Siman & Ors V. Audi & Ors (2021)
LAWGLOBAL HUB Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
The Adamawa State High Court presided over by his Lordship Abdulrahman, J. (hereafter referred to as the trial Court) on the 4th day of April, 2019 upheld a preliminary objection raised by the respondents and consequently declined to entertain the application for judicial review filed by the Appellants.
The background facts are that the Appellants were the Applicants who approached the trial Court for a judicial review of the proceedings of the Upper Area Court, Numan. The 1st – 4th Respondents sued the Appellants in suit No. UACN/CV/FI/6/2018 at the Upper Area Court, Numan presided over by the 5th Respondent. In their application for the issuance of the writ of summons dated 18th January, 2018, at pages 36 – 38 of the printed records of appeal, the 1st – 4th Respondents claimed ownership of Nwanma Fish Pond and sought a declaration that they are entitled to perform traditional rites/rituals over the fish pond. It was alleged that the sale of the fish pond by the 1st – 4th Appellants to the 5th Appellant without their consent was wrong.
It was made out that on the same date 18/1/2018 of the application for the issuance of the writ of summons was filed, the 5th Respondent sat and apart from issuing injunctive orders against the Appellants, also set aside the sale of the fish pond to the 5th appellant by the 1st – 4th appellants without the knowledge of any of the Appellants of the action against them. The orders of the Upper Area Court Numan are at page 51 of the printed records of appeal. The second order read thus:
“I hereby set aside the purported sale of Nwanma Fish Pond to the 6th Defendant/Respondent by the 1st – 5th Defendants/Respondents.”
The Appellants made out that the writ and other Court processes were not endorsed for service on the applicants outside the jurisdiction of the trial Court in Taraba State. Also, that the Respondents’ counsel in his application for issuance of the summons represented that some of the Respondents and the Appellants residing in Jen, Taraba State were within the jurisdiction of the Upper Area Court, Numan in Adamawa State, reference was made to paragraphs 1 and 2 of the Respondents’ application for the writ of summons, pages 36 – 37 of the printed records. It was the contention of the Appellants that the Respondents who assumed that residents of Jen in Karun Lamido Local Government Area of Taraba State were within the jurisdiction of the Upper Area Court Numan in Adamawa State, did not endorse the writ issued by the Upper Area Court, Numan for service in Taraba State.
The Appellants made out that they were not served with any Court process and were not aware of the action against them before the orders setting aside their transaction in respect of the fish pond were made on 18/1/18 and that the 5th appellant was not served with the Court processes before any of the proceedings and orders affecting his interest sought to be quashed were made.
The Appellants alleged that they were neither heard nor any witness called, before the Upper Area Court Numan, presided over by the 5th Respondent, set aside the sale of the fish pond in dispute to the 5th Appellant and also proceeded to allow the 1st – 4th respondents sale of the fish pond in dispute thus, violating the Appellants right to fair hearing. Further, that the 5th Respondent sat over the matter without proof of service of any of the Court processes on the 5th Appellant and thus acted ultra vires and without jurisdiction which necessitated the application for a writ of certiorari to quash the said proceedings.
The Appellants on 15th March, 2018 obtained leave of the lower Court to apply for an order of certiorari for the purpose of quashing the proceedings of the Upper Area Court, Numan in Suit No: UACN/CV/FI/6/2018. The motion through which the leave was sought is at pages 6 – 57 of the printed records of Appeal, while the order of the trial Court granting leave is at page 346 of the records of appeal. The Motion on Notice for judicial review filed on 21/3/18 is at pages 58 – 123 of the records of appeal. It was made out by the Appellant that when their application first came up on 19th April, 2018, the Respondents were within time to file their processes but, the matter was adjourned to 18/6/2018. In the interim, the 3rd Applicant was gruesomely murdered on the 5th of May, 2018. Consequently, upon the death of the 3rd Applicant, the Applicants filed an application praying for the following orders:
- “An order of this Honourable Court striking out the name of Danladi Siman (now deceased) who was the 3rd Applicant in this case.
- An order granting leave to the Applicants to amend the statement in support of the application and to amend and re-swear the affidavit in support of the motion on notice.
