Hrh Da Noel Kim V. The Executive Governor of Plateau State & Ors (2016)
LawGlobal-Hub Lead Judgment Report
JOSEPH TINE TUR, J.C.A.
I tagged this determination Decision by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a decision to mean, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A Ruling is omitted in the definition of decision under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra). In Davies vs. Powell (1737) Willes, 46, Willes, C.J. once held at page 51 that, When the nature of things changes, the rules of law must change too.
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196:
This is a truism in that the legislature and within limits, the Courts should change rules to keep the
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law abreast of change. The question under review is whether changed conditions may deprive a case of its law-quality
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag this determination an opinion or a decision as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word determination at pages 243-244 as follows:
We gave careful consideration to the
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argument of Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ruling or determination of the High Court was a judicial decision or determination within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
In this section decision means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.
More light is thrown on the meaning of the words decision and determination in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
We have been referred to the Shorter Oxford Dictionary for the meaning of
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determination. It means a bringing or coming to an end or the mental action of coming to a decision, or the resolving of a question.
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word determination therein meaning ending of the matter.”
Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that:
(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may pronounced or read by any other Justice whether or not he was at the hearing.
(3) A decision of a Court
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consisting of more than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this section, the Supreme Court; or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sit for that purpose.
Section 318(1) of the Constitution (supra) defines a decision to mean, in relation to a Court, or any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A ruling is omitted from the definition of decision. I have decided to tag this determination Decision as provided under these constitutional provisions, bearing in mind the Supremacy of the Constitution (supra) under Section 1(1) and (3) of the 1999 amended Federal Constitution.
The number of appeals and motions listed for hearing per day, per week, per quarter and per year put together will show the number of decisions or opinions Justices of the Supreme Court or the Court of Appeal renders which constitutes the
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determination of these appellate Courts the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output/performance in administering justice. Only then will society appreciate the workload of the Supreme Court, the Court of Appeal and other superior Courts of record in Nigeria.
I shall now consider this appeal on the merit.
His Royal Highness Da Noel David Kim (Gwom Rwei of Foron) and Danboyi Shut Pam had instituted the suit for themselves and on behalf of the Lo-Zam Dyeng Saben Ruling House of Foron against the Executive Governor of Plateau State and nine (9) others before the High Court of Justice of Plateau State holden at Barkin Ladi on 9th June, 2003. In due course the appellants amended the original writ of summons and statement of claim. The respondents relied on a Further Amended Joint Statement of Defence. On 25th October, 2013 the Lower Court took a decision which favoured the respondents but aggrieved the appellants hence this appeal filed on 8th November, 2013 against the decision. The appellants brief settled by T.J.J. Danjuma, Esq. was filed on 27th
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November, 2014. The learned Counsel formulated the following lone issue for determination at page 5 of the brief to wit:
Whether the learned trial Judge was right to strike out the plaintiffs/appellants case for being incompetent by reason that the plaintiffs/appellants Counsel did not sign the writ of summons notwithstanding the provisions of the Plateau State High Court Civil Procedure Rules, 1987, as to who the duty of signing and issuing a writ of summons lies upon.
Only the 9th respondent filed a brief of argument on 8th April, 2015. The following lone issue was formulated at page 2 of the brief to wit:
Whether the learned trial Judge was right when he found that the appellants Writ of Summons was not signed as required by law and proceeded to strike out the appellants suit for being incompetent.
Before I proceed to consider the lone issue formulated by the parties may I give a summary of the facts in dispute which led to the institution of this action in the Court below.
The present appellant was suspended from the position of Gwom Rwei of Foron by the
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Ministry of Local Government and Chieftaincy Affairs in a letter dated 14th May, 2003. Da Wang Pam, the Gwom Nafok of Foron (9th respondent) was appointed as acting Gwom Rwei of Foron in a letter dated 16th May, 2003. The appellant regarded this as unlawful, unconstitutional, void and of no effect hence the institution of this suit in the Court below on 8th day of February, 2007. Paragraphs 1-42 of the Amended Statement of Claim pleaded the genesis of the crisis with the respondents. Paragraph 43 claimed the following remedies against the respondents in the Court below as follows:
43. WHEREFORE the plaintiff claims against the defendants jointly and severally as follows:
(i) A declaration that his purported indefinite suspension from the office of Gwom Rwei of Foron, vide Ministry of Local Government and Chieftaincy Affairs letter number MLGC/L.G.A./S/DIS/3/VOL.1/159 and dated 14th May, 2003, is unlawful, unconstitutional, void and of no effect whatsoever.
