(2016) LPELR-42054(CA)

Transcription

1 BASSEY & ORS v. EDEM & ORS CITATION: In the Court of Appeal In the Calabar Judicial Division Holden at Calabar ON THURSDAY, 1ST DECEMBER, 2016 Suit No: CA/C/317/2013 Before Their Lordships: IBRAHIM MOHAMMED MUSA SAULAWA CHIOMA EGONDU NWOSU-IHEME JOSEPH OLUBUNMI KAYODE OYEWOLE 1. CHIEF BASSEY OTU BASSEY 2. CHRISTOPHER ESSIEN 3. MR. ADIM EWA EFFIOM Between And 1. ETUBOM ALEX OTU EDEM 2. CHIEF EMMANUEL ITA 3. CHIEF CELESTINE OTU EDEM (FOR THEMSELVES AND ON BEHALF OF MEMBERS OF ETINYIN EDET NSA ROYAL HOUSE) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. PRACTICE AND PROCEDURE - ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: Attitude of Courts to academic/hypothetical issues or questions "Having however resolved that the entire adjudicatory process was fatally flawed by the fundamental defect in the jurisdiction of the Court, proceeding further will amount to a needless academic exercise. According to I.T. MUHAMMED, JSC: A Court of law is enjoined to adjudicate between parties in relation to their competing legal interests and never to engage in a mere academic discourse, no matter how erudite or beneficial it may be to the party raising it or even to the public at large. See POWER HOLDING COMPANY OF NIGERIA PLC (PHCN) VS OFFOELO (2012) 52 NSCQR at 132, JULIUS BERGER NIGERIA LTD VS FEMI (1993) 5 NWLR (PT. 295) 612, ADELAJA VS ALADE (1999) 6 NWLR (PT 608) 544 at 563, NWOBOSI VS ACB LTD (1995) 6 NWLR (PT 404) 658 at 681 and EZENYA VS OKEKE (1995) 4 NWLR (PT 388) 142."Per OYEWOLE, J.C.A. (P. 13, Paras. A-E) - read in context

3 2. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): who can sign a writ of summons for its valid issuance "Both learned counsel referred to the provisions of Order 8, Rules 1 and 2(1) and Order 11, Rule 1 (1) and (2) of the High Court of Cross River State (Civil Procedure) Rules, It is apposite at this stage to outline the provisions thereof as follows: Order 8 Preparing originating process 1. Originating process shall be prepared by a claimant or his Legal Practitioner, and shall be clearly printed on white paper of good quality. Sealing of originating process 2. -(1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued. (2) A claimant or his Legal Practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant. What is to be done after sealing (3) Each copy shall be signed by the Legal Practitioner or by a claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed. ORDER 11 NON-COMPLIANCE WITH RULES Effect of non-compliance 1.- (1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has, by reason of anything done or left undone, been a 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 proceeding, or any document, judgment or order therein. (2) The Court may on the ground that there has been such a failure as mentioned in Sub rule (1) of this Order, and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in port the proceeding in which the failure occurred, any step taken in those proceeding, or any document, judgment or Order therein, or it may exercise its powers under these rules to allow such amendment (if any) to be made and to make such Order (if any) dealing with the proceeding generally as it thinks fit. (underlining mine)?generally, where the words of a statute are clear and unambiguous, the Court should give same its ordinary literal interpretation. This is often referred to as the literal rule. It is the most elementary rule of construction. See FIRST BANK VS MAIWADA (2012) 51 NSCQR 155 at 172. The words used in the above quoted Rules of the High Court of Cross River State are totally clear and unambiguous. They expect a writ to be commenced in person by the litigant or by his legal practitioner and to be signed by who ever prepared it."per OYEWOLE, J.C.A. (Pp. 9-11, Paras. A-B) - read in context

4 3. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of an unsigned Court process The amended writ here which formed the basis of the exercise of judicial powers in this case was not signed by anyone. The position of the law in this regard is clear and totally unambiguous. An unsigned document is totally worthless and incapable of conferring legal benefits. See GARUBA VS K.I.C. LTD. (2005) 5 NWLR (PT. 917) 160 and RABIU ALFA VS ZAKARI 6 EPR 773 at It was contended by Mr. Anana that that the issue was a mere irregularity waived by the conduct of the 1st Appellant. As inviting as the argument sounded, it is non sequitur in the face of the state of the law and I am therefore not persuaded.per OYEWOLE, J.C.A. (Pp , Paras. C-C) - read in context 4. PRACTICE AND PROCEDURE - WAIVER OF RIGHT: Whether the issue of jurisdiction can be waived or conceded "It is beyond contest that waiver by a party cannot restore or confer jurisdiction where it is absent, as the position of the law remains clear that parties cannot by consent confer jurisdiction on the Court. See DONGTOE VS CIVIL SERVICE COMMISSION OF PLATEAU STATE (2001) 6 NSCQLR 329." Per OYEWOLE, J.C.A. (P. 12, Paras. D-E) - read in context