- An order of this Honourable Court directing and allowing the Applicants to file a fresh originating motion pursuant to the leave already granted them jointly with Danladi Siman (now deceased) by this Honourable Court on the 15th day of March, 2018.
- An order deeming as properly filed and served the motion on notice, annexed to this application as Exhibit “APP” same having been separately filed and relevant fees paid.
- AND for such order or orders as this Honourable Court may deem fit to make in the circumstance.”
The said motion dated 10th October, 2018 is at pages 207 – 249 of the records, while the order of the lower Court granting the application is at page 349 of the printed records. Pursuant to the orders of the lower Court, the applicant filed a fresh application as directed by the lower Court, the new application in the name of the new parties filed on 12/10/18 is at pages 140 – 205 of the printed records. The application dated 10/10/2018, filed on 12/10/18 was served on the parties and the affidavit of service in that regard was filed on 9th November, 2018. The affidavit of service is at pages 288 – 290 of the records. The Respondents’ counter-affidavit and written address filed on 22nd November, 2018 with a written address is at pages 307 – 316 of the records.
The 1st – 4th Respondents’ notice of preliminary objection dated November, 2018 was filed on 22/11/18 challenging the jurisdiction of the Court to entertain the application, at pages 291 – 316 of the printed records of appeal, while the Appellants’ counter-affidavit to the preliminary objection and written address are at pages 317 – 333 of the printed records.
The lower Court heard the objection with the substantive application on the 6th of February, 2019 and on the 4th of April, 2019 delivered its ruling upholding the Respondents’ preliminary objection, but did not determine the main application. Dissatisfied with the ruling, the Appellants appealed to this Court.
The following issues were distilled for the determination of the appeal thus:
- Whether the learned trial judge of the High Court was right when he held that the Appellants did not comply with ORDER 46 OF THE ADAMAWA STATE HIGH COURT (CIVIL PROCEDURE RULES 2013) without giving any reason for his decision. Grounds 1, 2 and 3.
- Whether the trial Court was not wrong by its failure after upholding the preliminary objection of the 1st – 4th Respondents, to consider the merit of the application when the parties had exchanged their affidavit evidence and written addresses in spite of the binding authorities of the Supreme Court that enjoin an intermediate Court to always consider cases on their merits even if the preliminary objection was found meritorious like in this case?” (Ground 4).
The Respondents on their part adopted the issues as formulated by the Appellants.
In arguing the appeal, the learned counsel to the Appellants, E.N. Chia Esq., adopted and relied on his brief of argument filed on 21/10/2020 as his argument in this appeal in urging us to set aside the ruling of the Adamawa State High Court and invoke the powers of this Court under Section 15 of the Court of Appeal Act to grant the application filed by the Applicants at the lower Court. In arguing his issue one, it was submitted that the substantive application was taken together with the preliminary objection, in his ruling at pages 354 – 360 of the printed records of appeal, the lower Court upheld the preliminary objection on the basis that Order 46 of the High Court Civil Procedure Rules of Adamawa State, 2013 was not complied with. It was alleged that the affidavit and counter-affidavit filed by the respective parties in respect of the preliminary objection were not utilized or considered by the lower Court. It was argued that the lower Court did not specify in its ruling, the part of the order that was not complied with, it was argued to be a generalized statement without specific reasons. See AGBANELO VS. UNION BANK (2000) 4 SCNJ PAGE 353 at PAGE 375, PARAS. 15 – 20, PDP VS. OKOROCHA & ORS (2012) LPELR 7832 (SC) PAGES 4 – 6, PARAS. B – C, ROMAINE VS. ROMAINE (1992) LPELR (2953) PAGE 28, PARAS. D – E. It was submitted that the reason for the decision ought to have been given. See OGBORU & ANOR VS. UDUAGHAN & ORS (2012) LPELR – 8287 (SC) PAGES 27 – 28, PARAS F – E. It was argued that the trial judge failed to give reasons to justify his decision that Order 46 of the Adamawa State High Court Civil Procedure Rules was not complied with, thus leaving both parties and this Court to grope in the dark. It was submitted that the Appellant was denied fair hearing which was violated by the Respondents. It was submitted that the 5th Respondent violated the Appellant’s right to fair hearing. See JINVO VORO VS NYARA VOTOH (2016) LPELR 40339 (CA) PG. 8 – 10, PARAS. E – D in Appeal No. CA/YL/34/2014 delivered on 4th February, 2016 where a similar objection was overruled. It was submitted that by the declaratory reliefs sought by the 1st – 4th Respondents as to the ownership and right to perform traditional rites and rituals, the 5th Respondent has in other words issued an injunction, restraining the Appellants and at the same time set aside the sale of the Nwanma fish pond by the 1st – 4th Appellants to the 5th Appellant before any of the Appellants was served with the Court processes, the order is at page 51 of the records of appeal. It was submitted that the order is a violation of the Appellants’ right to fair hearing which robbed the Court of jurisdiction.
