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Hajia Yinusa Bakari v. Felicia Arinola Ogundipe & Ors. (2020) – SC

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➥ CASE SUMMARY OF:
Hajia Yinusa Bakari v. Felicia Arinola Ogundipe & Ors. (2020) – SC

by “PipAr” Branham-Paul C. Chima, SAL.

➥ COURT:
Supreme Court – SC.514/2015

➥ JUDGEMENT DELIVERED ON:
Friday, March 13, 2020

➥ AREA(S) OF LAW
Procedural waiver;
Jurisdiction;
Status of the FCT;
Signing of a statement of claim.

➥ PRINCIPLES OF LAW
⦿ WHERE COUNSEL NOT PRESENT, BRIEF WILL BE TAKEN AS ADOPTED
At the hearing of the Appeal on 16 December, 2019 the Appellant was absent and unrepresented. His brief was taken as adopted. — O. Rhodes-Vivour, JSC.

⦿ A RESPONDENT CANNOT ATTACK THE DECISION OF A LOWER COURT EXCEPT THROUGH CROSS APPEAL
When this Appeal was heard on 16 December, 2019, learned counsel for the 2nd and 3rd Respondents, D. Ameh informed the Court that his brief was irregular. He did not say how his brief was irregular. Rather than defend the judgment of the Court of Appeal, the 2nd and 3rd Respondents filed a joint brief attacking the judgment. In their conclusion they pray this Court to set aside the judgment of the Court of Appeal and in its place restore the judgment of the trial Court dismissing the claims of the 1st Respondent. Their role is fundamentally wrong. Their prayer ought to be for this Court to dismiss the Appeal. Since the 2nd and 3rd Respondents abandoned their role as Respondents’, their joint brief would not be considered. It is hereby struck out. — O. Rhodes-Vivour, JSC.

⦿ A RESPONDENT IS TO DEFEND THE JUDGEMENT ON APPEAL
A Respondent’s role in an Appeal is to defend the judgment on Appeal, and not attack it. On the other hand, it is duty of the Appellant to attack the judgment. After all he filed the Appeal because he believes it is wrong. If a Respondent is not satisfied with the judgment on Appeal he should file a Cross Appeal or Respondents Notice. See New Nig Bank PLC v Egun (2001) 7 NWLR (Pt. 711) p.1 and Ibe v Onuorah (1999) 14 NWLR (Pt. 638) p. 340. It must be noted, though that a Cross Appeal and a Respondents Notice cannot co-exist. — O. Rhodes-Vivour, JSC.

⦿ THE FEDERAL CAPITAL TERRITORY ABUJA HAS THE STATUS OF A STATE
By virtue of the provisions of Section 299 of the Constitution, it is so clear that Abuja, the Federal Capital of Nigeria has the status of a State. It is as if it is one of the States of the Federation. The 2nd Respondent, i.e. the Minister of the Federal Capital Territory, though a Minister of the Federal Government occupies a similar position of Governor of a State, since Abuja is classified as a State by Section 299 of the Constitution. The 2nd Respondent is thus the Chief Executive of the Federal Capital Abuja. The Federal Capital Development Authority i.e. the 3rd Respondent is established by Section 3 of the Federal Capital Territory Act. It is a Governmental Agency of the Federal Territory, Abuja. It is the actions of the 2nd and 3rd Respondents that are challenged. They are both agents of the Federal Capital Territory, Abuja, which has the status of a State. They are not agencies of the Federal Government of Nigeria. — O. Rhodes-Vivour, JSC.

⦿ PROCEDURAL WAIVER
The law is very well settled that counsel may waive a defect in procedure which is procedural law. What is waiver and what are the consequences when counsel waives his right? Waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile and complain of what he has waived. Put in another way, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. See Ariori & Ors v Elemo & Ors (1983) 14 NSCC P.1; Chief John Eze v Dr. C.I. Okechukwu & 7 Ors (2002) 14 SCM p.105. — O. Rhodes-Vivour, JSC.

⦿ COURT CANNOT GRANT A RELIEF NOT CLAIMED
A Court has no jurisdiction to grant a relief not claimed or more than the claimant can prove, but can grant less than is claimed. See Ogunyade v Oshunkeye (2007) 7 SCNJ p. 170; Ezeonwu v Onyechi (1996) 2 SCNJ P…; AG. Cross River State v AG of the Federation (2005) ALL NLR p. 44. — O. Rhodes-Vivour, JSC.

