In the Court of Appeal, Nigeria,

Yola Judicial Division,

Holden at Jalingo,

On Wednesday, June 27, 2012,

Before their Lordships:

Monica B. Dongban-Mensem, Justice, Court of Appeal;

Chima Centus Nweze,  Justice, Court of Appeal;

Abubakar Alkali Abba,  Justice, Court of Appeal

CA/J/190/2008

Between

Abba Babaji Bambur (Magistrate, Magistrate’s

Court Mutum-Biyu),

Tor Usman Sani Mayodaga (rtd),

Polycap Mbanso,

Alh. Ibrahim Ahmed,

Kaadi Hamdu Aminu Mbaso (rtd),

Hajiya Adama Gashaka,

Alh. Gurama Bana,

Abdullahi Sani,

Hon. Musa Muhammed Sheka,

(Councillor Representing Tutare Ward),

Hon. Zakari A. Gwaska

(Councillor Representing Sabongida Ward),

Hon. Isa Mohammed Bello,

(Councillor Representing Yarima Ward)

Hon. Auwal S. Dambe

(Councillor Representing M/Biyu A Ward

Hon. Sahabi S. Wakili   (appellants)

(Councillior Representing Sendirde Ward)

Hon. Murshadi Bello

(Councillior Representing M/Biyu A. Ward)

Hon. Nuhu Maigari

(Councillior Representing W/Jam Ward)

Hon. Dayyibu Muhhamed Gunduma

(Councillior Representing Gassol Ward)

Hon. Danjuma Musa Pastor

(Councillior Representing Namnai A Ward)

Hon. Bello Buba Chokka

(Councillior Representing Shira Ward)

Timothy D. Yakubu

(Councillior Representing Wuryo Ward)

Hon. Abubakar Sani

(Councillior Representing Gunduma Ward)

Hon. Muhammed A. Nuhu Sansani

Gassol Local Government Legislative Council

and

Alhaji Iliyasu Goje   (respondents).

THE position of that court cannot withstand the formidable logic that yielded the conclusion of the apex court on these questions. It simply comes to this. A judge is not permitted to embark on an inquisitorial examination of documents outside the courtroom. Worse still, he is not allowed to act on what he discovered in such a document in relation to an issue when that was not supported by evidence. So held the Court of Appeal, Holden at Jalingo in a unanimous leading judgment delivered by his Lordship, Chima Centus Nweze (JCA), his learned brothers Abubakar Alkali Abba and Monica B. Dogban-Mensem (JJCA), concurring while entering judgment in favour of the appellants.

The appellants were represented by F. K. Idepefo with him are C. C. Okeke and B. Simons while the respondent was represented by E. A. Ibrahim-Effiong

The facts are as contained in the body of the judgment.

This appeal is an offshoot of the event precipitated by the impeachment of the respondent as the Executive Chairman of Gassol Local Government Council of Taraba State. On January 25, 2010, the 9th to 20th appellants, members of the Gassol Local Government Legislative Council, jointly issued a notice of allegation of gross misconduct against the respondent. On being served with the notice, he, promptly, commenced proceedings at the Upper Area Court II, Jalingo, challenging the powers of the said council to institute impeachment proceedings against him.

The said appellants challenged the competence of the suit and the jurisdiction of the said court to hear the case by an objection in limine. After arguments had been canvassed before the court, the respondent’s counsel applied to discontinue with the suit. The court ordered as prayed and struck out the suit.

The first appellant, the magistrate in charge of the Chief Magistrates’ Court, Mutum Biyu, was the chairman of a panel that investigated the above allegations leveled against the respondent. The 2nd to 8th appellants were members of the said panel, which investigated the allegations which, eventually, led to his removal from office.

Aggrieved, he took out an originating summons challenging his removal. His main agitation was that the first appellant was not an officer contemplated by the enabling law and that the second-eight appellants did not give him fair hearing in their investigation of the said allegation of gross misconduct against his person.

The present appellants filed a preliminary objection in which they contested the propriety of suing the first appellant in his personal name and the suitability of commencing and determining the matter under the originating summons proceedings. After hearing the objection, the court dismissed the objection and suo motu made an order amending the originating summons.

