Manomi & Anor V. Dakat & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C. 

By an application, filed on December 16th, 2019, the applicants sought a mandatory order of this Court against the respondents. It was brought pursuant to Section 287 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended in 2011); Section 17 of the Supreme Court Act, Cap. S15 Laws of the Federation, 2004; Order 3, Rule 6 of the Supreme Court Rules 1999; Section 97 of the Sheriffs and Civil Processes Act, Laws of the Federation, 2004 and under the inherent jurisdiction of this Court.

In particular, they prayed for:

1. A MANDATORY ORDER of this Court compelling the 3rd and 4th Judgment debtors to install the 1st judgment creditor/applicant as Sum Pyem of the Pyem Chiefdom in Gindiri, Mangu Local Government Area of Plateau State within 14 (Fourteen) days of the determination of this motion on notice.
2. AND FOR SUCH FURTHER ORDER(S) as this Court may deem fit to make in the circumstance.

The grounds upon which this application was predicated were expressed as follows:

1. That by the judgment delivered by the Supreme Court in Appeal No. SC/883/2015, the selection of the 1st Judgment creditor/applicant was upheld.
2. The 3rd and 4th Judgment Debtors/Respondents have refused to install the 1st Judgment. Creditor/Applicant as Sum Pyem on the basis that Supreme Court judgment was academic.

The motion was supported by an affidavit, and a further affidavit. Facts, as contained in the affidavit of the applicant, from paragraphs 3.0 to 22.0, reveal:

3.0. That an election was conducted into the vacant stool of the Sum Pyem of the Pyem Chiefdom of Gindiri, Mangu Local Government Area of Plateau State on the 17th day of May, 2004.

4.0. That I was elected to the stool of the Sum Pyem by the traditional selectors following which the 1st and 2nd Judgment Debtors/Respondents herein who also contested for the same stool as plaintiffs took a Writ of Summons sometimes in 2004, seeking some declaratory reliefs against the applicants in Suit Number PLD/J285/04 at the High Court of Plateau State holden at Jos.

5.0. That I know as a fact that judgment was delivered in the suit on the 13th day of April, 2006 wherein the learned trial presiding Judge dismissed the claims of the 1st and 2nd Judgment Debtors/Respondents in its entirety save for one relief which was admitted by the 1st and 2nd Judgment Creditors who were then Defendants in the suit.

6.0 That aggrieved by the judgment of the High Court of Plateau State in Suit Number PLD/J285/04, the 1st and 2nd judgment Debtors/Respondents herein appealed to the Court of Appeal holden in Jos, Plateau State.

7.0 That I know as a fact that the Court of Appeal, Jos Division delivered its judgment in Appeal Number CA/J/240/06 on the 26th day of January, 2012, wherein the appeal was successful in part.

8.0 That the Honourable Court of Appeal did not grant the applicants leave to appeal until the time limited elapsed.

9.0 That the appellants/applicants, along with other applicants applied to the Supreme Court for grant of leave to appeal to the Supreme Court.

10.0 That the Honourable Supreme Court granted the applicants leave to appeal on the 19th day of September, 2012. The order of the Court is annexed as Exhibit 1.

11.0 That the 3rd and 4th Judgment Debtors/respondents during the pendency of the appeal at the Supreme Court conducted an election for the stool of the Sum Pyem of the Pyem Chiefdom of Gindiri in Mangu Local Government Council of Plateau State on the 26th day of November, 2013 and Charles Mato Dakat was elected Sum Pyem.

12.0 That the 1st and 2nd Judgment Debtors/Respondents participated at the election conducted on the 26th day of November, 2013 conducted at Mangu, Plateau State the Sum Pyem of the Pyem Chiefdom of Gindiri in Mangu Local Government Council of Plateau State while Appeal Number SC/178/2012 was pending.

13.0 That Appeal Number SC/178/2012 was withdrawn and consequently struck out following the decision of some of the Kingmakers to dissociate themselves from the said appeal on the 11th day of November, 2014. The order striking out the appeal is annexed as Exhibit 11.

14.0. That on the 23rd day of February,2016, I and the 2nd Judgment Creditor/Applicant were granted fresh leave by this Honourable Court to appeal the decision of the Honourable Court of Appeal delivered in Appeal Number CA/J/240/06. The order of the Supreme Court granting the fresh leave to appeal is annexed hereto and marked Exhibit III.

15.0 That the issues relating to this application have been pending between the parties since 2004 when I was selected Sum Pyem and 2012 when the appeal was first entered at the Supreme Court.

16.0 That since the death of the last occupant of the throne of Sum Pyem (Mallam Mamman Gargadi) in 2003 and the selection of the Judgment Creditor/applicant in 2004, the Pyem Community has been without its duly elected leader to rally around and foster the development of the Community.

