Hon. Justice C.C. Nwaogwugwu V. The President of the Federal Republic of Nigeria & Ors (2007)
LawGlobal-Hub Lead Judgment Report
HON. JUSTICE OLUFUNMILOLA OYELOLA ADEKEYE, JCA
The appellant, Chukwuemka Comrade Nwaogwugwu, a judge of the Federal High Court Kano Division brought an application for judicial review of the Report and recommendation of the panel set up by the National Judicial Council and that of the Council with a view to quashing them pursuant to Order 47 of the Federal High Court Civil Procedure Rules 2000. In the application filed before the Federal High Court Abuja on 31/10/01 the appellant sought eight reliefs in the form of declaration, perpetual injunction, certiorari and prohibition against the seven Respondents in the instant appeal, the President of the Federal Republic of Nigeria, the Attorney General of the Federation, the Chief Justice of Nigeria, the National Judicial Council, Hon, Justice K.O. Amah, Mr. T.J. Okpoko SAN and the Federal Judicial Service commission. Prior to that application the governor of Cross River State Donald Duke wrote a petition against the appellant and two other judges of the Cross River State judiciary to the Chief Justice of Nigeria.
The petition was forwarded to the National Judicial Council the 4th Respondent. A panel was set up to investigate the allegations in the petition. He was physically present and legally represented at the hearing of the panel between January and March 2001. The petitioner was however not present or represented at any of the hearings of the panel. The report of the panel was forwarded to the National Judicial Council. At its meeting on the 17th and 18th of July 2001 the Council took a decision which was forwarded to the President of the Federal Republic of Nigeria. The National Judicial Council issued a letter of suspension to the appellant on the 2nd of November 2001.
The President of the Federal Republic of Nigeria announced the compulsory retirement of the appellant from service for misconduct on the 1st of December 2001. The appellant filed an Ex-parte motion before the court on the 31st of October 2001 seeking leave of court to apply for judicial review. He followed this up with a motion on notice filed on the 20th of November 2001.
When this motion was served on the 3rd-6th Respondents they reacted by raising a preliminary objection against the hearing of the appellants application – canvassing before the lower court seven grounds which in a nutshell are that-
(1) The action is statute barred
(2) The application is incompetent and that the honourable court lacked jurisdiction to entertain same.
(Vide pages 236-237 of the Record of Appeal). The learned trial judge heard submission of counsel on the objection.
At the penultimate paragraph of the considered Ruling delivered on 4/7/02 the learned trial judge said –
“From the foregoing therefore, I hold that the application is not only incompetent, it is also out of time. The proper order to make in the circumstance is to dismiss it. The matter is accordingly dismissed.”
Being aggrieved by the decision of the lower court the appellant appealed against the ruling on three grounds set out in the Notice and grounds of appeal filed on 12/7/02. The appellant fulfilled all conditions of appeal while the Record of proceedings compiled by the lower court and transmitted to this court was received on 17/6/03.
At the hearing of this appeal on the 8th of November 2006 the appellant adopted and relied on the appellants brief filed on the 5th of May 2004 and the Appellants reply brief filed on 12/5/06. The 1st and 2nd Respondents relied on the brief deemed filed on 22/2/06, the 3rd-6th Respondents relied on their joint brief deemed filed on 22/2/06 while the 7th Respondent relied on the brief deemed filed on 17/5/06.
In the appellants brief of argument two issues were distilled from the three grounds of appeal (Vide on pages 282-283 of the Records).
The appellants issues read as follows:-
(1) Whether the court below was correct when it held that “in the instant case, failure of the applicant to file the requisite affidavit as specified in Order 47 Rule 5(6) of this court Rules is a breach of the condition precedent to the initiation of this action Rule in the case of Onyemaizu V Ojako (Supra) I hold that the Applicants failure to fulfill in full the conditions laid down in Order 47 Rule 5(6) of the Rules of this court in this case no doubt impacts upon the capacity of this court to entertain this action. I hold therefore that the defect in competence indeed spells absence of jurisdiction to entertain this matter.”
(2) Whether the court below was correct when it held that “the proceedings targeted here is the proceedings of the meeting of the Respondents on 17th-18th July 2001. This application was filed on 31/10/01. It is very obvious that by the time this application was filed on 31/10/01 the three months time prescribed by the Rules has expired. If you go by the Public Officers Protection Act or the Rules under which this application was filed there is no controversy about the fact that the application is out of time.”
The 1st and 2nd Respondents settled two issues for the consideration and determination of this honourable court as follows:-
(1) “Whether the court below was correct when it held that in the instant case, failure of the Applicant to file the requisite affidavit as specified in Order 47 Rule 5(6) of this court’s Rules 2000 is a breach of the condition precedent to the initiation of this action like in the case of Onyemaizu V Ojiako (Supra). I hold that the Applicants failure to fulfill in full the conditions laid down in Order 47 Rule 5(6) of the Rules in this court in this case no doubt impacts upon the capacity of this court to entertain this action. I hold therefore that the defect of in competence indeed spells absence of jurisdiction to entertain this matter.
