Ambassador Yusuf Hamman & Ors V. His Excellency Otunba Adeniyi Adebayo & Ors (2002)
LawGlobal-Hub Lead Judgment Report
ZAINAB A. BULKACHUWA, J.C.A.
In the Federal High Court Abuja coram Edet ‘J’ the 1st – 16th Respondents as Plaintiffs initiated an action against the appellants as defendants in Writ of Summons filed on the 30th of May 2000. Their claim against the defendants is as per paragraph 13 of the Statement of Claim whereby they claim as follows;
(i) An order of this Honoruable Court restraining the Defendants, their servants, agents and privies from conducting any congress starting from ward scheduled for the 3rd of June, 2000, Local Government 14th of June 2000, State scheduled for 24th of June, 2000 and National Convention Scheduled for 1st July, 2000 as published in the Newspapers, or indeed on any other date thereafter.
(ii) An order of this court restraining the 1st to 4th Defendants, their agents, servants and privies from obstructing tampering or in any way interfering with the 1st to 16th Plaintiffs in the execution of their functions as members of the National Convention Committee democratically selected by the National Executive Committee of the 17th Plaintiff.
(iii) A declaration that the 1st to 16th Plaintiffs were properly and democratically selected by the National Convention Committee of the 17th Plaintiff and by virtue of that the only legal authority to conduct the National Convention of the 17th Plaintiff.
Pleadings were filed by the parties, before trial could commence however, the defendant as applicants filed a Motion on Notice on the 8th of June, 2000 in which they sought the following reliefs;
An order setting down the point of law raised.
In paragraph 17(1) to 17(v) of the Statement of Defence for determination by this Honourable Court, as shown hereunder before the hearing of evidence in this case:-
(i) That the National Convention Committee comprising the 1st to the 16th Plaintiffs being a mere ad – hoc committee which is unknown to the Constitution of the 17th Plaintiff, the committee has no power to dissolve the Protem National Executive Committee of the 17th Plaintiff.
(ii) That the Plaintiffs National Convention Committee not being a creature of the Constitution of the 17th Plaintiff, the committee is not a juristic person. Consequently, this action is incompetent having been constituted by the 1st – 16th Plaintiffs as ‘ALL MEMBERS OF THE NATIONAL CONVENTION COMMITTEE OF THE ALLIANCE FOR DEMOCRACY’ and the Court has no jurisdiction to hear and determine the action.
(iii) The 1st to 16th Plaintiffs have no locus standi in law to institute this action as they have not shown any loss or injury or damage suffered either individually or collectively them as a result of the Defendant’s action.
(iv) That under the constitution of the 17th Plaintiff, the 1st Defendant as Protem National Chairman of the 17th Plaintiff, he is empowered to Summon the First National Convention of the Alliance for Democracy and not the 1st to 16th Plaintiffs.
(v) That this present action by the 1st – 16th Plaintiffs is a duplication of a similar suit instituted by the Alliance for Democracy (AD) against the 1st – 16th Plaintiffs now pending in Suit No FCT/HC/CV/359/2000 and therefore in abuse of Court process.
And take further notice that the 1st – 4th Defendants/Applicants will at the hearing of this application rely on the Statement of claim and statement of defence already filed in this case.
And for such further Order or Order as this Honourable Court may deem fit to make in the circumstances of this Suit.
The defendant applicant before the lower court filed an affidavit in support while the respondent in objecting the application filed a Counter affidavit and sole annexed documents. The application was moved and argued on the 27th, June, 2000 and 10th July, 2001.
In a ruling delivered on the 24th July, 2000, the lower court dismissed the motion on Notice “for want of merit and grant the plaintiff’s claims as per their Statement of Claim which is voluntarily admitted by the defendant.”
The defendant now appellant aggrieved with decision of the trial court have now appealed to this court.
With leave of court the appellant’s amended their grounds of appeal which shorn of their particulars are produced hereunder.
GROUNDS OF APPEAL
- The learned trial judge erred in law when he said as follows;
“It is trite law what is admitted needs no further proof. Accordingly I dismiss the Motion on Notice for want of merit and grant the plaintiffs claim as per their Statement of claim which is voluntarily admitted by the defendants.”
- The learned trial judge erred in granting the plaintiffs claim as contained in the statement of claim filed on their behalf when;
(a) The Plaintiffs had made an application for judgment.
