MR. BALA TSEWA BELLO KHAMOFU v. STANDARD CHARTERED BANK NIGERIA LIMITED
April 16, 2025OKOCHA SAMUEL OSI v. ACCORD PARTY & ORS
April 17, 2025Legalpedia Citation: (2016-12) Legalpedia 38421 (CA)
In the Court of Appeal
HOLDEN AT LAGOS
Fri Dec 9, 2016
Suit Number: CA/L/78/2015
CORAM
JOSEPH SHAGBOAR IKYEGH
JOSEPH SHAGBOAR IKYEGH
JOSEPH SHAGBOAR IKYEGH
JOSEPH SHAGBOAR IKYEGH
JOSEPH SHAGBOAR IKYEGH
JOSEPH SHAGBOAR IKYEGH
JOSEPH SHAGBOAR IKYEGH
JOSEPH SHAGBAOR IKYEGH,J USTICE COURT OF APPEAL
YARGATA BYENCHIT NIMPAR, JUSTICE COURT OF APPEAL
JAMILU YAMMAMA TUKUR, JUSTICE COURT OF APPEAL
PARTIES
APPELLANTS
PRINCE JIDE SIKUADE
RESPONDENTS
AREA(S) OF LAW
ACTION, APPEAL, COURT, JUDGMENT AND ORDER, JURISDICTION, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Respondent took out an Originating Summons against the Appellants challenging their decision to exclude the Respondent from the club. The Appellants challenged the jurisdiction of the Court. The Respondent then made an application to the Court for subpoena duces tecum to be issued against the 3rd Appellant ex parte. Prior to the said application, the Appellants had challenged the jurisdiction of the Court and the Court opted to take the originating summons along with the challenge to jurisdiction. The issuance of subpoena duces tecum was challenged and a motion filed to set it aside, the Court overruled the application to set aside the Subpoena duces tecum. Dissatisfied with the ruling, the Appellants filed an Amended Notice of Appeal containing 6 Grounds of Appeal. The Respondent raised a Preliminary objection contending that Issue One of the Appellants’ Brief does not relate to the instant appeal.
HELD
Appeal Allowed
ISSUES
Whether a trial Court has the jurisdiction/competence to issue a subpoena against a party in a proceeding when the jurisdiction of that Court is being contested/attacked by that party.
Whether the trial Court was right to have dismissed the appellants’ application and upheld the subpoena ducestecum for the reasons adduced.
Whether the failure of the learned trial judge to address an issue raised by the appellants occasioned a miscarriage of justice.
RATIONES DECIDENDI
SUBPOENA – MODE OF ISSUANCE OF A SUBPOENA
It is trite that a subpoena is not issued on a motion that is heard ex parte or inter parties but a simple letter to the Court for the issuance of the subpoena. The issuance of a subpoena is basically done on a one sided application not even a motion and it is an order of Court made pursuant to the jurisdiction of the Court which is exercised in chambers. There is no ruling of the Court to really appeal against, except to ask that the issuance of the said subpoena be set aside as was done in this case. To therefore contend that the Appellants should appeal against the order or ruling issuing the subpoena is not only misconceived but it is preposterous. – PER Y. B. NIMPAR, J.C.A
JURISDICTION OF COURT – MODE OF RAISING A COMPLAINT ON THE JURISDICTION OF A COURT
“Furthermore, the basic and fundamental issue here is that the appeal is a challenge to the jurisdiction of the Court to hear the claim upon which the subpoena was issued and as settled, jurisdiction has no protocol in the manner it should be raised. It could even be raised orally and for the first time on appeal, even at the Supreme Court. See Oni v. Cadbury Nigeria Plc (2016) LPELR-26061 (SC). The ground of appeal which gave rise to issue one is ground 6 which states thus:
“The learned trial judge erred in law thus exceeding his jurisdiction when his lordship issued the subpoena DucesTecum against the 3rd Appellant whilst the jurisdiction of the Honourable Court to entertain the whole suit was being challenged by a Notice of Preliminary filed by the Appellants (the 3rd Appellant inclusive) which was still pending”
And issue one distilled from the ground states thus:
“Whether a trial Court has the jurisdiction/competence to issue a subpoena against a party in a proceeding when the jurisdiction of that Court is being contested/attacked by that party?”