It was argued that the issue of jurisdiction and lack of fair hearing raised as grounds for seeking an order of certiorari were glaring on the face of the proceedings sought to be quashed which was not contested by the Respondents, the 1st – 4th Respondents instead raised an objection based on non-compliance with the rule of the Adamawa State High Court. Further, that rules of Court must not be obeyed at the expense of substantial justice. See ODUAH VS. OBAZE & ORS (2015) LPELR 40718 (CA) PAGES 16 – 17, PARAS. C – E, CHUKWU & ORS VS. CHUKWU & ORS (2016) LPELR 40553 (CA) PAGES 45 – 49, A – C and ABAYOMI & ANOR VS. A.G. ONDO STATE (2006) LPELR 9806 (CA) PAGES 19 – 20, PARAS. D – B. In alternative argument, without conceding that the rules of the lower Court were not complied with, it was concluded on this issue that the lower Court ought to have overruled the objection of the 1st – 4th Respondents based on the alleged violation of the Adamawa State High Court Rules.
On the second issue, it was submitted that the lower Court was in error not to have considered the merit of the application despite upholding the preliminary objection to the competence of the application. See OWODUNNI VS. REGISTERED TRUSTEES CELESTIAL CHURCH (2000) FWLR (PT. 9) 148, IFEANYICHUKWU OSONDU LTD VS. SOLEH BONEH LTD (2000) 5 NWLR 322 (PT. 656) at P. 351, ONOCHIE VS. ODOGWU (2006) ALL FWLR (PT. 317) 544 at 571, UMARU KACHALLA SEMBE & ORS VS. JAURO DOVO PITTI (2016) LPELR – 40822 (CA) PAGE 22, PARAS. A – B. We were urged to invoke Section 15 of the Court of Appeal Act to consider the case of the parties on the merit based on the materials before the trial Court, the case having been commenced by originating summons supported by affidavit evidence which are on record and could be utilized by this Court to determine the matter on the merits. It was concluded that the main application ought to have been determined by the trial Court after upholding the Respondents’ preliminary objection.
In response, the learned counsel to the 1st – 4th Respondents, S.J. Garbar Esq., observed that the learned counsel to the Appellants proffered same argument in his brief of argument under statements of facts, which learned counsel urged us to discountenance, reliance was placed on ENGINEERING ENTERPRISE OF NIGER CONTRACTOR COMPANY OF NIGERIA VS. A.G. KADUNA STATE (1987) LPELR – 1143 (SC). In arguing issue one, it was submitted that the trial Court was right to have held that the Appellants did not comply with Order 46 of the Adamawa State High Court (Civil Procedure) Rules, 2013. It was submitted that the trial Court gave reasons for its decision contrary to the submission of the learned counsel to the Appellants. It was submitted that in upholding the preliminary objection, the rules that was not complied with was clearly stated. It was submitted that the Appellants violated Order 46 Rules 3(3), 5(5) and 6(1) of the Adamawa State (Civil Procedure) Rules, 2013 in their application for Certiorari. See ONYEMAIZU VS. OJIAKO (2010) 4 NWLR (PT. 1185) 504 at PAGES 519 – 520, PARAS. F – F. It was argued that the application for leave to file the application for certiorari was not filed the same time as the Motion on Notice but filed five days later on 21st March, 2018 while the application was filed on 15th March, 2018. It was submitted that failure to file the Motion on Notice was fatal to the application. See HONEYWELL FLOUR MILLS PLC VS. ECOBANK (NIG) LTD (2016) 16 NWLR (PT. 1539) 387 at PAGE 426, PARAS. B – D. See also Order 46, Rule 6(1) of the Adamawa State High Court (Civil Procedure) Rules, 2013 and WADA VS. BELLO (2016) 17 NWLR (PT. 1542) 374 at 453, PARA. E. The learned counsel to the 1st – 4th Respondents reviewed Order 46 Rules 3(3), 5(5), 6(1) and 6(4) of the Rules of the lower Court, which was argued not to have been complied with. Further, we were urged to discountenance the argument contained in paragraphs 4.10 – 4.23 of the Appellants’ brief of argument as the argument therein did not arise from the issue for determination formulated by the Appellants or the grounds of appeal. See U.A.C. (NIG) LTD VS. FASHEYITAN (1998) 11 NWLR (PT. 573) 179 at 184, PARAS. F – G. We were urged to discountenance the argument of the Appellants on this issue.