Aggrieved, the appellants filed a notice of interlocutory appeal containing five grounds of appeal from which they concreted three issues.

The respondent adopted the above issues; hence they will guide this court in determining this appeal.

Counsel for the appellants, F. K. Idepefo, explained that the first appellant, Abba Babaji Bambur, a magistrate in charge of the Chief Magistrate’s Court, constituted the panel that investigated the allegation of gross misconduct against the respondent.

Counsel further explained that it was pursuant to that power that the first appellant, acting in his official capacity as magistrate in charge of Chief Magistrates’ Court, Mutum Biyu, constituted the panel that investigated the respondent.

He drew attention to pages 97 to 99 of the record where the lower court, in the resolution of this issue, distinguished the present case from the case of Abubakar v Yar’Adua (supra). At page 99 of the record, the lower court overruled the appellants and dismissed the preliminary objection. It, suo motu, made an order amending the respondent’s originating summons.

The crux of this issue, in the view of the respondent’s counsel, is that it was improper for the trial court to have suo motu ordered the amendment of the name of the first appellant when no such amendment was solicited for and when the objection for the striking out of the suit for the misnomer in the way and manner the first appellant was sued, had been argued.

He took the view that the appellants’ counsel went outside the compass of the issue formulated.

He explained that the respondents’ counsel contention was that the first appellant was not an occupier of the office of Chief Magistrate envisaged by Section 40 (5) (supra).

Counsel first noted that it is the claim of the plaintiff that determines the jurisdiction of court, Mafimisebi v Ehuwa (2007) All FWLR (pt. 355) 562, 566. However, in determining whether or not an action commenced by way of an originating summons should be heard as such, regard must also be heard to the defendants’ counter-affidavit.

He referred to paragraph 24 of their joint counter-affidavit where the appellants disputed the fact that the investigative panel did not give the respondent fair hearing and set out all steps taken to ensure that the respondent was accorded the opportunity of being heard.

In his view, the above constituted a sufficient dispute to warrant the case being determined on pleadings. It was thus, against this background that the appellants filed a preliminary objection challenging the hearing and determination of the originating summons.

He maintained that the lower court was in error to have neglected the counter-affidavit on the ground that it was not in existence at the time the notice of preliminary objection was filed. He submitted that the lower court’s approach was in negation of the right to the appellants’ fair hearing of their abjection.

He further submitted that the lower court was wrong in holding that even if there were conflicts in the affidavit evidence of the parties, it could suo motu resolve the conflict or call for oral evidence to resolve the conflict. He maintained that in originating summons proceedings, the issue of evaluation of evidence seldom arises. In the particular circumstance of the respondent’s case, where he claimed for declaration and breach of fair hearing, the lower court should have ordered pleadings, PDP v Abubakar (supra); National Bank of Nigeria v Alakija (supra); Udosen v NECON (1997) 5 NWLR (pt 506) 570, 583.

In this case, seven out of the ten reliefs, which the respondent claimed were for declaratory reliefs, yet he commenced his action by way of an originating summons. Counsel disclaimed the propriety of determining whether a right to fair hearing had been breached in the circumstance, National Bank of Nigeria v Alakija (supra); also, PDP v Abubakar (No.2) (supra). He urged the court to resolve this issue in favour of the appellants.

On his part, counsel for the respondent contended that an originating summons is used whenever the law provides for it and when the sole issue or principal issue is or likely going to be the construction of a written law and where there is no likelihood of real disputes.

He submitted that a suit begun by originating summons would not just be converted to writ of summons because the word “conflict” was brandished.

He explained that the suit before the lower court, is essentially, for the interpretation or construction of section 40 of the Taraba State Local Government Laws (supra), citing pages 3-4 in the issues for determination in the originating summons and the relief at pages 4-5 of the record.

It cannot be gainsaid that where a preliminary objection is raised in an appeal, it ought to be given priority, and hence, should be resolved or determined at the initial stage before going into the merits of the appeal, Nigeria Navy v Garrick (2006) All FWLR (pt 315) 45.

