3PLR – MRS. MERCY SABINA FORSON V. CALABAR MUNICIPAL GOVERNMENT & ANOR
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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MRS. MERCY SABINA FORSON
V.
CALABAR MUNICIPAL GOVERNMENT & ANOR
COURT OF APPEAL
[CALABAR DIVISION]
CA/C/101/2000
3PLR/2003/77 (CA)
OTHER CITATIONS
9 NWLR (PT. 878) 411
BEFORE THEIR LORDSHIPS
RAPHEAL OLUFEMI ROWLAND, JCA (Presided)
SIMEON OSUJI EKPE, JCA
ISTIFANUS THOMAS, JCA (Delivered the leading judgment
REPRESENTATION
Okoi Ofem Obono-Obla ESQ., – for appellant
Eyet N. Eyibio ESQ. – for 1st respondent
MAIN ISSUES
PRACTICE AND PROCEDURE – COURT – Judgment of court – where obtained by fraud – whether court is competent to set aside same even where issue of jurisdiction is properly raised.
PRACTICE AND PROCEDURE – COURT – Jurisdiction of – where appellant had conceded the jurisdiction of lower court – whether can be estopped from challenging same.
PRACTICE AND PROCEDURE – COURT – Jurisdiction of court – how ascertained.
PRACTICE AND PROCEDURE – COURT – Jurisdiction of court – whether challenged by the appellant therein.
PRACTICE AND PROCEDURE – EVIDENCE – Content of exhibit – how same can be denied or controverted.
PRACTICE AND PROCEDURE – EVIDENCE – Public document – how to prove same – provision of section 113(a) of the Evidence Act considered.
INTERPRETATION OF STATUTE – Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria 1990 – respondents counsel – whether respondent’s counsel is a legal practitioner thereunder.
INTERPRETATION OF STATUTE – Section 113(a) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 – how a public document can be proved.
INTERPRETATION OF STATUTE – Sections 88 and 89 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 – when a deponent is relying on statutory instrument, or Act, or law – whether same need not disclose the source of his information therein.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Judgment of court – where obtained by fraud – whether court is competent to set aside same even where issue of jurisdiction is properly raised.
PRACTICE AND PROCEDURE – JURISDICTION – Jurisdiction of court – how ascertained.
PRACTICE AND PROCEDURE – JURISDICTION – Jurisdiction of court – where appellant had conceded the jurisdiction of lower court – whether can be estopped from challenging same.
PRACTICE AND PROCEDURE – JURISDICTION – Jurisdiction of court – whether challenged by the appellant therein.
LEGAL PRACTITIONER – Counsel leveled with allegation of incompetence – whether same can delegate to another to depose to an affidavit in respect of the allegation.
LEGAL PRACTITIONER – Counsel to the Local Government – whether competent to represent Local Government in court – peculiar circumstances of this case considered.
LEGAL PRACTITIONER – Legal officer – where same is under salaried employment with Calabar Municipal Council – whether can appear as counsel in court.
MAIN JUDGEMENT
ISTIFANUS THOMAS, JCA (Delivering the leading judgment):
This is an interlocutory appeal against the ruling of Obi J. of Calabar High Court delivered on 20th March, 2000 in which the trial court overruled the motion on notice by way of preliminary objection by the appellant.
The brief fact of the case is that on 20th May, 1997, the respondents through their counsel Edet E. Okon Esq. took out a writ of summons in the High Court, Calabar, seeking the following reliefs:-
(a) A declaration that the defendant (present appellant) is not entitled to the judgment in suit No. C/70/79 delivered on the 12th day of May, 1992, same having been obtained by fraud.
(b) N2 million general damages and cost of the action.
Thereafter, the appellant brought an application on notice praying for the following orders:-
(i) An order restraining the purported counsel Edet E. Okon Esq to the plaintiffs/respondents from appearing or representing the said plaintiffs/respondents in this action.
(ii) An order striking out all the processes filed by the said Edet E. Okon Esq on behalf of the plaintiffs/respondents.
(iii) An order striking out the entire action on ground of want of competency.