(b) The 1st – 4th Defendants had filed a Statement of defence in which they were clearly challenging the averments of fact contained in the statement of claim.
(c) The learned trial judge had taken no evidence nor in any way resolved the issues of fact between the parties before giving judgment in favour of the plaintiffs.
- The learned trial judge misdirected himself in law when he stated as follows;
“I rule that my work is very simple following the unreserved admission of the statement of claim by the Learned Counsel for the defendant/applicants. Chief Solomon Asemota (SAN). It makes no difference that he said that his admission of the statement of claim is limited to this motion only because the motion is total in that it seek to admits the suit and have it struck out for want of jurisdiction, locus standi – cause of action and non juristic personality in the 1st – 16th plaintiffs”.
- The learned trial judge erred in law when he held that the case for the defendants was unintelligible or equivocal simply because the motion paper referred to Order 24 Rules 2, 3 and 4 dealing with the undefended list, while the argument was maintained under Order 25 which dealt with Proceedings in lieu of demurrer without leave of court.
- The learned trial judge erred in law in determining the issues which the Defendants had sought to have set down for determination before the taking of evidence upon the motion for such setting down.
- The learned trial judge erred in law in entertaining the action herein when, the lacked jurisdiction to do so.
Parties to this appeal filed and exchanged briefs. In the appellants amended brief the appellant’s Counsel identified the following issues for the determination of the appeal.
(a) Whether the learned trial judge had jurisdiction to entertain the plaintiff’s action therein.
(h) Whether the learned trial judge correctly identified the nature of the application then before him and the prayers therein sought.
(c) Whether the learned trial judge was entitled to disregard the appellant’s specific limitation of the admission of the facts contained in the statement of claim to the application then being argued.
(d) Whether the learned trial judge was entitled to make an order for judgment on the plaintiffs (hereinunder called the respondent) claims in the course of a ruling on the appellant application to set certain issues down for determination on points of law when no application for judgment was before him.
(e) What order the learned trial judge should have made in the event that he rejected the appellants application to set certain issues down for determination on points of law.
(f) The effect of the appellants having cited a wrong order on their motion paper.
The respondents in their brief which was filed after this court extended the time within which to file their brief on the 18/4/02 adopted all the issues as identified by the appellant in their brief and replied to same. This appeal will therefore be determined on these issues.
ISSUE ONE:
Whether the learned trial judge had jurisdiction to entertain the plaintiff’s action therein.
It is the contention of the appellant that ‘the trial court lacked jurisdiction to entertain the matter the action before it being one concerning intra – party dispute between two groups of the Alliance for, Democracy on the way and manner the National Convention of the Party should be conducted. That the joinder of INEC in the suit was unnecessary, submitting that INEC is not one of the agencies of the Federal Government envisaged by the Provisions of Section 251 (1) (P) – (S) of the 1999 constitution. but rather a body established by Section 153 (1) (F) of the Constitution that INEC is established for the Federation and is therefore not an agency of the Federal Government and by implication the Federal High Court lacks jurisdiction to determine the matter and urges us to so hold and strike out the matter.
The respondent in reply contends that the controversy that took the parties to court was on the holding of a National convention of the party where the authentic National officers of the Alliance for Democracy will be elected and forwarded to INEC as required by law. That the reliefs of the respondent in the lower court rest on that, so had the issues as joined by the parties in their pleadings. Submitting further that the statutory administrative responsibilities and control of the political parties by INEC will vest on the Federal High Court the jurisdiction to determine the matter. That INEC is an agency of the Federal Government and therefore a necessary party to the suit.
In as much as an issue of jurisdiction is considered very fundamental that it can be raised at any stage of Proceedings, for where it is absent the whole case collapses no matter how well it is tried – PETRO JESSICA ENTERPRISES LTD VS LEVENTIS TECHNICAL CO LTD 1992 5 NWLR Part 244 675; OSHATOBA VS OLUJITAN 2000 5 NWLR Part 655.
To be relevant however the issue must be related and confined to the complaint on the decision appealed against, and becomes irrelevant and incompetent when it is not related to the decision appealed against – MRS. R. SHUAIBA VS UNION BANK OF NIGERIA PLC 2001 1 SCNJ 1.