17.0 That the issue of the rightful Sum Pyem of the Pyem Chiefdom has been a source of tension in the community since the 3rd and 4th Judgment Debtors/Respondents purportedly conducted another selection to the stool in 26th day of November, 2013 during the pendency of Appeal Number SC/178/2012.

18.0 That we re-filed appeal number SC/883/2015 after withdrawing appeal number SC/178/2012 with regards to my selection as Sum Pyem of the Pyem Chiefdom in Gindiri, Mangu Local Government Area of Plateau State.

19.0 That on the 1st day of February 2019, the Supreme Court entered judgment in my favour. A copy of the judgment is hereto attached and marked Exhibit IV.

20.0 That my lawyers wrote to the 3rd and 4th Judgment Debtors/respondents to install me and pay me the benefits of the stool of the Sum Pyem of the Pyem Chiefdom in Gindiri, Mangu Local Government Area of Plateau State. The copy of my lawyers’ letter is hereto attached and marked Exhibit V.

21.0 That the 3rd and 4th Judgment debtors/Respondents through their counsel respondent to my lawyers’ letter denying their obligations to me with regards the installation as Sum Pyem the Sum Pyem of the Pyem Chiefdom in Gindiri, Mangu Local Government Area of Plateau State. A copy of the letter from the Attorney-General of Plateau State on behalf of the 3rd and 4th Judgment Debtors/Respondent is hereto attached and marked as Exhibit VI.

22.0. That on the 8th day of November, 2019 my solicitors wrote a response to the letter of the Attorney-General referred to in Paragraph 21 hereof wherein we again made a case for the obedience to the judgment of the Supreme Court which the Respondents have ignored. Annexed hereto as Exhibit VII is the said letter.

​A further affidavit, deposed to by Smart Maisamari, a Litigation Secretary in the law firm of Abimiku and Company, the solicitors to the Judgment Creditors/Applicants, was also filed.

The first and second respondents filed a counter-affidavit and a further counter affidavit on February 18th, 2020 and August 11th, 2020 respectively, both deposed to by Joseph D. Mato Dakat, the first respondent herein.

In the first counter affidavit it was stated that:

4. Contrary to the depositions in paragraphs 9.0-14.0 of the applicant’s supporting affidavit, I state that:

a. After the judgment of the Court of Appeal was delivered in this matter on 26th January, 2012, the applicants wrongfully lodged appeal no. SC/178/2012, involving, and on behalf of individuals who were uninterested therein and had not granted consent to the applicants.

b. The said individuals were displeased upon discovering the appeal lodged by the applicants and quickly communicated their lack of interest and non-involvement therein.

c. Consequent upon the disclosure of the said uninterested individuals, this honourable Court struck out the applicants’ appeal no SC/178/2012.

d. The applicants had no valid appeal, since the judgment of the Court of Appeal, until 23rd February, 2016, when this Honourable Court granted them leave to appeal, giving rise to appeal no. SC/883/2015.

5. Meanwhile, pursuant to the judgment of the Court of Appeal, which set aside the selection of the 1st applicant as Sum Pyem, a fresh selection exercise was conducted for the occupant of the stool or office of Sum Pyem on 26th November, 2013.
6. In the said selection exercise, which long preceded the lodgment of appeal no. SC/883/2015, Mr. Charles Mato Dakat emerged the winner and duly assumed the stool thenceforth.
7. There was no valid appeal pending before your Lordships or any other Court as at the time the selection of 2013 was conclusively conducted, Charles Mato Dakat emerging as the winner.
8. Till date, the applicants have not challenged the selection and installation of Mr. Charles Mato Dakat as the Sum Pyem.
9. Mr. Charles Mato Dakat was not a party to this matter while it was before this honourable Court or any of the two lower Courts.
10. No order has been made by this honourable Court or any of the two lower Courts against Mr. Charles Mato Dakat, especially regarding his occupation of the stool or office of Sum Pyem.
11. The applicants’ appeal no. SC/883/2015 was eventually determined in their favour, this honourable Court expressly granting only two of the four reliefs sought by them in the initiating notice of appeal.
12. This honourable Court refrained totally from granting the applicant’s reliefs regarding the nullification of the selection exercise of 2013, which favoured Mr. Charles Mato Dakat, and the installation of the 1st applicant as the Sum Pyem.
13. The relief(s) being sought by the applicants in this motion is totally unrelated with the content and orders in the subsisting judgment of this Honourable Court, delivered on 1st February, 2019.
14. The applicants, by its motion, are seeking to enforce the judgment of this Hoonourable Court, delivered on 1st February, 2019, in terms which are not contained therein i.e. the two reliefs not granted by this Honourable Court.
15. This application is brought in bad faith as the applicants know full well that the orders they are seeking to enforce hereby were not made by this honourabe Court. In its judgment of 1st February, 2019.
16. The applicant’s motion has been signed on behalf of a law firm “ABIMIKU & COMPANY”, which is not a Legal Practitioner on the Supreme Court Roll, license to practice or sign Court processes.
17. This honourable Court is not clothed with the requisite jurisdiction to entertain this application as the rights of a non-party, Mr. Charles Mato Dakat, are involved and would be directly affected by its determination.

