The Polytechnic Calabar V. Effiong Edim Udobong (2007)
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NWALI SYLVESTER NGWUTA, JCA,
This appeal is against the Judgment delivered on 6/8/03 in suit No HC/476/98 by Uke, J of the High Court, Calabar.
The Respondent and the Appellant were the plaintiff and the 2nd defendant respectively in the trial Court.
The appellant, by letter reference No TPC/P/CON/2723 of May 18th 1994 appointed the Respondent a clerical officer with effect from May 6th 1992, the date of the latter’s temporary appointment with the Appellant. By letter reference No. TPC/P/CON/2723 of September 14, 1994 the Appellant confirmed the Respondent’s appointment with effect from 6/5/94, the 2nd anniversary of the Respondent’s appointment.
By a letter reference No. TPC/Reg/S/Gen.SM/24, of 22/10/98, and based on
“a wireless Message DP0161200/01/92 confirming your dismissal from the Nigerian Police”.
the Appellant dismissed the Respondent from its service.
Aggrieved by the said dismissal the Respondent commenced an action by way of originating summons claiming the following reliefs against the Commissioner of police as the 1st Defendant and the appellant as the 2nd Defendant:
“1. A declaration that the letter of dismissal dated 22/10/98 issued by the 2nd Defendant be render null and void and constitutional violation of the Polytechnic, Calabar Junior Staff condition of service.
- A declaration that the purported dismissal of the plaintiff by the 1st defendant by a purported copy of the wireless Message DPO 161200/01/92 is unconstitutional, null and void. FOR DETERMINATION OF THE FOLLOWING QUESTIONS
a. Whether the dismissal of the plaintiff by the 2nd defendant was in compliance with chapter 6, 6.2 and 6.10 of the Polytechnic Calabar Revised Junior Staff Condition of service.
b. Whether the dismissal of the plaintiff by the 1st defendant was in compliance with the Nigerian Police Regulations as contained in the Police Act, 1990.”
In support of the claim the Respondent fi1ed an affidavit of 11 paragraphs deposed to by the himself as the plaintiff in the Court below:
BY “NOTICE OF ENTRY OF CONDITIONAL APPEARANCE AFTER LEAVE OBTAINED” dated 10/7/2001 the 1st defendant entered a conditional appearance. The Appellant (2nd Defendant) did not enter appearance. However, it was the Appellant that filed a motion dated 2/8/99 on 3/8/99 praying the Court to set aside the originating summons. The application was predicated on the following grounds:
- That relief sought by the plaintiff cannot properly be determined under the originating summons.
- That issues raised by plaintiff can only be appreciated after due process of Evidence in Chief and cross-examination.
On 6/12/99 the lower Court delivered its considered ruling on the motion to set aside the originating summons, holding, inter alia,” the prayer of the applicant is granted and accordingly I set aside the originating summons in this suit filed on 27/11/98 and instead order filing of pleadings in the determination of this Suit.” (underlining mine).
The parties filed and exchanged pleadings as the lower Court ordered, and after a full trial the Court entered judgment for the respondent (as plaintiff) on 6/8/2003. The trial Court granted the two declarations sought by the respondent. The Court ordered that the Respondent be paid N400,000.00 arrears of salary from October 1998 until judgment and the sum of N1,600,000.00 only as General Damages with costs of N5,000.00.
Aggrieved by the judgment of the lower Court the Appellant (2nd defendant) appealed on three grounds. Subsequently, by leave of Court, the appellant filed amended Notice of Appeal containing 5 grounds.
In compliance with the rules and practice of the Court, the parties, through their respective counsel, filed and exchanged briefs of argument. The appellant filed a reply brief.
In his brief of argument learned counsel for the appellant formulated five issues, one from each of the five grounds of appeal. The issues are hereunder set out:
“(1) Whether the learned trial Judge was right in awarding or making an order for special damages which was not pleaded nor evidence led to support same.
(2) Whether the damages awarded assuming the plaintiff/respondent case was proved (which is denied) was not arbitrary, excessive and ridiculously high having regard to all the circumstances and the faces of the case.
(3) Whether the Plaintiff/Respondent case of wrongful dismissal was proved having regards to the pleadings, evidence adduced before the Court and the law.