From the above, it is clear that the condition that an issue must arise from a ground of appeal has been satisfied by the Appellants because the issue is a challenge to jurisdiction. I had earlier said that a complaint on jurisdiction can be raised at any time, in any manner and anyhow, even orally. See Olatunbosun v. Odunto & Ors (2016) LPELR- 40542 (CA). It can even be raised without a ground of appeal or issue for determination. – PER Y. B. NIMPAR, J.C.A
JURISDICTION OF COURT – DUTY OF COURT WHEN ITS JURISDICTION IS CHALLENGED – EFFECT OF LACK OF JURISDICTION
“Jurisdiction is a threshold issue and is the lifeblood of any adjudication, the Apex Court on the importance of jurisdiction said as follows:
“Jurisdiction is a threshold issue in that a Court must have jurisdiction before it an enter into the cause or, matter at all or before it can make a binding order in it.” See Odofin v. Agu (1992) NWLR (Pt. 229) 350.
The effect of want of jurisdiction divests the Court of competence to take a step in the matter and any defect in the competence of the Court is fatal, the proceedings amount to total nullity however well conducted, see Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545. This is trite beyond citing of authorities. The position is also settled that where the jurisdiction of a Court is challenged, the only jurisdiction the Court has is to determine whether it has jurisdiction or not. Consequently, the general rule is that the objection is taken first to resolve the challenge before taking any step in the substantive matter. However, the challenge to jurisdiction can be taken along certain matters, such as originating summons which do not require oral evidence to save time. Even in such situations, the Court must resolve the issue of jurisdiction first before proceeding to resolve the substantive matter, see Seplat Petroleum Development v. Britannia-U-Nigeria Ltd & Ors (2014) LPELR-CA/L/100/2014 where this Court held thus:
“Jurisdiction can be challenged in various forms and in this case, it was by a preliminary objection. It has been decided that once jurisdiction is challenged, the Court should first determine whether it has jurisdiction or not. That at that stage the only jurisdiction the Court has is to determine whether it has jurisdiction or not to do any other business of the Court with regards to the subject matter, see the case of N.D.I.C. v. C.B.N. supra at 292 where the Court held as follows: once the issue of jurisdiction is raised in a suit, the Court must not give an order in the suit affecting the defendant until the issue is settled.”
– PER Y. B. NIMPAR, J.C.A
ORIGINATING SUMMONS PROCEDURE – NATURE OF AN ORIGINATING SUMMONS PROCEDURE – WHETHER A COURT CAN HEAR A SUMMONS ALONG WITH AN OBJECTION TO ITS JURISDICTION
“The nature of the substantive suit is an originating summons procedure which is merely a method of commencing suits and one that is not contentious on facts and one fought on affidavit and documentary evidence, see Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159 (SC) where the Apex Court described commencement of action by originating summons in these words:
“It is settled law that originating summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or any instrument made under any written law; or where there is likely to be no or any substantial dispute of law or of any deed, will, contract or other document or some other question relevant to the determination of the issue in controversy however”
The rules of the Federal High Court provides for the commencement of actions that fit into the pattern described above. The Respondent took advantage of it and instituted its claim under the Originating Summons Procedure. The Appellants filed an objection to the jurisdiction of the Court after which the Court ruled to take the objection and the originating summons together. This procedure is allowed; see Garuba v. Omokhodion (2011) LPELR-1309(SC) which held:
“The Appellants in this matter relying on the settled decisions of this Court in Diapialong v. Dariye (Supra) and Inakoju v. Adeleke (Supra) have submitted that where an objection is raised in an action commenced by originating Summons, it is prudent to hear arguments on jurisdiction and the substantive case together, It must be stated that such procedures are not of general application as the primary purpose of raising such objection is to terminate the proceedings at that stage.”
It must be emphasized here too that the essence of the procedure is for speedy determination of such matters where it revolves around interpretation of documents and the facts are not disputed. At the point where the objection was filed and the Court resolved to take the two processes together, the only duty open to the Court is to take the processes but first rule on the objection to its jurisdiction. If the objection fails then, the Court goes on to determine and pronounce on the originating summons. If however, the objection succeeds, that is the end of the matter. An originating summons is fundamentally a ready to go kind of matter. Upon the filing of the summons, it is expected that all the documents required for determination or interpretation have been annexed to the affidavit in support. The procedure gives no room for hearing witnesses orally as in a regular suit commenced by writ of summons.