5 JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is in respect of an appeal against the judgment of the High Court of Cross River State, Akpabuyo Judicial Division delivered on the 17th day of June, 2013 by AJOR J. The Respondents had approached the trial Court via a writ of summons filed on the 12th August, By Paragraph 15 of the Amended Statement of Claim filed on 27th November, 2012 and contained on pages of the record of appeal, the Respondents sought the following reliefs against the Appellants before the trial Court: i. A declaration that the Claimants are direct blood descendants of Etinyin Edet Nsa, the founder original owner of all that landed property generally known as Ikot Edet Nsa land situate at Akpobuyo Local Government Area consisting of Akwa Ikot Edet Nsa Village (also known as Esit Ikot Edet Nsa), Ekpene Ikot Edet Nsa Village and Esin Ufot Ikot Edet Nsa Village. ii. A declaration that the Claimants as direct blood descendants of Etinyin Edet Nsa, the founder and original owner of all that landed property generally known as Ikot Edet Nsa land are by operation 1

6 of law deemed holders of deemed customary right of occupancy over and in respect of the aforesaid land. iii. A declaration that only the 1st Claimant (Etubonr Alex Otu Edem) in his capacity as Head of Etinyin Edet Nsa House with the consent of other principal members of Etinyin Edet Nsa House can validly transfer and/or alienate land within all that parcel of land generally known as Ikot Edet Nsa land. iv. A declaration that the 1st Defendant (Chief Bassey Otu Bassey) lacks legal capacity to transfer and/or alienate any portion of land within all that parcel of land known as Akwa Ikot Edet Nsa Village, situate at Akpabuyo Local Government Area, without the consent of the Claimants. v. A declaration that the purported transfer of land forming part of Akwa Ikot Edet Nsa Village to the 2nd Defendant by person(s) other than the Claimants herein is null, void and of no legal effect whatsoever. vi. A declaration that the 1st Defendant having regard to the Judgment and Orders in suit No. HCA/1/2004 (Chief Celestine Otu Edem Vs Bassey Oyu Bassey & Anor.) is forever estopped from challenging the traditional overlordship of the Claimants over him 2

7 particularly as it relates to his capacity to transfer and/or alienate any portion of all that parcel of land generally referred to as Akwa Ikot Edet Nsa Village. vii. An order of this Honouroble Court granting the Claimants exclusive possession all that portion of Akwa Ikot Edet Nsa Village leased to the 2nd Defendants without the consent of the Claimants. viii. 10,000,000 (Ten million naira) General Damages against the Defendants for trespass and destruction of Palm Plantations, totems, shrines and other economic trees belonging to the Claimants. ix. An order of perpetual injunction restraining the 1st Defendant from challenging the overlordship of the Claimants over him as their subject and/or from alienating any portion of land in Akwa Ikot Edet Nsa Village without the express consent and authorization of the Claimants or their successor-in-title as titular owners. x. An order of perpetual injunction restraining the Defendants by themselves, their servant, agents, privies or successor-in-title from entering upon any portion of Akwa Ikot Edet Nsa Village without the consent and express permission of the Claimants. The 1st Appellant 3

8 entered conditional appearance through counsel but failed to file pleadings instead sought to have the suit dismissed in limine via a preliminary objection and eventually succeeded in getting the matter struck out for non appearance of Respondents and their counsel in Court on the 15th June, After the case was re-listed, the Appellants still failed to file pleadings although representation continued for the 1st Appellant upon which trial started on the 18th October, 2011 with the full participation of learned counsel for the 1st Appellant. In the course of trial, learned counsel for the 1st Appellant sought and was granted leave to withdraw appearance in the suit only for the said counsel to reappear at a later date and was re-absorbed into the case by the trial Court. Eventually, the sole witness for the Respondents closed his evidence without being subjected to cross-examination by the Appellants upon which Respondents closed their case. On the subsequent adjourned date, the Appellants were also unrepresented upon which the Court ordered written addresses. Only the Respondents' counsel filed and adopted a written address which was followed by the 4

