A dismissal of action in limine is the most punitive relief that a Court can grant a defendant against the plaintiff. Because of its Punitive nature, Courts of law are reluctant in granting such a request for the mere asking. There must be legal basis for the request and corresponding legal basis for granting it. See Inakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 574.
The law is trite, that where an action as in this case was commenced by a procedure that is irregular, a party who took active part in the proceeding without raising a formal objection to the irregular procedure can not later be heard complaining and praying that the action be set aside on ground of irregularity which he himself had earlier acquiesced. See Saude V. Abdullahi (supra). However, in the present case, it is clear that it was the objection or complaint by the respondent, that triggered this appeal filed before the lower Court by the respondent.
Indeed, there are four broad modes of commencing civil suits namely, by (a) Writ of Summons; (b) Originating Summons; (c) Originating Motions and (d) Petitions. The first three methods are prescribed by the Rules of Courts, viz, the Rules of Court in relation to Writ Of Summons; Originating Summons and Originating Motions. The latter, Originating Motions, could be categorized into two broad types, (i) Originating Motions for Prerogative Orders and (ii) Originating Motions under the Fundamental Rights (Enforcement Procedure) Rules, 1999 (made pursuant to the authorities that inhere in the Chief Justice of Nigeria).
Lastly, Petitions as modes of originating actions are employed in commencing suits pursuant to express statutory provisions as shown above. Each of these is referred to as an Originating Process, G. F. Harwood, Odgers Principles of Pleadings and Practice in Civil Actions (Twentieth Ed) (New Delhi India; Universal Law Publishing Co. Pvt. Ltd, (2010) 352; F. Nwadiala, Civil Procedure in Nigeria (Lagos: University of Lagos Press, 2000) 211; Arjay Ltd and Ors v A. M. S. Ltd (2003) LPELR -555 (SC); Inakoju and Ors v. Adeleke and Ors (2007) LPELR-1510 (SC); Pam and Anor v. Mohammed and Anor (2008) LPELR -2895 (SC); National Bank of Nigeria Ltd and Anor v Alakija and Anor (1978) LPELR -1949 (SC); Ezeigwe v Nwawulu and Ors (2010) LPELR 1201 (SC); Famfa Oil Ltd v AG, Fed and Anor (2003) LPELR-1239 (SC).
As learned senior counsel must be aware; with the exception of some specific statutes, for exle, the Marriage Act and Matrimonial Causes Act; the Companies and Allied Matters Act (CAMA, for short) and the Electoral Act, which stipulate modes of commencement of certain special proceedings; the Rules of Courts generally dictate the mode of the originating suits thereat.
The cause of action, being an aggregate or a bundle of facts, which in law gives the plaintiff a substantive right to make the claim against the relief or remedy being sought against the defendant (KUSADA v. SOKOTO N. A. (1968) 1 ALL NLR 377; BELLO v. A.G., OYO STATE (1986) 5 NWLR (pt. 45) 828 at 876), is a determinant of the jurisdiction the trial Court has to entertain the particular civil cause or matter. The absence of the cause of action giving the plaintiff the right to maintain the action, consequently, robs the trial Court of its jurisdiction to entertain the action. The defect is fatal. It renders both the action and the Court incompetent: MADUKOLU v. NKEMDILIM(1962) ALL NLR 581; SOSSA v. FOKPO (2001) 1 NWLR (pt. 693) 16.
The law is well established that it is the plaintiffs case that determines the cause of action filed in Court. In order to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons,and the averments in the statement of claim. See Ossai V. Wakwah (2006) 4 NWLR (Pt. 969) 208 at 229. Diapianlong v. Dariy (2007) 8 NWLR (Pt. 1036) 332; Ejiro V. Idris (2006) 4 NWLR (Pt. 971) 538 at 560 – 561.
The law is settled that it is the law in force at the time the cause of action arose or when the offence was committed that becomes the applicable law.
In addition to the above, Section 382 of the Criminal Procedure Code provides as follows
Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or review on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings before or during trial or in any inquiry or other proceedings under this Criminal procedure Code unless the appeal Court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.
In the explanatory notes to the provision, it is added as follows
EXPLANATION. In determining whether any error, omission or irregularity in any proceeding under this Criminal Procedure Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
Thus, as it was held in MADAYE DUPIN v. OLONINORAN (2013) 1 NWLR (Pt. 1334) 175, non-compliance with conditions precedent for initiating an action vitiates the action ab initio. See alsoODOFIN v. AGU (1992) 3 NWLR (Pt. 229) 350; ATUYEYE v. ASHAMU (supra); UWAZURUIKE v. A.G. FEDERATION (Supra); AJUWA v. S.P.D.C. NIG. LTD. (2008) 10 NWLR (Pt.1094) 64; MADUKOLU v. NKEMDILIM (supra).
It is a settled principle of law that persons who join up as plaintiffs in an action can not set up conflicting claims between themselves.
In other words, in the same suit the plaintiffs must act together. See EJEZIE & ANOR. v CHRISTOPHER ANUWU & ORS (2008) 4-5 SC (pt.1) 31.