On the second issue, it was submitted that the trial Court having upheld the preliminary objection, it was not necessary to proceed further to resolve any other issue. See UDENWA VS. UZODINMA (2013) 5 NWLR (PT. 1346) 94 at 110, PARA. H. It was argued that the trial Court having resolved the issue on jurisdiction in holding that it had no jurisdiction to entertain the application for the reason that the Appellants did not comply with the rules of the lower Court, proceeding with the main application would have amounted to an academic exercise and an exercise in futility. See DANIEL VS. INEC & ORS (2015) LPELR – 24566 (SC). It was argued that since the trial Court lacked jurisdiction to have entertained the application, there was no need to have entertained the matter. See UBN PLC VS. SOGUNRO & ORS (2006) LPELR – 3393 (SC). We were urged to resolve issue two in favour of the 1st – 4th Respondents, against the Appellants.
The 5th Respondent did not file any brief of argument and had nothing to urge the Court.
The learned counsel to the Appellants formulated two issues for the determination of the appeal which were adopted by the learned counsel to the 1st – 4th Respondents. The Appellants’ grouse under issue one is that the lower Court in sustaining the preliminary objection of the 1st – 4th Respondents to the Appellants’ application for certiorari at page 359 of the records of appeal held as follows:
“In the instant application before me I am left in doubt that Order 46 of the Rules of this Honourable Court has not been complied with by the Applicants to warrant this Honourable Court to proceed to the consideration of Motion on Notice to quash the decision of UAC Numan as being urged upon me.
It is in the light of the aforesaid that I hold that notice of preliminary objection has merit and must be sustained.”
It is noteworthy that Order 46 of the High Court Civil Procedure Rules of Adamawa State, 2013 comprises of eleven (11) rules. The preliminary objection was anchored on the provisions of Rules 3, 5 and 6, ground one was based on Rule 5 (5), ground 2 was based on Rule 3 (3), ground 3 was based on Rule 6 (1) while ground 4 was based on Rule 6 (4). At the hearing, the preliminary objection was taken together with the substantive application, pages 350 – 353 of the printed records of appeal. From the reproduced portion of the lower Court’s ruling above and/or the entire ruling, the particular part of the order that was not complied with was not specified. Whether it was the entire order and all the rules under Order 46 that were violated, it was not specified in the ruling, also how the order was not complied with. As rightly argued by the learned counsel to the Appellants, there are no details of what was done or omitted to be done contrary to the provisions of Order 46. The order of the trial Court is generalized and no reason was given for clarification. A complete decision must set out the nature of the action or objection (in this case) before the Court and outline the issues in controversy. The preliminary objection which was sustained and determined the substantive application for the order of certiorari had affidavit evidence in its support and counter-affidavit in opposition, judicial authorities were also relied upon. In the decision of the trial Court, there is nothing to show that these processes were considered in arriving at its decision upholding the preliminary objection. A valid judgment or decision must have reasons for same. Where the trial Court simply states that it has considered the affidavit evidence, judicial authorities cited by the parties and argument of counsel, it is not enough and it is not clear what the Court’s reasons are for arriving at its decision, at page 357 of the printed records of appeal, the trial Court held thus:
“I have given due consideration to the arguments canvassed by learned counsel to the Appellants, the affidavit evidence, the judicial authorities cited in support as well as the grounds of the objection of the application.”
