(2021) Legalpedia (CA) 11111
In the Court of Appeal
HOLDEN AT GOMBE
Sunday, January 24, 2021
Suite Number: CA/G/90/2018
JUMMAI HANNATU SANKEY
UZO I. NDUKWE-ANYANWU
JAMES GAMBO ABUNDAGA
VICTORIA SARKI || DANIEL SARKI & ORS
AREA(S) OF LAW
JUDGMENT AND ORDER
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Claimants/Respondents before the Gombe State High Court sought some declaratory reliefs against the Defendant/Appellant. They sought a declaration that by virtue of Awak custom and tradition, the Plaintiffs are the legitimate heirs to late Sunday Sarki Awak who died intestate and without a child; a Declaration that the distribution made on 22/8/2015 by late Sunday Sarki’s family according to Awak custom and tradition with an appreciable proportion of the estate to the Defendant is fair and just, an order compelling the Defendant to account fully for all the moneys collected in her capacity as next of kin in the form of burial expenses, balance on Sunday Sarki’s account with Zenith account with Zenith Bank, life insurance and gratuity/Pencom for distribution in accordance to Awak custom among others. The Defendant/Appellant filed a counter claim wherein she claimed a declaration that the counterclaimant and her late husband are joint owners of all assets and properties acquired during their marriage, a declaration that the estate of late Sunday Sarki Awak only consists of half or 50% of the assets jointly acquired by herself and her husband among other reliefs. The matter proceeded on trial, at the conclusion of which the court entered judgment in favour of the Respondent. Dissatisfied with the judgment, the Appellant has filed the instant appeal contending that the lower Court had no jurisdiction over the Respondents’ claim, because the jurisdiction issue here is not one between the divisions of the same state but jurisdictional issue between one state and another, in which case, it becomes an issue of international law which precludes the application of the High Court Rules of a state.
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ISSUES FOR DETERMINATION
Whether the lower Court had the territorial jurisdiction to hear the suit. Whether the distribution of the Estate of the deceased husband of the Appellant did not amount to revocation of the letters of administration granted to the Appellant, and is not inconsistent with the dismissal of the Respondents’ prayers one and two. Whether the distribution of the estate of the deceased husband of the Appellant did not amount to granting a relief not claimed by the Respondents. Whether the Appellant proved her counterclaim before the lower Court to entitle her to judgement on her counter claim.
TERRITORIAL JURISDICTION – DETERMINATION OF THE ISSUE OF TERRITORIAL JURISDICTION
“And in this case, it is trite law that when it comes to matters of territorial jurisdiction it is the plaintiff’s statement of claim that determines jurisdiction. The law on matters of territorial jurisdiction was more clearly put in proper perspective in the case of Lemit Engineering Ltd vs. RCC Ltd (2017) LPELR-42550 (CA), in which this Court held: “Now, when it comes to the issue of territorial jurisdiction, the issue must be looked from two different perspectives. To determine the issue, I find it necessary to state that, the term territorial jurisdiction may be used to refer to the geographical area in which the cause of action arose for determination or adjudication. It may also mean the jurisdiction of the Court to entertain cases involving persons residing within the limits of a defined territory. Territorial jurisdiction may therefore mean: (a) Jurisdiction over cases arising in or involving persons residing within a defined territory; or (b) Territory over which a government, one of its Courts or sub-divisions has jurisdiction. In determining the issue of territorial jurisdiction therefore, it would be necessary to first consider whether the dispute or facts constituting the dispute has inter-state elements. That being so, where the dispute as to the proper adjudication is between the High Court of one State and that of another State or between the High Court of a State and the High Court of the Federal Capital Territory, the issue of the appropriate or more convenient forum is to be