For the purpose of a reminder, I think I should re-state the well settled principle of the law and permanent feature of the practice of the Courts that when action is struck out, it is still alive and could be resuscitated by the plaintiff/appellant. It is not so when a matter is dismissed. The matter comes to a final bus-stop and the particular claim or relief suffers the vicissitude of death and it can hardly be revived. Thus where a suit/case/application/appeal has been considered on its merit to finality and found to be worthless, it is subject to a dismissal order. Equally, where a matter is dismissed on ground of abuse of Court process it is subject to be dismissed and it cannot be relisted. Where a matter is withdrawn with the consent of parties, it is to be dismissed and it cannot be relisted See: Jimoh v Sterw Nig Ltd (1998) 7 NWLR (Pt 558) 523; Harriman v Harriman(1989) 5 NWLR (Pt 119) 6; Jadesimi v Okotie Eboh (1986) 1 NWLR (Pt 16) 276. On the other hand, where a matter is simply struck out for a reason non-compliance with a provision of law, rule and or practice; where a point of objection is raised (which point can be complied with, thereafter), where a process is technically bad for a reason (which can later be rectified), the originator/initiator of that process is at liberty to re-file that process after same has been brought in compliance with the correct position of the law, rule or practice as may thereof be required.
Action in personam (Latin: against person) involves or determines the personal rights and obligations of the parties (qua the transaction common to them). It is brought against the person or between the parties in transaction, not against the property. At page 862 of Black's Law Dictionary, 9th Ed; R.H. Graveson, in his work – Conflict of Laws 7th Ed. 1974, is reported as stating at page 98 thus Action is said to be in personam when its object is to determine the rights of the Parties themselves in the subject matter of the action. However such an action may arise, and the effect of a judgment in such an action is merely to bind the parties to it. A normal action brought by one person against another for breach of contract is a common exle of action in personam. An action in rem, on the contrary, is an action against the thing. It involves the determination of the status of the thing, and therefore the rights of the parties to that thing. Archaically; action in rem is an action impersonal R.H. Graveson (ibid) says: "An action in rem is one in which the judgment of the Court determines the title to the property and the rights of the parties, not merely as between themselves, but also as against all persons at any time dealing with them or with the property upon which the Court has decided". Accordingly, an action for breach of contract cannot be in rem, but in personam. In my firm view, an action, like the one in FHC/ABJ/CS/617/2012, taken for the decision whether the Advance payment Guarantee, as a performance bond for the due execution of a contract, should be released can only be action in personam, and not in rem. I should think also that steps taken by an investigating body, statutorily empowered to investigate and prosecute allegations of criminal breach or fraud in relation to a transaction for money had and received for services not rendered, cannot be steps in rem but only in personam. I need only to refer to two Nigerian cases...
Generally, and the law is clear about this, that a plaintiff in an action is entitled to plead and rely on a previous judgment in his favour not as estoppel per rem judicatam but simply as an estoppel in the sense that it constitutes or relevant fact to the issue in his present action and the judgment so relied upon will be conclusive of the facts which it decided. See; Ukaegbu & Ors Vs Duru Ugoji & Anor (1991) 6 NWLR (Pt. 196) 127; Esan Vs. Olowa (1974) 3 SC 125. Therefore, even though the doctrine of estoppel per rem judicatam cannot be made the basis of an action by a plaintiff, a defence can certainly be based entirely on it. See; Achiakpa Vs. Nduka (supra) at p. 647.
It is also trite that whereby the rules of Court or any other rule whatsoever, the unlimited jurisdiction of the Court is curtailed by statute or the Constitution as to subject matter or cause of action or as to person who can bring the action, such curtailment renders the Court incompetent to adjudicate over a matter which has been taken outside its powers by such statute. Therefore, where a Tribunal or special Court is set up to adjudicate over specialized matters, the powers of the normal Courts created under the Constitution will be ousted in respect of such specialized matters.
There may be a situation where there exist multiple transactions between the same parties. Such multiple transactions between the same parties may, often times, give rise to multiple causes of action. Each cause of action, in that situation, gives rise to a distinct right of action. The exercise of such right of action in such a situation between the same parties can not be said to be multiplicity of actions between the same parties in respect of the same cause of action to warrant a plea of abuse of Court's process. Where, therefore, there exists a pending suit on a cause of action different and distinct from another in a subsequent suit between the same parties, the existence or pendency of the previous suit on an entirely different cause of action between the same parties does not make or constitute the subsequent suit an abuse of the Court's process. Rather, what makes the subsequent suit an abuse of the process of Court is the institution of a fresh action between the same parties and on the same subject-matter against the same opponent on the same issues when the previous suit has not yet been disposed of. See OKAFOR V. A.G. ANAMBRA STATE (supra); MORGAN v. WEST AFRICAN AUTOMOBILE ENGINEERING CO. LTD. (1971) 1 NMLR 219; OKOROMADU V. OKOROMADU (1977) 3 SC. 21; OYEGBOLA V. ESSO WEST AFRICAN INC (1996) 1 ALL NLR. 170.
There will be a cause of action if the aggregate of facts, when proved would entitle the plaintiff to a remedy against the defendant. See: Egbe Vs Adefarasin (1987) 7 NWLR (Pt. 47) 1; Oshoboja Vs Amuda (1992) .... NWLR (Pt. 250) 690; Society BIC S.A. & Ors. Vs Charzin Ind. Ltd. (2014) 4 NWLR (Pt.1398) 497.
The question may be asked, what is reasonable cause of action? Tobi, JSC (of blessed memory), in Rinco Construction Company Ltd v Veepee Industries Ltd & Anor (2005) LPELR-2949 (SC) at page 14 paragraphs E – Gdefined reasonable cause of action as follows:-
"Reasonable cause of action means a cause of action with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the Plaintiff and the obligations of the defendant. It must then go on to set out the facts constituting infraction of the Plaintiffs legal right or failure of the defendant to fulfil his obligation in such a way that if there is no proper defence, the Plaintiff will succeed in the relief or remedy he seeks.