The above view is generalized. The issues argued ought to be considered, in which the logic behind the reasoning would be clearly seen. It would show even to the layman how the Court arrived at its decision. In the case of AGBANELO VS. U.B.N. (2000) 7 NWLR (PT. 666) 534 at 537 His Lordship, Karibi – Whyte, JSC outlined the position of the law thus:
“It is an elementary and essential ingredient of the judicial function that reasons are to be given for decisions. That it is crucial or important where appeals lie from the decisions and it is to be said that the reasons for decisions enable the determination on appeal whether the decision was merely initiative and arbitrary or whether it is consistent with established applicable principles. It is to be stated and emphatically too that if a judgment is delivered without supporting reasons, it is an irritation or arbitrariness, a rule akin to tossing the coin and whatever side shows up is the decision, a situation that would likely produce in judicial anarchy. The point has to be made that a judgment will not be set aside just because the reasons given were bad if the judgment itself is right.”
See also DAUDU VS. FRN (2018) LPELR – 43637 (SC) PP. 42 – 43, PARAS. C – E, EFCC VS. DADA (2014) LPELR – (CA) PP. 65 – 66, PARAS. E – F; OKONKWO & ANOR VS. NWAOSHAI (2016) LPELR – 41418 (CA) P. 11, PARAS. A – F and SURAJU VS. STATE (2018) LPELR – 43658 (CA) PP. 53 – 54, PARA. E
In a decision (judgment or ruling) reason or reasons must be given as opposed to a general passing remark. Moreso, where the decision is appealable to a higher Court. It is important to make clear the reasons why the Court exercised its discretion in a particular way, because such discretion is subject to review by a superior Court. Where no reason is given in a decision, it leaves room for doubt as to how the Court arrived at its decision, questions raised and decided upon with the parties wondering in the dark as to how the Court arrived at its decision apart from the fact that it makes for the statement of the law where the decision is not upturned or set aside by a superior or final Court at its final destination. From the decision of the trial Court, there is nothing on record to show how and why the trial Court arrived at its decision. It is not clear which aspect of Order 46 of the Rules of the trial Court that was violated. The trial Court ought to have given reasons for its decision.
I noted that the learned counsel to the Appellants under issue one, argued at length the declaratory reliefs sought by the 1st – 4th Respondents, and the order made by the 5th Respondent and the effect of the said order made ex – parte before the processes had been served on the Appellants, pages 51, 56 – 57 of the printed records of Appeal. The appellants alleged lack of fair hearing by the 5th Respondent. The lower Court from which the present appeal arose did not determine the merits of the substantive application for certiorari but declined jurisdiction. Therefore, the submission made on the order made by the 5th Respondent is not relevant to this appeal, it is discountenanced. The Appellants’ issue one is that no reason was given for the trial Court’s decision after holding that the appellants did not comply with Order 46 of the Adamawa State High Court (Civil Procedure) Rules, 2013, this must be borne in mind. I resolve issue one in favour of the Appellants.
The appeal is determined under issue one alone but, like flogging a dead horse, I would look into issue two for whatever it is worth.
In respect of issue two, the Appellants’ grouse under this issue is that the lower Court ought to have considered the merits of the application after upholding the preliminary objection of the 1st – 4th Respondents as to the competence of the application. It is trite that all the issues placed before a lower Court ought to be decided upon. The lower Court and this Court (as an intermediate Court) are enjoined to resolve all issues placed before them. In respect of the lower Court, all issues ought to be determined, even where the Court declines jurisdiction, the reason is that the lower Court’s decision declining jurisdiction could be faulted on appeal. It is desirable, because this Court in respect of the trial Court’s decision should have the benefit of the opinion of the trial Court on all the issues raised before the lower Court should there be an appeal to this Court, as has happened in the present appeal. It is only the final Court, the Supreme Court that could determine a matter on an issue without going into other issues that may have been raised, as there would be no further appeal. In OSAREREN VS. FRN (2018) LPELR – 43839 (SC) PP. 12 – 13, PARAS. D – B, His Lordship Eko, JSC restated the position of the law on the duty of the Court to consider all issues thus:
“As a general principle, the intermediate Court, as the Court below, is duty bound to consider all issues raised and or placed before it. It does not have the liberty to decline a consideration of the issues before it unless it intends to order a retrial and the further consideration of the issues in the case will prejudice the fresh hearing being ordered. See EDEM VS. CANON BALLS LTD (2005) 6 SC (PT. II) 16; (2005) 12 NWLR (PT. 938) 27. If the Court failed to consider issues raised and placed before it without any valid reason, then it would have failed in its judicial duty and there is a failure of justice. See EDEM VS. CANON BALLS LTD (SUPRA) IKPEAZU VS. OTTI & ORS (2016) LPELR – 40055 (SC); OKONJI VS. NJOKANMA (supra); CHUKWU VS. SOLEH BONEH (supra).”