⦿ WHEN MAIN CLAIM IS GRANTED, ALTERNATIVE CLAIM CANNOT BE GRANTED
When a party as in this case, the Plaintiff/1st Respondent made claims the in alternative, she is saying that she wants either of her reliefs. So any of the claims granted suffices for the purpose of satisfying her claim. When a Court grants the main claim, the alternative claim would no longer be considered. When the main claim fails, the alternative claim must be considered, and if found proved the Court should grant it as the Court of Appeal did in this Appeal. — O. Rhodes-Vivour, JSC.

⦿ DEFECT IN STATEMENT OF CLAIM DOES NOT NAKE THE SUIT A NULLITY, BUT THE MERE STRIKING OUT OF THE STATEMENT OF CLAIM
A Statement of Claim is not an originating process. It is a process filed subsequent to the Writ of Summons. In the Statement of Claim, the claimant or plaintiff articulates the allegations of facts for the defendant to answer. Without the Statement of Claim, there would be no allegation of facts for the defendant to answer. Thus, issues cannot be joined on any matters and therefore nothing for the Court to try: Fidelis Nwadialo: Civil Procedure in Nigeria, 2nd Ed. Page 442. A defect in the Statement of Claim results not in the striking out of the suit for being a nullity. Rather, it is only the offensive Statement of Claim, as a process or the part or portion thereof of the process that the defendant timeously takes steps to strike out. A defect in the settlement of the Statement of Claim or the Statement of Claim itself is generally regarded as a mere irregularity. The authors of the Supreme Court Practice 1979 [The White Book 1979 – English] opined in paragraph 18/9/1 at page 311 thereof and I agree “that every pleading which offend the rules will be struck out. The applicant must show that he is in some way prejudiced by the Irregularity”. They further opined in paragraph 18/9/2 ibid – Where the Statement of Claim is being attacked, the application may be made before the defence is served [A – G of DUCHY OF LANCASTER V.L. and N.W.L.R. (1892) 2 Ch. 274]. In other words, the objection must be made timeously before the defence is served; otherwise, the objection is deemed to have been waived or compromised. — Ejembi Eko, JSC.

Available:  Compagnie Generale De Geophysique (NIGLT) CGG Nig Ltd v. Moses Aminu (2015)

➥ LEAD JUDGEMENT DELIVERED BY:
Olabode Rhodes-vivour, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT

⦿ FOR THE RESPONDENT
Eyitayo Fatogun, Esq. for the 1st Respondent.
Dickson Anieh, Esq. for the 2nd & 3rd Respondent.

➥ CASE FACT/HISTORY
The 1st Respondent/ Plaintiff served in the Federal Civil Service for thirty-five years. She ended her career as a Federal Civil Servant as the Director of Library Services of the Supreme Court. She retired on 15 January, 2004 after thirty-five 35 years unblemished service in the Federal Civil Service. While in service in the Supreme Court she was allocated a 3 bedroom duplex at Block D44, Flat 3, Zone F Extension Apo Abuja, as her official quarters. She lived in the property thereafter.

On 1 October, 2003, the Federal Government commenced a monetization policy of fringe benefits in the Civil Service. The thrust of this policy among other things was the sale of Federal Government Houses (i.e. residential Houses, etc). By this policy, the 1st Respondent was entitled to be given the right of first refusal since she had been living in the house for over five years. The 1st Respondent was interested in acquiring the house, so she wrote a letter to the Head of Service of the Federation, through the Chief Registrar of the Supreme Court wherein she indicated her interest to purchase the House in line with the monetization policy which took effect from 1 October, 2003.

The process for purchasing Houses took a different turn when the Federal Government transferred the purchase of Houses to the Respondents’. The Respondents’ proceeded to issue Sales guidelines and requested the 1st Respondent to fill and submit a Form for the expression of interest to purchase the said House, i.e. 3 bedroom duplex at Block D44, Flat 3. The 1st Respondent completed and submitted the Form.