Also reported in (2005) 9 NWLR (pt. 929) 85 and (2005) 3 – 4 SC page 1. See also Ibrahim v Osim (1988) 3 NWLR (Pt. 82) 257, Oshoboja v Amuda & Ors (1992) 6 NWLR (pt. 250) 690, SPDC Nig Ltd & Anor v X.M. Federal Ltd & Anor(2006) 16 NWLR (Pt.1004)) 189.
Generally, the law is trite that when an action is dismissed, unless the Rule of Court permits, such action cannot be re-opened. The dismissal is ordinarily conclusive of the matter or issues decided therein and remain so until the judgment is set aside on appeal. See; Nigeria Airways Ltd Vs. F. A. Lapite (1990) NWLR (Pt.163) 392; (1990) 11-12 SC 60; (1990) LPELR – 1998.
It is settled law that in the determination of a reasonable cause of action, the Court would have recourse only to the facts contained in the statement of claim or the affidavit in support of the originating summons or other originating process. The facts therein, for the purpose of the determination, are deemed admitted. The facts would then be examined to ascertain if they would entitle the plaintiff to the remedy sought. See: Dantata & Anor vs. Mohammed (2000) LPELR-925 (SC) 1 @ 27 E F; Opia vs. INEC & Anor (2014) LPELR 22185 (SC) 1 @ 20 D – F.
In Bello Vs A.G. Oyo State (1986) 5 NWLR (pt.45) 828 @ 876 A – B this Court considered what constitutes a reasonable cause of action. His Lordship Karibi-Whyte, JSC opined thus:
"I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim."
This definition was adopted by Obaseki, JSC in Afolayan Vs Ogunrinde (1990) 1 NWLR (pt.127) 269 @ 382 F – H. His Lordship stated:
"In its simplest terms, I would say that a cause of action means:
(1) a cause of complaint;
(2) a civil right or obligation fit for determination by a Court of law;
(3) a dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine.
It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment."
See also: Thomas Vs Olufosoye (1986) 1 NWLR (pt.18) 669; Adimora vs. Ajufo (1988) NSCC Vol. 19 (Part) 1003 @ 1005; (1988) 3 NWLR (Pt. 80) 1; P.N Udoh Trading Co. Ltd vs. Abere (2001) 11 NWLR (Pt. 723) 114 @ 129 B C; Mobil Producing Nig. Unltd vs. LASEPA & Ors. (2002) 18 NWLR (Pt. 798) 1 @ 30 E G.
Cause of action in a matter accrues when the facts that justify the claims are complete. See Bala Hassan v. Babangida Aliyu (2010) 43 NSCQR 39. In Adimora v. Ajufo (1988) 3 NWLR (Pt. 50) 1; (1988) 1 NSCC (1005) at 1018, the Supreme Court, Per Oputa JSC, held that cause of action is every facts which would be necessary for the plaintiff to prove, if traverse, in order to support his right for judgment.
To my mind, a counter claim is always considered as an independent, separate and distinct claim which a trial Court must always consider.
A trial Court confronted in a suit with both the main and counterclaims, must give separate judgment on each of the claims as each of such claim is independent of one another in this instant case, the trial Court failed to consider or to determine the defendants' counterclaim.
I am ad idem with the lower Court that a Counter-claim is a separate, independent and distinct action, N.B.N. Ltd v. U.C. Holding Ltd (2004) 13 NWLR (Pt. 891) 436; Ogbonna v. AG, Imo State (1992) 1 NWLR (pt.220) 647: Oyagbola v. Esso West Africa Ltd (1966) 1 All NLR 170:
Thus, the counter-claimant, like the plaintiff in the main action, has a duty to prove his Counter-claim if he hoped to obtain judgment, Jeric Nigeria Ltd v. Union Bank of Nigeria Plc (2001) 7 WRN 1, 18; Prime Merchant Bank v Man-Mountain Company (2000) 6 WRN 130, 134; Walter v Skyll Nig. Ltd (2000) 13 WRN 60, 98.
A counterclaim is an independent action where the parties in the main action are in reverse roles. The plaintiff becomes the defendant, while the defendant becomes the plaintiff. See Oyagbola v. Esso West Africa (1996) 1 ALL NLR P.170; Ogbonna v A.G. Imo State (1992) 1 NWLR (Pt. 220) P.647
A counter-claim does not depend on the outcome of the main claim. Once the main claim is concluded in whatever form, be it dismissed or discontinuance, the hearing of the counter-claim must commence. It was a grave error for the learned trial judge not to have made pronouncement on the counter-claim. As it stands now, the counter-claim was left in the realm of speculation and that is bad for the streams of justice. The learned trial judge ought to have made a pronouncement on the counter-claim.
The Court of Appeal was on good ground to have declined such an invitation of the use of its power under Section 16 of the Court of Appeal Act to the right wrong. The reason is that the Court of Appeal if it had imagined such power would be arrogating to itself, powers it did not have, that is to decide on an action which is what the counter claim is when the evidence really was not considered. One would ask if it would not be jumping into the status of the trial Court and make consideration of evidence not before it. Truly the error is not a light one that could be so casually and informally treated by the Court of Appeal or even this one inserting the words "counter-claim dismissed". I agree with the Court below that the trial Court having failed to consider the counter-claim separately, the Court of Appeal was not to speculate on what the judgment and orders of the trial Judge would have been had when he considered the counter claim. See Masade Esene Substituted by A. Masada v. C. Isikhuemen (1978) 2 SC 87.
The appellants seem to wish a persuasion that what is on ground is akin to a matter of a judge's right to his particular style of judgment writing or that what he did in relation to the issues arising from the counter claim were within his discretion so to do. That is not the correct position of the law as it is a matter of substantive and procedural law that is now well settled in a long line of cases. Stated another way, a counter claim is a different action from that which the main claim predicated. Therefore there must be two separate judgments, one for the main claim and the other for the counter claim though they have both been brought together in the same suit. See Kaduna Textile v Umar (1994) 1 NWLR (Pt.319) 143; Emaphil v Odili (1987) 4 NWLR (Pt.67) 915.
