CORAM

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John Inyang Okoro – Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju – Justice of the Supreme Court of Nigeria

Adamu Jauro – Justice of the Supreme Court of Nigeria

Jummai Hannatu Sankey – Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar – Justice of the Supreme Court of Nigeria

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PARTIES

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1. EMCHY CONSTRUCTION COMPANY LIMITED

2. CHIEF OYOYO UBENE OYO ITA

APPELLANTS 

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1. CHIEF EKPO EFIO ENANG

2. CHIEF OKON EFFIONG EFFIOM

3. CHIEF EDEM BASSEY OKON

4. MR. CHIEF EDEM EYO EFFIOM

5. MR. EFFIOM BUTT

6. MR. EDEM EFFIONG EFFIOM

7. MR. EDEM EFFIONG EDET (For themselves and on behalf of Ikot Efio Enang Village)

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURE, JURISDICTION, WRIT OF SUMMONS, ORIGINATING PROCESS, VALIDITY OF COURT PROCESS, RULES OF COURT, FAIR HEARING, BIAS, LIKELIHOOD OF BIAS, CONSTITUTION OF COURT PANEL, TRESPASS TO LAND, LAND LAW, CUSTOMARY LAW, APPEAL

 

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SUMMARY OF FACTS

The Respondents, as Plaintiffs, commenced an action before the High Court of Cross River State claiming that the land known as “Ikot Usung Obio” in Ikot Efio Enang Village, Akpabuyo Local Government Area, belonged to Ikot Efio Enang Village, and was typically allocated to indigenes and non-indigenes for farming with the understanding that it would revert to the village. They averred that the 2nd Appellant was allocated the land for farming and initially used it for that purpose, but subsequently permitted the 1st Appellant (Emchy Construction Company Limited) to dig laterite on the land for road construction after obtaining permission from the village council. After the road was completed, the 1st Appellant continued digging laterite without authorisation. The Respondents sought N10 million as general damages for trespass and a perpetual injunction.

The Appellants denied that the land belonged to the Respondents, contending it belonged to three different villages with the relevant portion belonging to the 2nd Appellant. The 2nd Appellant counterclaimed for special and general damages and a perpetual injunction.

The Writ of Summons was issued on 4th September 2008, under the Cross River State High Court (Civil Procedure) Rules 1987 (“the 1987 Rules”), under which the Registrar was responsible for issuing and signing the Writ. The new Cross River State High Court (Civil Procedure) Rules 2008 (“the 2008 Rules”), which required originating processes to be signed by the Plaintiff or legal practitioner, only came into force on 29th September 2008 — after the Writ was issued. The Appellants challenged the competence of the Writ on the ground that it was not signed by the Respondents or their counsel.

A further issue arose because one of the Justices on the Court of Appeal panel, Philomena Mbua Ekpe JCA, had briefly presided over the case as a trial Judge at the High Court between 9th October 2008 and 13th October 2009, before being elevated to the Court of Appeal. The case was eventually heard and decided by a different Judge, S. M. Anjor J., in April 2018 — approximately ten years after Ekpe JCA had ceased involvement. The Appellants contended that Ekpe JCA’s prior involvement created a likelihood of bias vitiating the constitution of the Court of Appeal panel.

The trial court upheld the competence of the Writ, granted the Respondents’ claim, and awarded N200,000 damages. It dismissed the counterclaim. On appeal, the Court of Appeal dismissed the Appellants’ appeal and allowed the Respondents’ cross-appeal, increasing damages to N1 million. The Appellants further appealed to the Supreme Court.

 

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HELD

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The appeal was dismissed and the judgment of the Court of Appeal was affirmed with costs of N2,000,000 awarded in favour of the Respondents. On issue 1, the Supreme Court held that the validity of a Writ of Summons and the obligation to sign it are governed by the applicable rules of court at the time of its issuance. Under Order 5 Rules 1 and 15 of the 1987 Rules (extant when the Writ was issued on 4th September 2008), the Registrar — not the Plaintiff or counsel — was the person required to issue and sign the Writ. Since there was a local provision in the Rules governing this, there was no need to resort to English practice and procedure. It would be unjust to punish a litigant for an error or omission of the Registry. The 2008 Rules, which introduced the requirement of counsel’s signature, came into force after the Writ was issued and could not apply retrospectively.

On issue 2, the court held that the Appellants failed to establish bias or a real likelihood of bias against Ekpe JCA. The foreknowledge Ekpe JCA had of the case was limited to preliminary stages and lasted only about one year before his elevation. The case was heard and decided entirely by Anjor J a full decade later. No ground of appeal before the Court of Appeal challenged any decision or finding made by Ekpe JCA as a trial judge. The Appellants had participated fully in the appeal without raising any objection to the panel’s composition, undermining their belated complaint. Bare allegations of bias without cogent evidence cannot suffice.

