Chief Olukayode Akindele V. Kayode Abiodun (2001)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A.

This is an appeal against the Ruling of I. U. Bello J., of the High Court of the Federal Capital Territory sitting at Gwagwalada delivered on 23/02/2004 in suit No. FCT/HC/CV/1061/02 in which he dismissed the Appellant’s application and refused to strike out the substantive suit.

The Respondent as plaintiff in the lower Court instituted an action at the High Court of the Federal Capital Territory holden at Gwagwalada in suit No. FCT/HC/CV/1061/02 claiming against the Appellant as defendant the following reliefs both in the particulars of claim and the statement of claim filed on 8/10/02:

“a. The sum of N400,000.00 (four hundred thousand naira only) being the outstanding payment due on works executed by the plaintiff for the defendant at the defendant’s own request and interest thereon at the rate 21% from April 2000 to the date of judgment and thereafter 10% Court interest till the debt is liquidated.

b. The sum of N80,000.00 (eighty thousand naira only) being the plaintiff’s solicitors agreed professional fees for prosecuting this claim.

c. The cost of this action.”

The background facts according to the Respondent as stated in the statement of claim are that sometime in April 2000 the Appellant orally instructed and directed him to procure and instal 5000 litre water tank, pumping machine, shaving mirror and some other facilities in House No.2 Maitama Sule Street, Asokoro District, Abuja.

The agreed price for the works according to the Respondent was four hundred thousand naira only (N400,000.00) which was to be paid not later than thirty (30) days after the installation of the 5000 litre water tank and the other facilities.

The Respondent immediately procured, installed and supplied the 5000 litre water tank and all the other facilities as agreed. The Respondent stated that he acted purely on the instruction, direction and promise of the Appellant in executing the works. The Appellant personally inspected and certified that the water tank and the other facilities were correct and according to specification. The Appellant equally supervised the installation of the items. However, after the completion of the works, the Respondent demanded for payment but the Appellant continued to make unfulfilled promises. On 22nd May 2002 the Respondent went to the Appellant’s office to demand payment but he was given a note by the Appellant to one Mr. Esiet concerning his payment which yielded no positive result.

Despite repeated demands the Appellant refused, neglected and failed to pay the sum of four hundred thousand naira only (N400,000.00) due and payable to the Respondent on the works executed. The Respondent then instructed his solicitors to write a demand letter dated 21st February 2002 to the Appellant. When the Appellant still refused to pay him, he instituted an action at the High Court of the Federal Capital Territory to recover the money from the Appellant.

The Appellant, as defendant in the lower Court filed a statement of defence. According to the Appellant the house at No.2 Maitama Sule Street Asokoro District, Abuja, Nigeria is not his personal property but an official residence allocated to him by the National Planning Commission (The Presidency) while he was the Special Assistant to the Chief Economic Adviser to the then President of the Federal Republic of Nigeria. The work purportedly done by the Respondent at the said No.2 Maitama Sule Street, Asokoro District, Abuja, Nigeria was officially awarded to the Respondent by the Tenders Board of the National Planning Commission. The Appellant stated that all he did as the occupant of the premises was to confirm to the SEO(Maintenance), Mr. Esiet of the National Planning Commission, that the Respondent should be paid for the work done at his official residence.

The Appellant also contended that the Respondent could not have rightly demanded payment from him as he did not award the contract in person or in his private capacity to the Respondent. The Appellant therefore counter – claimed as follows:

“1. The Defendant was in London with his family when the House-help at his Abuja Guest House No. 675 Samora Machel Street Asokoro, Abuja telephoned to tell him and his family members that a Court process had been pasted at the door of his Guest House on the 12th June, 2003 in the view of neighbours and passers-by of the very busy street.

2. The Defendant had to immediately abandon all his engagement in London and headed for Nigeria, Abuja to find out what the problem was.
3. The Defendant was put into expenses of loss of business and had to procure flight Ticket to Nigeria to find out the reason for the placing of the Order at the instance of the Plaintiff.
4. The Defendant had been made to incur loss in the sum of Eight Hundred Thousand Naira (800,000.00) as loss of business, loss of profit, cost of ticket etc.
5. The Defendant has had to pay the sum of Two Hundred and Fifty Thousand Naira (N250,000.00) to the Counsel Messrs Biodun Akin-Aina & Co. Via receipt No. 000429 of 16th June, 2003 as deposit in defence of Plaintiff’s Claim.
6. Whereof the Defendant Counter-Claims the sum of One Million And Fifty Thousand Naira (N1,050,000.00) from the Plaintiff.”