This is because a counter claim is a different action from that on which the main claim is predicated which translates to two separate actions for which there must be two distinct judgments which can be in the same process or suit or another date and process. There is no running away from the distinction. See Akinola v Unilorin (2004) NWLR (Pt.885) 616; Obi v Biwater Shellevbear Nig. Ltd (1997) 1 NWLR (Pt.484) 722.
There is a rich case law on the meaning and purport of a counter-claim and I shall have recourse to a few in aid at this point in time. See Effiom v Iron Bar (2000) 1 NWLR (Pt. 678) 341 where it was held thus-
"A counter-claim is an independent action and it needs not relate to or be in anyway connected with the plaintiffs' claim or raise out of the same transaction. It is not even analogous to the plaintiff's claim. It need not be an action of the same nature as the original claim. A counterclaim is to be treated for all purposes for which justice requires it to be treated as an independent action."
See also the case of Okonkwo v. C. C. B. (2003) FWLR (Pt.154) 457 at 508, the nature of a counter-claim had been clearly spelt out as follows:-
"Counter-claim though related to the principal action is a separate and independent action and our adjectival Law requires that it must be filed separately. The separate and independent nature of a counter claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law a counter claim is a cross action with its separate pleadings, judgments and costs."
See also Hassan v Regd. Trustees Baptist Convention (1993) 7 NWLR (Pt.308) 679 at 690, wherein it was held that:-
"The fate of a counter claim being an independent action does not depend upon the outcome of the plaintiff's claim. If the plaintiff's case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with."
The effect of a limitation law on a cause of action is that it removes the right of action, the right of enforcement and the right to judicial relief. In other words an action filed outside the limitation period renders the action unenforceable. See Yare vs National Salaries, Wages and Income Commission (2013) 5 SCNJ 406; Lafia Local Government vs Gov. of Nasarawa State & Ors (2012) 7 SCNJ 648. In effect, where an action is statute barred, the Court will lack jurisdiction to entertain it.
The effect of the limitation law on the cause of action is that a Court lacks the jurisdiction to entertain the action. This can be raised at anytime even for the first time in the Supreme Court. See: Salati v Shehu (1986) 1 NWLR (Pt 15) 198; A-G. Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 1; Management Enterprises Ltd v. Otusanya (1987) 2 NWLR {Pt.55} 179.
It is however, important to note that what the statute bars is the action and not the cause of action. This important distinction is not often understood. Whereas the cause of action refers to the facts or combination of facts which the plaintiff must adduce to be entitled to any relief, the action itself is the medium which affords him the opportunity to ventilate his bundle of facts, Patkum Industries Ltd v Niger Shoes Ltd (1988) 5 NWLR (Pt. 93) 138. Put differently, a plaintiff's right of action eventuates from the existence of a cause of action,Ikine v Edjerode12 KLR (Pt 131) 3711, 3724.
In the context of this distinction, what emerges is that whereas the plaintiff's cause of action remains intact, although in a vacuous and bare form, a statute of limitation denudes him (the plaintiff) of his action, that is, (2001) his right of enforcement; the right to judicial relief, Egbe v Adefarasin (1987) 1 NWLR (Pt. 47) 1; Eboigbe v NNPC (1994) NWLR (Pt. 347) 549.
There is a window of opportunity or a way of escape for an appellant who complains that he was tried and convicted under a repealed law. The first opening is for the appellant to show that he was misled or that his counsel was misled in the process of being tried under the repealed or non-existent law. OR that there was a miscarriage of justice arising from the trial. Unfortunately in this case, the appellant failed woefully to show that he was so misled or that there was any miscarriage of justice.
In law a void act is an act which has no legal effect or consequence. It does not confer any legal right or title whatsoever, and it does not also impose any legal obligation or liability on any one or make any party liable to suffer any penalty or disadvantage.
Okafor v. A-G., Anambra State (1991) 6 NWLR (Pt.200) pg. 659
Saleh v. Monguno (2003) 1 NWLR (Pt. 801) pg. 221
Before any person can be charged with an offence and convicted for the commission of that offence, there must be a written law which can be referred to. That law must be enacted by the National Assembly or by the State House of Assembly, or a law made by the Local Government Authority or bye-law which is made pursuant to another law. It is not enough that the written law should prohibit an act or mandate the performance of the act but must provide punishment for the transgression either in that law or another written law.
Let me state straightaway that it is the substantive law in operation at the time an offence is said to have been committed that has to be referred to when a person is being charged to Court. Thus if a person is charged with offence of Money laundering in 2010, it must be the Money Laundering Act as at 2010 that will be used and not the Money Laundering Act at the time he is finally arraigned for trial in Court but the procedural law to be used would be the current one. Thus if the Evidence Act or the criminal procedure Law has been amended or replaced and a new one is in place at the time of trial, it is the amended or newly enacted Evidence Act/Criminal Procedure code that will be used to guide the trial. Thus it is the Evidence Act 2011 that will be used in the trial or appeal taking place in 2018 notwithstanding that the offence was committed in 2008.
In my view, an aggrieved person as in the circumstances of this appeal can be likened to a party interested as espoused by this Court, per Mohammed, CJN (Rtd.) in the case of NWAOGU VS ATUMA (2013) All FWLR (669) 1022 at 1034 where His Lordship stated the law in these words:
"..... for a person to qualify as a person interested, the Applicant must show not only that he is a person having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against pre-judicially affects his interest. In other words, to succeed in the application, the applicant must show that they are persons who are aggrieved, or persons who have suffered legal grievances, or persons against whom decisions have been pronounced which have wrongly deprived them of something or wrongly refused them something or wrongly affected their title to something."