The first and second respondents also deposed to a 19-paragraph further counter-affidavit. I consider paragraphs 4-17 therein relevant. The third and fourth respondents, on their part, filed a counter-affidavit as well as a further counter-affidavit. Paragraphs 5—22, which I consider relevant for the purpose of determining this appeal, read as follows:

5. That I was informed by the Honourable Attorney-General and Commissioner for Justice in his office on the 14th day of January, 2020 by 1.45 pm which information I verily believe to be true as follows:

a. That paragraph 8.0 of the affidavit in support is not true, the applicants failed to seek leave of the Court of Appeal within the time stipulated by law.

b. That paragraphs 11.0 and 12.0 of the affidavit are not true. As at the time the Court of appeal ordered a fresh selection, there was no pending suit, appeal and/or any application before any Court relating to this matter.

c. That in compliance with the order of the Court of Appeal as deposed in paragraphs 7.0 of the applicant’s affidavit, a fresh selection was conducted.

d. That the fresh selection was conducted on the 26th day of November, 2013 in accordance with paragraph 8 (i) of the Gazette regulating the selection of Sum Pyem.

e. That it was in the selection referred to above, that the present Sum Pyem, indicated interest and participated in the contest for the first time alongside the 1st Applicant. (Arc. Hudu Mamomi)

f. That I know that the 1st applicant (Arc. Hudu Mamomi) fully participated in the latter selection exercise as a candidate after which the incumbent (HRH Charles Mato Dakat) emerged as the Sum Pyem.

g. That all procedural requirements stipulated by the Gazette were fully observed by the Local Government, the Ministry of Local Government and Chieftaincy affairs in conducting the said election.

h. That after observing all the procedural requirements, the present Sum Pyem was issued a letter of appointment, followed by a staff of office as Sum Pyem of Pyem Chiefdom on the 1st day of August, 2014 by the Plateau State Governor. He has since then occupied and is exercising the powers of the office accordingly.

i. That contrary to the depositions in paragraphs 11.0 and 12.0 of the applicant’s affidavit, there was no suit, appeal or any application whatsoever pending before this Honourable apex Court or any other Court regarding the issue at the time.

j. That there was no restraining order, pending suit or pending appeal at the time of selection and installation of the incumbent Sum Pyem.

k. That the 1st applicant who participated in the fresh selection as ordered by the Court of Appeal, did not challenge the selection and issuance of the certificate of installation to the incumbent Sum Pyem on the 26th November, 2013 or his subsequent installation by the Governor of Plateau State on the 1st day of August, 2014. The said certificate of installation is hereby annexed and marked as exhibit “A”.

l. That paragraphs 13.0, 14.0, 15.0 and 16.0 of the affidavit are not true.

m. That having participated in the fresh selection process referred to in paragraph k above, the 1st applicant went to sleep for two years, before he decided to have a second bite at the cherry by filing an appeal before this Honourable Court on the 4th day of March, 2015 against the judgment of the Court of Appeal, Jos Division with which he had complied with by participating in the fresh selection ordered by the judgment.

n. That paragraph 17.0 of the applicants’ affidavit is not true as the selection of the present Sum Pyem was not conducted during the pendency of any suit and there was no tension at the time whatsoever as his staff of office was given in the full glare of the public in a ceremony that was followed by great jubilation and celebration all over the Chiefdom.

o. That paragraphs 18.0, 19.0, 20.0, 21.0 and 22.0 are true.