The appeal in this case is against the decision of the trial court, whereby the court entered judgment for the respondent while ruling on an application on the presumption that the appellant’s counsel had admitted to the averment in the statement of claim while arguing the motion before it.
The issue as determined in the trial court in its ruling pertain to the incompetency of the court in determining the matter for want of locus standi, cause of action, abuse of process, and non juristic personality of the 1st to the 16th Plaintiffs. There was no complaint on the 18th respondent being a party. Nor was there an application complaining that the court being a Federal High Court lacks competence to try the matter in that INEC the 18th respondent is not an agent of the Federal Government.
The issue raised in this appeal however is as to whether INEC being one of the parties in the Suit is an agent of the Federal Government or not and the effect of the Provisions of Section 251 (1) (P) (5) and 153 (1) (F) of the 1999 Constitution on the matter.
INEC was a party before the lower court the above issue was neither raised, canvassed, considered nor determined before the lower court. The Appellant were well aware of their participation when they brought up the application the subject of this appeal.-
My Lord Musdapher JCA had occasion to state, in the case of NDIC & ANOR VS SAVANNAH BANK OF NIGERIA PLC in Appeals No. CA/A/23/2002, CA/A/30/2002, as follows:
“In my view an appeal is a complaint against a decision, therefore the issue of jurisdiction and competence raised by the 1st appellant cannot be relevant to the decision on appeal but on the substantive matter which is not on appeal before this court. For a fresh point to be taken on appeal the point must be relevant to the due determination of the matter. See EZE VS A.G. RIVERS STATE (Supra) (2001 18 NWLR Part 746 524)
An appellate court in dealing with matters that come before it is generally bound to limit its consideration to the case on appeal and which was decided by the trial court. See ANLA VS AYANBOLA 1977 4 SC 63. The matter now in controversy between the parties is the issue of the grant of mandatory injunction and not the whole suit. It should be plain to an appellate court that when an issue is not properly placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all about the place, See AGBA VS AGODO 1984 1 SCNL 327. An appellant’s right of appeal as of right does not confer on him an unlimited right to argue any ground of appeal filed in exercise of that right. The exercise of a right to argue a ground of appeal is subject to the rule of relevancy and the discretion of the appellate court. See EJIOFOUMI VS OKONKWO 1982 11 SC 74. It must be emphasized that an appeal is not a new action but a continuation of the matter of the appeal, in the instance case the subject of the appeal before us is limited to the question of mandatory injunction granted by the trial court and not any other complaint dealing for example with the competence of the substantive matter before the trial court. See OGUNDANI VS ARABA 1978 6 – 7 SC 55. So, though in a proper case, an appellant may file grounds of appeal complaining on fresh legal points even without leave where for example the fresh issues border on jurisdiction, however, the complaint must be relevant to the decision appealed against and not to any matter which is not the subject of the appeal.”
As it was in that case, so it is in this case the issue of jurisdiction with regards 11th respondent was not raised in the statement of defence, it was not raised in the application nor was it pronounced upon by the trial court. So even though it was one of the grounds of appeal, it borders on the competency of the trial court to determine the case, the 18th respondent INEC being or not being an agent of the Federal Government.
For “where a party intends to contends the issue of jurisdiction in a case it must be done at the earliest opportunity especially where such an issue relates only to the application of statutes without any reliance on evidence”
– JADESIMI VS OKOTIE – EBOH 1 NWLR Part 16 264.
It is the prerogative of the court of first instance that the issue be raised at the earliest opportunity, for where a court has no jurisdiction to hear a case everything it does after becoming aware of the fact that it has no jurisdiction will be a nullity. See ITAYE & ORS VS EKAIDERE & ORS 1978 9 10 SC 35; UWAIFO VS A.G. BENDEL STATE 1982 7 SC 124; ISADAEHOMEN & ANOR VS THE GOVERNOR OF BENDEL STATE 1986 5 NWLR Part 39 58; JADESIMI VS EKOTIE-EBOH (Supra).
This court can therefore not be asked to consider the competency of the trial court to hear the case by the joinder of the 18th respondent as a party to the Suit as it was not raised before the trial court neither was there a finding, consideration or decision of the trial court based on it.
ISSUE NO 2
Whether the learned trial judge correctly identified the nature of the application then before him and the prayers therein sought.