At the outset, this court needs to remind itself of the wisdom ingrained in the age-long prescription that great caution or considerable circumspection must be the watchword of every court dealing with the interlocutory matter. The logic, which formed that reasoning, is that the court ought to be wary not to overreach itself to the extent of predetermining or prejudicing the ultimate outcome of the question or questions in controversy in the substantive matter in the process of determining the said interlocutory matter.

Our understanding of the plaintiff’s case (at the lower court) is that the District Court Law of Taraba State, which confers immunity on District Court judges for their judicial or administrative actions, does not avail the first appellant. The main plank of his case is that the said plaintiff was not competent to constitute the said Panel. This is because he is not a person contemplated by section 40 (5) (supra), (paragraph 6.7, page 16 of the respondent’s brief). That was why he was sued in his personal name. Suing him in the official capacity as “Chief Magistrate” would be to concede that he acted bona fides and thus covered by the immunity which the District Court Law confers, (paragraph 6.8, page 16 of the respondent’s brief).

In our humble view, any attempt to resolve the issue whether the plaintiff’s suit should have been brought against the office of “Chief Magistrate” referred to in section 40 (5) (supra) and not in the name of the holder of the office (see, arguments at paragraphs 4-1, pages 4-9 of the appellants’ brief) must encroach on the first issue in the originating summons (supra).

In plain terms, the lower court is yet to settle the question whether it was proper for the first appellant, a Magistrate Grade 11, (see, exhibit ‘IG8’, page 38 of the record) to have undertaken a responsibility which the said Section 40 (5) (supra), specifically and exclusively, reserved for a judicial officer designated as a Chief Magistrate.

Such finding, in our view, would, automatically, impinge on the agitation of the respondent.

In order to forestall any temptation of overreaching itself, therefore, this court will refrain from venturing into the resolution of the said first issue for determination in this appeal so as not to pre-determine or prejudice the resolution of the first issue in the pending suit.

The respondent entered a preliminary objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011.

The consequence of the forgoing is that the entire appeal is incompetent.

Whether an originating summons procedure was an appropriate mode for commencing the respondent’s case before the trial court.

Order 1 Rule 2 (2) of the Taraba State High Court (Civil Procedure) Rules is in pari material with the rules of the various High Courts that deal with the commencement of suits under the originating summons procedure: a procedure amply and exhaustively, dealt with in many cases.

Just like the other rules of courts of other jurisdiction, the above Taraba State Rules require the subsistence of substantial disputes of facts and not just disputed facts.

Now, the lower court reasoned that it could resolve the conflicts in the affidavits by examining the documents. The position of that court cannot withstand the formidable logic that yielded the conclusion of the apex court on these questions. It simply comes to this. A judge is not permitted to embark on an inquisitorial examination of documents outside the courtroom. Worse still, he is not allowed to act on what he discovered in such a document in relation to an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure.

We have gone through the records with the finery of a tooth-comb. We have noted paragraphs 24 of the joint affidavit of the appellants (as defendants), exhibit A5, the report of the Investigative Panel, (pages 71-86 of the record); pages 73-74 of the record.

The averments in these affidavits throw up such controversy that the justice of the case could only be met through settled pleadings, Inakoju v Adeleke (supra). In a word, the above averments evince all known characteristics of hostile proceedings, NBN v Alakija (supra) 86-87; Famfa Oil Ltd v A-G Federation (supra) 9. More importantly, we have observed that there are claims for declaratory reliefs in the said summons.

Against the above background, we take the humble view that the matter should not have been commenced under the originating summons procedure, see, for example, Abubakar v Yar’Adua (supra); Biodun Olujimi v Ekiti House of Assembly (supra); Re Doherty, Doherty v Doherty (supra) 265. We, therefore, endorse the submission of the appellants’ counsel that the lower court ought to have transferred the matter to the general cause list where it would be determined on the settled pleadings of the parties. In consequence, we set aside the said ruling of the lower court. We, hereby, enter an order that the matter should be remitted to the High Court of Taraba State to be determined by another judge of that court pursuant to the applicable rules of the said court. Appeal allowed. Costs in favour of the appellants’, which assess and fix at N30,000 only.