 

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ISSUES

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1. Whether the lower court was right in affirming the decision of the trial court that the Writ of Summons by which the Respondents’ action was commenced was valid, notwithstanding that it was not signed by the Respondents or their legal practitioner?

2. Whether the panel of the Court of Appeal that heard and determined the appeal and cross-appeal was properly constituted, having regard to the prior involvement of Ekpe JCA as a trial judge in the same matter?

 

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RATIONES DECIDENDI

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DEFECTIVE ORIGINATING PROCESS — RENDERS ACTION NOT COMMENCED BY DUE PROCESS AND EVERYTHING DONE THEREIN A NULLITY

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“A defect in an originating process has a direct bearing on the jurisdiction of a Court because a defective originating process cannot birth a competent action before a Court of law. That would be akin to placing something on nothing, it cannot stand. Hence, when a Writ of Summons or other originating process is not competent, the action would not have been commenced by due process of law and the jurisdiction of the Court would not have been triggered. In the eyes of the law, it would be as if the suit was never filed at all, thus everything that has been done and every step taken would amount to nothing but a nullity.” — Per Adamu Jauro, JSC.

 

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VALIDITY OF WRIT OF SUMMONS DETERMINED BY APPLICABLE RULES AT TIME OF ISSUANCE — OBLIGATION TO SIGN WRIT GOVERNED BY EXTANT RULES NOT SUBSEQUENT RULES

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“The issuance and signing of a Writ of Summons or any other originating process is guided by the applicable enactment or Rules of Court. It is the provisions of the relevant enactment or Rules that will determine who is to issue and sign a Writ of Summons and, consequently, its validity. Taking into consideration the clear wording of Order 5 Rules 1 and 15 of the Cross River State High Court (Civil Procedure) Rules, 1987, Sections 2(1) and 24 of the LPA have no bearing on this issue. It is the Registrar of the Court who is burdened with the responsibility of issuing and signing a Writ.” — Per Adamu Jauro, JSC.

 

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LITIGANT NOT TO BE PUNISHED FOR ERROR OF REGISTRY — WHERE PARTY HAS DONE ALL REQUIRED OF HIM BY LAW REMAINING STEPS ARE DOMESTIC BUSINESS OF THE COURT

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“The law is that where a party has done all that he is required to do by law, any other thing done or undone after that remains an internal or domestic business of the Court and the party cannot be punished for any mistake, error or omission occasioned of the registry or a staff of the Court. It will go against every known rule of law, justice and fairness to visit an error of the registry on a litigant.” — Per Adamu Jauro, JSC.

 

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RESORT TO ENGLISH PRACTICE AND PROCEDURE — ONLY WHERE NO LOCAL PROVISION EXISTS; NOT PERMISSIBLE WHERE LOCAL RULES HAVE ALREADY MADE PROVISION

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“In a situation where the law has provided that the practice and procedure for the time being in force in the High Court of Justice in England be adopted where no provision has been made in the Rules, that provision must be followed just as it is. That is, resort must only be made to the practice and procedure for the time being in force in the High Court of Justice in England where no provision has been made by the Rules. Where there is a local provision in our own Rules, resort to any other practice and procedure becomes unnecessary.” — Per Adamu Jauro, JSC.

 

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COURT CANNOT ADD TO RULES WHAT IS NOT PROVIDED — SUGGESTION THAT WRIT BE AUTHENTICATED IN ADDITION TO RULES’ REQUIREMENTS IS FLAWED

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“The Rules have fully made provision for the issuance and signing of an originating process such as a Writ of Summons. Once the Writ is issued and signed as provided by the Rules, it is sufficient and the Writ becomes valid and competent. Suggesting that the Writ ought to, in addition to the provision of the Rules, be authenticated, is tantamount to adding to or reading into the Rules what is not contained therein and what the maker of the Rules never intended simply to conform with the wishes of counsel. No counsel or Judge is allowed to do that.” — Per Adamu Jauro, JSC.

 

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RIGHT TO FAIR HEARING — COURT MUST BE IMPARTIAL AND TEST FOR LIKELIHOOD OF BIAS IS THAT OF A REASONABLE OBSERVER

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“Fair hearing envisages that the Court or Tribunal hearing a case should be fair and impartial without showing any degree of bias against any of the parties. In determining whether there is a possibility of bias on the part of Judge, the test to be applied is that of a reasonable man. This means that there will not be an inquiry into the mind of the Judge to see if the possibility exists. Rather, the issue will be approached from the viewpoint of an impartial observer who is abreast of the circumstances of the case, but is unlearned in the intricacies of law and legal practice.” — Per Adamu Jauro, JSC.

 

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FOREKNOWLEDGE AS GROUND FOR DISQUALIFICATION — MUST BE OF SUCH NATURE AS TO CAUSE PREJUDICED MIND; NOT EVERY PRIOR INVOLVEMENT DISQUALIFIES

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“It is however not the law that once a Judge has a foreknowledge of the facts of a case, he is automatically assumed to be bias against one of the parties. For foreknowledge to raise a possibility of bias or real likelihood of bias, it must be of any of the following nature: a. Significant private knowledge of material aspects of the case obtained from sources other than witnesses called in the case. b. Previous knowledge of the facts so material that it may influence or bias the mind of a Judge. c. Foreknowledge of facts that are relevant and material to the resolution of the main controversy that brought about the litigation concerned.” — Per Adamu Jauro, JSC.