Furthermore, the Appellant in the court below filed an Application on notice on 25/6/03 in which he prayed the court to strike out the suit for lack of proper defendant on the following, grounds:

“i. There is no privity of contract between the Plaintiff and the Defendant regarding the subject matter of the Claim.

ii. No. 2 Maitama Sule Street Asokoro District Abuja, Nigeria is not the Property of the Defendant but an official residence allocated by the National Planning Commission (The Presidency) Abuja.

iii. The contract (if any) was awarded officially to the Plaintiff by the Tenders Board of the National Planning Commission (The Presidency) of which the Defendant was not a member and not by the Defendant privately or otherwise.

iv. The Defendant is not the proper Defendant and the Plaintiff has failed refused and/or neglected to sue the proper Defendant before the Court on the subject matter. ”

The motion was moved by the Appellant’s counsel and opposed by the Respondent’s counsel appropriately. In dismissing the application of the Appellant, the learned trial Judge held as follows:

“I have carefully considered the application along side the counter affidavit of the respondent and below are my views:

(1) That there is no law of (sic) rule of this Court that allows for striking of (sic) an entire suit on the grounds of lack of proper parties before the court. I therefore share the views of the respondent on the issue.

(2) Having carefully, analysed the facts on the face of the records along side the submissions of counsel on both sides, I am of the firm view that the defendant before the court is a proper party, and I believe it is in view of that realization, the applicant proceeded not only to file statement of defence, but to equally file a counter claim thereby taking steps in the proceedings.”

The Appellant was dissatisfied with the above ruling and appealed to this Court vide a Notice of appeal containing five grounds of appeal dated 4/3/04 which was duly filed.

The Appellant’s brief of argument was filed and served on 18/3/05. In it, five issues were identified for the determination of the appeal. The issues are:

“1. Whether the learned trial Judge was right to have held that there is no law or rule of the Court that allows the striking out of an entire Suit on the grounds of lack of Proper Parties before the Court.

2. Whether the learned trial Judge was right when he held that the Defendant is a Proper Party contrary to the prayer on the Motion on Notice that the Defendant is not a Proper Defendant.
3. Whether the learned trial Judge was right in holding that the filing of Statement of Defence and Counter-Claim in the proceedings amounted in effect to a realization of the Defendant/Applicants the he is a Proper Party in the Suit.
4. Whether the Ruling of the Court that the Judge is of the firm view that the Defendant before the Court is a Proper Party is not against the weight of affidavit evidence placed before the Court.
5. Whether the learned trial Judge did not wrongly assumed jurisdiction in the Suit when he has no jurisdiction in the absence of a Proper Defendant.”

On the other hand, the Respondent filed and served the Respondent’s brief of argument on 6/5/2005. In it, two issues were formulated for the determination of the appeal. They are:

“1. Whether the appellant placed sufficient materials and credible evidence before the lower court to prove that he is not the proper defendant in this suit.

2. Whether the learned trial Judge wrongly assumed jurisdiction in this case.”

The fulcrum of this appeal in my view is whether the Appellant was rightly held by the learned trial Judge as the proper party to be sued as defendant by the Respondent, and whether the lower Court rightly assumed jurisdiction to adjudicate upon the suit. I will therefore adopt the two issues formulated in the Respondent’s brief of argument. I consider both all embracing and sufficient for the resolution of this appeal. I will however take them together because they are intertwined.

ISSUES ONE AND TWO

“Whether the appellant placed sufficient materials and credible evidence before the lower court to prove that he is not the proper defendant in this suit; and

Whether the learned trial Judge wrongly assumed jurisdiction in this case.”

Learned counsel for the Appellant contended that his application before the lower Court to strike out the suit for lack of proper defendant was brought under Order 11 rule 16 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules), 1990. He submitted that by virtue of the provisions of Section 6 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999, a Court will only be seized of a suit where there is a proper plaintiff and a proper defendant and the subject-matter of the suit is within the competence of the Court called upon to adjudicate upon the suit. He referred to the cases of:

(1) Santa Drilling (Nig.) Ltd Vs. Awala & Anor. (1999) 6 NWLR (Pt. 608) p. 623 at p. 629.

(2) Madukolu Vs. Nkemdilim (962) 2 SCNLR p. 341 and

(3) Lawal Vs. Younan (1961) 1 SCNLR p. 323.

The Appellant’s grouse is that he submitted for determination by the trial court not whether he was a proper party but that he was not a proper defendant. In this regard reference was made to the Oxford Advanced Learner’s Dictionary, International New Students’ Edition, page 845, definition (4), lines 16 to 19 and page 305 thereof where ”party” is defined as, “a person or people forming one side in a legal argument or dispute, or taking part in some other activity’; and “defendant” is defined as, “a person accused in a legal case’; respectively. However, Black’s Law Dictionary, Sixth Edition at page 1122 defines ”party” as a technical word having a precise meaning in legal parlance, refers to “those by or against whom a legal suit is brought whether in law or in equity; the Party, Plaintiff or Defendant, whether composed of one or more individuals and whether natural or legal persons/ all others who may be affected by suit, indirectly or consequently, are persons interested but not parties’: While at page 419, “defendant” is defined as, “the person defending or denying the party against whom relief or recovery is sought in an action or suit or the accused in a criminal case.”