determined under the rules of Private International Law formulated by the Courts in Nigeria. This is because, Nigeria operates a Federal Constitution with each of the Federating States and the Federal Capital Territory, having its own High Court. See Ogunsola v. A.N.P.P. & 2 Ors (2003) 9 NWLR (pt.826) p.462; Iyanda v. Laniba II (2003) 8 NWLR (pt.801) p.267; Joshua Dariye v. The F.R.N. (2015) LPELR – 24398 (SC). In that respect, in a case such as this, the Court should always make a distinction between jurisdiction as it relates to the territorial or geographical jurisdiction of a Court and jurisdiction in relation to the judicial division within which to commence an action. Where the issue relates to jurisdiction between one State and another, the matter will be governed by rules of Private International Law. Where it is as to which of the judicial divisions within the State the matter will be instituted, the matter will be governed by the High Court (Civil Procedure) Rules of that State. Thus, in the case of International Nigerbuild Construction Co. v. Giwa (2003) 13 NWLR (pt.836) p.69 this Court stated the principles as follows: “… there is a world of distinction between jurisdiction as it relates to the territorial, geographical jurisdiction of a Court and jurisdiction in relation to the judicial division within which to commence an action. The distinction between venue as an aspect of jurisdiction… is often provided in the rules of Court of various States of the Federation. But when it comes to territorial jurisdiction, which is whether a suit ought to have been brought in another State, the criteria is different.” It is therefore the law that a Court in one State cannot have jurisdiction to hear and determine a matter which lies exclusively within the territorial limits and thus jurisdiction of the High Court of another State. In other words where the facts or elements that gives rise to the cause of action occurred entirely within the territorial or geographical limits or confines of one State, the High Court of another State cannot have the jurisdiction to hear and determine that suit. See Anon Lodge Hotels Ltd v. Mercantile Bank (1993) LPELR – 14725 (CA); Rivers State Gov’t v. Specialist Konsult (2005) 7 NWLR (pt.923) p.145 per Tobi, JSC; Dairo v. Union Bank of Nigeria Plc & Anor (2007) 16 NWLR (pt.1059) p.99 and Ibori v. F.R.N. (2009) 3 NWLR (pt.1128) p.247 at 308 – 309. The dispute in the instant suit has to do with the issue of which Court between the High Court of Oyo State and that of Osun State has the jurisdiction to hear and determine the Appellant’s claim. In that respect, the Oyo State High Court (Civil Procedure) Rules relied on by learned counsel for the Appellant is in applicable. From the cases cited above, it is not in doubt that the territorial jurisdiction of a High Court of a State is an indispensible element or factor of the jurisdiction of such High Court on matters brought before it. To determine whether or not a Court has the jurisdiction to hear and determine a suit therefore, the Court will look at the Writ of Summons and/or the Statement of Claim. In other words to determine whether or not the Court has jurisdiction to entertain a particular suit, the processes to be considered are the processes filed by the Plaintiff, which are the Writ of Summons and Statement of Claim or the Original Summons as the case may be. See Multi-Purpose Ventures Ltd v. A.G; River State (1997) 9 NWLR (pt.977) p.587; Gafar v. Government of Kwara State (2007) 4 NWLR (pt.1024) p.375; Adetona & Ors v. Igele General Enterprises Ltd (2011) LPELR – 159; Oladipo v. Nigeria Customs Service Board (2009) All FWLR (pt.498) p.319 at 345 paragraphs B – C and First Bank of Nigeria Plc v. Abraham (2008) 18 NWLR (pt.1118) p.172. It is therefore the Plaintiff’s claim that determines whether or not the Court has jurisdiction. See Adetayo v. Ademola (2010) NWLR (pt.1215) p.169; A.G; Anambra State & Ors v. A.G; Federation & Ors (1993) 6 NWLR (pt.302) p.192 and Adeleke v. O.S.H.A (2006) 16 NWLR (pt.1006) p.608.” Per TSAMMANI ,J.C.A ( Pp. 20-24, paras. C-F). See also the case of Niger Aluminium Manufacturing Co. Ltd & Anor vs. Union Bank (2015) LPELR-26010 (CA), Pp. 32 – 36, paras F – A, Arjay Ltd & Ors vs. A.M.S Ltd (2003) LPELR-555 (SC).
