Guardian

In the Court of Appeal,

In the Lagos Judicial Division,

Holden at Lagos,

On Friday, March 22, 2013,

Before their Lordships:

Aminu Adamu Augie,

Justice, Court of Appeal;

Chima Centus Nweze, Justice, Court of Appeal;

Chinwe Eugenia Iyizoba, Justice, Court of Appeal;

CA/L/400/2009

Between

Professor Olugbemiro Jegede (defendant/appellant)

and

Mufutau Bamidele Akande (claimant/respondent).

IN our view, the lower court arrived at the correct conclusion employing the wrong procedure. As noted earlier, a court is not permitted to raise an issue suo motu and resolve it without hearing from the parties. Thus, we take the view that the said proceeding of February 9, 2009, conducted without the input of the parties was wrong. However, there is a caveat here. In this case, we are not in doubt, from the court’s findings that the Lagos High Court had no jurisdiction, that the prayer order in the circumstance should have been an order striking out the suit.

So held the Court of Appeal, Holden at Lagos in a unanimous leading judgment delivered by his lordship: Chima Centus Nweze (JCA), his learned brothers, Aminu Adamu Augie and Chinwe Eugenia Iyizoba (JJCA), concurring while allowing the appellant’s appeal.

The appellant was represented by A. R. Fatunde, with him are M.O. Abdulkadir and T. Bakre, while the respondent was represented by A. O. Okorie.

At the Lagos High Court, Igbosere, General Civil Division, the respondent in this appeal (claimant at the High Court), took out a writ of summons against the appellant in this appeal (defendant as he then was). In the suit, originated on December 28, 2006, the claimant entreated the court to favour him with the sum of N50,000, 000:00 (fifty million naira), damages for libel contained in the respondent’s letter dated November 20, 2006.

The defendant (now appellant) filed a memorandum of conditional appearance; statement of defence and other processes.

In particular, he intimated the claimant of his intention to greet his suit with an objection. Subsequently, the defendant formally moved the court to dismiss the case in its entirety. In its ruling of January 26, 2009, the said High Court (Coram Nicol-Clay J) (hereinafter referred to as the lower court) allowed the application and dismissed the claimant’s case in its entirety.

The registrar of the lower court, on January 29, 2009 (that is, three clear days after the above ruling), issued hearing notices to the parties. The said notice indicated that the application (which was dismissed on January 26, 2009) would come up on February 2, 2009. True indeed, the application was called up on February 2, 2009. The learned trial judge, Nicol-Clay J re-opened the matter; took the appearances of counsel and delivered another ruling striking out the application that was, earlier dismissed.

Aggrieved by the second ruling, the defendant appealed to this court. He formulated two issues for the determination.

When this appeal came up for hearing on January 14, 2013, A.R. Fatunde of counsel for the appellant, leading M. O. Abdulkadir and T. Bakare, adopted and relied on the appellant’s brief filed on June 15, 2009. In the said brief, he argued that when a High Court, in the performance of its adjudicatory roles, concludes the hearing and determination of a matter placed before it (as in this case) and reaches a final decision, the court is forbidden from opening the case file again much less re-hearing it and substituting the final order of dismissal with an order for striking out, Anyaegbunam v Attorney-General of Anambra State (2001) 6 NWLR (pt 710) 532 at 540.

Learned counsel further argued that the proceedings and second ruling of February 2, 2009, raised one fundamental issue, which is that the appellant’s right to be heard before the court delivered its said ruling. He submitted that the proceeding was conducted suo motu without hearing the appellant.

Learned counsel for the respondent, first drew attention to the ruling delivered on January 26, 2009. He explained that after the said ruling had been delivered, the lower court discovered that the order dismissing the case for want of jurisdiction did not reflect what it intended. It directed hearing notice be served on both parties. He argued that every court has the inherent power to correct accidental slips, omissions and mistakes in judgments, citing Umanna and Ors v Okwuraiwe (1978) 6-7 SC 1. He submitted the order made on February 2, 2009, was to correct the inadvertent error of the order of dismissal. He pointed out that the lower court, in the earlier ruling, found that the cause of action (libel) arose in Abuja. Thus, the action should be commenced in that jurisdiction. In order words, the High Court of Lagos State had no jurisdiction to try the case.

Learned counsel for the appellant, first, adopted the earlier submissions on the consequences of breach of fundamental rules of natural justice and fair hearing.

He emphasised that having delivered the final judgment on January 26, 2009, the lower court became functus officio. He urged the court to set aside the latter order, Agbomeji v Bakare (1998) 9 NWLR (pt. 564) 1, 8.

Arguing this issue, the respondent’s counsel submitted that the above second order striking out the case did not occasion a miscarriage of justice to warrant the interference of the Court of Appeal. He took the view that where a court had no jurisdiction to try a case, it should strike it out, Owner of MV “Arabella” v Nigeria Insurance Corporation (2008) 4-5 SC (pt 11) 189, 209.

In his brief of argument, the respondent greeted the appeal with what he termed a “Notice of Preliminary Objection.”

He contended that Ground 3 of the Notice of Appeal was a ground of mixed fact and law challenging the said ruling of the lower court, citing Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He explained that, in the instant case, no leave of the High Court or the Court of Appeal was obtained before the said ground was included in the notice of appeal. He submitted that the said ground was incompetent and ought to be struck out, Igidi v Igba (1999) 6 SC (pt 1) 1, 119.

In reply, the appellant’s counsel observed that the respondent inserted a notice of preliminary objection in his brief of argument. The said objection attacked only ground three of the notice and grounds of appeal. He submitted that the purported notice of preliminary objection was misconceived, irregular and amounted to an abuse of process.

Thus, a respondent who had issues with one or two more grounds of appeal was required to file a separate notice challenging the ground of appeal. He maintained that the courts frown at the approach which the respondent adopted in this appeal, citing Order 10 Rules 1 and 3 Court of Appeal Rules 2007 (applicable when the said brief was filed); Okoye v Anyawoko (2011).

•To be concluded