(ii) A declaration that the purported appointment of Da Wang Pam, the Gwom Nafok of Foron, as acting Gwom Rwei of Foron, vide Barkin Ladi Local Government letter number
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BLLG/S/ER/ADM/478A/XX and dated 16th May, 2003, as unlawful, null and void.
(iii) A declaration that the setting up of the panel of inquiry headed by Mr. Elisha Amanchi, and the terms of reference are unconstitutional, null, void and of no effect whatsoever.
(iv) An order setting aside the instrument setting up the committee/panel of inquiry and a further order restraining the 5th to 9th defendants from inquiring into the terms of reference given to them.
(v) An order of perpetual injunction restraining the 1st, 2nd and 3rd defendants, either by themselves or anybody acting or claiming to act on their behalf, from accepting or acting upon any report submitted to them by the 5th to 9th defendants with respect to the assignment complaint of.
(vi) An order declaring the purported report submitted by the (Amanchi) Committee, in contravention of a subsisting Court order, to the 1st, 2nd and 3rd defendants and all steps taken consequent upon that report, null, void and of no effect whatsoever.
(vii) An order of perpetual injunction restraining the 10th defendant (Bulus Pam Bot) from parading himself and/or performing the functions and
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duties of Gwom Rwei of Foron and a further order restraining the 1st, 2nd and 3rd defendants and all other defendants or their agents from installing, giving him staff of office, recognized or treating him in any other way as the Gwom Rwei of Foron.
(viii) A specific order nullifying the purported selection of Bulus Pam Bot as (the 10th defendant) the Gwom Rwei of Foron and directing the 1st, 2nd and 3rd defendants to immediately restore the plaintiff HRH Da Noel David Kim, to his position as the Gwom Rwei of Foron.
The respondents narrated their own side of the dispute from Paragraphs 1-23 of the Further Amended Joint Statement of Defence. In Paragraph 24 the respondents pleaded that at the hearing they shall contend that the suit is frivolous, vexatious and constitutes an abuse of Court process and should be dismissed. The respondents case as can be garnered from the Further Amended Joint Statement of Defence is that the appellant was suspended from office because of insubordination and partisan politics notwithstanding his position as the Gwom Rwei of Foron. The appellant had abandoned the age long traditional history of respect for
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constituted authorities by allowing himself to be involved in acts of insubordination and partisanship politics contrary to his position as a traditional ruler. The 1st-3rd respondents pleaded that the Plateau State Traditional Council of Chiefs is the only recognized and approved body or authority to make any recommendation to the Government of Plateau State on matters affecting traditional institutions but certainly not the appellant he being merely a 3rd class chief not having access to the Executive Governor of Plateau State without going through the Local Government Council in Barkin Ladi Local Government. The appellant however embarked on cheap political blackmail and partisanship intended to tarnish the image of the Executive Governor of Plateau State. The so-called advice by the appellant was written not in good faith but malafide. By the time the 1st 3rd respondents would receive the so-called advice embedded in the offensive letter, it was already in the press hence the appellant had to be queried. His reply to the query was not satisfactory hence its rejection. The Barkin Ladi Local Government was directed to find out if the press release
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emanated from the office of the appellant. The appellant did not respond to the Barkin Ladi Local Government Council inquiry hence it became necessary to set up a Committee to see whether a case of abuse of office could be established or not against the appellant. The appellant appeared before the Committee and testified as contained in the Committees Report. This culminated in the suspension and appointment of the 9th respondent to act in the office of the appellant hence the frivolity and vexatiousness of the action of the appellant in the Lower Court.
Oral and documentary exhibits were relied upon by the parties to establish their respective claims and defences.
Order 18 Rule 3 of the Court of Appeal Rules, 2011 provides as follows:
3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law
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Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and. wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the point to be raised and the reasons upon which the arguments is founded.
(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the Lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.
(6)(a) Except where the Court directs otherwise, every brief to be filed in the Court shall not exceed 30 (thirty) pages.
(b) The brief must be prepared in 210mm by 297mm paper size (A4) and typed in
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clear typographic character. The typeset shall be in Arial, Times New Roman or Verdana of 12 point with at least single spaces in-between.
(c) Every brief which does not complied with the page limit and page size requirements of this Order shall not be accepted by the Registry for filing.