See also In RE: UGADU (1988) 5 NWLR (Pt. 93) 189.
This court has made it clear a number of times that before a point not raised in the courts below could be entertained in this court, it must be satisfied that it is a substantial point of law and that no evidence could have been given which, if it were raised in the court below, would have affected the decision. See Shonekan v. Smith (1964) 1 All NLR 168 at (Pt.1) 173; Akpene v. Barclays Bank of(Nig.) Ltd. & Anor. (19) 1 SC 47. See also Kate Ent. Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116; Adegbaiye v.Loyinmi (1986) 5 NWLR (Pt. 43) 655."
Again and for purpose of driving the point home further in the case of Alhaji Raimi Akanji Yusuf & Ors v. Alhaji Akindipe & Ors (supra), this Court made pronouncements severally on this issue of juristic personality of a plaintiff to sue. In recounting certain excerpts of the pronouncements, it was emphasized that the group or class of persons sought to be represented if identified easily and have common purpose, will suffice a representative capacity.
The law is trite that when a group of class of persons sought to be represented in a suit are easily identifiable and have common purpose as in the instant case, they can institute a suit in a representative capacity to seek remedy in a Court of law.
I agree with learned counsel to the 1st respondent that notice of appeal is the foundation of the appeal and that non-service of the notice, if established, goes to the root of the appeal. The defect is not a mere irregularity as, being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal. This Court has repeatedly held that service of an initiating process, which the notice of appeal is, is a sine qua non for a Court to assume jurisdiction over a case. In S.G.B.N. Ltd v. Adewunmi (2003) 10 NWLR (Pt.829) 529 this Court restated its concerns thus:-
"Service of a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seised of the matter. Clearly due service of process of Court is a condition sine quo non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set-aside as a nullity.
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What a Court usually considers where a no-case submission is made, is whether the Prosecution has made out a prima facie case requiring, at least, some explanation from an Accused – see Tongo V. C.O.P 12 NWLR (Pt. 1419) 525 SC. A prima facie case in a criminal trial is one that has proceeded up to where it will support findings if evidence to the contrary is disregarded, and prima facie evidence means evidence, which on the face of it, is sufficient to sustain the charge against the Accused – see Abacha V. State (2002) 11 NWLR (Pt. 779) 437 SC, and Ajidagba V. Inspector General of Police (1958) SCNLR 60,
Court procedures are done in a methodical manner and not in a lackadaisical way or as the whim takes a party thus producing a confused untidy atmosphere which would not augur well for our adjudicatory system. See Durwode v. State(2000) 15 NWLR (Pt.6) 467 at 488; Nnakwe v. State (2014) 10 NCC 189; Ogunye v. State (1999) 5 NWLR (Pt.604) 518.
Indeed the Court of Appeal has no jurisdiction to quash any information or count unless there has been an application to quash it at the trial."
n ANTHONY OKORO V. STATE (2012) 7 NCC page 184.This Court held that:
"There is a distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of the trial of a case."
See also IDEMUDIA V. STATE (1999) 7 NWLR (Pt.610) 202.
Litigants should expect no technical but substantial justice from this Court. We have said several times that we are not a workshop for technical justice. Over and over again, we have reiterated the need to do substantial justice and avoid delving into the error of technicalities, see for exle the case of NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C) V. JOHNSON (2007) 49 W. R. N. Pages 169-170 where per PETER-ODILI, JCA (as he then was) opined as follows:-
"..... The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See MAKERI SMELTING CO. LTD V. ACCESS BANK (NIG) PLC(2002) 7 NWLR (Pt.766) 441 at 476 – 477 The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit.
Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits."
See also AJAKAIYE V. IDEHIA (1993) 8 NWLR (Pt. 364) 504, ARTA IND. LTD V. NBCI (1997) 1 NWLR (Pt.183) 574, DAKAT v. DASHE (1997) 12 NWLR (Pt. 531) 46, BENSON V. NIGERIA AGIP CO. LTD (1982) 5 SC. 1."
The offence of conspiracy is a separate and distinct offence from the offence of armed robbery. The act of conspiracy may be based on the same facts or set of facts as the main offence of armed robbery but not in all cases. On the distinction between the two offences, it was held in Balogun v. A.G. Ogun State (2002) 2 SC (Reprint) (Pt.11) 89 @ 96 per Uwaifo, JSC as follows:
Conviction for conspiracy does not become inappropriate simply because the substantive offence has not been proved. It is a known principle of law that conspiracy to commit an offence is a separate and distinct offence and is independent of the actual commission of the offence to which the conspiracy is related. The offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted, or may have become impossible to commit.
The challenge of the plaintiffs/respondents to sue in a representative capacity for themselves and on behalf of the members of the 5 villages does not lie in the mouth of the Defendant/Appellant who has nothing to share in the victory of the plaintiffs/Respondents. This is in view of the settled law as held by this Court that a Defendant/Appellant cannot challenge the capacity of the plaintiffs/Respondents. See the decision delivered on Friday 10th day of July, 2009 in the case of Shell Petroleum Dev. Company Nig. Ltd. V. Chief T. Edamkue & Ors. (Under reference supra) at page 430 wherein it held that:
"Once the Plaintiff/Plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity as appear in the two (2) consolidated suits in the instant case it is/was prima facie, though not conclusive evidence of authority by his/their group, family or community to sue in that capacity. It is only a member of that group, family or community who can dispute, intervene or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile from a defendant who is not one of those the plaintiff/plaintiffs purport to represent, to challenge his/their said authority, for or because, if the plaintiff/plaintiffs wins/win, the losing defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect the defendant adversely."