(2) “Whether the court below was correct when it held that the proceedings targeted here is the proceedings of the meeting of the Respondents on 17th and 18th July 2001. This application was filed on 31/10/01. It is obvious that by the time this application was filed on 31/10/2001 – the three months time prescribed by the Rules had expired. If you go by the public Officers Protection Act or the Rules under which this application was filed there is no controversy about the fact that the application is out of time,”
The 3rd-6th Respondents in their joint brief settled two issues for determination as follows:-
(1) Was the learned trial judge wrong in holding that he lacked jurisdiction to entertain the suit for none compliance with Order 47 Rule 5(6) of the Rules of the Federal High Court Rules 2000.
(2) Was the learned trial judge wrong in dismissing the suit on the basis that it was filed out of time provided by Section 2 Public Officers Protection Act and Order 47 Rule 4 of the Federal High Court Rules 2000?
The 7th Respondent formulated two issues for determination in this appeal as follows:-
(1) Was the learned trial judge wrong in holding that he lacked jurisdiction to entertain the suit for none compliance with Order 47 Rules 5(6) of the Rules of the Federal High Court Rules 2000.
(2) Was the learned trial judge wrong in dismissing the suit on the basis that it was filed out of the time provided by section 2, Public Officers Protection Act and Order 47 Rule 4 of the Federal High Court Rules 2000?
At the hearing of the appeal counsel for the 3rd-7th Respondents drew attention of this court to the two issues raised by the appellant for determination of this court in this appeal; as being incompetent. The purported issues are the grounds of appeal set out as grounds 2 and 3 respectively in the notice and grounds of appeal on page 284 of the Records. By virtue of Order 6 Rule 3(1), of the Court of Appeal Rules 2002 a party is not permitted to argue his ground of appeal but issues formulated therefrom. In the case of Onowhosa & ors V Odiuzou & Anor 1999 1 SC pg 46 1999 1 NWLR pt 586 pg 173 at 183 the Supreme Court decided to ignore the arguments in the brief in respect of ground 2 of the grounds of appeal not based on the issues raised for determination. Each issue embody several and distinct questions. Issue one has three questions and issue two raised four issues. The counsel submitted that issues one and two in the appellants brief are unnecessary, long and proliferated. The Supreme Court not only frowns at but also discountenances such issues. The Respondents counsel urged the court to uphold this objection and strike out the appeal or in the alterative determine the appeal on the 3rd-6th Respondents issues. The counsel cited cases as follows:-
UAC V Fasheyitan 19989 SCNJ 179 at pg 182 Macaulay V NAL Merchant Bank 1990 4 NWLR pt 144 pg 283 Shogo V Adebayo 2000 14 NWLR pt 686 pg 121 S.C.D.A Nigerian Plc V Alhaji Nariru Mohammed 2004 3 NWLR pt 862 pg 20
The 1st-2nd Respondents did not react to the two issues rose in the appellant’s brief.
The appellant in the reply brief filed 12/5/06 submitted that the two issues formulated are valid and competent. They constitute a short statement of the issues being presented before the court of appeal for determination. The two issues derive directly from the grounds of appeal and raise matters decided in the judgment of the lower court.
They fulfilled the purpose of issues formulated in an appeal which are for the counsel to properly draw attention of the court to the relevant matters for consideration by it.
The learned counsel observed that issues formulated are same as those formulated by the 3rd-6th Respondents except that the appellant quoted the judgment of the lower court while the 3rd-6th Respondents summarised same in his own words. The appellant’s issues derive directly from the grounds of appeal.
I agree with the observation of the 3rd-7th Respondents counsel that the two issues formulated by the appellants counsel for the determination of this court in this appeal are lifted from grounds 2 and 3 of the grounds of appeal filed by the appellant. The two issues are captioned “Misdirection in law” and “Error in law” in the Notice of appeal on page 282 of Record of Appeal. An appeal is not a new action but a continuation of the matter which is the subject-matter of the appeal. It is a complaint against a decision. An appellant will embody these complaints in his grounds of appeal. At the argument of the appeal in the appellate court briefs of arguments are filed.
Issues for determination are raised and incorporated in the briefs. Arguments in the appeal are based on the issues for determination formulated from the grounds of appeal. For an issue to be relevant for consideration in an appeal it is required to be related to and be confined to the compliant on the decision appealed against, and becomes incompetent when this requirement is not met.
Shuaibu V UBN Ltd 2000 1 SCNJ 1
NDIC V S.B.N 2003 1 NWLR pt 801 pg 311
The purpose for formulation of issues for determination in an appeal is to enable parties narrow issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity.The two issues formulated by the appellant do not meet this standard. They are both verbose and unwieldy. They are devoid of clarity. They are lifted directly from the judgment of the trial court.
Min. of Internal Affairs V Okoro 2004 1 NWLR pt 853 pg 585
There is need to emphasise on what constitutes an issue in a case. An issue is the question in dispute between the parties, necessary for the determination of the suit. It is usually raised by way of a question and is usually a proposition of law or fact in dispute between the parties necessary for determination by the court, such determination will normally affect the result of the appeal. They are short questions raised against one or more grounds of appeal and are meant to be a guide to the arguments and submission to be advanced in support of the grounds of appeal. It is a succinct and precise question either of law or of fact for determination by the court. An issue is a disputed point or question to which parties in an action have narrowed down their several allegations and upon which they are desirous of obtaining either decision of the court on question of law or on questions of fact.
