CORAM

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PARTIES

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APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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ACTION, APPEAL, CONSTITUTIONAL LAW, COURT, JUDGMENT AND ORDER, JURISDICTION, LABOUR LAW, PRACTICE AND PROCEDURE.

 

 

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SUMMARY OF FACTS

The 1st – 5th Respondents were appointed Chairman and members of the Adamawa State Civil Service Commission by the Governor of Adamawa State, Senator Mohammadu Umaru Jibrilla Bindow.  It was made out that on assumption of office of the 1st Respondent, the appointments of the 1st – 5th Respondents were suspended in the month of June, 2019 based on alleged anomalies in their appointments.  The 1st – 5th Respondents by an Originating Summons dated and filed on 7th June 2019, approached the National Industrial Court, seeking declaratory reliefs among which was an order of the Court declaring the Respondents were entitled to a guaranteed tenure of five years removable only, by reasons of inability to discharge the functions of their office or by misconduct, and for an order of the Court restraining the Appellants from appointing another in their place.  The Appellants in response to the Originating Summon, file a counter Affidavit and a Preliminary Objection  challenging the jurisdiction of the trial court to entertain the suit. The trial Court dismissed the Preliminary Objection and went ahead to grant all the reliefs sought by the Respondents. Dissatisfied, the Appellants have appealed to the Court of Appeal. In response, the learned counsel to the 1st – 5th Respondents filed a motion on Notice challenging the competence of the Appellants’ grounds one, two, three and four and their issues one and two derived therefrom.  It was argued that the appellants’ grounds one, two and three are based on the Ruling of the trial court without the leave of court to appeal against same; that the said grounds of the Notice of Appeal do not relate do not relate to the judgment appealed against but, the ruling of the trial court not appealed against. They urged the court to strike out the Appellants’ grounds 1 – 4 and issues 1 and 2 formulated therefrom.

 

 

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HELD

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 Appeal Allowed In Part.

 

 

 

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ISSUES

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 Whether the Hon. Trial court was right when it dismissed the notice of preliminary objection and assume (sic) jurisdiction.  (Distilled from grounds 1, 2 and 3 of the grounds of appeal.)

 

 Whether the trial court did not misdirect itself in law when it relied on Section 197 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in part and avoided sub-section (3) of the same section of the Constitution.  (Distilled from ground 4 of the grounds of appeal).

 

 

 Whether the learned trial judge did not misdirect himself when he held that by virtue of Section 11 (1), (b) and (c) of the interpretation Act, the power to appoint, remove or suspend the 1st – 5th Respondents, must be in tandern with Section 198 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). (Distilled from grounds 5, 6 and 7 of the grounds of appeal).

 

 Whether the learned trial judge did not misdirect himself when he found in respect of Exhibit ‘A’ that 1st – 5th Respondents were both suspended and dissolved inspite of the ample depositions in the counter affidavit of the appellants that they were only suspended.”  (Distilled from grounds 8 and 9 of the grounds of appeal).

 

 

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RATIONES DECIDENDI

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“DECISION”

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 – DEFINITION OF THE WORD “DECISION”

“The learned Attorney General (AG) highlighted the meaning of the word “decision” as defined under Section 318 (1) of the 1999 Constitution (as amended) which includes judgment, order, sentence, decrees and recommendation.  See, Ihedioha Vs. Okorocha (2016) 1 NWLR (PT. 1492) PAGE 147 where a decision was defined as any determination of that court and includes judgment, order etc.  See, Omisore Vs. Aregbesola (2015) 15 NWLR (PT. 1482) Page 205 (SC), Usman Vs. Kaduna State House Of Assembly (2007) 11 NWLR (PT. 1044) Page 144 at 190, PARAS. A – B, and Black’s Law Dictionary, 6TH EDITION where decision was defined as a determination arrived at after consideration of facts and legal context, a determination of a judicial nature. PER C.N.UWA, J.C.A

 

COURT, PRACTICE AND PROCEDURE, APPEAL

COURT- DUTY OF COURT TO DECIDE OBJECTIONS RAISED AGAINST THE COMPETENCE OF SOME GROUNDS OF APPEAL BEFORE DETERMINING THE CASE OF THE PARTIES

“It is trite that where an objection has been raised against the competence of some of the grounds/issues raised or the entire case/appeal, whatever the case may be, same has to be resolved first before going into the substantive matter.  See, FBN PLC vs. T.S.A. Industries Ltd (2010) LPELR – 1283 (SC) P. 13, PARAS. B – E, Okorocha Vs. UBA Bank & Ors (2018) LPELR – 45122 (SC) P. 13, PARAS. E – F and Olagbenro & Ors Vs. Prince Saliu Olayinwola & Ors (2014) LPELR – 22597 (CA) P. 59, PARAS. B – C.” PER C. N. UWA, J.C.A