I do not need to make a verbatim reproduction of the argument proffered in the appellants nor the respondents brief since the issue is very narrow and straight forward. I shall start by observing that an unsigned process or document is generally worthless; it has no validity, it cannot be traceable to any known author. Such a process or document may be said to have a spurious origin. See Garuba vs. Kwara Investment Co. Ltd. (2005) All FWLR (Pt.252) 469 at 479; Zein vs. Geidam (2004) All FWLR (Pt.237) 457 at 482; Etiko vs. Aroyewun (1959) 4 FSC 129; Kareem vs. Ogunde (1972) 1 SC 109; Braimah vs. Abasi (1998) 10 SCNJ 85. Indeed, in Omega Bank Nigeria Plc vs. O.B.C. Ltd. (2005) All FWLR (Pt.249) 1964 appears the following statement of the law per Niki-Tobi, JSC at page 1994 Paragraph D to wit:
A document which is not
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signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious. I hold that Exhibit P6 was wrongly admitted and given probative value. To me, Exhibit P6 has no probative value.
Suits or actions are commenced in the High Court of Justice by legal representatives applying for writ of summons, originating summons, originating motions or petitions as the case may be under Order 1 Rules 1(a)-(e) and 2(a)-(b) and (3) of the High Court (Civil Procedure) Rules, 1987. Order 5 Rules 1-3, 11(1)-(2), 12(1)-2(a)-(c), of the Rules (supra) provides as follows:
5(1) A writ of summons shall be issued by a Judge, or an officer of the Court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the plaintiffs solicitor by completing Form 1 in the Appendix to these rules; but the Judge or other officer as aforesaid , where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral
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application made and on that record a writ of summons may be prepared, signed and issued.
(2) The writ of summons shall contain the name and place of abode of the plaintiff and of the defendant so far as they can be ascertained; it shall state briefly and clearly the subject matter of the claim, and the relief sought for, and the date of the writ, and place (called the return-place) of hearing.
(3) Any alteration of a writ without leave of the Court shall render the writ void.
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11(1) Before a writ is issued it shall be endorsed:-
(a) Where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sues;
(b) Where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued;
(2) Before a writ is issued in an action brought by a plaintiff who in bringing it is acting by order or on behalf of a person resident outside the jurisdiction, it shall be endorsed with a statement of that fact and with the address of the person so resident.
12(1) Where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the
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plaintiffs address and the legal practitioners name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business address of his principal.
(2) Where the plaintiff sues in person, the writ shall be endorsed with:-
(a) The address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent;
(b) His occupation, and
(c) An address for service.
When does the issue of a writ take place?
Order 5 Rule 15 of the Rules (supra) provides as follows:
15. Issue of a writ takes place upon its being signed by a Judge or an officer of the Court duly authorized to sign the wit.
See Mobil Oil Nigeria Ltd. vs. Alhaji Hameed Ijaiya (1964) L.L.R. 60 at 61.
A suit is usually commenced from the time a claimant submits his application to the appropriate Court official accompanied with the prescribed fee. See Alawode vs. Semoh (1959)
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4 FSC 27 at 29-30; Ahmed vs. Gusau Local Government (1980) FNLR 491 at 496; Nicholls vs. General Manager, Nigerian Railways (1938) 14 NLR 87.
A writ of summons should be set aside only where the action constitutes an abuse of Court process. Other defects should be treated as mere irregularities provided that is curable by a statement of claim. See Pontin vs. Wood (1962) 1 All E.R. 294 at 301 per Davies, L.J. The second instance is where the claimant did not possess the capacity to sue at the time he did. See Hilton vs. Sutton Steam Laundry (1945) 2 All E.R. 425; Finnigan vs. Cementation Co. Ltd. (1953) 1 All E.R. 1130 and Grounsill vs. Cnthel & Ors. (1952) 2 All E.R. 137. The circumstances for striking out a writ of summons and statement of claim are however not closed.
Form 1 in the Appendix to the Plateau State High Court (Civil Procedure) Rules, 1987 is as follows:
CIVIL PROCEDURE
FORMS
FORMS OF WRITS OF SUMMONS, ETC
FORM 1
General Form of Writ of Summons
.. 19 ..
(here put the letter and
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number) (see note) (a) following this form)
IN THE HIGH COURT OF PLATEAU STATE
IN THE .. JUDICIAL DIVISION
SUIT NO: 19 ..
Between A.B. .. Plaintiff
And
C.D. .. Defendant
To C.D. of in the .. of .. you are hereby commanded that within eight days after the service of this writ on you, inclusive of the days of such service, you do cause an appearance to be entered for you in an action at the suit of A.B; and take notice that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence.
DATED this . Day of 19 ..
By order of the Court
JUDGE/AUTHORIZED OFFICER
Memorandum to be subscribed on the writ
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N.B. This is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not after wards.