After vigorous arguments by both parties on the above application the trial Judge in a considered ruling dismissed the application of the appellant. Aggrieved by the ruling, the appellant appealed and filed 5 grounds of appeal from which 5 issues for determination were formulated. They read as follows:-
(1) Whether from the totality of evidence before the lower court it was correct for the learned trial Judge to hold that learned counsel to the respondents was a legal officer, and therefore qualified to represent the respondents?
(2) Whether the learned trial Judge was correct when he held that the learned counsel to the respondents E.E. Okon was a legal practitioner as contemplated by Legal Practitioners Act Cap. 270, Laws of the Federation of Nigeria, 1990 and section 80 subsection 3(b)(i) of the High Court Law Cap. 51, Laws of the Cross River State of Nigeria, 1983?
(3) Whether it was correct for the learned trial Judge to admit in evidence exhibit CMG2 attached to the counter affidavit of the respondents?
(4) Whether it was correct in law for the learned trial Judge to hold that the issue of want of jurisdiction raised by the appellant was premature?
(5) Whether the learned trial Judge was correct to assume jurisdiction on the claim of the respondents in view of uncontroverted evidence before it that the court had earlier litigated upon the facts that were the fulcrum of the respondents’ claim?
Learned counsel for 1st respondent adopted and argued the issues formulated by learned counsel for the appellant.
In arguing issue No. 1, learned counsel to the appellant, referred to their motion on notice dated 8/4/1998 in which the following orders were prayed for:-
(i) An order restraining the purported counsel Edet E. Okon, Esq to the plaintiffs/respondents from appearing or representing the said plaintiffs/respondents in this action.
(ii) An order striking out all the processes filed by the said Edet E. Okon Esq on behalf of the said plaintiffs/respondents.
(iii) An order striking out the entire action on ground of want of competency.
The basis or grounds on which the above stated orders were being sought by the appellant read thus:-
(1) “The purported counsel to the plaintiffs/respondents who took out a writ of summons in this action on behalf of the plaintiffs/respondents is not qualified to appear or represent the plaintiffs/respondents by virtue of rules 30 and 31 (a) of the Rules of Professional Ethics of Legal Practitioners, Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990.
(2) The said purported counsel Edet E. Okon Esq. to the plaintiff/respondent being a civil servant or a salaried employee of the Personal Department of the Calabar Municipal Government or the Local Government Service commission is effectively barred by rules 30 and 31 (a) of the Rules of the Professional Ethics of the Legal Practitioners from appearing or representing the plaintiffs/respondents in this honourable court, including the Court of Appeal and the Supreme Court.
(3) The office which the said Edet E. Okon Esq., purported counsel to the plaintiffs/respondents is holding or occupying in the Calabar Municipal Government or Local Government Service Commission of the Government of Cross River State of Nigeria, does not fall within the purview of the offices which the Attorney General of Cross River State of Nigeria could by warrant or certificate, grant any person in the civil service of the Government of Cross River State of Nigeria to practice as a barrister and solicitor as contemplated by section 2 subsection 3(b) of the Legal Practitioners Act Cap. 207, Laws of the Federation of Nigeria, 1990.
(4) The said Edet E. Okon, Esq. is not a legal practitioner within the purview of section 80 subsection 3(b) of the High Court Law, Cap. 51, Laws of the Cross River State of Nigeria 1981; and
(5) The suit constitutes an abuse of the court process.
Also the relevant affidavit of the appellant in support of the motion on notice stated in paragraphs 4 – 9 as follows:-
(4) “The said Mr. Edet E. Okon is in the Personnel Department of the 1st plaintiff/respondent.
(5) The said Edet E. Okon Esq. is on secondment to the Calabar Municipal Government i.e. the 1st plaintiff from the Local Government Service Commission.
(6) I know as a fact that all actions or matters or proceedings by or against any ministry, extra ministerial department or parastatal of the Government of Cross River State are usually instituted by or defended by counsel from the office of the Honourable Attorney-General of Cross River State or law officers in his chambers.
(7) I know as a fact that Mr. E.E. Okon is neither a counsel nor a law officer of the Honourable Attorney-General of Cross River.