It must be a proposition of law or fact so cogent weighty and compelling that a decision on it in favour of the party to the appeal will entitle him to judgment of the court. Like pleadings to litigation between the parties the issues formulated in an appeal are intended to accentuate the real issues for determination before the appellate court.
Ejowhomu V. Edok-Eter Mandilas Ltd 1986 5 NWLR pt 39 pg 1
Adejumo V. Ayantegbe 1989 3 NWLR pt 110 pg 417.
Olowosago V. Adebanjo 1988 4 NWLR pt 88 pg 275
Imonikhe V. A-G Bendel State 1992 6 NWLR pt 248 pg 396
Ngilari V. Mother Cat Ltd 19938 NWLR pt 311 pg 370
Okoromaka V. Chief Odiri 1995 7 NWLR pt 408 pg 411The appellate courts have leaned in favour of not discountenancing a faulty brief where the issues raised in the appeal involve substantial questions of law to ensure that justice is done.
Obiora V. Osele 1989 1 NWLR pt 97 pg 279
Gbafe V. Gbafe 1996 6 NWLR pt 455 pg 417
Incar Nigeria Plc V Bolex Enterprises Nig Ltd 1996 6 NWLR pt 454 pg 318
An issue for determination is not meant to be lengthy or a verbatim reproduction of the judgment of the lower court or grounds of appeal. This court shall consider the two issues raised by the appellant in the interest of justice.
ISSUE NO. I
“Whether the court below was correct when it held that in the instant case, failure of the Applicant to file the requisite affidavit as specified in Order 47 Rule 5(6) of this court’s Rules 2000 is a breach of the condition precedent to the initiation of this action like in the case of Onyemaizu V Ojiako (Supra). I hold that the Applicants failure to fulfill in full the conditions laid down in Order 47 Rule 5(6) of the Rules in this court in this case no doubt impacts upon the capacity of this court to entertain this action. I hold therefore that the defect of in competence indeed spells absence of jurisdiction to entertain this matter.”
The appellant submitted that it is not correct that the affidavits of service filed by the appellant and his counsel are deficient of the facts required to be conceived in the affidavit of service under Order 47 Rule 5(6) of the Federal High Court Procedure, Rules 2000. Paragraph 4 of the appellant’s Affidavit contains inter alia
Paragraph 4
“Those from all available records the Respondents have all been as duly served with the Order granting leave as well as all other originating processes in this matter on the 20th day of November 2001.”
The appellant’s counsel in paragraph 4 of his affidavit deposed as follows:-
“That I know from the records available in the office that the Respondents have been served with the Order granting leave as well as all other originating processes in this matter on the 20th November 2001.”
A clear intention of Order 47 Rule 5(6) of the Federal High Court Civil Procedure, Rules 2000 indicate that the intendment of this provision is to show that the parties have been served as well as when served and also to show the parties that have not been served as well as the reasons for their non-service. The two paragraphs of the affidavit of the appellant and counsel clearly fulfilled or satisfied the intendment of the said rule, while those persons who were to be served were properly duly served on the 20th of November 2001. There was substantial compliance with Order 47 Rule 5(6) and any deficiency in the affidavit shall be treated as an irregularity which the Respondents will be deemed to have waived having taken the step of filing a counter affidavit. The Respondents did not complain about this irregularity.
The appellant referred to Order 3 Rule 1(1) and Order 3 Rule 2(1) of the Federal High Court Civil Procedure Rules 2000. The appellant urged this court not to allow any technicality to defeat the course of justice by referring to the case of
Chief I.C. Ezenwa V Bestway Electronics & Ors 19998 NWLR pt 613 pg 61
The learned counsel distinguished the case of Oyemaizu V Ojiako 2000 FWLR pt 2 pg 210 from the facts of this case as there was no affidavit of service sworn to in that case. The court is urged to resolve this issue in favour of the appellant and set aside the Ruling of the lower court.
The 1st and 2nd Respondents replied that on a clear reading of Order 47 Rule 5(6) of the Federal High Court Civil Procedure, Rules 2000 alongside the two affidavits of service deposed to by the appellant and his counsel respectively will show that the two affidavits did not contain what was required under Order 47 Rule 5(6) – to wit the names and addresses, places, and dates of service of all persons who have been served not just a blanket averment that everybody has been served as their two affidavits did. The case of Okesuji V Lawal 1991 1 NWLR pt 170 pg 661 held that the purpose of affidavit of service is to convince the court that the persons on whom the processes are to be served have been dully served.”
The foregoing pronouncement in that case was referring to the affidavit of service in ordinary cases, while the appellant contended that the purpose of an affidavit of service under the rule is much more than convincing the court, it must know that the persons on whom the processes are to be served have been dully served it is also to know those who are supposed to be served and have not been served. The affidavit of the applicant and his counsel fell short of the requirement.
The appellant Failed to file an affidavit of service.
The decision of the Court of Appeal in the case of Trade Bank Plc. V Chami 2003 Vol. 42 WRN 129 is in favour of the decision of the lower court that it is a vital condition precedent. It is not a mere irregularity as raised by the appellant but a vital prerequisite, without which the court would not have jurisdiction to hear the case as it was incompetent. Reference was made to the case of Justice Kalu Anya V Dr. Festus Iyayi 19937 NWLR pt 305 pg 290. The court below could not have adjudicated in the matter since it was disqualified under Order 47 Rule 5(6) of the Federal High Court Civil Procedure Rules 2000.