Earlier, in BRAWAL SHIPPING (NIG) LTD VS. F. I. ONWADIKE CO. LTD & ANOR (2000) LPELR – 802 (SC) PP. 13 – 15, PARA. A, His Lordship Uwaifo, JSC stated the position of the law on the need to pronounce on all issue raised thus:
“It is no longer in doubt that this Court demands of and admonishes, the lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. It has made this clear in its observations in several cases including OYEDIRAN VS. AMOO (1970) 1 ALL NLR 313 at 317; OJOGBUE VS. NNUBIA (1972) 8 SC 227; ATANDA VS. ALANI (1989) NWLR (PT. 111) 511 at 539; OKONJI VS. NJOKANMA (1991) 7 NWLR (PT. 202) 131 at 150, 151 – 152; TITILAYO VS. OLUPO (1991) 7 NWLR (PT. 205) 519 at 529; KATTO VS. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (PT. 214) 126 at 149. Failure to do so may lead to a miscarriage of Justice and certainly will have that result if the issues not pronounced upon are crucial. Consequently, there could be avoidable delay since it may become necessary to send the case back to the lower Court for those issues to be resolved. The obvious exceptions are when an order for a retrial is necessary or the judgment is considered a nullity, in which case there may be no need to pronounce on all the issues which could arise at the retrial or in a fresh action, as the case may be. The point was made in regard to a case for a retrial by Nnaemeka – Agu JSC in SANUSI VS. AMEYOGUN (1992) 4 NWLR (PT. 237) 527 at 550 – 551.…”
See also OJIKUTU VS. OJIKUTU (1971) LPELR – 2375 (SC) PP. 4 – 5, PARAS. C – B; IYABO VS. FRN (2019) LPELR – 47194 (CA) PP. 26 – 29, PARAS. D – A; FREMOR INVESTMENT LTD VS. REGISTRAR OF TITLES, LAND REGISTRY, IKEJA & ORS (2018) LPLER – 44114 (CA) PP. 21 – 24, PARAS. E – D and ONWE VS. STATE (2017) LPELR – 42589 (SC) PP. 17 – 19, PARAS. C – A.
The case that led to this appeal was commenced by way of originating motion supported by affidavit evidence. The trial Court heard and considered the objection to its jurisdiction together with the substantive application. All the materials were before the trial Court. The trial Court decided on the objection to its jurisdiction and stopped there. This is erroneous. Having decided on the objection to the trial Court’s jurisdiction, in the alternative, should the trial Court be wrong in its stand on jurisdiction, ought to have proceeded to determine the substantive application, moreso where the Appellants had made out that they were not given fair hearing by the 5th Respondent in the orders made ex-parte which by the said order determined their substantive matter.
The trial Court ought to have determined the substantive application once and for all in case it is wrong with the resolution of issue one. The substantive issues not looked into by the trial Court did not fall under the exceptions as enumerated in Brawal’s case (supra), therefore, all the issues in the substantive application ought to have been looked into. I hold that there has been a miscarriage of justice. I resolve the second issue in favour of the Appellants.
In sum, the appeal is meritorious and it is hereby allowed on issue one alone, reasons ought to have been given for the decision of the trial Court, it is not comprehensive. All the same, I resolved issue two, this being an intermediate Court that could also be wrong in the determination of issue one.
I order that suit No: ADSY/30M/2017 be remitted back to the chief Judge of Adamawa State for assignment to another Judge other than Abdulrahman, J., to be heard de novo.
Parties to bear their respective costs.
CA/YL/178/19