(8) I know as a fact that Mr. Edet E. Okon is not a legal practitioner in private practice.
(9) I know as a fact that Mr. Edet E. Okon is a salaried employee of the Local Government Service Commission on secondment to the 1st plaintiff”.
Learned appellant’s counsel also referred to the counter affidavit of the respondents particularly paragraph 3 thereof that states as follows:
- “That paragraph 3 is admitted only to the extent that Mr. E.E. Okon is an employee of the unified Local Government Service Commission employed by Calabar Municipal Government as legal officer, whose functions and duties are succinctly spelt out in the Federal Government approved scheme of service for Local Government Employee in Nigeria 1993.”
Learned counsel for the appellant, then contended that paragraph 3 of the counter affidavit of the respondents, is evasive and did not specifically answer the averments in the affidavit in support of the motion on notice. That instead of the purported counsel, E.E. Okon deposing to the counter affidavit himself, he allowed one Elizabeth Bale to be the deponent. Appellants counsel submitted that since the allegations in the affidavit of the appellants were specifically impugning the competence of Mr. E.E. Okon to appear to represent the respondents, he himself should have been the proper person to depose to the counter-affidavit refuting the allegation. Counsel for appellant alluded to the case of Onyeke v. Harriclem (Nig.) Ltd. (1998) 7 NWLR (Pt. 556) 64 at 67 for this preposition. Counsel then submitted that the counter-affidavit deposed to by one Elizabeth Bale was improper by virtue of section 88 of the Evidence Act 1990. That the trial court should have also struck out paragraph 4 – 12 of the counter-affidavit of the respondents, and urged us to do so by virtue of section 16 of the Court of Appeal Act 1990.
Still on issue 1, appellant’s counsel attacked and castigated the learned trial Judge who in his considered ruling stated as follows:-
“The learned counsel E.E. Okon Esq., in reply submitted that he is covered by the exceptions in rule 31(a)(ii) supra. I agree entirely with him because even the counsel to the defendant acknowledge the fact that E.E. Okon, Esq., is with the Local Government Service Commission. See paragraph 3 of the supporting affidavit. He is therefore legal officer of the Local Government Service Commission and that being the case, this court cannot comprehend why E.E. Okon Esq., should not appear or institute any action on behalf of the plaintiffs”
Appellant counsel then submitted that
“It is clear categorically and unequivocally that paragraph 3 of the affidavit of the appellant did not, by any stretch of construction, admit the fact that E.E. Okon, Esq., was a legal officer in the Local Government Service Commission. It is therefore submitted that the finding of the learned trial Judge in that regard is outrightly perverse as it is not supported by evidence before him.”
Learned counsel, continued to attack the findings and conclusion reached by the learned trial Judge on exhibits CMG 2 and C, annexed by the respondents to their counter affidavit dated 17/7/98. Learned counsel to the appellants is very bitter that his objection to the admissibility of exhibits CMG 2 and C was not sustained by the learned trial Judge, who in his considered ruling stated that
“The defendant/applicant ought to have filed further and better affidavit challenging or controverting the averments in the counter affidavit of the plaintiffs/respondents and having failed to do so, is fatal to her case.”
Learned counsel for the appellants further submitted that the failure to file a further and better affidavit by the appellants to challenge exhibits CMG 2 of the counter affidavit can not by any stretch of imagination be construed as an admission of the averment of the counter-affidavit of respondents.
It is the contention of appellant’s counsel, that exhibit CMG 2, from which exhibit C was extracted, is inadmissible in law because exhibit C is purported to be a gazette or circular of the Federal Government of Nigeria, and that on the face value, same was printed by a private company and that therefore by provisions of section 111 of the Evidence Act 1990, it was inadmissible. Learned counsel to appellants is of the view that failure of the trial Judge to make a ruling on his objection to the admissibility of exhibits CMG 2 was most unfair to the appellant. One of our fundamental principles of law, according to counsel, is that a Judge is bound to resolve all issues raised by a party before him. That the failure by the trial Judge to make any pronouncement on the admissibility of exhibit CMG 2 attached to the counter affidavit of the respondents and the reliance by the Judge on it to resolve the issue or question before him in favour of the respondents, is a breach of the rules of (fair hearing) natural justice in relation to the appellant. That the said exhibit CMG 2 being a public document, its admission must comply with sections 111, 112 and 113 of the Evidence Act 1990. Thus, it must have been certified to be a true copy. For this proposition, learned counsel relied on the cases of Fawehinmi v. Inspector General of Police (2000) 7 NWLR (Pt. 665) 481 at 483, Jolayemi v. Olaoye (1999) 10 NWLR (Pt. 624) 600, 602.
