IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 28th OF May, 2014
1. ALHAJI ABDULA-RAUF TIJJANI
2. TUNDOKUN INVESTMENT CO. LIMITED
FIRST BANK OF NIGERIA LIMITED
Alhaji A.R. Tijjani in person for Appellant
Adefowoke Ayo-Ponle (Mrs) for Respondent
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):
This appeal filed by the appellant on the 29th day of July 2013 is against the administrative decision of the Chief Judge of Lagos State. The 1st Appellant who is not a legal practitioner is conducting this appeal in person. This situation has presented some complications owing to the limited ability of the 1st Appellant to appreciate the legal issues involved and to properly address them. It is within the legal rights of the Appellant to represent himself in the matter and no one can deny him of that right, not even the court, but I doubt whether he has the competence to represent the 2nd Appellant.
The Appellants instituted this action at the High Court through a counsel claiming the sum of N31,754,748.34 as sums unlawfully debited from the Appellants' account with the Respondent bank and interests thereon along with other reliefs. The 1st Appellant subsequently withdrew his instructions to their counsel and started prosecuting the case personally.
In an earlier decision of my learned Brother Saulawa, JCA in this matter on 19th April, 2013 Appeal No CA/L/39/12 between the same parties which gave rise to the present appeal, he said:
"Most strangely, each of the four issues formulated by the 1st Appellant in the brief thereof has raised the fundamental issue of jurisdiction. Not surprisingly, the Appellant is not a legal practitioner. Regrettably, he deemed it appropriate to appear and argue this appeal in person.... Yet, it is a well settled principle, that the participation of a lawyer in any criminal proceedings, as well as in complex civil proceedings (such as the instant case), on behalf of an accused person (or litigant, as the case may be), is very essential to a fair trial. The participation of a lawyer in a case is intrinsically connected to the accused persons' or litigants right to adequately defend himself, or present his case. As once aptly said by Lord Denning MR-
'It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue tied, nervous, confused or (even) wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man: You can ask any questions you like; whereupon the man immediately starts to make speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task?''
In addition to the above, my learned Brother concluded that the consequence of a party choosing to conduct his own case is that he deprives himself of the resources which a well equipped legal team could have provided and that a defendant that decides to represent himself relinquishes many of the benefits associated with legal representation. Despite the fact that the Appellant has read the wise counsel of my learned Brother he persisted in his decision to conduct the matter by himself and this has clearly affected him in this appeal. There is a limit to how far the court can go in assisting a litigant who has decided to conduct his matter personally.
After pre-trial conference, the matter went to trial before Honourable Justice Atilade of the High Court of Lagos State. While trial was going on, the appellant filed an application dated 19th June 2010 seeking to amend its writ of summons and statement of claim. The application was opposed and in its ruling delivered on 18th October, 2001, the trial Judge refused the application on the ground that the Appellants had amended the pleadings twice previously and as such are precluded from amending same and consequently dismissed the application. The Appellants appealed against the said decision of the trial Court to the Court of Appeal which in its decision given on the 19th of April, 2013 allowed the appeal and ordered as follows:
"1. That the entire proceedings of the lower court in Suit No. ID/739/2003, inclusive of the pre-trial conference are hereby set aside.
2. That the ruling of the court below delivered on October 18, 2011 is hereby set aside.
3. That the suit ID/730/2003 is hereby remitted to the lower court for reassignment by the Chief Judge to another Judge for trial de novo."
Following the decision of the Court of Appeal delivered on 19th of April, 2013, the 1st Appellant wrote the Chief Judge of Lagos state in the following terms:
MY HUMBLE REQUEST FOR CONSOLIDATING SUIT NO ID/730/2003 WITH THE SISTER CASE BEFORE HONOURABLE JUSTICE WILLIAMS SUIT NO. ID/1445/08
The 3rd consequential order contained at page 20 of the judgment of the Court of Appeal delivered by the Coram: Saulawa, Ikyegh & Pemu JJCA on Friday the 14th day of April, 2013 meritorious and unanimous in favour of myself acting in pro-se. Herein state inter alia;
'That the suit No. ID/730/03 is hereby remitted to the lower court for reassignment by the chief Judge to another for trial 'de novo'. Attached CTC of the said Judgment in advance for ease of reference.
The subject matter in this suit ID/730/03 is for recovering monies stolen from our accounts and the returns of my two C of O held on to unlawfully.
While suit No; ID/1445/08 is for special damages of breached the contract with the claimants a breached that goes to the root of breach of contract (deliberate act of paid the customers monies without written mandate). That amount to stealing.