6. That the sound judgment of this honourable Court referred to in the aforementioned paragraphs only affirmed and restored a declaratory judgment of the High Court of Plateau State.
7. That the 3rd and 4th respondents were not ordered by the judgment of the High Court of Justice, Plateau State to install the 1st applicant as the Sum Pyem of the Pyem Chiefdom in Gindiri, Mangu Local Government of Plateau State.
8. That the 3rd and 4th respondents were not ordered to install the 1st applicant as Sum Pyem because the provisions of Plateau State Gazette dealing with appointment of chiefs (appointment Sum Pyem) Order 1992 and dated 23rd April, 1992 were yet to be complied with to conclusion at the time the suit that gave rise to the judgment was filed.
9. That the judgment of this Honourable Court did not in any way direct the 3rd and 4th Respondents to install the applicants as the Sum Pyem. A copy of the enrolled Order of this Honourable Court is hereby attached and marked exhibit B.
10. That the prayers contained herein the applicants’ application were copiously captured in reliefs 4.3 and 4.4 of the appellant’s notice of appeal filed on the 4th day of March, 2016 before this Honourable Court. The said notice is herein attached and marked exhibit C.
11. That the same reliefs as contained in this application were captured as paragraphs 1.3.3 and 1.3.4 of the applicants’ brief of argument filed on the 6th day of May, 2016. The said brief is herein attached and marked Exhibit “D”.
12. That this Honourable Court on the 1st day of February, 2019, granted reliefs 1 and 2 as contained in the applicant’s brief.
13. That this Honourable Court refused to grant reliefs 3 and 4 on the Notice of Appeal which are of the same import with the relief in the extant application.
14. That the present relief in the instant application is aimed at affecting the rights of a present occupant of the stool who is not a party to the Suit at the trial Plateau State High Court, Court of Appeal and the Supreme Court.
15. That reliefs 4 and 5 as contained in the notice of appeal and the appellants’ brief were never raised as issues before the Plateau State High Court of Justice and therefore did not arise from the judgment of the trial Court.
16. That reliefs 4 and 5 as contained in the appellant’s brief which are of the same import with the relief in the instant application were fresh issues raised for the very first time before this Honourable Court.
17. That leave of this Honourable Court was not sought and obtained before those fresh issues were raised and were consequently ignored by this Honourable apex Court.
18. That the reliefs sought in the instant application are reliefs that should have been sought before the trial High Court, but which were not.
19. That this application is an invitation to this Honourable Court to reopen the appeal it had determined by its judgment of 1st February, 2019 by granting reliefs not granted.
20. That the judgment of this Honourable Court of 1st February, 2019 did not declare the seat of Sum Pyem of Pyem Chiefdom vacant.
21. That the judgment of this Honourable Court did not make an order setting aside the selection of the present Sum Pyem conducted on the 26thh day of November, 2013 in which the 1st applicant was a participant/contestant.
22. That this application is an abuse of Court process.
23. That this Honourable Court lacks the jurisdiction to entertain this application.
24. That the grant of this application will be prejudicial to the present occupant of the stool of Sum Pyem who was never a party to the action from the trial Court up to this Honourable Court.

​A six paragraph further counter-affidavit was also deposed to by one Gloria Longwus, a litigation secretary in the chambers of the Attorney-General of Plateau State, Ministry of Justice, Jos, counsel to the third and fourth respondents.

The applicants, in their written address, pointed out that the applicants have a judgment of this Court entered in their favour. They had requested compliance with it. However, the third and fourth respondents refused to comply with the judgment. Reference was made to exhibits IV, V and VI, respectively, citing AGI v. PDP and Ors (2016) LPELR-42578 (SC).

Urging the Court to hold that the first applicant has met the burden of proof for the grant of the reliefs sought in this application, learned counsel contended that the response of the third and fourth respondents, as contained in exhibit VI, suggests that the decision of this Court is a hypothetical decision incapable of being enforced. In his submission, this is contrary to the wide powers of this Court as contained in Section 22 of the Supreme Court Act.

​In response, learned counsel for the first and second respondents, by their written address in support of their counter affidavit in opposition to this application, submitted that the application brought by the applicants deprives this Court of the requisite jurisdiction to entertain or adjudicate on it for two reasons.

He submitted that the applicants’ motion was, unlawfully, signed on behalf of a law firm, in contravention of a vital position of the law, that is, that only a Legal Practitioner, whose name is on the Supreme Court Roll, not a law firm, may sign Court process, Adamu v. Hassan and Ors (2014) LPELR-22906 (CA).

He, further, pointed out the indication of “PP,” before “ABIMIKU & COMPANY,” directly implies that the applicants’ motion was signed on behalf of the law firm, “ABIMIKU & COMPANY.” He added that “PP” indicates that a person is signing a process by proxy, citing Black’s Law Dictionary which defines “PP” to stand for per procurationem; Femi and Anor v. Adegboyega and Anor (citation not provided); Alfa Saka Salami v. Alhaji Mohammed Jodi Magaji Muse Family (2019) LPELR-47038 (SC); Adamu v. Hassan and Ors (supra),

​He canvassed the view that there is already an existing Sum Pyem who will be directly affected if this application succeeds. Regrettably, he has not been made a party to these proceedings. He maintained that it would be ultra vires the Court to adjudicate on a matter touching on the interests or rights of a party before it and another who is no way before it, A.D.C v. Bello 1 NWLR (pt. 1545) 112, 138; A.G Lagos v. A.G. Federation 12 NWLR (pt.833) 1, 204, para H; LSBPC v. Purification Tech Ltd (2012) 52 (pt. 1) NSCQR 274, 305. In effect, he submitted that, entertaining this motion, to which HRH Charles Mato Dakat, the present Sum Pyem, is not a part, would amount to a determination of his right to stool without giving him the opportunity to be heard. The motion of the applicant is, therefore, bereft of any competence.