Still on issue No. 1, appellants counsel submitted that there was uncontroverted evidence that E.E. Okon, counsel to the respondent was a salaried staff of the respondents, and that by virtue of rule 31(a) of the Rules of Professional Conduct in the legal profession, he can not appear before any court of law in Nigeria. Learned counsel reproduced the said rule and contended that Mr. E.E. Okon, could not be availed of the exception in rule 31(a)(ii) because he did not tender his letter of employment as a legal officer with the respondents, that it was not enough to attach exhibit CMG 2. Learned appellants counsel urged us to resolve issue No. 1 in favour of the appellant.
In a short reply learned counsel to the respondents, submitted that from the totality of the facts of the case, appellant’s counsel failed to file a further affidavit to counter the positive averments in exhibit CMG 2 which is to the effect that learned counsel to the appellant was a legal officer. That instead of filing a further affidavit appellants counsel, relied heavily on rules 30 and 31(a) of the Rules of Professional Ethics of Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria, 1990 without dealing with the exceptions to the rules in order to deceive the court. Learned counsel then submitted that by the exception in rule 31(a)(ii) of the aforesaid professional ethics, adequate cover is given to the learned counsel to the respondents to have audience before a court of law; and that also by section 1(2),(3) of the Regulated and Other Professions Act Cap. 390 Laws of the Federation of Nigeria, 1990, learned counsel to the respondents has audience in any court. Learned counsel further referred to section 80(3)(b) of the High Court Law Cap. 51 Laws of Cross River State 1981 and submitted that the respondents (Calabar Municipal Government and Calabar South Local Government) are Local Governments by the heading and side notes of that section. Counsel urged us to discountenance the argument of the appellants’ counsel as it does not hold water. Learned counsel for the respondents referred to the cases of National Hotels and Personnel Services Union v. Imo Concord Hotels Ltd. (1994) 1 NWLR (Pt. 230) 306, Nwosu v. Imo State Environment Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 to support his submissions that where a party has failed to deny material facts in an affidavit, the averments are deemed as admitted.
There is no doubt that the motion of the appellant dated 8/4/1998 though filed on 28/5/98, and supported by a 13 paragraph affidavit deposed to by Ewa Henshaw Esq., was opposed through a counter affidavit of 12 paragraph deposed to by one Elizabeth Bale. The main grouse of the appellant is that his paragraph 4 – 9 of the affidavit in support of the application, were not “seriously challenged or disputed” by the counter affidavit. In other words, appellant is saying that the counter-affidavit of Bale was evasive and general.
Now looking at the entire affidavit of the appellant, it boils down to one point, namely that Mr. E. Edet Okon being not a staff or counsel from the chambers of the Honourable Attorney-General of Cross River State, but an ordinary civil servant with the respondents was not allowed to appear as a counsel for the respondents. In the same vein, the counter-affidavit of the respondents, especially in paragraphs 3 and exhibits CMG 2 and C thereof is to the effect that Mr. E. Edet Okon is competent to appear for the respondent.