 

COURT, JUDGMENT AND ORDER

DECISION OF COURT – WHETHER RULINGS CAN BE CATEGORISE AS A DECISION OF COURT

“I cannot fault the definition of “decision” as submitted by the learned Attorney General to include any determination of that court which includes judgment, order, conviction, sentence or recommendation.  A Ruling is also included as it is a determination arrived at after consideration of facts or an order pronounced by a court in settlement of a controversy submitted to it and by way of an answer to the questions raised before it.  A decision includes Rulings by the Black’s Law Dictionary definition cited by the learned Attorney General.  See, Ihedioha Vs. Okorocha (supra) and Usman Vs. Kaduna State House Of Assembly (supra).” PER C. N. UWA, J.C.A

 

 

APPEAL, COURT, PRACTICE AND PROCEDURE

APPEAL – WHETHER THE LEAVE OF COURT MUST FIRST BE SOUGHT TO APPEAL AGAINST A RULING ON GROUNDS OF LAW

“It is noteworthy that the Ruling is an interlocutory decision on ground of law alone, which does not require the leave of court to first be sought and obtained before an appeal against same.  See, Nireko Enterprises Ltd. Vs. First Bank (2000) LPELR – 6891 (CA) PP. 4 – 12, PARAS. A – E, Augustine Bassey Ene Vs. Chief Asuquo Asikpo (2009) LPELR – 8723 (CA) P. 28, PARAS. A – E and Ozuruoha Vs. Alozie & Ors (2019) LPELR – 46906 (SC) 16 – 19, PARA. B.  Thus, there is no mandatory provision compelling the Appellant to seek and obtain the leave of this court to appeal against the Ruling where the appeal is on point/ground of law alone.  See, Section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).  The appeal is as of right.  See, also MINISTER FCT VS. Abdullahi (2010) ALL FWLR (PT. 57) 179, at 192 and Kulak Trades & Industries Plc Vs. Tug Boat M/V Japual B & Anor (2010) LPELR – 8630 (CA) P. 11, PARAS. A – C.”  PER C. N. UWA, J.C.A

 

JURISDICTION, COURT, PRACTICE AND PROCEDURE

JURISDICTION OF COURT- PREREQUISITE FOR A COURT TO ASSUME JURISDICTION TO HEAR AND DETERMINE A MATTER

“It is trite that a suit must be properly commenced or instituted before a court can assume jurisdiction to hear and determine it, it is prerequisite for a court to assume jurisdiction.  It is therefore essential that where the issue is raised challenging the competence of the processes filed, it ought to be determined before any further step is taken in the proceedings to avoid embarking on an exercise in futility. A court is competent to hear a matter when:

i. It is properly constituted as regard members and qualification of members of the bench and no member is disqualified for one reason or the other.

ii. 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

iii. That the case before the court was initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.

See, Petrojessica Enterprises Ltd & Anor Vs. Leventis Technical Co. Ltd (1992) LPELR – 2915 (SC) PP. 23 – 24, PARAS. E – C, Martins Vs. Nicannar Food Co. Ltd & Anor (1988) LPELR – 1844 (SC) PP. 15 – 16, PARAS. G – A and Eze VS. PDP & ORS (2018) LPELR – 44907 (SC) PP. 21 – 22, PARAS. E – C.”  PER C. N. UWA, J.C.A

ACTION, LABOUR LAW

COMMENCEMENT OF ACTION – APPROPRIATE MODE OF COMMENCING A SUIT ON REMOVAL FROM OFFICE

“By the Rules of the lower court, Order 3 Rule 2(2) (a) & (b) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides that matters relating to Section 254C (i) (d) of the 1999 Constitution (as amended) is to be filed before the court, if it relates to interpretation and application shall be by way of complaint but, if it relates to only interpretation shall be by way of Originating Summons.  It is clear that the 1st Respondent’s suit which involved interpretation and application of the provisions of Sections 4 (3) & (5) and 6(1) & (2) of the Adamawa State House of Assembly Service Commission Law, 2002, ought to have been filed by complaint.  Further, the above provision is mandatory by the use of the word “shall”, it is not permissive or discretionary.  See, Honeywell Flour MILLS PLC VS. Ecobank (Nig) Ltd (2016) (supra).  The rule must be observed.  See, Onochie & Ors Vs. Odogwu & Ors (2006) LPELR – 2689 (SC) P. 25, PARAS. B – D, Iwunze Vs. FRN (2014) LPELR – 22254 (SC) P. 38, PARAS. C – F and Mobile Telecommunications Network (MTN) VS. H.R.H. Oba Raphael Sunday Are & Ors (2014) LPELR – 23807 (CA) P. 24, PARAS. A – F. PER C.N.UWA, J.C.A

 

 

ACTION, PRACTICE AND PROCEDURE

ORIGINATING PROCESS- WHETHER ORIGINATING SUMMONS IS APPROPRIATE WHERE A SUIT RAISES A SUBSTANTIAL DISPUTE OF FACTS

“Order 3 Rule 17(1) & (2) provide as follows:

(1) “Provided that where a suit raises a substantial dispute of facts or is likely to invoke substantial dispute of facts, it shall not be commenced by way of Originating Summons, but by complaint as provided in rules 8 and 9 of this Order.