By a letter dated 8 August, 2005, the 2nd Respondent rejected the 1st Respondent’s application on the ground that she was not qualified to apply as a career civil servant since she retired on 15 January, 2004. The 1st Respondent protested to the 2nd Respondent. By a letter dated 8 August, 2005, the 2nd respondent invited the 1st Respondent to participate in a public bidding as a member of the general public. She participated, while still contesting the 2nd Respondent’s decision to deny her, her right of first refusal as a career civil servant.

While awaiting the results of the public bid, the 1st Respondent travelled to England for urgent medical attention. It was while she was recuperating in England that the 2nd Respondent announced that the apartment had been won by the 3rd Respondent. On her return to Nigeria, she made enquires as to what happened to her application. She was told at the 2nd Respondent’s office that her Form was misplaced. The 2nd Respondent realized their mistake, and to correct the error, she was given yet another FORM which she filled and submitted with a Bank draft. See Exhibit FAO 12 (1) and (2).

She had to vacate the house when she received a quit Notice dated 21 April, 2006. When all efforts by the 1st respondent failed to redress her plight she filed an action in a High Court of the Federal Capital Territory. The appellant and 2nd, 3rd and 4th Respondents were the defendants.

In a considered judgment delivered on 18 November, 2009, the learned trial Judge, Talba J., reasoned as follows: ”I come to the conclusion that the Plaintiff, having retired on 19 January, 2004 four months before the commencement of the sale of Federal Government Houses on 1 April, 2005. The Plaintiff was not entitled to exercise the option of first refusal on the property the subject matter of this suit. Hence she ceases to be a serving career public servant. In the same vein as at the time the Plaintiff bided for the property the subject matter of this suit. The property was bided and won by the 3rd Defendant who thereafter proceeded to make full payments. Therefore the sale of the said property by the 1st and 2nd Defendants to the 3rd Defendant is valid and subsisting.” And with the above reasoning, the learned trial judge dismissed all the Plaintiff’s claims.

Dissatisfied with the judgment of the trial Court, learned counsel for the Plaintiff/1st Respondent, filed an appeal. It was heard by the Court of Appeal, (Abuja Division). That Court by a majority decision found the line of reasoning of the trial Court faulty and allowed the Appeal. The Appellant’s main prayers in the lower Court were refused. However her alternative claims were granted.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

I. Whether the Court of Appeal had jurisdiction to entertain the Appeal before it given the parties and the claim of the Plaintiff/1st Respondent before the High Court of the Federal Capital Territory?

Available:  Cameroon Airlines v. Mr. Mike E. Otutuizu (2011) - SC

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE DEFENDANTS AT THE HIGH COURT WERE NOT FEDERAL GOVERNMENT AGENCIES BUT FCT AGENCIES
“Now, the High Court of the Federal Capital Territory has jurisdiction to entertain suits when: (a) Suits in which agencies of the Federal Government are not parties. (b) Suits in which agents of the Federal Government are parties and agencies of the Federal Capital Territory. See Okoyode v FCDA (2006) ALL FWLR (Pt.198) p.1200. The claim of the Plaintiff is all about land, and whether the monetization policy of the Federal Government implemented by the Federal Capital Territory Authority, was properly implemented. The monetization policy was implemented by the Federal Capital Territory Authority, which is not an agent of the Federal Government. The claim of the Plaintiff which is against the Appellant and the 2nd and 3rd Respondents is not within any of the causes of action, or claims in Section 251 (1) (a) – (s) of the Constitution. Furthermore none of the claims sought is against the Federal Government or any of its agencies. The 1st Respondent/Plaintiff’s claim can only be heard in a State High Court, and in this case, the Federal Capital Territory High Court. That Court had jurisdiction to hear and determine the 1st Respondent/ Plaintiffs claims. In view of the fact that the 2nd and 3rd Respondents are agencies of the Federal Capital Territory, which is a State, by virtue of the provisions of Section 299 of the Constitution, the High Court of Federal Capital Territory has jurisdiction to hear the 1st Respondent’s/Plaintiff’s claim, and the Court of Appeal has jurisdiction to entertain the Appeal.”