Learned counsel for the Appellant contended that the trial Court was called upon to determine whether the Appellant was a proper defendant. The trial Court neglected to do this but went ahead to consider the issue of the Appellant being a proper party. It is trite that courts are to limit themselves to the application or prayer sought before them and make specific findings on them. On this legal position, reliance was placed on the cases of:

(1) Adeniji Vs. Adeniji (1972) All NLR p. 301 and

(2) SPDC (Nig) Ltd Vs Lawson – Jack (1998) 4 NWLR (Pt.545) p. 249 at pgs. 279 – 280 paras. H-C

Learned counsel for the Appellant canvassed that the issue of demurer has been abrogated under the Uniform High Court (Civil Procedure) Rules. The Appellant rightly filed his statement of defence when he became aware that the Writ of Summons and Statement of Claim have been served on him by the Respondent. It was also proper for the Appellant to file a counter-affidavit in opposition to the motion for judgment on the assumption that he, the Appellant after being served with the Writ of Summons failed to respond. The steps taken by the Appellant did not amount to a waiver and an acceptance that he is a proper party in the suit as wrongly held by the learned trial Judge. He relied in this regard on the case of: Ezomo Vs. Oyakhire (1985) 1 NWLR (Pt. 2) P. 195 at p. 202 paras. F – H.

It was also contended by the learned counsel for the Appellant that the facts contained in his statement of defence, counter-claim and counter-affidavit in opposition to the claims of the Respondent clearly showed that he was not a proper defendant to be sued by the Respondent. It was the view of learned counsel for the Appellant that if the learned trial Judge had duly considered the facts presented by both the Respondent and the Appellant, put and weighed the two sets of facts on the imaginary scale and applied the relevant law, he, that is the learned trial Judge would not have found that the Appellant was a proper party in the suit filed by the Respondent.

Reference was made to the cases of:

(1) Odofin & Ors vs. Mogaji & Ors. (1978) NSCC Vol. 11, p. 275 at po277 paras. 20 – 50 and

(2) Yusuff v. Nigeria Tobacco Coy. Ltd (1977) NSCC Vol.11, p. 349 at p.354 para. 35 lines 3-6.

Learned counsel for the Appellant maintained that the Respondent’s Writ of Summons was wrongly issued against the Appellant as he, the Appellant was not the proper defendant in the suit. Where a wrong defendant is brought before the court in a suit, that defendant lacks “locus standi’; consequently, the suit is incompetent and the Court would lack jurisdiction to adjudicate upon the suit and determine same on its merits. Reliance was placed on the cases of:

(1) Western Steel Works Ltd & Anor. Vs. Iron and Steel Workers Union of Nigeria & Anor. (1986) 3 NWLR (Pt. 30) p. 617at p. 627 paras. C-E;

(2) Madukolu Vs Nkemdilim supra at pgs. 589 – 590;

(3) Santa Fe Drilling (Nig.) Ltd v. Awala & Anor. (1999) 6 NWLR (N 608) p.623 at p.629 paras. D-H and

(4) Lawal & Ors. Vs. Younan (1961) 1 SCNLR p. 323; (1961) All NLR p.245 at p. 254

It was canvassed in favour of the Appellant that since the Respondent failed to bring the proper defendant in the instant case, the suit ought to have been struck out by the trial Court for being incompetent. This Court was urged to allow the appeal, set aside the ruling of the lower Court delivered on 22/02/04 in its entirety, hold that the Appellant was and still not the proper defendant and strike out the Respondent’s suit accordingly.

Replying, learned counsel for the Respondent canvassed that the lower Court carefully analyzed the facts on the face of the record alongside the submissions of counsel on both sides. The learned trial Judge was aptly justified and on a strong wicket when he held that the Appellant was a proper party, that is, a proper defendant in the suit filed by the Respondent as plaintiff. This was the “ratio decidendi” in the ruling of the lower Court regarding the motion of the Appellant. According to the learned counsel for the Respondent, the reasons, grounds and principles upon which the lower Court came to that conclusion are copiously contained in the said ruling.

The comments made by the learned trial Judge that there is no law or rule of Court that allows for the striking out of a suit in its entirety on the grounds of lack of proper parties before the court amount to “obiter dicta”. So also is the view held by the learned trial Judge that the Appellant’s realization that the suit could not be struck out, informed his taking steps in the proceedings to file his statement of defence, as well as a counter-claim. These being mere comments and not decisions as envisaged by Section 277 (1) of the 1999 Constitution are not appealable and should be discountenanced by this Court. All the cases cited by the Appellant in this regard are distinguishable from and not applicable to the facts of the instant case. These points of view were rested on the cases of:

(1) U.T.C (Nig.) Ltd Vs. Pamotei (1989) 2 NWLR (Pt. 103) p. 244 at p. 253;

(2) Chief S.S. Ajibola Vs. Makanjuola Ajadi (2004) 14 NWLR (Pt. 892) p.14 and

(3) Wilson Vs. Osin (1988) 4 NWLR (Pt. 88) p. 324 at p.333 paras. F – G.

The learned counsel for the Respondent conceded that the principle enunciated in the cases cited by the Appellant’s counsel to say that a Court is competent when all the conditions to its having jurisdiction are fulfilled is the correct position of the law. Where it becomes apparent on the face of the record that an improper defendant has been brought before the Court in a cause, the Court lacks jurisdiction to hear the cause and the suit must be struck out for being incompetent. The facts of the instant case are however distinguishable from the facts of the cases relied on by the Appellant’s learned counsel. In the cases of: In Santa Fe Drilling (Nigeria) Limited Vs. Awala (supra) and Lawal & Anor Vs. Younan (supra) proper defendants were not brought to court and therefore a condition precedent to the exercise of courts jurisdiction was not fulfilled. On the contrary, in the instant case, the trial Court’s correct finding was that the defendant was the proper party before the Court. The Court was properly constituted, the subject matter of the case is within jurisdiction, the case was duly initiated before the Court and the learned trial Judge held that the proper party was brought before him thereby fulfilling all the necessary conditions precedent to the exercise of jurisdiction of the Court.