The assertion by learned counsel to the appellant that the counter affidavit of Elizabeth Bale is improper, because the allegation of incompetence as a counsel was made against the purported counsel and that therefore, he should swear or depose to an affidavit himself is not always the case. The case of Onyeke v. Harriclem (supra) is distinguishable from the case at hand. In Onyeke’s case, it was a situation where a counsel acted for one party in respect of a land in dispute and latter, he switched to the opponent party in respect of the same land. This court per Akpabio (JCA) as he then was at page 71 paragraph D – F said:-
“…………………………………….must say first that learned counsel for the respondent (Obi Akpud Esq.) should have filed a proper counter-affidavit sworn to by himself instead of delegating such an important task to a mere law clerk. The result is that throughout the entire 9 paragraph counter-affidavit filed in the case there was no averment that the land in dispute is not known as and called “Plot 95 Ashito Land. Enekwa Sumpu Obosi,” as alleged by the appellant, but rather that it was called so and so. This court therefore has no alternative than to hold that the averments in paragraph 2 of appellants affidavit in support was admitted, and that the same piece of land was involved in both suit No. 0/291/93 the previous suits and 0/343/94 (the present suit).”
The Onyeke suit (supra) was thus morally and professionally unethical to use knowledge given in confidence, by a client infavour of an opposing client. In the case at hand, there is nothing morally reprehensible for a counsel to institute or defend a government department in which one is employed unless expressly prohibited by a statute.
Learned counsel for the appellant, in his motion on notice, clearly referred to some statutory provisions namely (a) rules 30 and 31(a) of the Rules of Professional Ethics of Legal Practitioners, – Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria, 1990, (b) section 2(3)(b) of the Legal Practitioner Act Cap. 207 Laws of Nigeria 1990 and (c) section 80 (3) (b) of the High Court Law Cap. 51 Laws of Cross River State 1981 to buttress his submission that Mr. E. Edet is not fit to institute or appear for the respondents.
It is pertinent to reproduce rule 31(a) of the Rules of Professional Ethics of Legal Practitioners Act Cap. 207. It provides thus:-
(a) “In general, a member of the bar whilst a servant or in salaried employment of any kind, should not appear as an advocate or in any High Court, but the following shall not be deemed to constitute a member or a servant in salaried employment:
(i) …………………………………………………..
………………………………………
(ii) Employment as a legal officer in any government department.
When learned counsel for the appellant referred to rule 30 and 31(a) of the Rules of Professional Ethics for Legal Practitioners, he did not even for a moment refer to the exceptions listed under rule 31(a), which is very surprising. But not only that, when learned counsel to the respondent by way of counter-affidavit deposed to by Elizabeth Bale (reproduced above) clearly and unequivocally in paragraph 3 thereof, and fully supported by exhibits CMG 2 and C to show that E.Edet Okon is a legal officer with the respondents, still learned counsel to the appellant, made a hallowed submission that “the purport of rule 31(a) of the Rules of Professional Conduct in the Legal Profession is that no member of the bar whilst a servant or agent in salaried employment of any kind, should not appear as an advocate in the Supreme Court or in any High Court…………………. and the purpose is to exclude a member of the bar who are servant (sic) or in all salaried employment.” With due respect, this submission is not only empty and untenable, but a deliberate distortion of a clear and unambiguous provisions of the law.
It is an attempt to erase the exceptions in rule 31(a)(i), (ii), (iii) and (iv). There is no doubt that if the above submission is accepted, then from the Honourable Attorney-General at the federal or state level, down to pupil state counsel who are all servants of the state and are on salaries, will be barred from appearing in courts. The framers of the Rules of Professional Conduct for Legal Practitioners never intended such a weird proposition.