He pointed out that the applicant’s motion is unmeritorious and liable to be dismissed, having regard to the fact that they are thereby seeking to enforce an order which was not made by this Court in its judgment of February 1st, 2019. In the said judgment of this Court, he observed, no directive was given which was being disobeyed by the respondents. He added that neither the judgment of the High Court nor that of this Court, which affirmed the former, contains any mandatory order directing anybody to do anything in satisfaction thereof. In other words, the applicants are insistently struggling to benefit from reliefs not granted through the backdoor. They are seeking the enforcement of an order which was never made by any of the Courts. That is, neither the trial Court’s judgment nor the judgment of this Court, upholding the trial Court’s judgment, contains any order as to the installation of the first applicant as Sum Pyem or concerning the payments of benefits to him. In one word, the said judgment of this Court was, merely, declaratory and unenforceable, Akunnia v. A. G, Anambra State (1977) NSCC 256 at 262; Aragbiji v. Oyewinle (2013) 55 NSCQR 284 at 298.

The third and fourth respondents, also, filed a written address. They contended that this Court, having fully performed its duty by handing down its decision, has exhausted all its legal powers with regards to that matter. The Court was, therefore, functus officio Dingyadi v. INEC (NO.2) (2011) 18 NWLR (pt. 1224) 154, 186b, para D-F; First Bank of Nigeria Plc v. TSA Industries Ltd (2010) 15 NWLR (pt 1216) 247, 296, para C-F; Ngere v. Okuruket Xiv (2017) 5 NWLR (pt. 1559) 440, 499, para D-G.

​He further pointed out that the relief being sought formed part of their initial prayers before this Court which the Court refused to grant. In this situation, a consequential order, which in learned counsel’s view, is the nature of relief being sought by the applicants, cannot be grated as a fresh, unclaimed or unproven relief, A.P.C v. Hon, Danladi ldris Karfi (2018) 6 NWLR (pt. 1616) 479, 513 E. He maintained that this application was, also, caught up by the principle of res judicata, Agbaje v. INEC (2016J 4 NWLR (pt. 1501) 151, 167, para A-E. He took the view that the instant application was a clear invitation to this Court to revisit an issue that had been decided.

He, further, posited that this Court cannot close its eyes to the procedural requirement of the Plateau State Gazette as to the requirements for the installation of the Sum Pyem and proceed to order the installation of the first applicant. Above all, the relief sought in this application is purely at the discretion of the governor, citing Paragraph 8 (i) of the Plateau State Gazette, dealing with the Appointment and Deposition of Chiefs, Order 1992 (as amended), the installation of any Chief (installation of the Sum Pyem).

​Learned counsel, further, opined that the instant application is premature in that after the selection, there was no consultation with the Council of Chiefs and there was no approval by the Governor to enable the applicant’s claim the stool in contention. Worse still, this Court cannot, and should decline to, make an order against a person who was never made a party to the suit and especially where his interest is obviously going to be affected by such order. The present occupant of the stool, HRH Charles Mato Dakat, was never made a party by the applicants at any stage of the proceedings and even in the instant application.

​The instant application, in his submission, is therefore incompetent by reason of non-joinder of a necessary party whose interest is at stake. The totality of submissions is that the third and fourth respondents, from their submissions, and exhibits A-C in support of their counter-affidavits, are confessing to have acted in contempt by purportedly conducting another selection to the stool of Sum Pyem in utter contempt of Court during the pendency of a litigation.

The third and fourth respondents, it was pointed out, were aware of the pending proceedings before this Court and the reliefs which were being sought as seen from exhibits XI-XIV.

In their reply on points of law to the first and second respondents’ written address, the applicants contended that, although Adamu v. Hassan and Ors (supra), Femi and Anor v. Adegboyega and Anor (supra); Afa Saka Salami v. Alhaji Mohammed Jodi Magaji Muse Family (supra), represent a true restatement of the law, the facts are inapplicable to the instant case.

Learned counsel insisted that the counsel, who signed the process, is clearly identified with his annual bar seal affixed to the signed process which was issued by the Nigerian Bar Association and his name as the signatory to the process. He cited GTB v. Innoson Nigeria Ltd (2017) LPELR-42368 (SC), in urging the Court to find and hold that the processes were validly signed by John Abimiku Matthew, whose name was not only ticked, but his seal appeared on the processes.

The said HRM Charles Mato Dakat was aware of the pending litigation regarding the stool of the Sum Pyem when he not only participated in the selection processes, he refused to accept the processes of this Court as can be seen from exhibit 2 attached to the further affidavit of the first and second Judgment Creditors, the document in question being an affidavit of service emanating from the bailiff of this Court.

The actions of HRM Charles Mato Dakat, in refusing to accept the processes or apply to join as a party to the pending suit before this Court, in his submission, raises the issue of the principle of estoppel by standing against him, Arije v. Arije and Ors. (2018) LPELR-44193 (SC); ADC v. Bello (2017) 1 NWLR (pt. 1545) 112; A.G, Lagos State v. A.G Federation (2003) 12 NWLR (pt. 883) 1.