The learned counsel for the Respondent submitted that having correctly found that the Appellant was properly brought to court as a party, that is, sued as the defendant, the conditions laid down by the Supreme Court particularly in the case of Madukolu & Anor Vs. Nkemdilim (supra) were fully fulfilled in this case. Hence the use of the phrase ”proper party” by the learned trial Judge instead of the phrase “proper defendant” is a matter of semantics. For the Appellant knew fully well that he had been sued as the defendant in the case.

Thus in a case where there is a plaintiff and a defendant, each of them becomes a party to the case. They are jointly referred to as parties. Learned counsel referred to page 581 of the Black’s Law Dictionary (Abridged Edition), 1983 where the word “Parties” is said to mean amongst others “The persons who are actively concerned in the prosecution and defence of any legal proceeding. …in civil actions they are called “Plaintiff” and Defendant—.” Therefore the heavy weather made by the learned counsel for the Appellant on the use of the phrase “proper party” by the learned trial Judge in his ruling cannot in any way be said to be misleading, prejudicial or have occasioned any miscarriage of justice to the Appellant.

Learned counsel for the Respondent urged this Court to dismiss the appeal, refuse to disturb the decision of the lower Court which properly assumed jurisdiction to adjudicate upon the suit filed by the Respondent against the Appellant before it.

The fulcrum of this appeal as earlier on alluded to is whether or not from the circumstances of this case, the Appellant is the proper defendant to be so sued by the Respondent in the lower Court. It is rudimentary that the word “defendant” means a person sued In a civil proceeding or accused in a criminal proceeding – I refer to the Black’s Law Dictionary, Eighth Edition at pages 450 to 451 where the word “defendant’ was so defined. Put in other words, it can be said that a defendant is the title given to or the status of a person sued whether natural or juristic. A “defendant” is a person who in law or fact is qualified, capable and has the ability to be called upon to state reasons why the plaintiff or prosecutor (that is, the person who institutes an action) should not have a valid case and should not recover or establish that which he seeks by his complaint or petition.

A party is further defined ”inter alia” in the Black’s Law Dictionary as one by or against whom a lawsuit is brought.

By simple logical deduction, a party can either be a plaintiff or defendant whether composed of one or more individuals and whether natural or legal persons. Put differently, a person who takes part in a legal transaction or proceeding is said to be a party to it or a person whose name is designated on record as a plaintiff or defendant. It refers to a person by or against whom a legal suit is brought, whether in law or in equity. See: Obingwa LG Vs. Muoma (2001) 18 NWLR (pt.744)p. 71.

There are therefore categories of parties in an action that is, proper, necessary, and desirable parties depending on the degree of interest of such party in the cause of action.

(1) Thomas Vs. Olufosoye (1986) 1 NWLR (pt. 18) p. 669;

(2) Badejo Vs Federal Ministry of Education (1996) 8 NWLR (pt. 464) p. 15 and

(3) Osun State Govt. Vs. Danlami(Nig) Ltd (2003) 7 NWLR (pt. 818) p. 72.

The competence of parties whether plaintiff or defendant is very vital and important as it goes to the foundation of a suit and consequently touches on the jurisdiction of either the trial or appellate Courts. An action can only succeed if the parties to it are shown to be the proper parties to whom rights and obligations arising from the cause of action attach. Parties are those who have direct interest in the subject-matter of a dispute. That is, there must be a nexus between the plaintiff and the defendant or the appellant and the respondent. Therefore, for a court to be competent and have jurisdiction over a matter, it is necessary that the condition that the proper parties must be identified, is fulfilled.

(1) Ehidimhen Vs. Musa (2000) 8 NWLR (Pt. 669) p. 540 at p. 606;

(2) Madukolu Vs. Nkemdilim (1962) 2 SCNLR p- 341 at p. 606;

(3) Best Vision Cent. Ltd. Vs. U.A.C.N.P.D.C. Plc (2003) 13 NWLR (pt. 838) p- 594 and

(4) Jadcom Ltd Vs. Oquns Electricals (2004) 3NWLR (Pt. 859) p. 153.

It is very important and necessary for the plaintiff and defendant to have capacity to sue and be sued respectively. This is extrinsic to jurisdiction.

(1) Madukolu Vs. Nkemdilim supra;

(2) Shittabey Vs. A.- G., Fed (1998) 10 NWLR (Pt.570) p. 392 and

(3) Ifedapo Comm. Bank Ltd. Vs. C& S Church (2001) 7 NWLR (pt 712) p. 508.