The trial of ID/1445/08 has been concluded by the trial Judge. Hon Justice Williams and the written Final addresses have been exchange among the parties and ready for adoption. Proceeding of 8/03/13 attached for ease of reference.
The same sets of evidence used in that case are the same that needed in this suit No. ID/730/03 i.e proof of cheque collected from the claimants before it paid out their monies of which it total sum with accrued banker agreed interest rate stood as at 31st march 2013 to the sum of N2.105 Billion Naira. With due respect my Lord, not to delay the justice of this case sought to be consolidated with suit No. ID/1445/08 your Lordship outright approval will be right and proper for justice that is good and fair.
I humbly remain as your lordship pleases.
Alhaji A. R. Tijjani MNI
1st Appellant Acting In Pro-se."
After this letter the 1st Appellant followed it up with a reminder dated 17th day June, 2013. In a written response dated 1st July, 2013 Mrs D. T. Olatokun, the Deputy Chief Registrar, Legal, on behalf of the Chief Judge wrote:
"I am directed by the Honourable Chief Judge, Honourable Justice A. A. Phillips (Mrs) to acknowledge the receipt of your letter dated 14th May, 2013 in respect of the above.
His Lordship after thorough consideration of your request and examination of the two suits mentioned above is of the view that your request for consolidation of the two suits ought not to be granted. This is because both suits are at different stages of proceedings as trial de novo is to commence in Suit No ID/730/03, while Suit No. ID/1445/08 has reached the stage of address. Your letter of 14th May, 2013 also specifies this.
Furthermore, one of these suits is on appeal to the Supreme Court.
Your request for consolidation is therefore not granted.
You are kindly advised to conclude the suits in the respective courts where they are pending."
Upon the receipt of this letter, the Appellants filed the present appeal to the Court of Appeal. The grounds of appeal contained in the Notice of Appeal filed in this appeal are as follows:
"1. The learned trial Judge erred in law when he held at paras. 2-5 of his letter dated 1st July, 13 that; 'His Lordship after thorough consideration of your request and examination of the two suits mentioned above is of the view that your request for consolidation of the two suits ought not to be granted. This is because both suits are at different stages of proceedings as trial de novo is to commence in suit No. ID/730/03, while Suit No. ID/1445/08 has reached the stage of address. Your letter of May 2013 also specified this."
Paragraph 2 referred.
1. Supreme court in Iloabuchi v. Edigbo (2000) 4 SCNJ 46 at 68 held that,
'Although consolidated actions are tried and determined in the same proceeding each remains a separate and distinct action and has its own judgment given separately at the end of the common trial;- it was further underline by the principle that the consolidation of suits does not render evidence tendered in one suit IPSO facto evidence in the other.'
At the instance of this authority, it can therefore be said that the Chief Judge's refusal to consolidate this case with the sister's case before another Judge is not in the interest of justice and development of law.
The Learned Chief Judge erred in law when he held at para. 3 of the said letter that: 'Furthermore, one of these suits is on appeal to the Supreme Court.' This is speculation. What is before the Chief Judge is Court of Appeal order to re-assign suit No. ID/730/2003 to another Judge for trial de novo. Thus, his Lordship decision on that basis is perverse and is in contempt of valid order of the Court of Appeal.
The learned chief Judge erred in law when he held at para. 5 that; 'you are kindly advised to conclude the suits in the respective courts where they are pending.'
The 3rd Consequential Orders contained at page 20 of the Court of Appeal forwarded to the learned Chief Judge to act upon ordered; 'that the suit No. ID/730/03 is hereby remitted to the lower court for reassignment by the Chief Judge to another Judge for trial de novo.'
The Chief Judge's order that remitted back the suit No. ID/730/2003 to F.O. Atilade J. Court for trial de novo is in disobedience to the valid order of the Court of Appeal which is purely a deliberate act of contempt that ousted the jurisdiction of the Learned Chief Judge to validating the order of remitting the case back to Hon. Justice F. O. Atilade for trial de novo. Hon. Justice F. O, Atilade also has been estopped by record by virtues of Judgment delivered by the court of Appeal dated 19th April, 2013 forbidden his Lordship from handling the trial of the cause again thus, cannot give any enforceable judgment or order."
The parties filed and exchanged their respective briefs of argument which were adopted at the hearing of this appeal. The Respondent also filed a preliminary objection on the following grounds which I am going to consider first:
"1. There is no decision in this matter that could be appealed.
2. There is no appeal properly constituted and the appeal is in contravention of sections 241 & 242 of the 1999 Constitution of the Federal Republic of Nigeria as amended."