Of course, Appellant was represented by Counsel, who was present when the PW1 identified the documents named as Exhibits A to Z2. Counsel had not raised objection to the procedure of tendering the documents as exhibits, but proceeded to cross examine the PW1, after he (PW1) had adopted his statement on Oath and identified the Exhibits. Appellant cannot be heard to complain, now, especially as Appellant had also adopted and used the Exhibits, particularly, Exhibits A to G, N and W. See also Alfa vs Attai & Ors (2017) LPELR 42579 SC.
The law is trite, that where an action as in this case, was commenced by a procedure that is irregular, a party who took active part in the proceeding without raising a formal objection to the irregular procedure cannot later be heard complaining and praying that the action be set aside on ground of irregularity, which he himself had earlier acquiesced. See Saude vs Abdullahi (1989) LPELR 3017 (SC). See also Vincent Standard Trading Co. Ltd vs Xtodeus Trading Co. (1993) LPELR 3463
I have no doubt at all that a claim under the common law can properly be joined in an application under Section 42 of the 1979 Constitution, where such a claim is secondary, ancillary or incidental to the complaint of a breach of fundamental right. In the instant case, the claims as found by both the High Court and the Court of Appeal were common law claims or reliefs which were wrongly brought under the Fundamental Rights (Enforcement Procedure) Rules instead of by Writ of Summons. This is a fundamental breach and not a mere technicality, which can be waived or ignored. One of the indicia of jurisdiction as laid down in Madukolu v. Nkemdilim (1962) All N.L.R. (part 2) 581 at 589, is that the action is initiated by due process of law, which in this case is by writ of summons. That is lacking here (see Tukur v. Gongola State (supra); Federal Minister of Internal Affairs v. Shugaba Darman (supra).
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Abdulhamid v. Akar & Anor, LGC(5/5/2001) SC (E)
Issue (2) relates to the competency of the Applicant's action and whether or not its competence could have been determined by reference solely to the nature of the reliefs or claims sought as was done by the Court of Appeal. The answer to me is simply 'yes', in the affirmative. The Court of Appeal was right to have considered the reliefs or claims only, and without reference to anything. It is settled and a fundamental principle that jurisdiction is determined by the Plaintiffs claim or relief. In other words it is the claim before the Court that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction conferred on the Court
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Abdulhamid v. Akar & Anor, LGC(5/5/2001) E
It would seem from S.P.D.C. NIG. LTD. v. EDAMKUE (2009) 14 NWLR (pt.1160) 1 at 27 – 28 that the defendant, in a suit or action brought in a representative capacity, upon authorization of the other persons with common interest, has no locus standi to object to the said representation since he is not member of the group of persons that authorized the named plaintiff(s).
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A.G KWARA STATE AND ANOR V. ALHAJI (HON) ISHOLA LAWAL & ORS LGC(28/4/2017) I
To further corroborate the English Court of Appeal on this point, this Court has held in EJAKPOMEHWE AKPOREDE & ANOR v ISICHERI OKEI & ORS. (1973) 12 SC 137; MBA ORIE & ANOR v OKPAN UBA & ANOR. (1976) 9 – 10 SC 123 that all order made, on application for leave to bring an action in a representative capacity, can only be set aside on appeal by the party aggrieved thereby.
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A.G KWARA STATE AND ANOR V. ALHAJI (HON) ISHOLA LAWAL & ORS LGC(28/4/2017) I
The law is trite that where two actions of similar or same nature are between the same parties and on the same subject matter seeking the same result are being prosecuted simultaneously or concurrently before the same Court or different Courts, the latter action is an abuse of the Court's process. l agree with the respondents on this.
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A.G KWARA STATE AND ANOR V. ALHAJI (HON)
The main objective of Preliminary Objection is to terminate the appeal in limine without going into its merits or substance.
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A.G KWARA STATE AND ANOR V. ALHAJI (HON)
The respondent, objectors, do not seem to appreciate the distinction between preliminary objection and a ground of appeal. The main objective of Preliminary Objection is to terminate the appeal in limine without going into its merits or substance.
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A.G KWARA STATE AND ANOR V. ALHAJI (HON) ISHOLA LAWAL & ORS. LGC(: (28/4/2017) G
There is nothing before this Court to indicate that the learned SAN for the appellant Mr. Ibrahim, betrayed the trust reposed in him by the appellant or that he acted contrary to the instruction given to him by the appellant when he conceded that Relief No 6 is spent, overtaken by event and no longer worthy of pursuing. It is relevant, here, to cite the case of Attorney General of the Federation v. A.l.C Ltd & Ors (1995) 2 NWLR (Pt. 378) 388, where Ogundare, JSC (Rtd and now late) stated:
A counsel retained to conduct a case has general authority to consent to the withdrawal of the case and a compromise is within his apparent authority and binding on the client notwithstanding that the client may have dissented unless the dissent was brought to the notice of the opposite party at the time. The apparent authority with which a counsel is clothed when he appears to conduct a case is to do everything which in the exercise of his discretion he may think best in the interest of his client in the conduct of the case if within the limits of his apparent authority he enters in an agreement should he be held binding on his client. But this general authority is predicated on the existence of a counsel/client relationship.
Therefore, a counsel can, in the course of performing his professional duties, commit his client either by way of a specific undertaking or by clear admission.