(4) Whether in the absence of the writ of summons the trial and judgment of the court below was valid.
(5) Whether the plaintiff action is not statute-barred considering the date the cause of action arises and the date the originating summons or statement of claim was filed.”
The Respondent presented the following four issues for determination:
“1. Whether the trial Judge was right in declaring that the Appellant letter of dismissal dated 22/10/98 tender as exhibit “e” was null and void and a violation of the appellant Junior Staff condition of service.
- Whether the Judge was right to award damages against the appellant for breach of contract of employment.
- Whether the action as constituted in the lower court was statute barred.
- Whether the trial Judge was right in ordering the filing of pleading in an action commence under originating summons.”
At the hearing of the appeal learned counsel for the appellant adopted and relied on the Appellant’s brief and the reply brief. He urged the Court to allow the appeal.
Learned Counsel for the Respondent also adopted and relied on the Respondent’s brief and urged the Court to dismiss the appeal and affirm the judgment of the Court below.
I have considered the proceeding of the lower Court as well as the briefs filed by Learned Counsel for the parties.
The Appellant formulated one issue from each ground of appeal. While this is not necessarily fatal to the appeal it is not good practice. An issue for determination should encompass one but preferably more grounds of appeal. See Oniah vs Ongia (1989) 1 NWLR (Pt 99) 514 at 516, Adejumo & Ors Vs Ayantegbo (1989) 3 NWLR (pt 110) 417. Issues for determination are not formulated to coincide with the number of grounds of appeal. See Nwudengi & Ors Vs Aleke (1996) 4 NWLR (Pt 449) 349 at 356.
In Anie & Ors Vs Chief Uzorka & Ors (1993) 8 NWLR (Pt 309) 1 SC the Supreme Court held
“………Indeed it is now a very well established principle of law that except in special cases where the grounds of appeal so dictate it is undesirable to formulate an issue in respect of each ground of appeal.”
See also Nwosu Vs Imo State Env. Sanitation Authority (1990) 12 NWLR (Pt 135) 688 at 714.
It is also observed that both counsel committed typographical errors that should have been corrected with minimal diligence.
There is a threshold issue in this appeal. It is the appellant’s issue number four. It is hereunder reproduced:
“Whether in the absence of the writ of summons the trial and judgment of the court below was valid.”
Because of the likelihood of a fresh action if the issue is resolved in favour of the Appellant I consider it prudent to isolate and resolve it before a determination of the other issues if need be. This is so as not to pre-empt the trial of a subsequent action by the Respondent. I will therefore restrict my self to the submissions on the said issue.
Arguing issue 4 in his brief Learned Counsel for the appellant referred to the ruling of the lower Court setting aside the originating summons and ordering pleadings. Counsel argued that actions are not commenced by way of statement of claim. He referred to Ord. 1. rule 1 of the High Court civil Procedure Rules, Exhibit No 7 of 1989 of Cross River State for commencement of actions in the High Court. Counsel argued that the Suit was not commenced in accordance with the rules. He relied on Mill Adm of Benue State vs. Ulegede, (2001) 91 LRCN p. 3044 at 3047 for the principle that when an act is void ab initio it can not be validated by a subsequent act for as decided in UAC Ltd Vs. Mafoy (1964) 3 All En 1160 at 3064 E. One cannot place something on nothing. He urged the Court to set aside the proceedings of the lower Court as nullity in the absence of a writ of summons.
In dealing with the issue in his brief learned counsel for the Respondent submitted that the mode of commencement of action in the High Court is a matter of procedure and does not affect the substantive matters for determination. He referred to Order 2 R. (1) of the High Court civil procedure Rules of Cross River State and said that non-compliance with the mode of commencing an action may be treated as an irregularity and if so treated will not nullify the proceedings. He preferred to Orisakire Vs State (2004) 10 MSSC 175 where the Supreme Court held that procedural irregularity will not automatically nullify the judgment of a trial Court. He submitted that a person who acquiesces in an improper procedure without complaint is not permitted to complain on appeal. He relied on Obisi Vs CNS (2004) 8 MJSC 141. He relied also on National Bank of Nig. Ltd Vs. Alakija (1978) 9 -10 SC 89, Emezi Vs. Osuagwu (2005) 126 LRCN 888 for the decision that where a suit is commenced by an originating summon the appropriate order is to direct the parties to file pleadings, if the action should have been commenced by a writ of summons. He said the lower Court was right to have ordered pleadings and there was no miscarriage of justice in the proceedings in the Court below.