The 1st and 2nd Respondents urged the court to dismiss this issue in favour of the Respondents.
In their joint brief the 3rd – 6th Respondents submitted on Issue one of the two issues raised in their brief that the appellant’s application before the lower court was for judicial review commenced under Order 47 of the Federal High Court Civil Procedure rules 2000. The learned trial judge was perfectly right to hold that the appellants failed to file the requisite affidavit as specified in Order 47 Rule 5(6) of the Court Rules 2000 and regarded same as a breach of the condition precedent to the initiation of the action. The affidavit required under Order 47 Rule 5 is that sworn to by the appellant before the date of hearing of the application and no other. The affidavit of bailiff charged with the Responsibility of service of court processes does not suffice for the purpose of Order 47 Rule 5. The affidavit of the appellant filed after 26/11/01 when the matter was adjourned for hearing was not in compliance with the Rules. It was therefore fundamentally and incurably defective and not properly before the court. The lower court had rightly relied on the case Onyemaizu V Ojiako 2000 6 NWLR pt 659 pg 25 in the circumstance of the case. The affidavit sworn to by the appellant and his counsel failed to satisfy the requirements of section 86, 88 and 89 of the Evidence Act cap 112 Laws of the Federation 1990.
The Respondents submitted further that the deficiency in the affidavit cannot be waived by the Respondents as the defect goes to the jurisdiction of the court in the application. The Respondents cited cases –
Jadesimi V Okotie Eboh 1986 1 NWLR pt 16 pg 268 Adigun V Osaka 2003 5 NWLR pt 812 pg 95 Okoro V Nigerian Army Council 2000. Zno WLR pt 647 pg 77
The same learned counsel also appearing for the 7th Respondent in his submission distinguished the case of Okesuji V Lawal 1991 1 NWLR pt 170 pg 661 referred to by the appellant as that cited out of con as the case was not decided on Order 47 Rule 5(6) from the case of Onyemaizu V Ojiako 2000 FWLR pt 2 pg 310 – which settled the point that none compliance with Order 47 Rule 5(6) goes to the issue of jurisdiction which cannot be waived.
In the absence of a valid affidavit before the court the learned trial judge lacked the jurisdiction to proceed with the matter. This court is urged to answer the first issue in the negative and dismiss the appellant’s appeal.
ISSUE NO. 2
“Whether the court below was correct when it held that the proceedings targeted here is the proceedings of the meeting of the Respondents on 17th and 18th July 2001. This application was filed on 31/10/01. It is obvious that by the time this application was tiled on 31/10/2001 – the three months time prescribed by the Rules had expired. If you by the public Officers Protection Act or the Rules under which this application was tiled there is no controversy about the fact that the application is out of time.”
The appellant submitted that the trial court erred in holding that the proceedings targeted here is the proceedings of the meeting of the Respondents on 17th and 18th of July 2001. As the entire application centre on the powers conferred on the Respondents with Respect to sections 153 of the 1999 Constitution, paragraphs 20 and 21 particularly paragraph 21(a) and (b) of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria, the procedure adopted by the Respondents in the execution of the said power starting from when Exh B was made and the institution of this action on 31/10/01. The eight reliefs sought by the appellant and the facts in support show that the subject-matter of the suit is not restricted to the proceedings of 17th and 18th of July 2001. The three months period prescribed by Order 47 Rule 4(2) is specifically applicable to an Order for certiorari reliefs 5 and 6 but not to Orders for prohibition, injunction and declaration as contained in Reliefs 1, 2, 3, 4 and 7. The court did not properly exercise its discretion in the case. It failed to consider Order 47 Rule 4 of the Federal High Court Civil Procedure Rules 2000 on whether there was undue delay in bringing this application. The court failed to consider Exhibits J and K on pages 46-48 of the Record. The appellant was not a member of the National Judicial Council and would not have known that the report of the panel headed by the 5th Respondent was discussed at the meeting of the 4th Respondent held on the 17th and 18th of July 2001.
The lower court had wrongly invoked section 2(a) of the Public Officers Protection Act to hold that the application was filed out of time. The act of the 3-6th Respondents is in recommending to the 1st Respondent, that act is yet to be executed as at the date of commencement of this application. The 4th Respondent took a decision on the recommendation of the panel of 5th Respondent on the 17th and 18th of July 2001. The act would have been complete if the 4th Respondent had referred the report of the meeting to the 1st Respondent as stipulated in section 21(b) of the third schedule of the 1999 Constitution. The act which the applicant wants to protect had not even taken place as at the date of the commencement of this action. It is premature for the Respondents to claim protection under the Public Officers Protection Act. The claims of the appellant as contained on reliefs 1-8 on pages 7-8 of the Records; have different causes of action. The court failed to consider each relief and its different cause of action individually to know whether the particular claim is statute barred under section 2(a) of the Public Officers Protection Act. The Act will not protect a public officer once he acts outside his statutory or constitutional duty. It was premature for the court to raise the issue of public officer protection Act as the court was yet to decide whether the 3rd – 6th Respondents had the constitutional authority for their actions. The injury or damage suffered by the appellant is a continuing damage in the course of the act of the 3rd – 6th Respondents, and will not abate until settled by the 1st Respondent. The protection will not avail the 1st, 2nd and 7th Respondents who had done nothing in the discharge of any public duty affecting the appellant but are likely to take steps if not restrained. Limitation of time cannot start to run in respect of relief which is meant to prohibit what is about to happen. The court is urged to allow the appeal and set aside the ruling of the lower court and remit this application to another Federal High Court in Abuja to be determined on its merits. The appellant cited
Ibrahim-Ohada V Milad Kogi State 2000 12 NWLR pt 680 pg 210 at 45, Egbe V Yusuf JSC 1998 14 NWLR pt 584 pg 1 at pg 6 Anwadike V Attorney General Anambra State 1996 9 NWLR pt 460 pg 315 FRN V Ifegwu 2003 15 NWLR pt
842 pg 43
Fidelis Nwadialo 1998 Civil Procedure in Nigeria 2nd Edition University of Lagos press pg 1055.