Appellant's tenure has long expired. Not only has his successor been elected, the successor is now in his second year of a four year term. These facts underline the impossibility, nay the absurdity, of the grant of appellant's 6th relief, the chances of which has further been negated by the fact of its being withdrawn at and not having been considered and pronounced upon by the lower Court. This Court lacks the jurisdiction of dwelling on and granting the appellant the relief he seeks. I take the liberty of concluding this judgment by restating the principle outlined by this Court in the case of Prof. Edozien & 4 Ors v. Chief (Engr) Edozien (1993) 1 NWLR (Pt 292) 678thus:-
A party comes to Court for an alleged wrong done to him, or he seeks a declaration in respect of certain right. The moment he decides to exercise his unfettered right not to pursue his action, what is left for the Court is the order to be made as it is outside the Courts jurisdiction to force a party to continue an action filed by him."
A suit does not become academic simply because what gave rise to the action is concluded. A pre-election matter that was instituted prior to the conduct of an election subsists and the Court in which it is/was instituted continues to have jurisdiction to hear and determine the said pre-election matter even after the conduct of the election. See;
Odedo v. I.N.E.C. & 2 Ors (2008) 7 SC p.25
Gwede v. I.N.E.C. & 3 Ors (2014) LPELR-23763
The complaint of the appellants is that the primaries of the 1st defendant held on 4th December 2014 was not done in compliance with the provisions of Section 87 of the Electoral Act 2010 and the A.P.C. guidelines. The appellants not only have a complaint but a good cause of action, the appellants were thus correct to bring their action in the Federal High Court as provided by Section 87 (9) of the Electoral Act 2010 (with 2011 amendment) see also;
Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) p.230
P.D.P. v. Sylva (2010) 12 NWLR (Pt. 1316) p.85
Daniel v I.N.E.C. (2015) NWLR (Pt. 1463) p.113
Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) p.591
In Plateau State v. Attorney-General of the Federation (2006) 3 NWLR (Pt. 967) p.346, this Court said that:
"A suit is academic where it is thereby theoretical, makes empty sound and of no practical utilitarian value to the plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity." See also Odedo v. I.N.E.C. (2008) 17 NWLR (Pt. 1117) p.554
Once a suit no longer has live issues for determination such a suit can be said to be academic. Courts should on no account spend judicial time, or engage in academic exercise. Courts are to determine only live issues. See;
Oyeneye v. Odugbesan (1972) 4 SC p.244 Bakare v. A.C.B. Ltd (1986) 3 NWLR (Pt. 26) p.37
Okulate v. Awosanya (2002) 2 NWLR (Pt. 645) p.530 Nkwocha v. Gov. of Anambra State (1984) 1 SCNLR p.634
It is trite that jurisdiction is a threshold issue. It is the blood that gives life to an action in a Court of law. It is the bedrock of any judicial proceeding and any action heard and decided without jurisdiction is a nullity. The entire proceeding is a nullity no matter how well conducted. See ODUAH VS. OKADIGBO (2019) 3 NWLR (PT. 1660)433, MUSACONI LIMITED VS. ASPINALL (2013) 14 NWLR (PT. 1375) 435 and UTIH VS. ONOYIVWE (1991) 1 NWLR (PT. 166)166.
The basis of the complaint of the Appellants on the jurisdiction of the lower Court to entertain the action before it is the pendency of a criminal charge against the Respondent at the time of hearing of the application for the enforcement of fundamental rights. The law is settled that jurisdiction is the authority by a Court to decide matters brought before it and such authority is conferred by the Constitution of the Federal Republic of Nigeria 1999 (as amended) or by statute.
Courts guard their jurisdiction jealously and a Court will not readily divest itself of jurisdiction unless expressly stated by legislation.
See ABDULRAHEEM VS. ODULEYE (2019) 8 NWLR (PT. 1674)269, ATTORNEY GENERAL, LAGOS STATE VS. ATTORNEY GENERAL, FEDERATION (2004) 18 NWLR (PT. 904)1. PER OJO, J.C.A.
It is trite that jurisdiction is a threshold issue. It is the blood that gives life to an action in a Court of law. It is the bedrock of any judicial proceeding and any action heard and decided without jurisdiction is a nullity. The entire proceeding is a nullity no matter how well conducted. See ODUAH VS. OKADIGBO (2019) 3 NWLR (PT. 1660)433, MUSACONI LIMITED VS. ASPINALL (2013) 14 NWLR (PT. 1375) 435 and UTIH VS. ONOYIVWE (1991) 1 NWLR (PT. 166)166.
The basis of the complaint of the Appellants on the jurisdiction of the lower Court to entertain the action before it is the pendency of a criminal charge against the Respondent at the time of hearing of the application for the enforcement of fundamental rights. The law is settled that jurisdiction is the authority by a Court to decide matters brought before it and such authority is conferred by the Constitution of the Federal Republic of Nigeria 1999 (as amended) or by statute.
Courts guard their jurisdiction jealously and a Court will not readily divest itself of jurisdiction unless expressly stated by legislation.
See ABDULRAHEEM VS. ODULEYE (2019) 8 NWLR (PT. 1674)269, ATTORNEY GENERAL, LAGOS STATE VS. ATTORNEY GENERAL, FEDERATION (2004) 18 NWLR (PT. 904)1. PER OJO, J.C.A.
In addition, in law, the main or primary reason for making a person a party to legal proceedings of a Court of law is so that he should at the end, be bound by the result, orders, decision or judgment of the Court in the action. See Olawoye v. Jimoh (2013) LPELR-20344(SC); (2013) 13 NWLR (Pt. 1371) 362; Azubuike v. P.D.P. (2014) LPELR-22258(SC); (2014) 7 NWLR (Pt. 1406) 292; In Re: N.D.I.C. (2007) 7 NWLR (Pt. 1032) 54. MOHAMMED LAWAL GARBA, J.S.C.