Appellants on this issue contended that the application brought by the appellant before the trial court was to have the five points raised in their statement of defence set down for determination before the commencement of the trial. That this is a procedure which is well established and sanctioned by the rules of court and relied heavily on Order 25 of the Federal High Court (Civil Procedure) Rules 2000 and Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria.
The appellant submits that the learned trial judge failed to follow the procedure, wrongly stating that the application before him was one to dismiss the respondents action, while the application at that stage only showed that the appellants wanted the trial court to agree that those five points should be set down for determination and his duty at that stage was to decide whether the five points so raised were capable of being determined without adducing evidence, and whether the points raised were of such a nature that a determination of them would substantially dispose of the case before him. That the trial court having failed to do so it has fundamentally affected its consideration and treatment of the submissions made before him in the argument of the application.
The respondent contend in their brief that the appellant in putting up the application was asking the trial court to set down and determine the issues of law raised in the application before taking evidence. And also prayed the court, in addition to the relief of setting down some points of law for determination, the relief of any further or other orders the court may deem fit to make in the circumstances of this Suit. They submit that the learned trial judge perfectly understand the actual application before him and ruled on the reliefs contained therein accordingly and that the learned trial judge did follow the structures of law when he gave this ruling.
The application before the lower court the subject of this appeal had earlier been reproduced in this judgment. The trial court in deciding the issues raised therein found as follows:
“I have dissected and analyzed the statement of claim vis-a-vis the Statement of Defence, the motion papers, the affidavits and affidavit evidence, I rule that my work is very simple following the unreserved admission of the statement of claim by the learned Counsel for the defendant/applicants, Chief Solomon Asemota, (SAN). It makes no difference that he said that his admission of the statement of claim is limited to this motion only because the motion itself is total in that it seek to dismiss the suit and have it strict out for want of jurisdiction locus standi cause of action and non – juristic personality of the 1st to 16th plaintiffs.”
It appears therefore that the learned trial judge did understand the application that was brought before him. Did he however understand the procedure he should have followed while considering the application and the decision he should have arrived at on consideration of the application.
The appellant while moving the application at Pg 110 of the records said the application was brought pursuant to Order 25 Rules 2, 3 & 4 of the Federal High Court Civil Procedure Rules. And it seeks for an order setting down the point of law raised in paragraphs 17(i) – (v) of the statement of defence and as listed in the motion paper for the determination of the court.
While replying to the application learned counsel to the respondent at page 113 of the records pointed out that the application was brought under the wrong law and that the applicant did not obtain the leave of the court to amend the law under which the application was Originally brought from Order 24 to move it under Order 25 and urged that the application be stuck out.
Order 24 of the High Court Civil Procedure Rules provides for the determining of an action under the undefended list clearly the wrong law under which to bring the application.
It is however evident from the application itself and the submissions of learned counsel for the defendant/applicant/appellant that the law under which the application should have been brought was under Order 25 of the Federal High court Civil Procedure Rules 2000 which provides as follow;
“2 (1) A party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the judge at or after the trial.
(2) A point of law so raised may, by consent of the parties or by order of the court or a judge in chambers on the application of either party, be set down for hearing and disposed of at any time.
(3) If in the opinion of the court or a Judge in Chambers the decision of the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or Judge in chambers may thereupon dismiss the action or make such other order therein as may be just.
(4) The court or a Judge in Chambers may order any pleading to be stuck out on the ground that it discloses no reasonable cause of action or defence being shown by the pleadings to be frivolous or vexatious, the court or a Judge in Chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.
(5) No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby the court may make binding declarations of right whether any consequential relief is or could be claimed or not.”
This is a procedure whereby a party to an action is allowed to raise any point of law by his pleadings and upon application a court will consider the point of law so raised before the trial and may strike out a statement of claim on the ground that it discloses no cause of action or order the action to be stayed or dismissed. And where a statement of defence is shown to be frivolous or vexatious enter judgment accordingly.
An application of this nature borders on ‘demurrer’ which was allowable on the Federal High Court Civil Procedure Rules 1976 Order 27 thereof.