Referring to Exhibit V, he further submitted that the third and fourth respondents have been requested to comply with the judgment of this Court by installing the first applicant as Sum Pyem and to pay the accrued allowances due to him since 2004. HRM Charles Mato Dakat is not a necessary party for the hearing and determination of this application as he did not participate in the selection process conducted on May 17th, 2004. Above all, the effect of the judgment of this Court delivered on February 1st, 2019 is that there was no vacancy to the Sum Pyem Stool for the third and fourth respondents to conduct a selection into as they purportedly did on November 23rd, 2013. The doctrine of lis pendens therefore, applies against the actions of the third and fourth respondents, Nwafor v. Anyaegbunam (1978) LPELR-2765 (SC); Wilson and Anor v. Oshin and Ors LPELR-3497 (SC).

On the fresh issue of lis pendens raised by the applicants, the third and fourth respondents submitted that the case being sought to be made out by the applicants, on account of which this Court is being invited to invoke the doctrine of lis pendens against the respondents to this application, is Appeal No. SC/178/2012 earlier filed by the applicants but which was later struck out by an order of this Court on November 11th, 2014.

Suit No. SC/883/2015, being the only relevant suit to the subject matter of this application, only came into being in 2015, and was not pending at the time of the selection exercise of November, 23rd, 2013. The doctrine of lis pendens is non-applicable to declaratory reliefs, UNIJOS v. Ikegwuoha (2013) LPELR-20233 (SC). Worse still, Wilson and Anor v. Oshin and Ors (supra) and Nwafor v. Anyaegbunam (supra), are irrelevant and inapplicable. This is because, at the time of the subsequent selection exercise that produced HRM Charles Mato Dakat, there was no right or interest vested in the first applicant, who did not seek any relief before the lower Court.

RESOLUTION OF THE ISSUE

My Lords, the origin of this application can be traced to the time after the demise of the Sum Pyem of Pyem Chiefdom of Mangu Local Government Council of Plateau State. The third and fourth respondents conducted a selection exercise on May 17th, 2004 to fill the vacant stool of the Sum Pyem. The fourth respondent set up a committee to conduct a selection exercise which wrote to eleven traditional selectors inviting them to a meeting fixed for May 17th, 2004.

On the said date, the presiding officer of the selection committee read out the content of the Plateau State Legal Notice No. 1 of 1992 for the appointment of Sum Pyem (that is, exhibit 9) to the eleven traditional selectors who turned up for the selection exercise. The candidates were the first applicant; the first and second respondents.

​Nomination forms were issued to the candidates. The Presiding Officer issued eleven ballot papers to the traditional selectors. At the end of the voting process, only two persons were voted, that is, the first applicant and the first respondent who scored 8 and 2 votes, respectively. The selection committee endorsed the report of the selection exercise. Before the consideration of the report of the selection committee by the State Council of Chiefs, with a view to presenting the report for the approval of the fourth respondent, the first and second respondents instituted an action along with other ten defendants before the High Court of Plateau State. After exchange of pleadings by all the parties, the matter proceeded for hearing.

On April 13th, 2006, the High Court of Plateau State delivered judgment in favour of the first applicant. Dissatisfied by the judgment of the trial Court, the present first and second respondents appealed to the Court of Appeal, Jos Judicial Division (hereinafter referred to “the lower Court”). The lower Court, by its judgment delivered on January 26th, 2012, allowed the appeal in part. The first applicant, now dissatisfied, lodged an appeal before this Court. The first appeal, No SC/178/2012, was struck out by this Court. He (the first applicant) then refiled appeal No. SC/883/2015, after withdrawing appeal No. SC/178/2012.

On February 1st, 2019 this Court resolved the five issues raised by the applicants in their favour and against the respondents, subsequently setting aside the judgment of the lower Court and, in its stead, restoring the judgment of the trial Court. The applicants are now seeking a mandatory order of this Court compelling the third and fourth Judgment Debtors to install the first judgment creditor/applicant as Sum Pyem of the Pyem Chiefdom in Gindiri, Mangu Local Government Area of Plateau State within 14 (fourteen) days of the determination of this application.

I have set out the gist of the order which the applicants seek in this matter. The applicants assert that they are seeking to enforce the judgment of this Court against the respondents, particularly, the third and fourth respondents herein, but it is obvious that what the applicants want to achieve, through this application, is to install the first applicant as the Sum Pyem of the Pyem Chiefdom in Gindiri, Mangu Local Government Area of Plateau State.

​The first point taken by the first and second respondents is that this Court does not have the jurisdiction to entertain this application and, on that ground alone, the application should be dismissed. This was predicated upon two reasons. The first reason is that the applicants’ motion was, unlawfully, signed on behalf of a law firm. It was pointed out that the indication of “PP” before “ABIMIKU & COMPANY” directly implies that the applicants’ motion was signed on behalf of the law firm, “ABIMIKU & COMPANY”. As the second reason, it was submitted that the existing Sum Pyem, HRM Charles Mato Dakat, who will be directly affected, if this application succeeds, has not been made a party to the proceedings.

