➥ CASE SUMMARY OF:
Justice Onnoghen Nkanu Walter Samuel v. The Federal Republic of Nigeria (2019) – CA
by PipAr Chima
Court of Appeal – CA/A/44C/2019
➥ JUDGEMENT DELIVERED ON:
Friday, the 10th day of May, 2019
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ GROUND OF APPEAL WHICH NO ISSUE HAS BEEN FORMULATED WILL BE STRUCK OUT
A ground of appeal which no issue has been formulated or has no bearing with any issue canvassed in the appeal is deemed abandoned and liable to be struck out. – T. Akomolafe-Wilson, JCA.
⦿ GROUND CHALLENGING JURISDICTION & FAIR HEARING IS OF LAW
It is settled law that a ground of appeal challenging the jurisdiction of Court is a ground of law. It is also settled law that a ground of appeal which complains of a breach of fair hearing is a ground of law. – T. Akomolafe-Wilson, JCA.
⦿ APPEAL FROM CODE OF CONDUCT TRIBUNAL IS OF RIGHT
✓ It is interesting to note that by Section 246(1)(a) CFRN “An appeal shall as of right from the decisions of the Code of Conduct Tribunal established by the Fifth Schedule to the Constitution”. Unlike all the other Courts, there is no provision for seeking to leave to appeal against the decision of the Code of Conduct Tribunal. The implication is that any appeal from the decision of the Code of Conduct Tribunal to the Court of Appeal is as of right in any circumstance.- T. Akomolafe-Wilson, JCA.
✓ Leave is not required for a party to appeal to the Court of Appeal against decision of the Code of Conduct Tribunal, either on interlocutory or final decisions. It is also immaterial if the grounds of appeal are based on facts or mixed law and facts. – T. Akomolafe-Wilson, JCA.
⦿ THE GENERAL PRINCIPLE OF LAW IS THAT JURISDICTION MUST BE HEARD FIRST
The general principle of law, backed up by legion of authorities from the apex Court is that where a jurisdiction of a Court is challenged, the Court should expeditiously attend to the objection before taking any other further step in the proceedings. The rationale behind this practice is that the question of jurisdiction of Court is a radical and crucial question of competence, for if a Court has no jurisdiction to hear and determine a case, the totality of the proceedings, including orders made therein, are and remain a nullity, no matter how well conducted and brilliantly decided they might be. In other words, once an issue of jurisdiction is raised, until it is resolved, the Court cannot hear any other applications or any issue except to first determine whether it is possessed of the jurisdiction to determine the case. The Supreme Court has stated severally that it is an exhibition of wisdom to first determine when the Court has the jurisdiction to entertain the matter before it. See Yusuf vs. Egbe (1987) 2 NWLR (Pt. 56) 341, Dapianlong vs. Dariye (2007) 8 NWLR (Pt. 1036) 332, Ukwu vs. Bunge (1997) 8 NWLR (Pt. 518) 527, Nnonye vs. Anyichie (2005) 2 NWLR (Pt. 910) 623, A – G Anambra vs. A-G, Federation (1993) 6 NWLR (Pt. 321) 962. – T. Akomolafe-Wilson, JCA.
⦿ SHIFT FROM THE GENERAL PRINCIPLE THAT JURISDICTION MUST BE HEARD FIRST
A Court is naked and exposed without jurisdiction. It is therefore the general rule to determine jurisdiction first whilst it is an exceptional rule to take steps in defending of protecting the authority of the court first before jurisdiction. However, in recent times, there appears to be a move or a shift by the courts away from the general principle of law which state that the issue of jurisdiction must be determined first before taking any other step in the proceedings. This is due to some unscrupulous litigants who perch on the general principle of objection of jurisdiction to intentionally delay litigation and prosecutions of cases to the annoyance of their adversaries and in most cases resulting to abuse of court processes. In such cases the litigants are bent to drag the issue of jurisdiction up to the Apex Court while the substantive matter is stayed in the trial court thereby resulting in delay of cases. In order to honour the time adage of “justice delayed is just denied,” some courts have employed the practice of hearing preliminary objections on jurisdiction along with the substantive matter but decide the issue of jurisdiction first in the judgment. Some courts also in the spirit of quick dispensation of justice, have also made Rules of Court which have provided for the consolidation of preliminary objection with any other court process where the other process is an originating summons where the facts are not in dispute. See Order 29 Rule 1 of the Federal High Court Rules, 2009; Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423, First Inland Bank Plc. vs. Alliance International Nigeria Limited delivered on 23/1/2013 in CA/E/96/2009. – T. Akomolafe-Wilson, JCA.
⦿ GENERAL PROVISION MUST GIVE WAY FOR SPECIFIC PROVISION
The law is trite that where there is a specific legislation on a matter, the general principle of law must give way and cannot override the specific provisions of law on the subject. See Orubu v. INEC (1988) 12 SCN) 256 at 349, Unity Bank Plc. v. Kay Plastic Nig. Limited & anor (2011) LPELR 8839 (CA). – T. Akomolafe-Wilson, JCA.
⦿ ADJOURNMENT AT DISCRETION OF COURT
Adjournment is at the discretion of the Court. – T. Akomolafe-Wilson, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Tinuade Akomolafe-Wilson JCA.
⦿ FOR THE APPELLANT
Aliyu Usman, SAN.
⦿ FOR THE RESPONDENT
Chief Adegboyega Awomolo, SAN.
➥ CASE HISTORY
Briefly the facts of the case are that on the 9th of January, 2019, the Code of Conduct Tribunal received a petition against the Appellant stating that the Appellant failed to declare and submit written declaration of all his assets and liabilities after being sworn in as the Chief Justice of Nigeria on the 8th day of June, 2005, and false declaration of his assets in the Asset Declaration Form submitted to the Bureau in 2016 and thereby contravened the provisions of the Code of Conduct Bureau and Tribunal Act, punishable under the same Act.
Subsequently, the Honourable Attorney General of the Federation on the 11th of January, 2019 filed at the Code of Conduct Tribunal six counts charge against the Appellant.
This is an appeal against the decision of the Code of Conduct Tribunal delivered on the 14th day of January, 2019 which ordered that the Appellant’s application challenging the jurisdiction of the Tribunal and the Respondent’s application for the removal of the Appellant to be adjourned to the same day and the “motions to be taken that day.”
The Appellant dissatisfied with the decision filed a Notice of Appeal the same day containing three grounds.
➥ ISSUE(S) & RESOLUTION
I. Whether the lower Tribunal rightly exercised its discretion to consolidate or hear together the Appellant’s Notice of Preliminary Objection and Respondent’s interlocutory application to the 2nd January, 2019 for hearing?
RULING: IN RESPONDENT’S FAVOUR.
A. In the light of the foregoing, the contention of the Appellant that as the lower Tribunal’s jurisdiction was being challenged, the only course of action validly opened to it is to determine immediately, whether it has jurisdiction first, is not tenable having regards to the provision of Section 396(2) of ACJA. In the same vein, the contention that the Appellant’s right of fair hearing was breached by the consolidation of the two pending motions is also of no moment. It is not every time a party complains about lack of fair hearing that the court will respond to his request. There must be specific proof of such denial of opportunity to be heard and not a mere presumption of its breach. Osayande vs Hon. Aikpitanyi & ors (2010) LPELR 4802 (CA), Adebayo vs. Ogun (2005) 20 WRN at page 19.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Sections 221, 306, 396, ACJA 2015;
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)