Demurrer is a proceeding long known to common law for the determination of matters on points of law only. See CONCISE HISTORY OF THE COMMON LAW 4TH EDITION by plunked at pages 389 – 390 where he said;
“The object of pleadings is to explore the law and the facts of a case by means of the assertions and denials of the parties until an issue has been reached. If it is an issue of fact then the parties would have ascertained a material fact which one asserts and the other denies in terms so precise that a jury will have no difficulty in hearing evidence on the matter and finding the truth of it. If it is an issue of law, the parties will have admitted the relevant facts, leaving it to the court to decide whether the law applicable to them is as the plaintiff or as the defendant maintained. This is called a ‘demurrer’ because one of the parties has pleaded that he is entitled to succeed on the facts admitted by the other, and is willing to rest (demurrer) at that point. If his opponent does the same, then demurrer is joined, the pleadings are at an end, and the court hears the argument on the point of law and decides it”.
It follows therefore that where a defendant is served with a statement of claim and is of the view that he has a legal or equitable defence even if the facts are admitted, he can bring an application by way of Motion on Notice whereby he raises the defence and ask the court to dismiss the matter. Upon examining the application the court may either dismiss the suit or call on the defendant to enter his defence by replying to the facts raised in the statement of claim, in effect ask the defendant to file his pleadings, ‘Demurrer’ can therefore only be raised before the filing of the statement of defence. Or where a statement of claim is amended after the filing of a statement of defence before the filing of an amended statement of defence – See ASHANTI ELECTRIC POWER DEVELOPMENT CORPORATION VS THE ATTORNEY-GENERAL OF THE GOLD COAST 1937 3 WACA 215; EGE SHIPPING AND TRADING INDUSTRIES VS TIGVIS INTERNATIONAL CORPORATION 1999 14 NWLR Part 637 70; MOBIL OIL VS IAL 36 INC 2000 4 SCNJ 124; CLEMCO VS MB’ RAB’ 2002 VOL 37 NRN 140
For the purposes of the application the defendant will be deemed to have admitted the statement of facts as contained in the plaintiffs statement of claim and any argument or evidence contradicting them will be untenable in the application – BOTHIA MARITINE INCOPORATED & ORS VS FAREAST MERCHANTILE CO. LTD 2001 4 SCNJ 178.
Order 25 R1 of the Federal High Court Civil Procedure Rules provides; ‘No demurrer shall be allowed. A demurrer proceeding as shown above is therefore different from the procedure as envisaged in the present rules which is termed “proceedings in lieu of demurrer.”
In this instance pleadings must have been filed by the parties before the application setting down the points of law by the parties can be brought. Either party may bring the application. Where the application is brought by the plaintiff and upon consideration the court finds that the statement of defence is frivolous or vexatious it may enter judgment accordingly and where the application is brought by the defendant the court upon finding that the statement of claim discloses no reasonable cause of action strike it out or order the action to be stayed or dismissed. The application in the instant case was brought by the defendant.
The Procedure also calls for the determination of issues of law. The court having taken the application ought to have considered the five points so raised and determined whether they were capable of being determined without the taking of evidence and disposing of the case or otherwise, considered the objection of the respondent that the application was brought under the wrong law and no leave sought to amend it and thus to strike it out.
Of course before the application can be successfully moved the statement of facts as contained in the statement of claim have to be admitted by the defendant. It does not however mean that he is admitting to the plaintiff’s pleadings, having joined issues with the plaintiffs in the statement of defence. The learned trial judge was thus wrong to have entered judgment for the respondents on this admission.
The trial court having considered and dismissed the application for want of merit what it ought to have done was to have proceeded to the substantive issue for the determination of the issues as joined by the parties in their pleadings not to have entered judgment for the respondent.
Having come to the above conclusion I am of the view that the remaining issues on the limitation of admission by the defendant counsel the order of judgment made by the trial judge, the bringing of application under the wrong law have more or less been looked into in my consideration of issue two. It however suffices to restate that even thought the application was brought under the wrong law, the court ought to have struck it out for being incompetent, but having considered it ought to have confined itself to the application and not grant to a party what it has not asked for. Issues having been joined and the application having been dismissed the matter should have proceeded to trial.
For the above reasons this appeal must succeed and I so hold. The order dismissing the motion on notice is hereby upheld, the order of judgment made by the trial court on 24/7/2000 is hereby set aside. The case is remitted to the Federal High Court Abuja for the determination of the matter on the merits before another judge other than Edet ‘J’.
I award costs of N10, 000.00 to the Appellants.
Other Citations: (2002)LCN/1283(CA)