The issue of jurisdiction is so radical that it forms the foundation of adjudication. If a Court lacks jurisdiction, it also lacks the necessary competence to try the case at all, A defect in competence is fatal, for the proceedings are null and void ab initio, however well conducted and well decided they may otherwise be, Madukolu and Ors v Nkemdilim (1962) 1 A Il NLR 587, 597; Tukur v Governor, Gongola State (1989) 4 NWLR (pt 117) 513.

​Due to its fundamental nature, it can never be too late in law to raise the issue of jurisdiction. Indeed, leave of the appellate Court is unnecessary since the Court can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so, Western Steel Works Ltd v. Iron Steel Workers Ltd. (No. 2) (1987) 1 NWLR (pt. 49) 284; Aderibigbe v. Abidoye 10 NWLR (pt. 1150) 592; Comptroller Nigeria Prisons Services Lagos v. Adekanye (2002) 15 NWLR (pt. 790) 332; Obatoyinbo v. Oshatoba (1996) 5 NWLR (pt. 450) 531; Management Enterprises Ltd v. Otusanya (1987) 2 NWLR (pt. 179) 188; Magaji v. Matari (2000) 8 NWLR (pt. 55) 179.

The Court must first of all be competent, that is, have jurisdiction, before it can proceed on any adjudication as it a fruitless venture to decide merits of a case without jurisdiction. If a Court or Tribunal is not competent to entertain a matter or claim or suit it is a waste of valuable time for the Court to embark on the hearing and determination of the substantive matter.

​It is, therefore, an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of substantive matter.

The jurisdiction of any Court is granted aliunde – from without – and not from within. Courts are creatures of statutes and it is the statute or law creating the Court that determines and defines its jurisdiction, Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1; Fadare v. A.G, Oyo State (1982) 4 SC 1; Bronik Motors Ltd v. Wema Bank Ltd. (1983) 1 SCNLR 296; Okpaku v. Okpaku (1947) 12 WACA 137, 261, paras. D-E.

The signing of an originating process goes to the jurisdiction of the Court. It can, therefore, be raised at any time even for the first time in this Court. It is, however, desirable to take objections on issues of jurisdiction early. It is always in the interest of justice to raise jurisdictional issues in order to save costs and avoid a trial that may ultimately result to a nullity, A -G, Lagos State v. Dosunmu (1989) 3 NWLR (pt. 111) 552; Bakare v. A-G, Fed. (1990) 5NWLR (pt. 152) 516; Bronik Motors v. Wema Bank Ltd (supra); Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (pt. 2) 193; Utih v. Onoyivwe 1 NWLR (pt. 166) 166; Osadebay v. A.-G., Bendel State (1991) 1 NWLR(pt. 169) 525; Owoniboys Tech, Services Ltd v. John Holt Ltd. (1991) 6 NWLR (pt. 199) 550; Katto v. C.B.N (1991) 9 NWLR (pt. 214) 126.

All Court processes must be signed in the manner prescribed by the Legal Practitioners Act. That is to say, by a person qualified as a Legal Practitioner and enrolled in this Court. Any Court process signed in the business name of a firm would, therefore, be rendered incurably defective ab initio and liable to be struck out. Sections 2 (1) and 24 of the Legal Practitioners Act affect the jurisdiction of the Court as a matter of substantive law. This is not a matter of procedural law. In certain cases, therefore, they cannot be waived, F.B.N, Plc v. Maiwada (2013) 5 NWLR (pt. 1348) 444; Okafor v. Nweke 10 NWLR (pt. 1043) 521; Registered Trustees Apostolic Church Lagos Area v, Akindele (1967) SCNLR 205; Cole v. Martins (1968) SCNLR 215.

The applicants cited Alfa Saka Salami v. Alhaji Mohammed Jodi Magaji Muse Family (supra), in support of their arguments on this point. In the said case, wherein I had occasion to consider this issue, the appellant’s pleadings were signed by “PP: Olatoke and Co.” I held that this was unknown to law.

​However, in the instant case, the Court process was duly signed by “John Abimiku Matthew.” Apart from his name, other names followed suit including Justin Chuwang, Esq. and Hassan I. Hassan, Esq. before you find the “PP: ABIMIKU & COMPANY.” It was not signed immediately by “PP: ABIMIKU & COMPANY,” just like the aforementioned case. The signature on each of the applicants’ processes can be verified or traced to a registered Legal Practitioner, being John Abimiku Matthew. Inserting “PP: ABIMIKU & COMPANY”, is therefore, in my view, immaterial and it cannot be said to vitiate the processes before this Court.