Legislation: section 299 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
.
.
II. Whether the provisions of the Public Officers Protection Act will not render the Plaintiff/1st Respondent’s claim before the High Court of Federal Capital Territory incompetent and in turn rob the Court of Appeal of jurisdiction to entertain the appeal and deliver judgment in favour of Plaintiff/1st Respondent?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT ISSUES OF RECOVERY OF LAND DOES NOT FALL UNDER THE PUBLIC OFFICERS ACT
“It is without dispute that this in an action for recovery of land/House occupied by the 1st Respondent from which she was thrown out. She wants her house back and for her house to be given to her in accordance with the monetization policy. It is now settled that Section 2 of the Public Officers (Protection) Act does not apply to cases of recovery of land. See Salako v LEDB 20 NLR p.169. The submission of learned counsel for the 1st Respondent was therefore well taken. This suit is not statute barred, since Section 2 of the Public Officers (Protection) Act does not apply to it.”
.
.
III. Whether the Court of Appeal had jurisdiction to entertain the appeal before it having regard to the incompetent Originating process, i.e. the Statement of Claim filed before the Trial Court and signed by an unknown person for Plaintiff’s counsel?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE APPELLANT HAS WAIVED HIS RIGHT TO OBJECT ON THE SIGNATURE
“The 1st Respondent, as Plaintiff had at the trial Court filed a Statement of claim on 27 April, 2006 signed by someone, but it cannot be said who signed the process. The Appellant did not raise any objection on this defect at the trial Court nor at the Court of Appeal but raised it as an issue of jurisdiction at the Supreme Court for the first time. The Appellant participated in the proceedings and evidence from the statement of claim was called after the Statement of defence joining issues with the defective Statement of claim. The trial Court gave judgment upon the evidence and even at the Court of Appeal no issue was made of the alleged defective Statement of Claim.”

“After the Writ of Summons and Statement of Claim filed by the 1st Respondent/ Plaintiff were served on the Appellant, he did not raise any objection to the defect in the Statement of Claim at the trial Court instead, he filed a Statement of defence and participated in trial and judgment was delivered in his favour. Not objecting to the signature on the Statement of claim amounts to a waiver. It is only when objection is made at the earliest opportunity can it be said that the right was not waived.”

“The appellant accepted the statement of claim as if it was very much in order. He participated in the proceedings, filed a statement of defence and called evidence. Judgment of the trial Court was given, dismissing the 1st Respondent’s claim. The Appellant was happy. He did not complain. The 1st Respondent/Plaintiff filed an appeal. On Appeal, the Appellant defended the judgment and never made the defective Statement of Claim an issue. When the Appellant lost in the Court of Appeal he appealed to the Supreme Court, and made the issue of the competence of the Statement of Claim an issue for the first time. It is clear he waived his right to object to the defective process. The right of the Appellant to object to the defective statement of claim is a waivable right, being procedural jurisdiction. A private right.”
.
.
IV. Whether the Court of Appeal has the jurisdiction in the circumstances to grant reliefs that are contrary to the claim of Plaintiff/1st Respondent and/or reliefs not sought in the Statement of Claim?

RULING: IN RESPONDENT’S FAVOUR.
A. THE RELIEF GRANTED BY THE COURT WAS A CONSEQUENTIAL ORDER
“After the Court of Appeal examined relevant exhibits to wit: Exhibits 24, 25, 26 and 27, the Court found that the 3rd Respondent/Appellant failed to prove that she ever bid for the Flat and that there was no evidence that no bid by the Appellant was accompanied by a bid bond by way of bank draft equal to 10% of bid value regarded as non-refundable 10% deposit. This is what the Court of Appeal had to say: “From the available facts of this case, the only public bid for the purchase of the Flat in dispute was the one submitted by the appellant and, in the absence of any other higher legal bid for the said Flat, there was no basis for the purported sale of the Flat to the 3rd Respondent whose bid clearly appears to be a sham. The appellant’s bid was even higher and earlier than the 3rd Respondent’s sham bid and the appellant’s bid ought to have been designated by the 1st, 2nd and 4th Respondents as the winning bid and the appellant designated as the Winning Bidder.” It follows naturally that the order by the Court of Appeal that the 1st Respondent/Plaintiff pay the bid amount and other legal charges arises from the fact that the 1st Respondent/ Plaintiff won the bid. The natural sequence is for her to pay up. Hence the order by the Court of Appeal, the consequential order is correct.”
.
.
V. Whether having regards to the pleading of the parties, the learned Justices’ of the Court of Appeal did not wrongly raise the issue of proof and the burden of proof as it relates to the bid of the Appellant?