COURT – WHETHER A COURT CAN SIT ON APPEAL OVER THE DECISION OF A COURT OF COORDINATE JURISDICTION
“The law remains settled that a Court cannot sit on the ruling/judgment of a Court of coordinate jurisdiction. I rely on the case of Seamarine International Limited & Ors vs. Ayetoro Bay Agency & Ors (2015) LPELR-24785 (CA) where it was held: “…Exhibit A emanated from the Ondo State High Court and such an instrument touching on the rights and obligations of the Respondents cannot be subjected to interpretation by a Court of coordinate jurisdiction – see Gipsrel Inter. Co. Nig. Ltd. V. Eya & Anor. (2010) LPELR-4198 CA, N.I.M.B Ltd. V. UBN Ltd. (2004) 12 NWLR (Pt.888) 599 SC, where the Supreme Court per Pats-Acholonu, JSC, so aptly observed that – “The theory of justice to which we adhere, rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaulting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of the law is that just as stare decisis exercises a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of co-ordinate jurisdictions do not sit on appeals on each other, attracts respect of the law.” Per AUGIE ,J.S.C (Pp. 28-29, paras. A-C). See also Hydroworks Ltd vs. Rimi LG (2001) LPELR-5712 (CA), Pp. 29 – 31 paras F – C, Sokoto vs. State (2006) LPELR-11746 (CA), Pp. 9 – 10, paras D – A. Even though a Court cannot sit on appeal on the decision of a Court of coordinate jurisdiction, where an instrument made by a Court of coordinate jurisdiction has been admitted in evidence, it must be treated like any other documentary evidence. In other words, though the Court of coordinate jurisdiction cannot question the validity of that instrument, it is bound to use it like any other documents before it and more importantly, it is also duty bound to ensure that it covers the subject for which it is sought to be used. See the case of Seamarine International Limited & Ors vs. Ayetoro Bay Agency & Ors (2015) LPELR-24785 (CA), Pp. 29 – 31, paras C.
“REVOKE” – DEFINITION OF THE WORD “REVOKE”
“The word “revoke” was defined in the case of Aji vs. Abba & Ors (2014) LPELR-24362 (CA) thus: “To “revoke” means “1. To recall, bring back… 3. To recall; to call or summon back… 4. To annul, repeal, rescind, cancel… 5. To retract, withdraw, recant… 6. To take back to oneself…” See the Shorter Oxford English Dictionary, 3rd edition Vol.2, page 1822.”Per TUR ,J.C.A ( P. 37, paras. E-F ).
ORDER OF COURT – STATUS OF AN ORDER OF COURT, WHICH DO NOT FLOW FROM THE FACTS, AND FINDINGS IN THE CASE IN WHICH THE ORDER IS MADE
“Now the law certainly frowns at a situation in which the orders made by a Court do not flow from the facts and findings in the case in which the order is made. Where this is found to be the case in the matter on appeal, there is no option left to the appellate Court other than to set aside the order made. See the case of SCOA Nigeria Ltd vs. J. A. Kehinde & Sons Nig. Ltd (2003) LPELR-7290 (CA), Pp. 12 – 14, paras F – B; See also Obisanya vs. Nwoko & Anor (1974) LPELR-2183 (SC), P. 13, paras B – E”.
FINDINGS OF COURT – STATUS OF THE FINDINGS OF COURT NOT APPEALED AGAINST
“The law is trite that findings of Court not appealed are deemed accepted and correct, and binds the parties and the Court. See Barnabas Nwadiaro & Ors vs. The President and Members of customary Court of Ossomala (2016) LPELR-40925 (CA), per Agim, JCA (as he then was) (Pp. 12 -13, paras D – A, Awote & Ors vs. Owodunni & Anor (1986) LPELR-660 (SC), per kawu, JSC (page 7, paras D – E), Dabup vs. Kolo (1993) LPELR-905 (SC), per Olatawura, JSC (page 14 para A). By not appealing or cross appealing against the lower Courts finding on the succession to the estate of the deceased Counsel cannot be heard to submit that the cases of Ibeabuchi vs. Ibeabuchi (supra) and Motoh vs. Motoh (supra) are no longer applicable having been repealed.