(2) Where in the opinion of the court, a suit commenced by Originating Summons raises substantial issues and disputes of facts, the court shall not strike out the matter, but may order its conversion to a complaint and direct parties to file and exchange pleadings and conduct the trial of the case in accordance with the rules of court governing trial.”

Order 3 Rule 17 (1) above shows clearly that where the facts of a case are disputed or likely to involve substantial dispute of facts, the suit shall not be commenced by way of Originating Summons but, by complaint as provided in Rules 8 and 9 of the same Order, while Rule 17(2) provides a remedy where Rule 17(1) is not complied with, it provides that the suit would not be struck out by the court but, the court may order its conversion to a complaint and direct the parties to file and exchange pleadings and conduct the case with the rules of the trial court.” PER C. N UWA, J.C.A

 

COURT, PRACTICE AND PROCEDURE

COURT – DUTY OF COURT WHERE A SUIT WAS COMMENCED WITH A WRONG PROCEDURE

“Further, from the affidavit evidence deposed by the Appellants and the 1st Respondent at the trial court, there was a serious dispute between the parties that would entail calling witnesses for clarity, the parties have nothing to lose if witnesses are called to clarify issues, whereas as has happened, the Appellants are of the view that their side of the case would be better ventilated if pleadings are exchanged and witnesses called to adduce oral evidence.  See, Doherty & Anor Vs. Doherty (1967) LPELR – 25506 (SC) P. 10, Paras. A – B, Olomoda Vs. Mustapha & Ors (2019) LPELR – 46438 (SC) P. 16, Paras. A – E and Ogah Vs. Ikpeazu & Ors (2017) LPELR – 42372 (SC) P. 33, Paras. A – C.  I hold that the trial court ought to have ordered that the suit be instituted by complaint and for pleadings to be filed and exchanged by the parties instead of dismissing the preliminary objection. PER C.N.UWA, J.C.A

 

ACTION, APPEAL, PRACTICE AND PROCEDURE

ORIGINATING PROCESS- WHETHER AN IRREGULARITY OCCASSIONED BY THE INSTITUTION OF AN ACTION BY ORIGINATING PROCESS CAN BE REGULARISED ON APPEAL

“I am at one with  the alternative submission of the learned counsel to the 1st Respondent that instituting the action by Originating Summons is an irregularity which at this stage can be remedied by this court and it would not vitiate the entire action if the end of justice is to be met, after all “justice” is for both parties.  I place reliance on my earlier decision in a similar situation in the case of Comrade Efe P. Kwakpovwe & Ors Vs. National Association Of Delta State Students & Ors (2017) LPELR – 45659 (CA) PP. 19 – 20, PARA.D where I held thus:

“The learned counsel to the appellants had prayed that the claim of the respondents be dismissed.  In a similar situation, in PDP & Ors Vs. Atiku Abubakar (2007) 3 NWLR (PT. 1022) P. 575 at P. 542, PARAS. A – B; (2007) 41 WRN P. 61 at P. 89 – 90 in respect of the proper thing for a Court to do when an action is wrongly commenced by an originating summons instead of writ of summons, I held thus: “when a suit is commenced by an originating summons instead of writ of summons, the appropriate order to be made by the Court is to direct the suit to proceed with filing of pleadings for proper determination of the issues before the court.  Emezi Vs. Osuagwu (2005) 12 NWLR (PT. 939) P. 340.”  My view in this respect has not changed.  See, the Apex Court’s decisions in Suleiman Atago Vs. Mr. Ibiso Nwuche & Ors (2012) LPELR – 19656 (SC) and National Bank Of (Nig) Ltd Vs. Alakija (1978) 9 – 10 SC 59.  The proper order would be and is that the case that gave rise to this appeal, case No. OUHC/48/07 is remitted back to the Chief Judge of Delta State High Court for trial de Novo by another judge other than Ebiowei Tobi, J.  Parties are to file pleadings and the matter given accelerated hearing considering the fact that the judgment of the trial court was delivered ten (10) years ago.”

– PER C.N.UWA, J.C.A

 

 

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CASES CITED

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STATUTES REFERRED TO

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Adamawa State House of Assembly Service Commission Law, 2002

Constitution of the Federal Republic of Nigeria 1999 (as amended),

Court of Appeal Act, 2011

National Industrial Court of Nigeria (Civil Procedure) Rules, 2017

 

 

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