Locus standi is a legal terminology that explains the legal capacity and interest of a plaintiff in the action he brings to Court. The claim (writ and statement of claim) must trace his right/interest to the substance of the litigation and/or property in dispute identifying his subsisting actionable right/interest, to justify the taking of the action. There must be a beneficial right accruing to him, either as an individual or group, in the claim, as opposed to the general rights of bye-standers.
See the case of Bakare & Ors Vs Ajose-Adeogun & Ors (2014) LPELR-25024 (SC), where it was held: “What then is “locus standi?” This is a Latin phrase meaning “place of standing”. The right to bring an action or to be heard in a given forum. See Black’s Law Dictionary Ninth Edition page 1026. In other words, locus standi is the legal capacity of plaintiff/claimant to institute an action in a Court of law in exercise of the claimant’s constitutional right. That is the reason the issue can be raised in limine after the Statement of Claim has been filed and served.
Therefore, ordinarily, if the Statement of Claim discloses no personal sufficient interest in the subject matter of the case, the plaintiff will have no locus standi to institute the action and the Court will have no jurisdiction to entertain same. See Professor T. M. Yesufu v. Governor of Edo State & Ors (2001) LPELR 3526; (2001) 8 SCM 189.” Per ARIWOOLA, JSC . PER MBABA, J.C.A.
For an action to be qualified as a Fundamental Right Action, the central question or the main claim must be for Enforcement of Fundamental Right or the securing of the Enforcement of Fundamental Right. It must not be the consequential human right issue or question which emanates or seeks to unravel another question. The Fundamental Right claim involved must not be a claim that is an offshoot of the main claim. The Fundamental Right Claim must be the main or principal claim in the suit.
See GAFAR VS KWARA STATE GOVT (2007) NSCQR VOLUME 29 PAGE 34; UNILORIN VS OLUWADARE (2006) NSCQR VOLUME 27 PAGE 18; EGBUONU V BOMO RADIO TELEVISION CORPORATION (1991) 2 NWLR 81 AT P.90; SEA TRUCKS NIGERIA LIMITED VS ANIGBORO (2001) NSCQLR VOLUME 5 PAGE 120.
In LAGOS SHERATON HOTEL VS HPSSSA (SUPRA), His Lordship, Per OSEJI, JCA (as he then was) admonished Litigants to refrain from trying to circumvent the provisions of Section 243 (2) of the 1999 Constitution of the Federal Republic of Nigeria under any guise to appeal the decision of the National Industrial Court in matters they are not allowed to appeal against. His warning is endorsed and he stated thus: “….
Litigants who seek to circumvent or evade the provisions of Section 243(2) and of the Constitution by seemingly waving the magic wand of fair hearing or breach of fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court on matters falling outside the allowed scope, should be advised not to underestimate the sharp sense of perception and wisdom of the Appellate Courts to sift the wheat from the chaff.
Undoubtedly, in deserving cases, the Court will not relent in defending the course of justice, given its Status as the dynamic Agency for the protection of the Rule of Law.” PER BANJOKO, J.C.A.
In any case, the appellant did not appeal to the Court of Appeal the decision of the trial Court that “In any case, the transaction that gave rise to the petition upon which the applicant was arrested and detained” was a purely civil transaction without criminal content or undertone whatsoever. By not appealing the finding, the appellant is deemed to have agreed with the said decision. Consequently, the arresting authority failed to discharge the burden cast on it proving the legality or constitutionality of the arrest and/or detention of the 1st respondent. See C.O.P. Ondo State v.
Obolo (1989) 5 NWLR (Pt. 120) 130 at 138; Iyere v. Duru (1986) 5 NWLR (Pt. 44) 665 SC: Joe Sandy v. Tohanne Hotegua & Anor 14 WACA 18. In Singh v.
Delhi 16 Supreme Court Tournai, the Supreme Court of India warned: “This Court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they consider to be their duty must strictly observe the norms and rules of the law.” The fact that a person has been accused of a crime, however serious, will not deny that person access to Court to enforce his fundamental right if these rights have been violated. See Duruaku v. Nwoke (2015) 15 NWLR (Pt. 1483) 417. After all, he is presumed innocent unless proven guilty.
PER NGWUTA, J.S.C.
Invariably, the noun ‘right’ literary means that which is proper under law, morality, ethics, et al; in contradiction to wrong; know right from wrong.
Jurisprudentially, the term ‘right’ denotes something that is due to a person by just claim, legal guarantee or moral principle - the right of liberty; a power, privilege, or immunity accorded a person by law the right to dispose of one’s property or estate; a legally enforceable claim that another will do or will not do a given act; the interest, claim, or ownership that one has in tangible or intangible property; the privilege of corporate shareholders to purchase newly issued securities in amount proportionate to their respective holdings.
According to Gray: The right is correlative to duty, where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without rights. In order for a duty to create a right, it must be a duty to act or forbear. Thus, among those duties which have rights corresponding to them do not come the duties, if such there be, which call for an inward state of mind, as distinguished from external acts or forbearances. It is only to acts and forbearances that others have a right. It may be our duty to love our neighhour; but he has no right to our love.
See John Chipman Gray: NATURE AND SOURCES OF THE LAW edition 1921 @ 89, copiously alluded in BLACK’S LAW DICTIONARY, edition 2019 @ – 1582. IN AMERICAN BANK & TRUST CO. VS. FEDERAL RESERVE BANK OF ATLANTA (1921) 256 @ 500 US. 350, 358, 41 SC et 499 @ 500, the US Supreme Court aptly held: “[T]he word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.” PER SAULAWA, J.C.A.