9 judgment of the trial Court on challenge herein, granting the reliefs of the Respondents. Dissatisfied, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 5th September, 2013 containing 5 grounds which said Notice of Appeal was amended via the Amended Notice of Appeal filed on the 12th November, 2013 equally containing 5 grounds. At the hearing of the appeal, Mr. Andrew the learned counsel for the Appellants adopted the Amended Appellants' brief filed on the 28th April, 2015 but deemed properly filed and served on the 4th June, 2015 as well as the Reply brief filed on the 15th January, 2016 as the arguments of the Appellants in furtherance of their appeal herein. Therein the learned counsel distilled 2 issues for determination from grounds 1, 4 and 5 of the 5 grounds of appeal abandoning grounds 2 and 3 thereof as follows: 1. Whether the lower Court had the jurisdiction to try this suit, which was initiated through a writ of summons that was not signed by either the claimants or their counsel. 2. Whether the appellants were given a fair hearing at the trial Court. For the

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11 Respondents, Mr. Anana adopted the Respondents' brief filed on the 11th November, 2015 but deemed properly filed and served on the 12th November, 2015 as the arguments of the Respondents in contesting this appeal. Therein the learned counsel adopted the issues for determination formulated by the Appellants. That being so, the first issue to be resolved is Whether the lower Court had the jurisdiction to try this suit, which was initiated through a writ of summons that was not signed by either the claimants or their counsel. Arguing this issue, Mr. Andrew submitted that the amended writ of summons forming the basis of the exercise of jurisdiction by the trial Court was unsigned by the Respondents or their legal practitioners thereby rendering the entire proceedings incompetent and a nullity. He referred to Order 8 Rules 1 and 2 (3) of the Cross River State High Court (Civil Procedure) Rules, 2008 and the cases of MADUKOLU VS NKEMDILIM (1962) 2 ALL NLR 581 at , BUHARI VS ADEBAYO (2014) LPELR 2346, BRAITHWAITE VS SKYE BANK PLC (2013) ALL FWLR (PT 664) 39 at and KIDA VS OGUNMOLA (2006) ALL FWLR (PT 327) 402 at The response

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13 of Mr. Anana was that although the said amended writ was indeed not signed contrary to the provisions of Order 8, Rule 2(1) of the High Court of Cross River State (Civil Procedure) Rules,2008, the omission amounted to a mere irregularity pursuant to Order 11, Rule 1 (1) and (2) of the said Rules which omission had been waived by the subsequent steps taken in the action by the Appellants. He referred to EMEKA EZUMA VS NKWO MARKET COMMUNITY BANK LTD (2000) FWLR (PT 28) 2243 at 2249, CHRISTIANBEN GROUP LTD VS ONI (2010) ALL FWLR (PT 504) 1442, INTER-MARKETS NIGERIA LTD & ANOR VS UNITY BANK PLC (2011) ALL FWLR (PT 584) 187 at 188 and MONDAY ENEOGWE VS EKWULUMILI IND. CO. LTD (2002) FWLR (PT 126) 856 at 858. Mr. Anana further submitted that a procedural irregularity such as the present one is insufficient to override the need for substantial justice once no party suffered a miscarriage of justice. He referred to FAMFA OIL LTD VS ATTORNEY GENERAL OF THE FEDERATION (2003) FWLR (PT 184) 195 at 199 and PERE AJUWA & ANOR VS SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2010) ALL FWLR (PT 536) Finally on this issue, Mr. Anana submitted 7

14 that the failure of the Respondents' counsel to sign the amended writ was a mistake or inadvertence of counsel which should not be visited on the litigant. He referred to ALSTHOM S.S. & ANOR VS. CHIEF (DR) OLUSOLA SARAKI (2000) FWLR (PT 22) 964 at 968. In his reply brief, Mr. Andrew submitted that failure to sign a writ is a fundamental defect which cannot be waived as it goes to the jurisdiction of the Court to adjudicate. He referred to MINISTRY OF WORKS AND TRANSPORT, ADAMAWA STATE VS YAKUBU (2013) ALL FWLR (PT 694) 23 at 35, NIPOST VS MODI (2008) ALL FWLR (Pt. 424) 1544 and ONYEKWELU BROS LTD VS OKOYE (2008) ALL FWLR (PT 428) 320. He further submitted that the unsigned originating process was void ab inito and did not have to occasion prejudice as any adjudication on it is a nullity. He referred to BUHARI VS ADEBAYO (2014) LPELR 2346 CA. The amended writ of summons here was issued and signed by the Registrar on the 27th November, 2012 and is contained on pages of the record of appeal. It was conceded by Mr. Ekong the learned counsel for the Respondents and it is glaringly visible on the face thereof that it is bereft of any 8