Necessary parties are those whose participation in proceedings of an action is indispensable for the effectual and complete adjudication of the question involved in the cause or matter. In the absence of necessary parties, the subject-matter of a cause cannot be fairly dealt with; the rights of parties cannot be properly determined in order to arrive at a just judgment. In other words, parties in an action whether the plaintiff or defendant must have the capacity to respectively present to and defend in the court, a complaint or cause of action for adjudication. It must therefore be established that there is a legally approved link between the plaintiff and the defendant, and the act complained of. Consequently, a plaintiff is any person in whom a right to relief exists, while a defendant is any person against whom the relief exists.

(1) Ifeacho Vs. Inland Med Co. (Nig.) Ltd (2000) 1 NWLR (Pt. 639) p. 105 and

(2) Expo. Ltd Vs. Pafab Ent. Ltd (1999) 2 NWLR (pt. 591) p.449.

The summation of the foregoing is that a defendant simply put is one who can defend the plaintiff’s case. The two of them are therefore referred to as parties in a civil action. I quite agree with the learned counsel for the Respondent that the phrase, “proper party” can be used interchangeably with the phrases, ”proper defendant” and I dare add ”proper plaintiff’: It is indeed a matter of semantics.

The usage of the phrase “proper party” by the learned trial Judge is not in any way misleading or out of tune with the Appellant’s own coinage ”proper defendant’: Both phrases are one and the same.

The next crucial issue for determination is whether from the facts presented in both the statement of claim of the Respondent and the statement of defence of the Appellant, the learned trial Judge properly found that indeed the Appellant was a proper party or defendant to the suit instituted by the Respondent in the trial Court. I have earlier on in this Judgment reproduced the material facts put forward by both the Respondent and the Appellant. I have also perused those facts and the exhibits attached to the respective claims and counter-claims as can be gleaned from the record of proceedings.

Briefly reiterated, the claim of the Respondent is that based on a gentleman’s agreement between him and the Appellant, he that is, the Respondent executed some works viz, the procurement and installation of a five thousand (5,000) litre water tank, pumping machine, shaving mirror and some other household facilities in house No.2, Maitama Sule Street, Asokoro District, Abuja, where the Appellant resided. According to the Respondent, the Appellant refused to pay him the agreed sum of four hundred thousand Naira (N400,000=) for the works.

On the contrary, the Appellant in contention of the Respondent’s version claimed that the said house where the works were carried out is not his personal house but his former official residence, which was allocated to him when he was a Special Assistant to the Chief Economic Adviser to the former President of Nigeria. Most importantly, the Appellant refuted the claim that there was any agreement between him and the Respondent regarding the works carried out by the Respondent. Rather, according to the Appellant, the Respondent quoted for the works using his, that is, the Respondent’s business name and was duly awarded the contract by the Tenders Board of the National Planning Commission.

To back up his claim, the Appellant submitted documents to show that the Respondent submitted a quotation to the Tenders Board of the National Planning Commission which was officially processed. The Respondent’s quotation for the said works was approved. These assertions are contained at pages 26 – 27 of the record of proceedings. The documents which reflect the exchange of minutes are hereunder reproduced for ease of reference as follows:

“Perm Sec SGD

DFSC 3/12/99

DD (GS), SGD 30/11/99

SGD

CEO (S & M)

Yours at foot of folio 13 refers.

Please I received this file late Monday afternoon on arrival from the chief Economic Adverser’s residence where I went for an official assignment.

Two additional contractors were contracted, and after inspection of the SA, CEA’S residence, have submitted their questions along with Kayode Abiodun Enterprises, for the following job:-

(a) Installation of Ground Water Tank

(b) Maintenance of existing overhead tank

(c) Installation of Thunder Arrestor

(d) Plumbing, Carpentry and Burglary Proofs

The quotations are summarized as follows:-

(i) DEN-VICK (NIG.) ENTERPRISES N630,981.00

(ii) DAMILOLA COMMERCIAL ENTERPRISE N493,960.00

(iii) KAYODE ABIODUN ENTERPRISES N431,019.00

From the foregoing you will please observe that MESSRS KAYODE ABIODUN ENTERPRISES quoted the least – four hundred and thirty one thousand and nineteen naira (N431.019.00).

In view of the submission you may please wish to consider and recommend that KAYODE ABIODUN ENTERPRISES should be given the jobs for the sum of N431,019.00

Submitted Please. 7. Please consider and approve for S. above

SGD

CEO (S&M)

30/11/99

SGD

I.W. ESSIET

Senior Executive Officer (M)

30/11/99

CEO (S & M)

We discussed

Please resubmit A

SGD Please speak with file

DFS SGD

Perm Sec Perm Sec

9/12/99 3/13/99

SA/CEA/NPC/I/T

Perm Sec

DFS

We discussed Please,

2. Find below the breakdown of the detail submissions of the vendors that quoted for the installation of groundwater tank and other facilities in the residence of the SA to the CEA:

S/N Vendor Amount Amount Installation of Mtec work Total

Quoted for quoted for Thunder in House

Ground water Existing Arrest or

tank O/head water

N N N N N

1. Den-Vic Nig. 346.781 32,000.00 156,200 95,000 630,981

Enterprises

2. Damilola Comm 231,340 25,000 133,500 75,500 493,960

Enterprises

3. Kayode Abiodun 214,040 19,000 138,500 59,700 431,019
4. from the forgoing analysis, Kayode Abiodun quoted the least and must competitive bid on all the four sub-units and is therefore recommended for the job at a total cost of N431,019.00
5. Above submitted please.
6. Presumably, the DFS had spoken to you as you directed at page 22.
7. You may wish to approve the least quotation above which is N431,019.00 please.

