From the Court

Landmark judgement

 

HIS ROYAL HIGHNESS ALHAJI IBRAHIM SULU GAMBARI & ILORIN EMIRATE COUNCIL

V

ALHAJI SHUAIB ADIO MAHMUD (BALOGUN ALANAMU OF ILORIN)

& ALHAJI ABUBAKAR AKANBI JOS COURT OF APPEAL

(ILORIN DIVISION) CAL/IL/38/2006

HAUMMAI HANNATU SANKEY.K.C.A. (President)

IGNATIUS IGWE AGUBE, J.C.A.

CHIMA CENTUS NWEZE, J.C.A. (Read the Leading Judgement) MONDAY, 11 MAY, 2009

At the Kwara State High Court, the 1st respondent by writ of summons against the defendant/appellants challenged his removal from office as the Balogun Alanamu of Ilorin and Kingmaker. Upon being served with the writ, the appellants brought a notice of preliminary objection to the competence action. The grounds of the objection were that the honourable court lacked the vires and jurisdiction to entertain the suit, conditions precedent having not satisfied; the case was not duly and properly initiated and was incurably defective; the procedure adopted in initiating the suit wasn’t appropriate; and that the court process purportedly served on the 2nd respondent was liable to be set aside having not been done in compliance with the law. After hearing argument for and against the preliminary abjection, the trial court struck out the said preliminary objection. Dissatisfied with the decision, the appellant appealed to the Court of Appeal. It was submitted on behalf of the appellant that, noncompliance with Order 2 rule 2(2) of the High Court of Kwara State (Civil Procedure) Rules, 2005 at the time of filing the action was fatal to the action. In resolving the appeal, the Court of Appeal considered the provisions of Order 4 rule 1 of the High Court of Kwara State (Civil Procedure) Rules, 2005 which provides: Wherein beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any order respect, the failure may be treated as an irregularity and if so treated will not nullify the proceedings, or any document; judgment order therein. Held (Unanimously dismissing the appeal). On Duty of court to consider all issues raised by parties. It is always right to consider all the issues raised except for compelling reasons where those other issues have been obviously overridden by a fundamental defect. In the instant case the trial court appreciated the crux of the compliant of the appellants as encapsulated in the preliminary objection. Above all the court dealt with the issues. Balogun v Labiran (1989) 3 NWLR (Pt. 396) 385 referred to. (P.289, paras. D-H) 2. On Rationale for codification of frontloading requirement Per Nweze, JCA at page 295, paras. C-H: Mallam Yusuf Ali, learned Senior Advocate for the appellant, had observed that the provisions or Order 2 Rule 2(2) (a)-(d), of the 2005 Rules of High Court of Kwara State are innovations introduced by the 2005 Rules. True, indeed, Order 2 rule 2(2) paragraphs (a)-(d) codify the requirements of frontloading, a term which made its first appearance in the lexicon of contemporary Civil Procedure through the Woolf Reforms in England and Wales. The rationale for statutory endorsement of this concept is that through its espousal the configuration and delineating of the contours of forensic contests may be attained with considerable facility such that their resolution could be achieved at the earliest opportunity and with minimal costs. The ultimate objectives of this technique, and the other equally innovative features of the rules, are for the evolution of a user-friendly trial procedure in which the Judge can effectively and efficiently manage the flow of cases in the court. Against this background, therefore, I take the view that contrary to the submission of the appellants counsel, the facts of this case cannot be pitch forked into any of the inveterate prescriptions which Bairamaian JSC laid down in the cause , Madukolu v. Nkemdilim (supra), which he relied on. Again, with profound respect, I equally take the view that from the antecedents of this case, there is no warrant for his invitation to this court to invoke section 15 of the Court of Appeal Act. Let me elaborate. In my leading judgment in Biodun Olujimi v. Ekiti State House of Assembly and Anor Appeal No CA IL/29/2008, delivered on November 21, 2008. I had occasion to voice my appreciation of the intendment of the provisions of the said section 15. For their bearing on this point, I take liberty to adopt those views as my views in the instant appeal. Section 15(supra) is a woolly sentence of two hundred and four words! In all, ten general powers are exercisable by the Court of Appeal under the said section. They are enumerated in one long, clumsy, inelegantly-couched sentence of ten clauses with nine conjunctions! What learned counsel actually wants this court to invoke is the sixth clause in that section, that is, the clause, which provides that the court generally shall have full jurisdiction over the whole proceedings. However, I take the view that the clause merely confers on the court general powers: general powers over the whole appeal proceedings as if they had been instituted in the court as the court of first instance. Even then, the exercise of those general powers is subject to certain limits, A.-G. , Anambra v.Okeke(2002) 12 NWLR (Pt. 782) 575, 606-607; Abubakar v. Joseph (2008) All FWLR (Pt. 432) 1065, 1087, (2008) 13 NWLR (Pt. 1104) 307. For instance, the section does not allow this court to make any order which the trial court could not have made in resolving the real controversy between the parties in a particular case, Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1; N.C.C. v. M.T.N (Nig) Comm. Ltd (2008) 7 NWLR (Pt. 1086) 229,270. What is more, even the power to facilitate the determination of the real issue in controversy in an appeal before it, C.G.G. (Nig) Ltd v. Ogu (2005) 14 QRN 1, (2005) 8 NWLR (Pt. 927) 366 is also subject to an important condition: they must be real issues arising out of, and concreted from, the notice and grounds of appeal, Uwaifo v. A.-G, Bendel State (1982) 7 SC 124, 188. For a clear appreciation of the raison detre of this power of the court, it is necessary to set out the chapeau or opening sentence of the section: The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal. The order envisaged by this sentence is not at large… It is a dependent or contingent order. That is, it is an order that can only be made when a ground of appeal has donated a question for resolution by the Court of Appeal. In effect, the section empowers the court to make any order that will enable it resolves the real bone of contention as set out in the ground of appeal. Put differently, a condition precedent to the invocation of this section 15  is that the ground of appeal must evince a question or dispute yearning for resolution by the Court of Appeal. Therefore, the opening section merely empowers the court to make such orders that could assist it in brokering a firm resolution of the real or main issue in that question thrown up by the ground of appeal. Unfortunately, this is not the position in this appeal. As noted above, on February 2, 2006, the lower court obliged the applicant now, the first respondent with and order for the extension of time within which to file the statement of claim, list of witnesses and copies of documents etc. In addition, by the said order, the court deemed the documents as duly filed and properly filed and served. Mohammed had argued, and we agreed with him, that with the hypothetical, as it has been overtaken by that order. We have had to consider the said issue out of the abundance of caution only as an intermediate court, which is under obligation to consider all issues raised for its consideration. Even then from the above exposition, it is not in doubt that this is not an appropriate occasion for the invocation of the section 15 powers of this court. We shall, therefore, with all polities, decline this invitation. In all, I find no merit in this issue. I hereby resolve it against the appellant. The consequence is that this appeal lacks merit. I hereby dismiss it.

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