15 form of signature by either the Respondents who were the Claimants or their legal practitioners. Both learned counsel referred to the provisions of Order 8, Rules 1 and 2(1) and Order 11, Rule 1 (1) and (2) of the High Court of Cross River State (Civil Procedure) Rules, It is apposite at this stage to outline the provisions thereof as follows: Order 8 Preparing originating process 1. Originating process shall be prepared by a claimant or his Legal Practitioner, and shall be clearly printed on white paper of good quality. Sealing of originating process 2. -(1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued. (2) A claimant or his Legal Practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant. What is to be done after sealing (3) Each copy shall be signed by the Legal Practitioner or by a claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the 9

16 original process filed. ORDER 11 NON-COMPLIANCE WITH RULES Effect of non-compliance 1.- (1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has, by reason of anything done or left undone, been a 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 proceeding, or any document, judgment or order therein. (2) The Court may on the ground that there has been such a failure as mentioned in Sub rule (1) of this Order, and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in port the proceeding in which the failure occurred, any step taken in those proceeding, or any document, judgment or Order therein, or it may exercise its powers under these rules to allow such amendment (if any) to be made and to make such Order (if any) dealing with the proceeding generally as it thinks fit. (underlining mine) Generally, where the words of a statute are clear 10

17 and unambiguous, the Court should give same its ordinary literal interpretation. This is often referred to as the literal rule. It is the most elementary rule of construction. See FIRST BANK VS MAIWADA (2012) 51 NSCQR 155 at 172. The words used in the above quoted Rules of the High Court of Cross River State are totally clear and unambiguous. They expect a writ to be commenced in person by the litigant or by his legal practitioner and to be signed by who ever prepared it. The amended writ here which formed the basis of the exercise of judicial powers in this case was not signed by anyone. The position of the law in this regard is clear and totally unambiguous. An unsigned document is totally worthless and incapable of conferring legal benefits. See GARUBA VS K.I.C. LTD. (2005) 5 NWLR (PT. 917) 160 and RABIU ALFA VS ZAKARI 6 EPR 773 at It was contended by Mr. Anana that that the issue was a mere irregularity waived by the conduct of the 1st Appellant. As inviting as the argument sounded, it is non sequitur in the face of the state of the law and I am therefore not persuaded. The defect here goes to jurisdiction and fatally 11

18 affects the competence of the exercise of judicial powers by the learned trial Judge. A Court is competent when - 1. It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; 2. 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, and 3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 2 NSCC 375. It is beyond contest that waiver by a party cannot restore or confer jurisdiction where it is absent, as the position of the law remains clear that parties cannot by consent confer jurisdiction on the Court. See DONGTOE VS CIVIL SERVICE COMMISSION OF PLATEAU STATE (2001) 6 NSCQLR 329. In the circumstances therefore, I resolve issue 1 in favor of the appellants and against the respondents. Issue 2 is whether the Appellants were given a fair hearing at the trial Court. The complaint of the Appellants here was

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20 that hearing notices were not on them to enable them present their side of the case at trial. Having however resolved that the entire adjudicatory process was fatally flawed by the fundamental defect in the jurisdiction of the Court, proceeding further will amount to a needless academic exercise. According to I.T. MUHAMMED, JSC: A Court of law is enjoined to adjudicate between parties in relation to their competing legal interests and never to engage in a mere academic discourse, no matter how erudite or beneficial it may be to the party raising it or even to the public at large. See POWER HOLDING COMPANY OF NIGERIA PLC (PHCN) VS OFFOELO (2012) 52 NSCQR at 132, JULIUS BERGER NIGERIA LTD VS FEMI (1993) 5 NWLR (PT. 295) 612, ADELAJA VS ALADE (1999) 6 NWLR (PT 608) 544 at 563, NWOBOSI VS ACB LTD (1995) 6 NWLR (PT 404) 658 at 681 and EZENYA VS OKEKE (1995) 4 NWLR (PT 388) 142. In the entire circumstances therefore, this appeal succeeds and it is accordingly allowed. The judgment of the trial Court in Suit No: HCA/20/2008 delivered on the 17th June, 2013 is hereby set aside. N50, cost is awarded in favor of the Appellants against

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22 the Respondents. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the judgment delivered by my learned brother, the HON. JUSTLCE J.O.K OYEWOLE JCA, I concur with the reasoning and conclusion reached therein, to the effect that the instant appeal succeeds. I adopt the reasoning in question as mine, and accordingly allow the appeal. I abide by the consequential orders setting aside the judgment of the Cross River State High Court, delivered on 17/06/13, in suit No. HCA/20/2008 by Ajor, J. and as to costs. CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I was given the opportunity to read in draft the judgment just delivered by my learned brother, J. O. K. Oyewole, JCA. I agree with his reasoning and conclusion that there is merit in this appeal and that it be allowed. I also abide by the order as to costs made by Oyewole, JCA in the lead judgment. 14