The 1st and 2nd Respondents in their reply to this issue identified the cause of action in the application for judicial review as one. As stated in the appellant’s grounds of appeal the cause of action arose from the findings report and recommendations of the panel headed by the 5th Respondent which was handed over to the 4th Respondent the National Judicial Council.
The recommendations made by the council on the 17th and 18th of July 2001. The appellant complained of not being invited to the meetings of National Judicial Council of the 17th and 18th July 2001.
The denial of his right to fair hearing commenced on the 17th and ended on the 18th of July 2001. The cause of the appellant’s action accrued on 18th of July 2001, and he filed his suit on the 30th of October 2001 that took him outside the three months limitation stipulated under section 2(a) of Cap 379 Laws of the Federation 1990 or section 47 4(1) and (2) of the Federal High Court Civil Procedure Rules 2000. The learned trial judge rightly found that the application was statute barred. Section 2(a) of Cap 379 Laws of the Federation 1990 enures to the benefit of anybody who was given a public duty to perform whether he is a public officer or not for as long as he confined himself to the performance of the public duty assigned to him. All the respondents are public officers and as admitted by the appellant the 1st and 7th Respondents had done nothing in the discharge of any public duty which affected him adversely on caused him any damage or injury. The claim for injunction, prohibition etc against them is baseless, and without any foundation. It is purely an action filed against and to prevent any steps taken by them in future which is speculative. These Respondents urged the court to uphold the ruling of the lower court and dismiss this appeal.
On behalf of the 3rd, 4th, 5th, and 6th Respondents learned counsel submitted that learned trial judge was perfectly right in holding that the application for judicial review of the appellant was commenced outside the three months period stipulated by statutes Order 47 Rule 4(2) and Section 2A of the Public Officers Protection Act Cap 139 Laws of the Federation 1990.
The proceeding of the 4th Respondent the National Judicial Council was the last act of the 3rd – 6th Respondents which led to this suit.
The proceeding took place on the 17th and 18th of July 2001. The appellant commenced this action on the 31st of October 2001 which was thirteen days after the expiration of the period provided by the Rule and the Act. The legal consequence is that the action is statute barred. The appellant failed to establish any other act of the Respondent done beyond 18/7/01, Exh B or paragraph 21 of the 3rd schedule of the constitution did not extend the appellants right of action beyond 18/10/01 when the right extinguished. The claims of the appellant for declaration and injunction are tied to the main claim for certiorari. Equally the claim for prohibition and injunction are only ancillary to the main reliefs in the motion on notice. Where in this case the main reliefs claimed are statute barred its ancillary reliefs cannot be entertained. The determination as to whether an action is statute barred does not admit of any judicial discretion. The court can only base a cause of action for the purpose of statute of limitation on a claim that is properly established at the time the suit is filed not on speculation.
It is not in dispute that the 4th Respondent has statutory and constitutional duty to exercise disciplinary action or recommendation for the removal of a judicial officer for act of misconduct and that the 4th Respondent exercised the right over the appellant. Any default or neglect of the Respondents in the exercise of their statutory duty does not deprive them of the protection under the public officers’ protection Act. This court is urged to resolve the second issue in favour of the 3rd – 6th Respondents. The cases cited by the Respondents are as follows-
Zangina V Commissioner for Works Borno State 2001 9 NWLR pt 718 pg 460
Nig. Soc. Ins. J.F.M.B. V Adebiyi 1999 13 NWLR pt 633 16 pg at 27
Tukur V. Government of Gongola State 1997 6 NWLR pt 510 pg 549
National Banking Nigeria V. the Are Brothers (Nig) Ltd 1977 6 SC97 at pg 107
Ibrahim Ohida V. Milad Kogi State 2000 12 NWLR pt 680 pg 24
Adigun V. Ayinde 1993 8 NWLR pt 313 pg 516 at pg 534
Ekeogu V. Alin 1991 3 NWLR pt 179 pg 258 at pg 269
Egbe V. Adefarasin 1985 1 NWLR pt 3 pg 549 at 569
Egbe V. Adefarasin NO.2 1987 1 NWLR pt 471 pg 13(b) at 20
The learned counsel made the same foregoing submission for the 7th Respondent on the two issues settled for determination and urged this court to answer the issues in negative and consequently dismiss the appellants appeal as it lacks merit.