DOCUMENT – WHETHER A DOCUMENT REJECTED IN EVIDENCE AND SO MARKED CAN BE EXHIBIT FOR USE IN THE EVALUATION OF EVIDENCE
“The law remains firmly settled that a document once rejected in evidence and so marked is not an exhibit for use in the evaluation of evidence in the case. See Ebonyi State University & Ors vs. Dr. (Mrs.) Mary J. Eteng (2012) LPELR-199973 (CA); Bernard Okafor vs. Madam Eno Carol Effiong (2017) lpelr-42699 (CA), page 18 paras A – C)”.
ORDER FOR DISTRIBUTION OF THE ESTATE OF THE DECEASED – WHETHER AN ORDER FOR DISTRIBUTION OF THE ESTATE OF THE DECEASED CAN BE MADE OUT OF SENTIMENT
‘Therefore, the only conclusion I can reach is that the order for distribution of the estate of the deceased as made by the lower Court was made out of nothing but sympathy and sentiment flavoured by morality, both of which have no place in law. See the case of Ibeabuchi vs. Ibeabuchi (2016) LPELR-41268 (CA), per Bdliya, JCA (Pp. 10 -11, paras D – C). See also Federal Republic of Nigeria vs. Bankole (2010) All FWLR (Pt. 629) 1150”.
ORDER OF COURT – WHETHER COURTS ARE EMPOWERED TO MAKE AN ORDER NOT PRAYED FOR
“Now, again, having refused the Respondents’ prayers (a) and (b), the trial Judge lacked the vires to proceed to distribute the estate of the deceased. Moreover, it was not a prayer prayed for, and as I did state it cannot under any guise at all qualify as a consequential order, or one that flows from issues arising from the pleadings. No Court is entitled to make an order not prayed for: See Imoh vs. Imoh (2013) All FWLR (Pt. 659) 1114 (CA), Osuji vs. Ekeocha (2009) All FWLR (Pt. 490) 614, and SPDC (Nig) Ltd vs. Fibika (2015) All FWLR (Pt. 777) page 775.
RELIEFS – WHETHER THE COURT HAS POWERS TO MODIFY THE RELIEFS SOUGHT BY A PLAINTIFF
“I shall now turn my attention to the grant of reliefs (c) and (d) by the lower Court. The lower Court granted the said prayers with modifications. The first point to consider herein is whether the Court had the vires to do what it did to modify the reliefs sought for by the plaintiffs (now Respondents). No doubt, what the lower Court did amounted to amending the claim of the Respondents. On whether the Court can do so, the apex Court held in the case of Ogunleye vs. Oni (1990) LPELR-2342 (SC): “There are those occasions when court suo motu can amend pleadings so as to bring the issues being fought by the parties into proper focus, but this is possible only when such amendment will not raise new issue or give the dispute of the parties entirely new colouration. The Judge who will suo motu amend of course must invite the parties to address him. Amusa Yesufu Oba v. Hunmuani Ajoke (see Olisa Chukura’s privy council judgments 1841-1943) at page 1018; Ambrose Ini v. Tinko (1929) IX N.L.R.8.” Per BELGORE ,J.S.C ( Pp. 24-25, paras. F-C ). See also Dortmund Company (Nig) Ltd & Anor vs. Elias (2013) LPELR-21117 (CA), page 2, paras D – F.