SGD SGD

CEO (Supply & Maintenance)

13th December, 1999 Legal Adviser

This is a rental accommodation

2. Do we undertake such an expenditure pls?

SGD

Perm Sec

20/12/99”

The Appellant maintained that he had no personal dealing and did not enter into any contract with the Respondent. When the Respondent completed the said works, the Respondent urged him that is, the Appellant, to confirm this. Hence he wrote a note to Mr. Esiet, the Senior Executive Officer (Maintenance) of the National Planning Commission. This is contained at page 18 of the record of proceedings. For ease of reference, the note reads thus:

“CHIEF OLUKAYODE AKINDELE

The Special Assistant to the Chief Economic Adviser to the President

SEO (Maintenance)

Atten: MR Esiet

2. Yusufu Maitama Sule:

You will recall the Messrs Kayode Abiodun was given the job to install 5000 litre water tank, pumps etc

2. Please note that the job is now completed
3. Kindly put forward this file for processing and payment please.

SGD

SA/CEA

Tel 09-5230057 22.05.00”

Without delving into the merits of the substantive suit thereby prejudging same, as the law does not allow for that type of exercise; on a careful perusal of the printed record of proceedings, I cannot point to any documentary or other concrete evidence produced by the Respondent, in support of his claim. Even Exhibit “D” at page 18 of the record submitted and relied upon by him is not helpful to him. On the contrary, the Appellant was able to establish that there was no contract or agreement between him and the Respondent to carry out the works under consideration. See the correspondence at pages 26 and 27 and Exhibit “D” at p. 18 of the record already reproduced above. There is also nothing in the record of proceedings to show that the Appellant held out himself to the Respondent that he, the Appellant acted as an agent of the National Planning Commission. The record does not show that the Appellant was even instrumental to the award of the works to the Respondent.

Otherwise, the Appellant would have been caught up and held liable as an agent of a disclosed principal.

It is therefore my conviction and I hold that the Appellant is not the proper or necessary party or person or defendant to be called upon to defend the action of the Respondent.

It is trite that the issue relating to proper parties, plaintiff or defendant goes to the foundation of a suit. It must consequently be raised “in liminie” as was swiftly done by the Appellant in the instant case for the proper consideration of and determination by the trial Court. For it is a cardinal principle of law that the foundation of a suit must be rooted in the jurisdiction of the court called upon to adjudicate upon it, otherwise whatever else it decides with regard to the suit is of no consequence. Just as the issue of the “locus standi” of a plaintiff is so vital as his capacity to present a complaint to the court for adjudication in order for the Court to be vested with jurisdiction; a defendant must also have capacity and be in the right standing to defend a’ plaintiff’s complaint before the court can be vested with jurisdiction to adjudicate upon the plaintiff’s complaint.

Jurisdiction is the competence of a Court to adjudicate upon an action. The issue of jurisdiction is fundamental. Lack of it is an incurable vice, fatal to adjudication and renders an entire proceedings, trial and findings invalid, null and void “ab initio” however brilliantly they must have been conducted and concluded.

Courts are creatures of, and their powers are derived from the constitution which is, the grundnorm of any society and or other statutes. The jurisdiction of a court is therefore confined, limited and circumscribed by these creating laws. Courts in essence cannot give themselves or expand their jurisdictional horizon by misappropriating or misconstruing the law(s) that created them. Jurisdiction cannot be compromised. So also parties cannot by consent or agreement confer jurisdiction on a court where a Court has none. The competence of a court to adjudicate upon a matter is therefore a legal and constitutional prerequisite without which a Court is lame duck. Our law reports are replete with a plethora of authorities on these legal principles. Seethe “locus classicus” case of: Madukolu Vs. Nkemdilim (1962) 2 SCNLR p. 34.

I also refer to the cases of:

(1) Ezenwosu Vs. Ngonadi (1988) 3 NWLR (Pt.81) p. 168;

(2) Obayiuwana Vs. Ede (1998) 1 NWLR (Pt. 535)p. 670;

(3) Magaji Vs. Matari (2000) 8NWLR (Pt. 670) p. 722;

(4) Mobil Prod (Nig.) Ltd Vs. LASEPA (2002) 18 NWLR (Pt. 798) p. 1;

(5) N.D.I.C Vs. C.B.N (2002) 7NWLR (Pt. 766) p.272;

(6) Offia Vs. Ejem (2006) 11 NWLR (Pt. 992) p. 652;

(7) Saleh Vs. Monguno (2006) 15NWLR (Pt. 1001) p. 26;

(8) Oke Vs Oke (2006) 17 NWLR (Pt. 1008) p. 224;

(9) Onwudiwe Vs. F.R.N (2006) (pt. 988) p. 382 and

(10) APC Ltd Vs. NDIC (NUB Ltd) (2006) 15 NWLR (Pt. 1002) p. 404.