I have carefully considered the submission of the parties on the two issues raised for determination in this appeal. In the application of the appellant for judicial review filed under the Federal High Court Civil Rules 2000, the reliefs sought according to pages 7 and 8 of the Record of Appeal are as follows-
(1) A declaration that the said panel headed by the 5th Respondent that investigated the allegations against the applicant was not duly and properly constituted
(2) A declaration that the procedure adopted by the said panel of Investigation headed by the 5th Respondent on the petition of the Governor of Cross River State against the Applicant is irregular, unconstitutional and amounts to a violation of the Applicants Right to fair hearing
(3) A declaration that the said Panel headed by the 5th Respondent in the conduct of their said Investigation clearly manifested bias against the appellant
(4) An Order perpetually restraining all the Respondents, their institution, agents, servants and privies from initiating, continuing or carrying out all action and steps towards the consideration and or implementation of the recommendations of the 4th Respondent based on the report of the panel headed by the 5th Respondent.
(5) An Order of certiorari to remove into the Federal High Court for quashing the proceedings recommendations and report of the panel headed by the 5th Respondent that investigated the allegations made against the applicant by the governor of Cross River State – Donald Duke
(6) An Order of certiorari to remove into the Federal High Court for quashing recommendations of the 4th Respondent based on the report of the panel headed by the 5th Respondent
(7) An Order of prohibition perpetually restraining the 4th Respondents from releasing to the 1stand 2nd Respondents its recommendations based on the report of the panel headed by the 5th Respondent
(8) An Order directing the 3rd – 7th Respondents to set up an Independent neutral panel to investigate the allegations made against the applicant by Governor Donald Duke.
In dismissing the application based on the preliminary objection raised by the Respondents the learned trial judge identified three major reasons:-
(a) Non compliance with Order 47 Rule 5(b) of the Federal High Court Civil Procedure Rules 2000.
(b) That the suit was not commenced within three months stipulated by Order 47 Rule 4 of the Federal High Court Civil Procedure Rules 2000
(c) That the suit was statute barred by virtue of section 2 of the public officers’ protection Act Cap 379 Laws of Nigeria 1990.
These three reasons identified by the learned trial judge as the basis for dismissal of the appellant’s application form the fulcrum of the issues for determination in this appeal.
ISSUE ONE
Under this issue the appellant challenged the findings of the court as regards service of the application on the respondents, and the need to exhibit Affidavit of Service of such processes at the hearing of an application for judicial review under Order 47 Rule 5(6) of the Federal High Court Rules 2000 and made submission to that effect. The Respondents replied on the issue.
The trial court concluded that the affidavit of service of the appellant and the counsel representing him did not comply with Order 47 Rule 5(6) of the Rules of the Federal High Court 2000. They were deficient in the facts required to be conveyed in the affidavit of service under Order 47 Rule 5(6) of the Rules and consequently the application has fallen short of the requirements governing the exercise of jurisdiction of court in the judicial review. The judicial review is a special procedure whereby the court exercises supervisory jurisdiction over the acts or omissions of Tribunals or Public bodies in public law.
In that wise the Rules of court laid down specific procedure under Order 47 and the procedure must be carefully adhered to in order to invoke the jurisdiction of court.
The rule of the Federal High Court in question Order 47 Rule 5(6) Civil Procedure Rule 2000 reads:-
”An affidavit giving the names and addresses of and the places and dates of service on all persons who have been served with the notice of motion or summons shall be filed before the motion or summons is entered for hearing and if any person who ought to be served under this Rule has not been served, the affidavit shall state that fact and the reason for it, and the affidavit shall be before the court on the hearing of the motion or summons.”
The foregoing Rule emphasised the necessity for an affidavit of service to be in place at the hearing of the motion which shall contain the following:-
(a) Names and addresses of all persons who have been served with the notice of the motion or summons
(b) Place and dates of service on all those served
(c) Such affidavit shall be filed before the summons is entered for hearing
(d) The same procedure shall be followed if any person who ought to be served under the rule has not been served and the affidavit shall state the reasoning for failure to serve.
The affidavit of service sworn to by the appellant and his counsel were filed on 23/11/01 and 18/12/01 respectively. The affidavit only deposed to the knowledge that all the Respondents were served with originating summons on 20/11/01. No other information as required by Order 47 Rule 5(6) was disclosed. The operative word in Order 47 Rule 5(6) is shall- which makes compliance imperative. Names and address of those Respondents served were omitted and also the places of service. In effect there is no reliable or authentic information before the court as to the service of the pending motion or summons on the Respondents and the names of all the Respondents served. The court relied on the case of Onyemaizu V. Ojiako 2000 FWLR pt 2 pg 310 to find the application incompetent the appellant having failed to fulfill the conditions imposed by Order 47 Rule 5(6).
The court held that the defect in competence indeed spell absence of jurisdiction to entertain the matter. The reasoning and finding of the learned trial judge on the foregoing cannot be faulted. The entire issue goes to the issue of jurisdiction of the lower court. A court can only be competent to hear a matter when:-
(a) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other.
(b) The subject-matter of the case is within the jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.