Therefore, at the point the Court ruled in favour of hearing the summons along with the objection to jurisdiction, it cannot take any step in the matter no matter how innocuous such an application or step may be. The Court’s jurisdiction is fettered, fixed or frozen at that stage and until it resolves the jurisdictional question, it lacks the competence to take a step. The only exception is where the issue of contempt is involved as the Court has to affirm and protect its sanctity and integrity, see Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472 @ 494-495. Here, the Court attended to an application for subpoena ducestecum after it ruled to hear the objection to its jurisdiction along the originating summons. Is there any residual jurisdiction to do so? The obvious answer is NO. See the case of NDIC v. C.B.N. (2002) LPELR-2000(SC) which held thus:
“But because it is regarded as a threshold issue and a lifeline for the continuing any proceedings, objection to jurisdiction ought to be taken at the earliest opportunity if there are sufficient materials before the Court to consider it and a decision reached on it before ANY OTHER STEP IN THE PROCEEDINGS IS TAKEN because if there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted.”
See also the case of Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137 @ 180 cited by the Appellants.
– PER Y. B. NIMPAR, J.C.
SUBPOENA DUCESTECUM – WHETHER THE COURT HAS THE VIRES TO ISSUE A SUBPOENA DUCESTECUM WHEN THERE IS A CHALLENGE ON ITS JURISDICTION
“I must say that issuance of a subpoena ducestecum is a step that is beyond the order to determine jurisdiction and the Court cannot do so. Once the application to issue subpoena is made, it becomes the order of the Court. The person subpoenaed appears before the Court. The trial lacked the vires to so make the order. Until jurisdiction is properly determined, it cannot take a step such as issuing a subpoena as was done in this case. Doing so will mean the Court has vested upon itself ‘some’ life or jurisdiction to that which it may not have power to do. A Court cannot cloth itself with jurisdiction, it is bestowed, donated and given, see F.R.N. v. Uwagba (2009) 15 NWLR (Pt. 1163) 91 S.C. It does not matter how irregular the objection might look on the face of it. The necessary step of first affirming or determining the competence of the Court must be taken before any other step. It is an exercise that can never be frivolous. It is the lifeline of adjudication. – PER Y. B. NIMPAR, J.C.A
SUBPOENA DUCESTECUM – MEANING OF A SUBPOENA DUCESTECUM
The Appellants application before the Court is for the setting aside of the order for the issuance and service of a subpoena ducestecum (a subpoena for the production of documents). The Court in the case of Obi-Odu v. Duke (2006) 1 NWLR (Pt. 961) 375 described subpoena ducestecum thus:
“A subpoena ducestecum is thus a Court process, initiated by a party in litigation compelling the production of certain specific documents and other items, material and relevant (emphasis mine) to facts in issue in a pending judicial proceeding which documents and items are in custody and control of the person or body served with the process.”
A subpoena is issued for proceedings which are legitiately pending in a Court. Basically, it is commonly used in contested proceedings initiated by writ of summons. – PER Y. B. NIMPAR, J.C.A
ORIGINATING SUMMONS – APPLICABILITY OF AN ORIGINATING SUMMONS PROCESS
“It is applicable where the Court is to determine simple questions on construction of written instruments. The Court in the case of S.A.I. Ossai v. Isaac Wakwah & Ors (2006) 4 NWLR (Pt. 969) 208 had this to say with respect to originating summons:
“In other words, it is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on question of facts or the likelihood of such dispute. Where, for instance, the issue to determine short questions of construction, and not matter of such controversy that the justice of the case would demand the setting of pleadings, originating summons could be applicable. For it is to be noted that originating summons is merely a method of proceedings and not one that is meant to enlarge the jurisdiction of the Court.”
An originating summons is not a process that allows the application of other normal procedures applicable to trials initiated by writ of summons. A trial is a hearing but originating summons (though a trial) is clearly a non complex process that is circumscribed by the type of questions that the process can be used to resolve. PER Y. B. NIMPAR, J.C.A
ORIGINATING SUMMONS – WHETHER AN ORDER OF SUBPOENA DUCESTECUM CAN BE ISSUED IN AN ORIGINATING SUMMONS PROCESS
“Assuming the Court has jurisdiction, it is also trite that an originating summons is complete upon filing, it does contemplate processes like subpoena of witnesses to produce or testify. How then will the subpoenaed witness fit into a process where witnesses are not taken and a trial meant for speedy adjudication? Assuming documents are produced by subpoena, how would it form part of the originating process? A Claimant can file a further affidavit but can he call a witness? The process for production of documents is that the person subpoenaed appears in Court to produce before the Court the documents requested for. It will no longer be a private affair of documents sent to Court without the person subpoenaed appearing. The person subpoenaed must appear before the Court. Can all these steps take place while an originating summons is adjourned for hearing? That will be a novel procedure, strange and intriguing for our jurisprudence in which a Court is to determine a suit brought by originating summons.