In his reply brief learned Counsel for the appellant said Ord.2 rule 1(1) read with Ord 2 rule 2 of the High Court rules gives the Court a discretion “to set aside any irregularity” but the issue before the Court is not an irregularity but a defect touching the root of the case. He relied on Sken Consult (Nig.) Ltd Vs Ukey (1981) 1 SC 39, Salat; Vs. Sherm (1986) 1 SC 332 at 343 – 3414. Counsel argued that the case of National Bank of Nigeria Vs. Alakija (Supra) relied on by the Respondent does not apply in this case as the originating summons was neither struck out nor set aside as in this appeal.
The parties herein do not dispute the fact that the lower Court granted the application of the Appellant and set aside the originating summons by which the Respondent commenced his action. It is also beyond dispute that the Court below went further and ordered “filing of pleading in the determination of this suit.” It is this aspect of the proceedings of the lower Court that the Respondent would want the Court to treat as mere irregularity to save the proceedings. The defect in the procedure adopted by the lower Court goes beyond a mere irregularity and touches the foundation of the Suit. The Court, having set aside the originating summons, was left with no Suit in which it could order pleadings. And as rightly pointed out by learned counsel for the appellant pleadings are not originating processes. The proceeding of the Court below also raises the threshold issue of jurisdiction. Any action taken by the lower Court after it set aside the originating process was without jurisdiction for there was no Suit to ignite the jurisdiction of the Court and any proceeding conducted without jurisdiction is null and void . See Kasummu Vs. Shitta-Bey & Ors (2006) 17 NWLR (Pt 1008) 372 at 420 Madukolu Vs Nkemditum (1962) 7 SC NLR 34, Tidex (Nig.) Ltd Vs Maskew (1998) 3 NWLR (pt 542) 404. Though the trial Court has power to convert an originating summons to a writ of summons and indeed has a duty to direct that the suit be proceeded with the filing of pleadings where the irregularity would be corrected, it cannot revive a dead process or even convert an incompetent Suit to a competent one. See Emeri Vs. Osuagwu (2005) 12 NWLR (Pt 939) 340.Contrary to the argument of learned counsel for the Respondent the appellant could not have acquiesced in any proceeding in a non-existent Suit.
A party or even both parties cannot confer jurisdiction in a Court where none exists. Similarly no party can waive his right on jurisdiction of the Court to adjudicate. The competence of a Court to adjudicate on a matter is a legal and constitutional prerequisite, so the issue of jurisdiction cannot be waived by the parties or by the Court. See Oke Vs Oke (2006) 17 NWLR (pt 1008) 224 at 239 Per Augie JCA. Much as I sympathize with the Respondent sympathy cannot override the rules of Court. See Ogba & Ors Vs. Urum & anor (1981) 4 SC 1 at 10. Where there is a great violation of the rules as in this case, a violation of the rules of commencement of suits or there is a fundamental disregard of the rules of procedure an appellate Court will declare the proceeding null and void See R v. Dura (1945) 9 WACA 35 at 34, Okorodudu Vs. Ejuetam (1967) 1 NWLR 282 at 286. Notwithstanding, the apparent hardship to the Respondent the Court has to bear in mind that “sentiments command no place in our judicial deliberations. If they did, the task of the Judge will be infinitely more difficult and less beneficial to the society” See Ezeugo Vs. Chinyere (1998) 6-7 SC 184 per Obaseki JSC.
For the foregoing the issue is resolved in favour of the Appellant. It will serve no useful purpose to deal with the other issues which go to the merit of the appeal and the competence of the suit in the lower Court, a mere academic exercise.
The appeal is allowed. The order setting aside the originating process effectively terminated the suit for all purposes. The entire proceeding, including the purported judgment, subsequent to the order setting aside the originating summons, are null and void and I so declare.
There was no suit before the lower Court after it set aside the originating summons and Ipso facto, contrary to the prayer of the Appellant, there is no judgment for the Court to set aside as the purported judgment does not exist in law
I make no order for costs.
Other Citations: (2007)LCN/2243(CA)