LETTERS OF ADMINISTRATION – PURPOSE OF LETTERS OF ADMINISTRATION
“In the case of Olubeko vs. Awolaja & Anor (2017) LPELR-41854 (CA), it was held that the import of letters of administration is that it confers authority on those named therein to continue to manage the estate of the deceased for the interest of the beneficiaries. In the case of Ugwu & Ors vs. Ezeanowai & Ors (2017) LPELR-41888 (CA), the Court held: “The purpose of Letters of Administration is defines as: “…4. Management and settlement of the estate of an intestate decedent, or of a testator who has no executor, by a person legally appointed and supervised by the Court. Administration of an estate involves realizing the movable assets and paying out of them any debts and other claims against the estate. It also involves the division and distribution of what remains… “See Black’s Law Dictionary (ante), page 49.” Per TUR ,J.C.A ( Pp. 57-58, paras. E-A ) It can be seen that it is the administrator of an estate that is saddled with the Responsibility of managing the assets and liabilities of a deceased. That means any claims against the estate can be brought only against the administrator and no one else”.
PERVERSE FINDINGS – WHAT AMOUNTS TO PERVERSE FINDINGS?
“In the case of Lagga vs. Sarhuna (2008) LPELR-1740 (SC), the apex Court held: “A perverse finding is one which ignores the facts or evidence led before the Court and when considered as a whole amounts to a miscarriage of justice. See Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370; Edoho v. State (2004) 5 NWLR (Pt. I 865) 17. A finding is perverse if it is not borne out of the evidence before the Court. A perverse finding is a finding which is not only against the weight of evidence but is altogether against the evidence itself. It is a finding which no reasonable tribunal should have arrived at in the light of the evidence before it.” Per TOBI ,J.S.C ( P. 44, paras. D-G ). See also, Baridam vs. State (1994) LPELR-753 (SC), page 11, paras E – F. The settled position of the law is that an appellate Court will interfere with findings of fact where such findings are perverse: See, State vs. Ajie (2000) LPELR-3211 (SC), page 13, paras D – F.
DECLARATORY RELIEFS – DECLARATORY RELIEFS MUST BE STRICTLY PROVED
“The law is settled that declaratory reliefs must be strictly proved. The claimant must succeed on the strength of his own case, and cannot rely on the weakness in the case of his adversary; which includes, even where he made an admission, or fails to rebut the claim in his pleading, and/or does not call evidence, and even where he calls contradictory evidence. These lapses will only aid the claimant’s case where he calls satisfactory evidence which requires rebuttal by the adversary and he fails to so rebut, or blunders in his attempt to rebut: See Mohammed Aliyu Zurmi vs. Prince Donatus Okonkwo & Anor (2018) LPELR-46964 (CA), page 24, paras B – F, Dosomah vs. COP, Edo State & Ors (2014) LPELR-24497 (CA), Pp. 8 – 9, paras F – C, Oladimeji & Anor vs. Ajayi (2012) LPELR-20408 (CA), page 23 paras E – G.
DOCTRINE OF STARE DECISIS – WHEN DOES THE DOCTRINE OF STARE DECISIS SUCCEED?
“In the case of International Tobacco Co. Plc vs. British American Tobacco (Nig) Ltd & Anor (2013) LPELR-20494 (CA), this Court held: “It is settled that the doctrine of stare desisis or judicial precedent, which formed the plinth upon which the respondents implored this Court to follow the decision in those two authorities, flourishes where facts of cases are on all fours, see Clement v. Iwuanyanwu (supra); Fawehinmi v. NBA (No.2) (supra); Osakue v. FCE, Asaba (2010) 10 NWLR (Pt.1201) 1.” Per OGBUINYA ,J.C.A (P. 32, paras. A-C). See Alaya vs. State (2007) LPELR-8841 (CA), Pp. 32 – 33, paras D – E.
STATUTES REFERRED TO
Evidence Act, 2011|Matrimonial Causes Act|
1.Olufemi Olubiyi, Esq. for the Appellant.|2.Umar Sai’d, Esq. for the Respondents.|