The appellants attacked the counter-affidavit of the respondents alleging that it was incompetent as paragraphs 4 – 12 of the counter affidavit did not comply with sections 87 and 88 of the Evidence Act 1990; and that when the counsel to the appellant raised an objection and demanded that the offensive paragraphs be struck out, the learned trial Judge did not rule or make a pronouncement on it. I have read the affidavit in support as well as the counter affidavit as reproduced above. Paragraphs 6, 7, 10, 11 and 12 of the affidavit of the appellant all relate to the fact claimed by the appellant, that E. Edet Okon is not a staff of the Attorney-General of Cross River State. The respondents on the other hand answered the averments in paragraphs 5 and 7 of their counter affidavit. Moreover, paragraphs 3 and 9 of the counter affidavit of the respondents are weighty to such extent that they have not only answered the entire affidavit of the appellant, but have completely knocked out foundation of the appellants case. The force of paragraph 3 of the counter-affidavit is that E. Edet Okon is an employee of the Cross River State unified Local Government Service Commission, who deployed him to Calabar Municipal Government as legal officer whose functions and duties are succinctly spelt out in the Federal Government Approved Scheme of Service for Local Government Employees in Nigeria, 1993. To buttress the point made in paragraph 3 of the counter-affidavit, paragraph 9 has provided in exhibit CMG 2 the approved scheme of service for Local Governments Employees in Nigeria, see pages 40, 41 and 42 of the record of proceedings. The appellants submission that the deponent of the counter-affidavit, Elizabeth Bale did not disclose her source of information or that the trial Judge did not make a ruling as to whether exhibits CMG 1 and CMG 2 are inadmissible, are mere attempt to rely on technicalities. Paragraphs 4 – 12 of the counter affidavit did not violate provisions of sections 88 and 89 of the Evidence Act 1990, though appellants’ counsel referred to sections 87 and 88 of the Evidence Act. When a deponent is relying on a statutory instrument or Act or law, he need to state his source of information other than reference to the statute, Act or law. Therefore the counter affidavit has not offended sections 88 and 89 of the Evidence Act 1990 as the appellants would want us to believe. When a party disbelieves an assertion in a counter affidavit, the best way is to file a further or better affidavit to counter, rather than waiting to attack during arguments. This is important as argument can not substitute evidence. And in cases fought on affidavits, the evidence is what is averred in an affidavit. The finding by the learned trial Judge that “the defendant/applicant ought to have filed a further and better affidavit challenging or controverting the averments in the counter-affidavit of the plaintiffs/respondents and having failed to do so, is fatal to her case” can not be faulted.
Another contention of the appellants is that exhibit CMG 2 is purported to be a document or circular, or a gazette of the Federal Government, but that on its face, it was printed privately by a printing house known as Tal Press and Publishing Ltd. Lagos, and that only Federal Government printer is allowed to print or publish Federal Government circulars and gazettes. Learned counsel referred to section 113 (a)(i-iv) of the Evidence Act 1990. But the opening words of section 113 states as follows:-
“113. The following public documents may be proved as follows:-
(Italics supplied)
This shows that there are other possible ways of proving public documents other than those enumerated in paragraphs i-iv of section 113(a). Learned counsel to the appellant has not shown by a further or better affidavit that the document in question was not printed by order of government as required by section 113(a)(iv)(v) which states that the following pubic documents may be proved by any document purporting to be printed by order of government.
I am not surprised that in the argument of learned counsel to the appellant, especially when quoting section 113(a)(i-iv), he deliberately omitted the opening words of section 113 that says “the following public documents may be proved as follows:-
Without the opening words of section 113, the subparagraphs can not make sense. In light of the above findings, I am of the view that from the totality of the affidavit evidence before the lower court, the learned trial Judge is right in holding that learned counsel to the respondent is a legal officer in the service of the respondents and therefore qualified to represent the respondents in the suit. I resolve issue No. 1 in favour of the respondents.
Issue No. 2 which is distilled from ground 2 of the grounds of appeal is whether E. Edet Okon is a legal practitioner as contemplated by the Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria, 1990 and section 80(3)(b)(i) of the High Court Laws of Cross River State 1981.
In arguing this issue No. 2, learned counsel for the appellant conceded that E. Edet Okon has been called to the bar, but that because he is a salaried employee of the respondents he is therefore not a legal practitioner that can represent the respondents in a court of law.
In resolving issue No. 1 in favour of the respondents, it has been shown by exhibit CMG 2 that E. Edet Okon is a legal officer with the respondents. In counter affidavit of Elizabeth Bale in paragraph 3, it is clearly stated that functions and duties of the legal officer is succinctly spelt out in the Federal Government Approved Scheme of Service. Looking at page 41 of the record, which is the contents of exhibit CMG 2, duties of a legal officer is clearly spelt out it provides thus:-
“2 – duties
2.1 Legal officer grade 11, grade level 08
2.1.1 Rendering legal advice to the Local Government and other Local Government Agencies
2.1.2 Preparing legal documents relating to the administration of the Local Government.
2.1.3 Drafting and filing legal documents in courts
2.1.4 Appearing for the Local Governments in matters of giving litigation in courts.
2.1.5 Drafting and vetting Local Government bye-laws and regulations.
2.1.6 Assisting legal officers in legal and administrative duties.”
Thus it is very clear that a legal officer in the service of the respondents, performs the duties of a solicitor and advocate as any other legal practitioner, as contemplated by Legal Practitioners Act Cap. 207 Laws of Nigeria 1990.