(c) The case comes before the court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
In the instant case a special procedure of court under Order 47 Rule 5(b) for judicial review was invoked, and the same Rule makes provision that the application comes to court by a certain process and upon fulfillment of a special procedure being a condition precedent to the exercise of jurisdiction, any failure to comply with that due process deprives the court of its jurisdiction. Where any proceedings are begun other than as provided by the rules such proceedings are incompetent. The trial court was therefore right when it held that it lacked jurisdiction to entertain the application.
A-G Anambra State V. A-G Federation 1993 6 NWLR pt 302 pg 692
Madiloku V. Nkemdilim 1962 2 SCNLR pg 341
Barclays Bank V. CBN 1976 1 All NLR pt 1 pg 400
A-G Lagos State V. Dosunmu 19893 NWLR pt 111 pg 552
Bronik Motors V. Wema Bank 1983 1 SCNLR 296
Saleh V. Monguno 2003 1 NWLR pt 801 pg 221
It is also imperative for this court to examine another aspect of Order 47 Rule 5(6) and the emphasis on service of notice of originating process particularly on the Respondents in this matter. Judicial review is a special procedure through which public bodies or tribunals exercising quasi judicial or judicial functions are subject to the supervisory jurisdiction of superior courts. Any interference with their statutory or constitutional role demands that they be informed as it is basic that rules of natural justice must be complied with in the process. The object of all types of service of process is to give notice to the other party on whom service is to be affected so as to give the party to answer to that which is sought against him. Failure to serve process where such is required to be served is a fundamental omission which renders such proceedings void because the court has no jurisdiction to entertain it. Any judgment given in the absence of a party will be one given without jurisdiction and will be set aside on appeal.
Haruna V Ladeinde 1987 4 NWLR pt 67 pg 941
Obimomure V Erinosho 1966 1All NLR 250
Dawodu V Ologundudu 1986 1 NWLR pt 33 pg 104
Adisa V Teno Engineering Ltd 2001 1 NWLR pt 695 pg 633
NBC Plc V Ezeifo 2001 12 NWLR pt 726 pg 11
The appellant drew the attention of this court to the case of Okesuji V Lawal 1991 1 NWLR pt 170 pg 661 at pg 678 which emphasised that the purpose of affidavit of service is to convince the court that the persons on whom processes are to be served have been duly served. As emphasised in the case of Onyemaizu V Ojiako referred to by the learned trial judge where it is embodied in the Rules of court any procedure for filing such affidavit of service the procedure must be complied with in the way and manner specified in the Rules. Such situation is something outside the general proof of service filed by the bailiff in ordinary cases. It is trite that rules of court must be obeyed and no favour should be shown for not obeying them. Disobedience of the rules here is fundamental as it affects the competence of the court to hear the matter it is not a mere irregularity.
Williams V Hope Rising Funds Society 1982 2SC 145
Ikem V Efamo 19974 NWLR pt 499 pg 308
I resolved Issue One in favour of the Respondents
The focus of attention in issue number two and the germain aspect to this appeal is whether the lower court was right in dismissing this action by holding that it is statute barred. I have considered the submission of parties from which I cannot but arrive at the conclusion that to give any meaningful answer to the poser raised in this issue the reliefs before the court must be given a microscopic examination so as to identify the following:-
(1) The Respondents whose act gave rise to the cause of action
(2) The act itself from which the cause of action accrued and when it accrued
(3) The statutory limitation to commence action and the effect on the action of the appellant.
The reliefs sought by the appellant are as enumerated on pages 7-8 of the Records and as Re-stated earlier on in this judgment.
From the reliefs sought in the application for review before the trial court the grouse of the appellant is directed at the 4th and 5th Respondents. I need to examine the status of the 4th and 5th Respondents. The 4th Respondent is created by section 153(1) of the 1999 Constitution.
Section 158(1) of the Constitution of the Federal Republic of Nigeria 1999 reads-
”In exercising its power to make appointments or to exercise disciplinary control over persons the Code of Conduct Bureau – the National Judicial Council, the Federal Civil Service Commission, the Federal Judicial Service Commission, the Revenue Mobilisation and Fiscal Commission, the Federal Character Commission, and the Independent National Electoral Commission shall not be subjected to the discretion or control of any other authority or person.”
The National Judicial Council as a creation of the constitution its traditional role is as defined by the constitution and it includes inter alia to make appointments and to exercise disciplinary control over judicial officers. A combined reading of section 153 of the constitution, part 1 of the third schedule of the constitution and section 318 of the constitution the National Judicial Council, the 4th Respondent is part of the public service of the Federation. The composition of members of the 4th Respondent as stated in section 20 part 1 of the third schedule of the 1999 constitution includes five Chief Judges of States. The 5th Respondent is one of the Chief Judges of States co-opted as a member of the 4th Respondent. As at the time this action was filed he was appointed as the head of the Panel which investigated the appellant in respect of the allegations in the petition written by the governor of Cross River State Donald Duke against him. The appellant in the Reliefs sought against the 5th Respondent prayed for an order of certiorari to remove into the Federal High court for quashing the proceedings, recommendations, and the report of the panel headed by the 5th Respondent that investigated the allegation made against him by the Governor of Cross River State. According to the evidence before the court the sittings of the Investigation Panel headed by the 5th Respondent were between January and March 2001. Recommendations of the panel were passed to the National Judicial Council. In the sittings of the 4th Respondent on the 17th and 18th of July 2001 – the recommendations of the panel of the 5th respondent were considered. The appellant in his application for judicial review requested the lower court for an order of certiorari to remove into the Federal High Court for quashing recommendations of the 4th Respondent based on the report of the panel headed by the 5th Respondent.