Furthermore, it is a time-hallowed settled principle of law that in determining the jurisdiction of a court, the law vesting jurisdiction on the Court has to be examined in the light of the reliefs sought by a plaintiff. If the reliefs sought come within the jurisdiction of the Court, as portrayed by the facts of the reliefs sought, the Court shall assume jurisdiction as it then has jurisdiction in the matter. On the contrary, if the reliefs sought do not come within the jurisdiction of the court as portrayed by the facts thereof, the Court must decline adjudication as it has no jurisdiction in the matter. I refer in this regard to the cases of:

(1) Babale Vs. Abdulkadir (1993) 3 NWLR (pt. 281) p. 253;

(2) O. H. M. B. Vs Sarba (2002) 14 NWLR (Pt. 788) p. 538;

(3) Trade Bank Plc. Vs. Beni Inx Mg. Ltd (2003) 9 NWLR (pt. 825) p. 416:

(4) APC Ltd Vs. N.D.I.C (NUB. Ltd) Supra at p. 404 and

(5) Onwudiwe v. F.R.N Supra at p. 382.

A Court is therefore competent of taking cognizance of matters presented to it for the purpose of determining such matter if:

(a) it is properly constituted as regards qualification of members of the bench and no member is disqualified for one reason or another; and

(b) 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

(c) the case comes before the Court initiated by due process of law and upon the fulfilment of any condition precedent to the exercise of jurisdiction.

All the three conditions stated above must co-exist for the court to be vested and clothed with proper competence and jurisdiction. See the cases of:

(1) Madukolu Vs. Nkemdilim supra at p. 587 and

(2) A. – G., Anambra State Vs. A. – G., of the Federation (1993) 6 NWLR (pt. 302) P 692.

At pages 21 to 22 of the record of proceedings, the Appellant’s motion on notice dated 25th June, 2003 sought for an:

“Order of Court striking out the suit for lack of proper Defendant. ”

On the face of the said application, the crux of the objection in my humble opinion lies in the lower Court being robbed of jurisdiction on account of the incompetent nature of the suit. The condition precedent in the matter at hand is that the Appellant is not the proper party/defendant in the subject-matter of the claim of the Respondent. Wherein, the lower Court would be robbed of jurisdiction in the absence of the Respondent suing the proper defendant. In the case of:

Saude Vs. Abdullahi (1989) 4 NWLR (Pt. 116) p. 387 at p. 432, the Supreme Court held thus:

“A defendant irregularly or wrongfully summoned has an option either:

(a) To enter appearance on protest or

(b) To enter a conditional appearance, and

(c) Then file a motion in the court, the trial Court seized of the matter to set aside the writ or originating summons on the ground complained of,” (Underlined is mine for emphasis).

The underlined phrase “the trial Court seized of the matter to set aside the writ” is very significantly relevant, because it implies the issue of jurisdiction in the absence of a waiver and upon timeous response of the defendant.

In the instant case, the Appellant lives in Britain, but as soon as he became aware of the Respondent’s suit filed against him, he traveled back to Nigeria. Before his return to Nigeria, there was already pending in court a motion for judgment at the instance of the Respondent. Hearing notice in that regard was pasted at the gate of the Appellant’s guest house on 12/6/03. As stated earlier, the Appellant got wind of this and returned to Nigeria on 14/6/03 and briefed a counsel appropriately. On 25/6/03, four different processes were simultaneously filed on behalf of the Appellant. These are:

(a) Motion on notice praying for the striking out of the suit for lack of proper defendant.

(b) Counter-Affidavit in opposition to the motion for judgment.

(c) Motion on notice for extension of time within which to file memorandum of appearance out of time; with a prayer for the order of the trial court to deem as properly filed and served the memorandum of appearance already filed.

(d) Motion for extension of time within which to file the statement of defence out of time, counter-claim and a prayer for deeming the processes already filed and served as properly filed and served.

All the above processes are contained in pages 21 to 40 of the record of proceedings.

The applications under (c) and (d) above were moved and granted on 26/6/03. The Appellant entered an appearance which was mandatory to afford him the capacity to contest the competence of the suit.

The motion praying the trail Court to strike out the suit was argued on 3/12/03, ruling in respect thereof was delivered on 22/2/04 wherein the application was dismissed.

The crucial reason for the dismissal of the Appellant’s motion for the striking out of the suit is ”inter alia “as follows:

“(2) Having carefully, analysed the fails (sic) on the face of the records along side the submissions on (sic) counsel on (sic) sides, I am of the firm view that the defendant before the Court is a proper party, and I believe it is in view of that realization, the applicant proceeded not only to file statement of defence, but to equally file a counter-claim thereby taking steps in the proceedings..”

The Appellant duly entered an appearance and his statement of defence was also filed on the orders of the trial Court because he was already out of time. All these are contained in pages 66 to 78 of the record of proceedings.