In section 80(3)(b) of Cap. 51 Laws of Cross River State 1981, it is provided that:-
“(3) In the case of:-
(b) a suit brought by or against that Local Government, the Local Government may be represented in court, at any stage of the proceedings by
(i) A legal practitioner or
(ii) An officer or employee who shall satisfy the Judge that he has the authority to represent the Local Government.”
This court has taken judicial notice of the fact that at federal and state levels, the office of the Honourable Attorney-General handles both civil and criminal prosecution of matters of the two tiers of government. In like manner section 80(3)(b) of the High Court Law of Cross River State, 1981 has taken care of the civil and criminal prosecution of Local Government Councils in Cross River State i.e. the respondents in this matter. Moreover, it is a notorious fact that is beyond any dispute that all tiers of government have been engaging the services of private legal practitioners to handle their civil litigations before all the courts of record. That is the similar import of section 80(3)(b) of the High Court Law (supra) when it provided for (i) a legal practitioner or an officer or employee. I therefore resolve issue No. 2 in the affirmative.
I have earlier ruled in issue No. 1 that the learned trial Judge is right in admitting exhibit CMG 2 in evidence, and therefore issue No. 3 is also answered or resolved in the affirmative since the appellants did not deny or controvert the contents of the exhibit by way of further or better affidavit.
Issue No. 4 is whether the learned trial Judge was right in law when he overruled the appellant who challenged the court’s jurisdiction to set aside the judgment of another court of co-ordinate jurisdiction.
As a general rule, jurisdiction of a court is a crucial and radical matter that must be ascertained once it is raised, before further proceedings can take place. See University of Agriculture Makurdi v. Jack (2000) 11 NWLR (Pt. 679) 658, 671 State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33, Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179. But in the case at hand, the question to be raised is did the appellant really challenged the jurisdiction of the court below? This can only be ascertained on the appellants application which was overruled. The motion on notice of the appellant at page 5 and 6 of the record of proceedings only challenged the competence or otherwise of Mr. E. Edet Okon to appear as counsel to the respondents. The three prayers are for:-
- An order restraining the purported counsel………..from appearing or representing ….the respondents.
- An order striking out all the processes filed.
- An order striking out the entire suit on ground of competency.
Also, the grounds on which all the above prayers were hinged did not raise the issue of jurisdiction of the court. See page 6 of the record. The only place where learned counsel for the appellant raised issue of jurisdiction can be found when he was arguing the motion at page 48 lines 2-15 of the record where he argued as follows:-
“Submit that this court has no jurisdiction to set aside a judgment of the High Court. It is trite law that it is the claim of the plaintiff that determines jurisdiction. The plaintiffs claim is in paragraph 17 of the statement of claim. The plaintiff is asking this court, to set aside the judgment of the High Court entered in suit No. C/70/97 delivered on 12/5/97 by Honourbale Justice E.E.E. Effanga of blessed memory.
Submit that this court is created by section 236(1) of the 1979 Constitution supra. That section does not give the court power to review or set aside the court’s judgment. It is only the Court of Appeal that has power to review the judgments of the High Courts. See section 220 (1) (1979) Constitution supra. We conceed that this court could set aside a judgment obtained by fraud concede. The exception is that the fraud must be well established.