Another elementary principle of law that imbues a Court with jurisdiction to entertain a matter or application, is that the parties/persons to be affected by its decision must be duly summoned/served with the process of Court. They must be given an opportunity to be heard or defend themselves, Mobil Oil Plc v. D.E.N.R. Ltd, (2004) 1 NWLR (pt. 853) 142; Lawal v. P.G.P, (2002) 17 NWLR (pt. 742) 393. That is an inalienable constitutional right, Section 36 (1) (4) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

​A Court is competent when (a) it is properly constituted as regards number and qualifications of the members of the bench and no member is disqualified for one reason or another; (b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; (c) and the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

In the instant case, this issue of the sitting Sum Pyem, HRM Charles Mato Dakat, not being included as a party to the proceedings, falls within (b) above. The applicant made no allegation against the sitting Sum Pyem, neither was his name reflected in the applicant’s Statement of Claim as a party to the action, at the trial Court. Since no claim was made on HRM Charles Mato Dakat, the jurisdiction of the trial Court and this Court, in consequence, can not be invoked, Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Afolayan v. Ogunride (1990) 1 NWLR (pt. 127) 369, 385; Green v. Green (1987) 7 SCNJ 255; Uku v. Okumagba (1974) 1 All NLR 475.

​Now to the main issue. By its judgment in Appeal No. SC/883/2015, delivered on February 1st, 2019, this Court, in concluding its judgment, held thus.:

“On a whole, all the five issues raised and argued by the appellants are resolved in their favour and against the two sets of respondents. I have therefore come to the inevitable conclusion that his appeal is meritorious and must be allowed. The instant appeal therefore succeeds and is accordingly allowed by me. The judgment of the lower Court is hereby set aside and, in its stead, the judgment of the trial Court is hereby restored. I make no order as to costs so each party should bear his/its respective costs.”

The relevant portion of the trial Court’s judgment is as follows:

“…in addition, it is hereby declared that the selection of an eligible candidate to the throne of Sum Pyem can only be in accordance with Legal Notice No. 1 of 1992 contained in the deposition of Chiefs (appointment of Sum Pyem) Order, 1992 and dated 23rd April, 1992 (as amended).”

The said judgment contained no mandatory order directing anybody to do anything. It was merely a declaratory judgment which is unenforceable, Akunnia v. A-G, Anambra State (1977) NSCC 256, 262; Igbokwe v. Udofia (1992) 3 NWLR (pt. 228) 214; Ogunlade v. Adeleye (1992) 10 SCNJ 58; Awoniyi and Ors v. The Registered Trustees of AMORC (Nig). (2000) LPELR- 655 (SC); Dantata v. Mohammed (2000) 7 NWLR (pt. 664) 176; Enekwe v. Intl. Merchant Bank of Nigeria Ltd and Ors (2006) LPELR-1140 (SC).

Above all, it is not the business of the Courts to make declarations of customary law relating to the selection or appointment of Chiefs. However, it is the business of the Court to make a finding of what the customary law is and apply the law for declaration, Lipede v. Sonekan (1995) 1 NWLR (pt. 374) 668.

As pointed out by the first and second respondents, there is a legally-laid down procedure for the successful legal installation of a person seeking to ascend the said throne. A strict adherence to such laid down procedure is a sine qua non for a valid installation, Paragraph 9 of the Appointment and Deposition of Chiefs (Appointment of Sum Pyem) Order, 1992 in the Plateau State Gazette.

​It reads thus:

“Communication of the result to the Governor in writing by the Presiding Officer for his approval after consultation with the Council of Chiefs.” It is only after the steps, as required in the Gazette, has been taken that the applicant can be heard to seek for the installation of the first applicant as Sum Pyem of the Pyem Chiefdom in Gindiri, Mangu Local Government Area of Plateau State and not any time before.

The applicants raised a fresh issue that the respondents carried out a selection exercise during the pendency of a suit and this would amount to vitiating the doctrine of lis pendens. This argument has no legal basis and is without merit.

From the facts gathered from the affidavit evidence before this Court, during the re-conducted selection to the installation of the present occupant of the stool, there was no pending suit, appeal or any application of any nature whatsoever seeking to stop the third and fourth respondents from conducting the said selection.

​There was no order restraining the respondents from conducting the said selection. This would have been a more appropriate action than this instant application before this Court. In effect, I agree with the first and second respondents that the order sought in this application is not an appropriate remedy, as the judgment given by this Court is not one to be executed, Okoya v. Santilli (1990) 2 NWLR (pt. 131) 172; Government of Gongola State v. Tukur (1989) 4 NWLR (pt. 117) 592; Akunnia v. Attorney-General, Anambra State (1977) 5 SC 161.

I am, therefore, clearly of the firm view that since the remedy is a wrong one, the relief sought is not unavailing and, therefore, un-grantable. I, therefore, enter an order dismissing the said application.

Application dismissed.

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SC.883/2015(R)