The 4th Respondent took this decision sought to be quashed at the sittings on the 17th and 18th of July 2001. The appellant filed application before the lower court on the 31st of October 2001.
In the evidence on printed record the appellant did not allude to any other act done by the 4th and 5th Respondents done after the 18/7/01, in the judicial review. In short the act of the Respondent which gave rise to the application for judicial review occurred on the 17th and 18 of July 2001 while the appellant approached the court for redress on 31/10/01. I shall now consider the effect of Order 47 Rules 4(1) and (2) of the Federal High Court Civil Procedures 2000 and section 2(a) of the Public Officers Protection Act Cap 189 Laws of the Federation, on the application Aled by the appellant.
A cause of action denotes every fact though not every piece of evidence which would be necessary for the plaintiff to prove, if transversed to support his right to the judgment of the court. It is the entire set of circumstance giving rise to an enforceable claim. It is fact or combination of facts which give rise to a right to sue and it consists of two elements-
(a) The wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage.
(b) Aggregate of facts between the litigants which the court will recognise as enabling the plaintiff to enforce his claim.
Thomas V Olufosoye 1986 1 NWLR pt 18 pg 669
Savage V Uwechia 1972 1 All NLR pt 1 pg 251
Egbe V Adefarasin 1985 1 NWLR pt 3 pg 549
The cause of action depends on the circumstance of each particular case. It is the claim of the plaintiff which determines when a cause of action accrues.
U.B.N. Ltd V Penny Mart limited 1992 5 NWLR pt 240 pg 228
Olaogun Enterprises Ltd V SJM 1992 4 NWLR pt 235 pg 361
Egbe V Adefarasin 1987 1 NWLR pt 47 pg 1
Order 47 Rules 4(1) and (2) provides as follows-
“Rule 4(1) subject to the provisions of this rule where in any case the court considers that there has been undue delay in making an application for judicial review or in a case to which sub-rule 2 of this rule applies, the application for leave under rule 3of this order is made after the relevant period has expired the court may refuse to grant:-
(a) Leave for making of the application or
(b) Any relief sought on the application.
If in the opinion of the court the granting of the relief sought would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration.
4(2) In the case of an application for an order of certiorari to remove any judgment/ order, conviction or other proceeding for the purpose of quashing it the relevant period for the purpose of the sub-rule (1) of this rule are three months after the date of proceeding.”
The proceedings of the 4th Respondent is that of the sitting of the 17th and 18th of July 2001.
The appellant filed his application on 31/10/01. His right of action expired on 18/10/01. The appellant commenced the action thirteen days after the period provided by the rules expired.
On the same basis on the issue of limitation of time to institute an action section 2(a) of the public officers protection Act cap 379, Laws of the Federation of Nigeria 1990 – stipulated a period of three months next after the act, neglect or default complained of or in the case of a continuance of damage or injury three months next after the ceasing thereof to bring an action against any person in respect of any acts or acts done in pursuance or execution of any law, public duty or authority. The words any person are not limited to human beings or to persons sued in their personal names but also include artificial persons – public bodies or body of persons corporate or incorporate statutory bodies or persons.
Ibrahim V Judicial Service Committee Kaduna State 1998 14 NWLR pt 584 pg 1
Gyang V NSC 2002 15 NWLR pt 791 pg 454 The 4th and 5th Respondents are covered by section 2(a) of the Public Officers’ Protection Law cap 379 Laws of the Federation 1990 as Public Officers within the definition of the constitution and the act complained of was done in execution of their statutory duty which is a public duty.
Though the appellant complained about set of facts which occurred between January 2001 to 18th of July 2001 the appellant has just one cause of action certiorari with declaratory and injunctive reliefs as ancillary. He did not suffer any continuous injury at the time he filed an action in court. Where the main claims are statute barred the ancillary claims suffer this same fate. The application of the appellant having been commenced after the period specified under section 2(a) of the Public Officers’ Protection Law which is three months becomes statute barred. A legal right to enforce an action is not a perpetual right but a right limited by statute. After the date on which the applicable statute provides that legal proceedings cannot be taken any person having a right of action can no longer completely institute an action. If the appellant’s action is statute barred it affects the legal competence or jurisdiction of court.
Egbe V Adefarasin 1987 1 NWLR pt 47 pg 1
Obiefina V Okoye 1964 1 All NLR pg 357
Adeogun V Jibesin 2001 11 NWLR pt 724 pg 290
Julius Berger (Nig) Plc V Omogui 2001 15 NWLR pt 736 pg 401
In the case of Ibrahim V Judicial Service Committee Kaduna State 1998 14 NWLR pt 584 pg 1- the Supreme Court held that:-
“Where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence an action would have been extinguished by such law. ”
The 2nd issue is resolved in favour of the Respondents
In the final analysis I find no reason to disturb the findings of the lower court. The appeal is accordingly dismissed. I shall make no order as to costs.
Other Citations: (2007)LCN/2207(CA)