There is a contention between the parties in the instant case concerning the legal propriety of all the processes filed by the Appellant especially the statement of defence, counter-claim and memorandum of appearance. The Respondent’s counsel is of the view that only the motion to strike out the suit for incompetence should have been filed by the Appellant. On whether the Appellant’s action in filing the statement of defence and counter-claim was proper, I have earlier in this judgment recapitulated the situational case at hand. The submission of learned counsel for the Appellant that the issue of demurer has been abrogated is well and legally founded. Objections to any irregularity in a suit can be submitted and taken together with pleadings. A good look at the record before this court, especially given the peculiar circumstances of this case, shows that it cannot be said that the Appellant have waived his right as contemplated. Waiver is the intentional and voluntary surrender or relinquishment of a known privilege and or right. It implies a dispensation or abandonment by a party of a right or privilege which, at his option, he could have insisted upon. I refer on this established legal principle to the cases of:

(1) Jadcom Ltd Vs. Oguns Electrical (2004) 3 NWLR (Pt. 859) p. 153 and

(2) Ariori Vs. Elemo (1983) 1 SCNLR p. 1.

In the given situation of the Appellant at the time in question, it is apparent on the record that he took all the necessary steps he ought to have taken. Despite filing the other processes, the Appellant did not ignore the defect perceived by him, rather he took steps to object to and challenge the irregularity by applying to have the suit set aside. The case of Ezomo Vs. Oyakhire supra relied upon by the Respondent’s learned counsel is inapplicable to the instant case. It was held in Ezomo Vs. Oyakhire per Aniagolu JSC at P. 202, paras. F – G thus:

” – The concept of waiver, ……..is that a person who is under no legal disability and having full knowledge of his rights or Interest, conferred on him by law, and who intentionally decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted the exercise of those rights or that he has been denied the enjoyment of those interests …”

The steps taken by the Appellant after discovering the irregularity in the suit in my opinion did not constitute a waiver of his right. As a matter of fact, the averments in the statement of defence are a near replication of those in the affidavit in support of the motion praying the court below to strike out the suit. There is no indication in the record to suggest that the Appellant waived his right or acquiesced.

In my opinion the learned trial Judge was not right in holding that the steps taken by the Appellant amounted in essence to a waiver of his right to challenge the irregularity in the suit filed by the Respondent and that the Appellant impliedly surrendered himself to the jurisdiction of the trial Court. As earlier on reiterated in this judgment, no party can foist jurisdiction on a court where the court has none.

Where a party is improperly sued as the Appellant was in the instant case when the Respondent had no claim against him, the course open to and proper order the court ought to make is to strike out the suit. See the cases of:

(J) Aguocha Vs. Aguocha (2005) 1 NWLR (Pt. 906) p.165;

(2) U.B.A. Plc. Vs. Samba Petroleum Co. Ltd (2002) 16 NWLR (pt. 793) p. 361:

(3) Santa Fe Drilling (Nig) Ltd Vs. Awala supra and

(4) Lawal & Anor. Vs. Younan supra.

In conclusion, it is rooted in law that an action can be sustained only if the parties to it are shown to be proper parties to whom rights, interests and obligations arising from the controversy or cause of action are attached; so that the Court can render a final decree thereon. In the instant case, from the averments in the processes filed by the Respondent and the Appellant in the lower Court, especially the correspondence and Exhibit “D” at pages 26, 27 and 18 respectively, there is no nexus between the Appellant and the Respondent. Thus, the proper parties were not before the lower Court. In the circumstance the trial Court lacks jurisdiction to hear the Respondent’s suit. Having established that the Appellant was wrongly sued as defendant by the Respondent, the effect is that no liability can be ascribed to the Appellant.

By virtue of Section 15 of the Court of Appeal Act, 2004, this Court can make an order or deliver a ruling or judgment which the trial court ought to have made or delivered. See the cases of:

(1) U.B.N Plc. Vs. Sparkling Breweries Ltd (1997) 3 NWLR (Pt. 491)p. 29;

(2) Ajayi Vs. Military Administrator, Ondo State (1997) 5 NWLR (pt. 504) p. 237;

(3) L.S.D.P.C Vs. Adeyemo – Bero (2005) 8 NWLR (Pt. 927) p. 330 at p. 363 and

(4) CG.G. (Nig.) Ltd Vs. Ogu (2005) 8 NWLR (pt. 927) p. 366 at p. 385.

These provisions of the Law confer on the Court of Appeal jurisdiction over the proceedings before it as if the proceedings came before it as a court of first instance. In the circumstances of the case under review, the Appellant is entitled to have the suit of the Respondent wrongly instituted against him, struck out.

It is also pertinent to state that where a plaintiff institutes an action against a wrong party, then such party not being liable is entitled to compensation by way of cost. See the case of: Savannah Bank (Nig.) Ltd Vs. S.I.O Compn. (2001) 1 NWLR (Pt. 693) p.194 at p. 212.

In the result, this appeal against the ruling of the lower Court succeeds and it is allowed. The said ruling of the lower Court delivered by Han. Justice I. U. Bello on 23/2/04 is hereby set aside.

The suit No. FCT/HC/CV/1061/02 is struck out for incompetence. The sum of N50,000= is accordingly awarded as costs in favour of the Appellant to be paid by the Respondent.

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Other Citations: (2001)LCN/1044(CA)