Available:  CHUKWU v. STATE (2021) - SC

RULING: IN RESPONDENT’S FAVOUR.
A. THE PLAINTIFF/RESPONDENT PROVED HER BID; THE APPELLANT COULD NOT PROVE HER/HIS BID PLACED
“The burden is on the Plaintiff to prove his assertions vide Section 131 of the Evidence Act. When the Plaintiff/1st Respondent proves that she bidded for the property and had the higher bid, the burden shifts to the Appellant to prove the contrary that her bid was better.”

“The Court of Appeal evaluated evidence and examined exhibits particularly Exhibits 22, 23, 24, 25, 26 and 27 and had this to say: “…. The 3rd Respondent tendered in evidence Exhibits 22, 23, 24, 25, 26 and 27 to prove the Respondents’ allegation that the Flat was duly sold to the 3rd Respondent. I have carefully examined these exhibits …. It is rather very curious that the bid allegedly submitted by the 3rd Respondent was not put in evidence by any of the Respondents.” The Court of Appeal quite rightly in my view refused to speculate on whether or not the 3rd Respondent (i.e. the Appellant) submitted any bid. I am also satisfied that she neither proved that she bidded for the disputed Flat.”

B. THE ONLY PUBLIC BID PROVED WAS THE PLAINTIFF/APPELLANT BID
“From the available facts …… the only public bid for the purchase of the Flat in dispute was the one submitted by the Appellant (i.e. the Plaintiff/1st Respondent) and, in the absence of any other higher legal bid for the said Flat, there was no basis for the purported sale of the Flat to the 3rd Respondent whose ‘bid’ clearly appears to be a sham.”
.
.
.
✓ DECISION:
“I find no merit in this Appeal, it is hereby dismissed. For the avoidance of doubt, I hereby reproduce the declarations and orders of the Court of Appeal which is affirmed by this Court.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (CASE)
⦿ ONCE PARTY IS A FEDERAL GOVERNMENT AGENCY, ONLY FEDERAL HIGH COURT HAS JURISDICTION
In N.E.P.A. v Edegbero (2002) 18 NWLR (Pt. 798) p. 79, it has been held in decisions of this Court that by virtue of Section 251 (1) of the Constitution, once one of the parties is the Federal Government or any of its agencies, only the Federal High Court has jurisdiction to determine the suit. That is to say the Federal High Court has exclusive jurisdiction to entertain matters specified in Section 251 (1) (a) – (s) of the Constitution.

⦿ FOR FEDERAL HIGH COURT TO HAVE JURISDICTION, PARTY OR CLAIM MUST FALL WITHIN SECTION 251 CFRN
In Kakih v PDP (2014) 15 NWLR (Pt.1430) p.374, in support of N.E.P.A. v Edegbero supra. I said that: “The claim of the party and the reliefs must be within Section 251 (1) of the Constitution before the Federal High Court can have jurisdiction. Furthermore, where an agency of Federal Government is a party, the principal reliefs must be directed against the Federal Government or any of its agencies before a Federal High Court can have jurisdiction.”

⦿ HOW PROCESSES FILED IN COURT MAY BE SIGNED
In SLB Consortium Ltd v NNPC (2011) 4 SC (Pt.1) p.86, I explained how processes filed in Court are to be signed. I said: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal Firm. It is clear from the facts above that the Statement of Claim was signed, but there was no name of counsel. So the process is irregular.

⦿ THERE ARE TWO TYPES OF JURISDICTION
In A.G. Kwara State & Anor v Saka Adeyemo & Ors (2016) 7 SC (Pt.II) p. 149. I said that: Jurisdiction is a question of law. There are two types of jurisdiction. 1. Jurisdiction as a matter of procedural law. 2. Jurisdiction as a matter of substantive law. A litigant may waive the former. Again in Appeal No: SC.175/2005 Heritage Bank Ltd v Bentworth Finance (Nigeria) Ltd decided by this Court on 23 February, 2018 Eko J.S.C. explained the distinction between substantive jurisdiction and procedural jurisdiction.

➥ REFERENCED (OTHERS)

End

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