When learned counsel made his submission that the trial court had no jurisdiction, it was made on a misconception of the law that the court could not set aside its decision based on fraud. When learned counsel realized his misconception, he conceded to the fact that the trial court could have jurisdiction to entertain the suit. Therefore the challenge to the jurisdiction of the court had been withdrawn, and as such, learned appellant is estopped from raising an issue that had been conceded in the court below. Issue No. 4 is resolved against the appellant. Issue No. 5 is whether the learned trial Judge was correct to assume jurisdiction on the claim of the respondent in view of uncontroverted evidence before it that the court had earlier litigated upon the facts that were the fulcrum of the respondents’ claim? The issue is formulated from ground 5 of the grounds of appeal.
Learned counsel for the respondents has submitted that the ground 5 of the notice of appeal is incompetent in that the lower court had not even started hearing the dispute in the main suit, namely suit No. C/220/97. That the merit of the suit had not been determined as the appellant is yet to file the statement of defence. Moreover, the cause of action in suit No. C/70/79 is different from the cause of action in suit No. C/220/97. Learned respondents counsel urged us to strike out the ground and issue raised on it.
Now going through the record of proceedings from A-Z, there is no where at which the appellant has filed the statement of defence; though the respondents who were the plaintiffs in the court below, had filed their statement of claim dated and filed on 11/7/97. See pages 3-4 of the record of appeal.
But the most important point is that the appellant in his motion on notice dated 8/4/1998, and filed 28/5/1998, did not by any stretch of imagination raise issue of jurisdiction of the court on the ground that the court had earlier litigated upon the facts that formed the basis of the respondents claim. In other words, the issues raised was purely on competence of the learned counsel, to represent or file a suit on behalf of the respondents. Moreover, learned appellants counsel had rightly conceded that the trial court had the jurisdiction to set aside a judgment found on fraud. this means that even if the issue of jurisdiction had properly been raised in the motion on notice, the ruling would have gone against the appellant, because a court of law is competent to set aside its judgment if it was obtained by fraud. See Olafunmise v. Falana (1987) 1 NWLR (Pt. 47) 64, 66, Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) 547, 558, Tor Tiv v. Wombo (1996) 9 NWLR (Pt. 471) 161.
The submission of learned counsel for the respondents, that, the ground and issue No. 5 does not arise, and should be struck out, is well founded and I sustain same. Issue No.5 as formulated by the appellant is hereby struck out for being incompetent.
Having resolved issues No. 1,2,3 and 4 against the appellant, the entire appeal is hereby dismissed for being unmeritorious.
The case is remitted back to the trial court for hearing of the substantive suit on its merit.
I award cost of N5,000.00 against the appellant.
RAPHAEL OLUFEMI ROWLAND, JCA. I had the privilege of reading in draft the judgment just delivered by my learned brother Thomas JCA. The facts are well set out and the issues well treated. I have nothing useful to add. I too, dismiss this appeal as it is devoid of merit, I endorse the order on costs.
SIMEON OSUJI EKPE, JCA. I had a preview of the lead judgment just delivered by my learned brother, Thomas JCA. I entirely agree with his reasoning and conclusion that the appeal is unmeritorious and should be dismissed. I too dismiss the appeal and abide by the consequential orders in the lead judgment including the order as to costs.
Cases referred to in the judgment
Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) 547.
Fawehinmi v. I. G. P. (2000) 1 WRN 90; (2000) 7 NWLR (Pt. 665) 481.
Jolayemi v. Olaoye (1999) 10 NWLR (Pt. 624) 600.
Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179.
Nwosu v. Imo State Environment Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.
Olafunmise v. Falana (1987) 1 NWLR (Pt. 47) 64.
Onyeke v. Harriclem (Nig.) Ltd. (1998) 7 NWLR (Pt. 556) 64.
State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33.
Tor Tiv v. Wombo (1996) 9 NWLR (Pt. 471) 161.
University of Agriculture Makurdi v. Jack (2000) 11 NWLR (Pt. 679) 658.
Statutes referred to in the judgment
Constitution of the Federal Republic of Nigeria 1979 Ss. 246(1) & 220.
Court of Appeal Act 1990 s. 16.
Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 Ss.87,88,111,112 & 113.
High Court Laws Cap. 51 Laws of Cross Rivers State of Nigeria 1983 s. 80(3)(b) & (1).
Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria 1990 s. 3(b).