The defendant (or defendants) may enter appearance personally or by legal practitioner either by hanging in the appropriate form, duly completed, at the Registry of the High Court of the Judicial Division in which the action is brought or by sending them to the registrar by registered post. Endorsement to be made on the writ before issue thereof The plaintiffs claim is for, etc, (b) This writ was issued by G.H., of .. whose address for service (c) is .. agent for . of legal, practitioner for the said plaintiff who resides at (d) . (mention the city, town or district and also the name of the street number of the house of the plaintiffs residence, if any). Endorsement to be made on copy of writ
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forthwith after service This writ was served by me at on the defendant (here insert mode of service) on the . day .. of 19 ..
JUDGE/AUTHORIZED OFFICER
Endorsed the .. day of . 19 .
(Signed)
(Address) .
The writ of summons should indicate whether it is the plaintiff or the legal practitioner that had applied for its issuance. Therefore, the application for the issuance of a writ of summons should contain
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the express name of the legal practitioner or the claimant/plaintiff who had applied for it, signed and dated. A judge will not issue a writ of summons except there is an application to that effect by the claimant or his legal representative.
I am of the opinion that without the signature and date on the application for the issuance of a writ of summons, the application has no validity for it will become impossible to know which solicitor applied on behalf of a claimant for the issuance of the writ. However, validity can be ascribed to such an unsigned application where the learned trial Judge or the appropriate officer designated in the Courts Registry appended his signature to the writ and the matter proceeded thereafter to hearing and conclusion of evidence without objection from the defence. That is the purport of Order 2 Rules 1(1)-(2) and 2(1)-(2) of the Plateau State High Court (Civil Procedure) Rules, 1987 which provides as follows:
1(1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a
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failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
(2) The Court may on the ground that there has been such a failure as mentioned in Paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
2(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and fore the party applying has taken any fresh taken after becoming aware of the irregularity.
(2) Any application under the foregoing paragraph may be made by summons
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or motion on notice, and the grounds of objection shall be stated in the summons or notice of motion.
In Pontin vs. Wood (supra) Holryd-Pearce, L.J., held at page 297 Paragraph W regarding Order 70 Rules 1-2 of the Rules of the Supreme Court in England, 1961 Is directed to the curing of that which is capable of cure, to saving rather than destroying. See also UBA vs. Nwora (1978) 1 L.R.N. 149 at 155.
Notwithstanding the fact that the application for the issuance of the writ of summons was not signed, that irregularity was cured by the issuance of the writ of summons by the learned trial Judge. My candid opinion is that the appellant was given a hearing based on his oral evidence supported by documentary exhibits at the Committee or Panel that investigated his conduct before his suspension from office. Section 11 of the Interpretation Act (Cap.123) Laws of the Federation of Nigeria, 2004 provides as follows:
11. Appointment
(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes:-<br< p=””>
</br<>
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(a) Power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) Power to remove or suspend him;
(c) Power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint:-
(i) To reappoint or reinstate him;
(ii) To appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.
(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the function of the office generally or the functions in regard to which he is appointed, as the case may be.
The appellant being a traditional ruler ought to have confined himself to the performance of his traditional functions and duties but certainly not to get involved in partisanship politics nor to stand in the way of ruthless politicians who may not tolerate criticism or dissent concerning their political maneuvers. The
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appellant might have fared better if he read Psalm 1:1-3 (KJV) to wit:
BLESSED is the man that walketh not in the Counsel of the ungodly, nor standeth in the way of sinners nor sitteth in the seat of the scornful. But his delight is in the law of the LORD; and in his law doth he mediate day and night. And he shall be like a tree planted by the rivers of water, that bringeth forth his fruit in his season; his leaf also shall not wither; and whatsoever he doeth shall prosper.
Traditional rulers who stand in the way of politicians will certainly be putting their offices into jeopardy, or to be rubbished.
This appeal, though partly successful, is not sufficient to foist upon the respondents the appellant as the Gwom Rwei of Foron.
This is a proper case to invoke the provisions of Section 15 of the Court of Appeal Act, 2004 to dismiss this appeal. See Ezeigwe vs. Nwawulu (2010) 181 LRCN 22 at 52, 55; Agbakoba vs. INEC (2008) 18 NWLR (Pt.1119) 489; Amaechi vs. INEC (2008) 5 NWLR (Pt.1080) 227 and Obi vs. INEC (2007) 11 NWLR (Pt.1046) 565 and 639-640.
The appeal stands dismissed. The 9th respondent filed a brief, I am of the
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humble opinion he is entitled to N50,000.00 cost of this appeal against the appellant.
Other Citations: (2016)LCN/8819(CA)