 

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INSTANCES WHERE JUDGE IS PRECLUDED FROM SITTING — PERSONAL INTEREST, JUDGE IN OWN CAUSE, APPEAL AGAINST OWN DECISION, OR OBVIOUS CONNECTION WITH PARTIES

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“When is a Judge precluded from hearing a case? The answer to this is simple: It is when he has personal interest; when he would seem to be a Judge in his own matter; or when having dealt with the same issue and it comes or resurfaces when he is in a superior Court and [he] is being called upon to decide an appeal against his own decision; or because of some obvious or latent connection of his with either of the parties or all of them, it would not be conscionable of him to participate in hearing the case or generally his being a member of the tribunal would not appear to be in the interest of justice as he will not be seen to do justice.” — Per Adamu Jauro, JSC.

 

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ALLEGATION OF BIAS MUST BE BACKED WITH COGENT EVIDENCE — BARE ASSERTIONS, CONJECTURE OR SUSPICION WITHOUT PROOF WILL NOT SUFFICE

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“Such an allegation must be backed with cogent and clear evidence clearly setting out the basis for the allegation that the Judge in question was bias or that there are circumstances that evinced a real likelihood of bias on his part, otherwise the allegation will be discountenanced. Bare assertions, conjecture or suspicion without any proof to back up an allegation of bias against a judicial officer will not suffice.” — Per Adamu Jauro, JSC.

 

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CASES MUST BE APPLIED WITH REGARD TO THEIR PECULIAR FACTS — NO CASE TO BE APPLIED HOOK LINE AND SINKER WITHOUT COMPARING FACTS AND APPLICABLE LAW

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“It is therefore the law that no case can be applied hook, line and sinker to another without first ensuring that the facts and applicable law are the same or similar in both cases. Bearing this in mind, while OKAFOR V. NWEKE (supra) and other decisions similar to it remain good law, they can only be applicable where an originating process is required to be signed by a legal practitioner.” — Per Adamu Jauro, JSC.

 

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JURISDICTION AS THRESHOLD OF JUDICIAL POWER — PARTIES CANNOT BY CONNIVANCE OR COLLUSION CONFER JURISDICTION ON COURT

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“Jurisdiction being the threshold of judicial power and being intrinsic to adjudication, parties cannot by connivance, acquaintance or collusion confer jurisdiction on the Court. As a matter of law, an issue of jurisdiction cannot be waived by any or all of the parties. This is because parties cannot conspire or collaborate to vest jurisdiction in a Court when there is none. The existence or absence of jurisdiction in the Court goes to the root of the matter and sustains or nullifies the decision of the Court.” — Per Jummai Hannatu Sankey, JSC.

 

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WRIT ISSUED UNDER 1987 RULES VALID WHERE SIGNED BY REGISTRAR — RESPONDENTS ONLY OBLIGED TO COMPLY WITH RULES IN FORCE AT DATE OF ISSUANCE

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“By these rules of Court, it is self-evident and self-explanatory. It provides that at the High Court of Cross River State, a person who has a claim to ventilate his grievance does so through an application to the Registrar of the Court or any person so authorized, who shall thereupon issue a writ of summons duly signed by him. These are the only requirements for the proper issuance of a writ of summons to initiate a competent action before the High Court.” — Per Jummai Hannatu Sankey, JSC.

 

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BRIEF PRIOR INVOLVEMENT WITHOUT DETERMINATION OF SUBSTANTIVE ISSUES — INSUFFICIENT TO DISQUALIFY JUSTICE FROM APPELLATE PANEL WHERE NO APPEAL BROUGHT AGAINST THAT INVOLVEMENT

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“The very brief involvement of Ekpe, JCA in the matter at its initial/early stages at the trial Court was not sufficient to disqualify him from subsequently participating in the hearing and determination of the appeal, as he did. This is more so that none of the grounds of appeal to that Court complained about any step, finding or decision she may have made during the fleeting and short-term period in which she was involved in the case as a trial Judge.” — Per Jummai Hannatu Sankey, JSC.

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended) — Section 36(1)

Legal Practitioners Act — Sections 2(1) and 24

High Court Law of Cross River State, Cap H2

Laws of Cross River State 2004 — Section 14

Cross River State High Court (Civil Procedure) Rules 1987 — Order 5 Rules 1 and 15

Cross River State High Court (Civil Procedure) Rules 2008 — Order 8 Rules 1 and 2(iii)

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT 

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COUNSEL

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Julius Idiage, Esq.For Appellant(s)

Eke Edem, Esq.For Respondent(s)