It is strange that the Court could agree and approve of such a process. The moment the Court finds that the originating summons can no longer be heard as crystallized, the only option is for the Court to transfer the claim to the general cause list and order parties to file pleadings after which applications such as the one for subpoena ducestecum can be taken and granted. I want to boldly posit that it is strange for an order of subpoena ducestecum to be issued in an originating summons process, it is incompatible, contradictory and incongruous. – PER Y. B. NIMPAR, J.C.A
COURT – DUTY OF COURT TO PRONOUNCE ON ALL ISSUES PUT BEFORE IT; EFFECT OF FAILURE TO SO DO
“I agree entirely with the Appellants that a Court should not fail to pronounce on all issues presented to it. It is a duty for the Court to resolve all issues, see the case of Governor Ogun State v. Coker (2008) ALL FWLR (Pt. 406) 1900 @ 1916 which held thus:
“A Court must pronounce on all the issues put before it.”
Generally, failure to pronounce on an issue is a serious error on the part of the trial Court. But this does not mean that there will be miscarriage of justice in all situations where an issue has not been pronounced upon. What is more, the issue was orally raised. The Apex Court in the case of Ishaya Bamaiyi v. The State & Ors (2001) 8 NWLR (Pt. 715) 270, the Court held thus:
“I agree with the submission of the Appellant’s counsel that the Court below failed to consider and pronounce upon the second issue for determination submitted by the appellant in that Court. However, I am unable to hold that the failure to do so led to any miscarriage of justice in the circumstances of the case. There was also no denial of fair hearing as enshrined in Section 33 of the 1979 Constitution. Failure to consider and pronounce on all issues submitted to a Court or tribunal will not, per se, amount to a denial of a right to fair hearing having regard to the judicial decisions on the principle. In some cases, it may occasion failure of justice which amounts to denial of fair hearing and in others as is the case in the present proceedings, it will not.”
– PER Y. B. NIMPAR, J.C.
SUBPOENA DUCESTECUM – MEANING AND CONSEQUENCES OF A SUBPOENA DUCESTECUM
“Subpoena is a product of two Latin words – “sub” meaning under; and “poena” meaning penalty. When a Court issues a subpoena ducestecum it commands the person summoned to produce a document. And a witness summoned by subpoena ducestecum only should not testify in the case vide Oguntoye v. Adelaja (2009) ALL FWLR (Pt. 495) 1626 per the lead judgment of Garba, J.C.A. Once the person summoned produces the document, he is obliged to be released and cannot be regarded as a witness vide Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) 547.
The consequences attached to subpoena ducestecum are two-fold: If the person summoned does not produce the document secondary evidence of it can be given by the adverse party on the issue; and second, contempt proceedings can be initiated against the person that defaulted in complying with the terms of the subpoena vide Buhari v. Obasanjo (2005) ALL FWLR (Pt. 273) 1.
A subpoena being a command of which failure to comply with it may result in the arrest of the person subpoenaed, if so proven that it was served on such person and the sum prescribed by law was given to him for his expenses, therefore has coercive consequences. – PER J. S. IKYEGH, J.C.A
JURISDICTION OF COURT – WHETHER COURT CAN ISSUE AN ORDER WHEN ITS JURISDICTION IS CHALLENGED
“When the jurisdiction of the Court is challenged, it must resolve it first, before proceeding to take any further step in the proceedings. A Court cannot issue an order until its jurisdiction is settled in its favour. Therefore the Court below should not have issued a subpoena against the 3rd respondent when its jurisdiction was still under attack and/or was yet to be resolved by it.
It follows that a Court must decide its competence or jurisdiction if challenged before it can issue orders that may likely lead to the initiation of contempt proceedings or the arrest of the person summoned. If jurisdiction is wanting order made without jurisdiction is a nullity. So it is threshold obligation to decide the issue of jurisdiction before venturing into issuing orders that may lead to coercive reaction from the issuing Court. – PER J. S. IKYEGH, J.C.A
CASES CITED
Not Available
STATUTES REFERRED TO
1. Companies and Allied Matters Act (CAMA)
2. Federal High Court (Civil Procedure) Rules 2009
