that if it succeeds, there would be no need for the latter motion which will then be withdrawn and struck out accordingly.”By the application of the above principles to the facts of this case it is manifest that the learned trial Judge was in grave error in treating the notice of preliminary objection with priority in preference to the appellants’ motion for amendment which probably could have made the notice of preliminary objection unnecessary. The contention in the respondents’ brief that the principle under consideration is not applicable where as in the case there is a notice of preliminary objection on jurisdiction does not appear to be well founded since it is possible that the amendment to the statement of claim could have taken care of the basis for the objection. In any case, for the court below to have taken the objection and thereby dismissed the appellants’ action without a hearing on their application for amendment was to say the least an infraction of their right to fair hearing constitutionally guaranteed by section 33(1) of the 1979 Constitution.
I have attempted to scrutinize the appellants’ proposed amended statement of claim to discover whether the amendments proposed were trivial and inconsequential so that even if granted they would not have affected the respondents’ preliminary objection in the sense that it could not have led to its withdrawal. Unfortunately, the affidavit in support of the motion for amendment did not spell out the nature of the amendment nor were the relevant paragraphs of the amendment underlined as it is usually done. Since it is not easy to ascertain the precise amendments proposed and assess its import on the notice of preliminary objection, I think the ends of justice is better served by allowing this appeal. It is unnecessary to consider other issues based on a consideration of a statement of claim which the appellants had indicated they wanted to modify.
In the light of the foregoing, this appeal succeeds and is accordingly allowed. The ruling of Ahinche J. delivered on 8/3/96 is hereby set aside. In its place, the case is remitted to the court below for hearing by another Judge on the plaintiffs/appellants’ motion for amendment before the defendants/respondents’ notice of preliminary objection. Costs shall abide the outcome of the re-hearing.
Other Citations: (1998)LCN/0410(CA)