Arguing the preliminary objection, the learned counsel for the Respondent referred to the meaning of decision in section 318 of the 1999 Constitution and submitted that it does not include any decision made by the Chief Judge while carrying out her administrative functions. He further submitted that the appeal does not come within "the various appeals that can be brought to the Court" and as such the Court does not have jurisdiction to entertain it.
Although the 1st Appellant filed a reply brief of argument, he did not address the issue raised in the preliminary objection. This is one of the consequences of the Appellant deciding to conduct his case by himself; he failed to properly understand or identify the issue raised in the objection and appreciate the necessity to respond to it. I must state that the argument of the learned counsel for the Respondent in addressing this issue did not show that enough diligence was put into the matter.
In the case of Aliyu v. Ibrahim (1992) 7 NWLR (Pt.253) 361 this court examined the nature of responsibility discharged by the Chief Judge in the exercise of power to transfer a case from one Judge to another. In that case, Katsina-Alu, JCA (as he then was) said at page 373 B-D thus:
"In the exercise of his power to transfer, the Learned Chief Judge did not owe the appellant any duty to hear him prior to the order of transfer. He was neither acting in a judicial or quasi judicial capacity which would have necessitated hearing both sides to the dispute. As I have already pointed out, the decision of the Chief Judge to transfer the case from Keffi to Jos was a mere administrative act. The act of transfer did not dispose of the appellant's case before the Court."
Following the reasoning in this case, I am of the view that the decision of the learned Chief Judge of Lagos State in response to the application made by the Appellants herein to have their matter consolidated was an administrative decision and is therefore not appealable. Based on this, the objection of the Respondent succeeds and the appeal is according struck out for incompetence.
A more recent decision of the Supreme Court in Garuba v. Omokhodion (2011) 15 NWLR (Pt.1269) 145 lends credence to the position that administrative decisions are not judicial determination and are therefore not appealable. In that case, parties addressed the trial court on the procedure to be adopted in hearing the originating summons filed by the Appellants and the preliminary objection filed by the Respondents. After hearing both sides the trial court delivered a ruling but the Appellants being dissatisfied appealed against it. While considering the issue of whether the decision of the trial Judge on the procedure to be adopted in hearing the matter is an appealable decision, Chukwuma-Eneh, JSC said:
"The procedure followed at the hearing in this instance has been one of due process to reach a determination in the matter, thus ruling out any doubt that the determination as has been constituted has not been heard under administrative procedure which invariably is inquisitorial in nature. The trial again in conformity with due process has heard both sides to the cause before arriving at the ruling and order. There can be no doubt that the instant process of adjudication has all the trappings of a judicial process."
Notwithstanding what I have said above, it will be appreciated that the Appellants are of the view that the Chief Judge of Lagos State has acted in contempt of the decision of this Honourable Court on 19th April, 2013 in Appeal No CA/L/39/12. It is clear from the records that while communicating the decision of this Court that the case be reassigned to another Judge of the High Court of Lagos State, not Atilade, J, the Appellants asked for consolidation of the matter with the other sister case mentioned above. Even in the letter conveying his application for consolidation, the 1st Appellant mentioned the fact that one of the cases is at the stage of final address. In the light of the above, the Chief Judge refused the application for consolidation. I am of the view that that refusal was justified by the circumstances. It is not a proper exercise of discretion for the Court to consolidate matters that are at different stages particularly when trial had been concluded in one of the cases.
One of the facts that influenced the decision of the Chief Judge was the fact that the Respondent has appealed against the decision of this Court made on 19th April, 2013 to the Supreme Court. I am also of the view that the Chief Judge was right to refuse to transfer the matter at this stage when the order of this Court is being challenged on appeal. If the appeal becomes successful, proceedings conducted before a new trial Judge may be rendered a nullity depending on the order the Supreme Court will make. It must be noted that the application of the 1st Appellant to the Chief Judge was not actually for transfer of the case to another Judge as ordered by the court of Appeal but for consolidation. Based on what I have said above, the Chief Judge rightly turned down the request of the 1st Appellant. I must add that the Chief Judge cannot be held to be in contempt of the order of the Court of Appeal in the circumstance.
I need to state here that this appeal bears the same appeal number with an appeal between the same parties which was determined by this Court on the on 19th April, 2013 Appeal No CA/L/39/12. A fresh appeal as this one ought not to be assigned the same number with an appeal that was decided previously between the same parties.
Based on the above, the preliminary objection is upheld. I hold that the appeal is incompetent. It is hereby struck out. I make no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.:
I agree with the judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J.C.A., which I had the honour of reading in advance.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.:
I have had the benefit of reading in advance the lead judgment just delivered by my learned brother C.E, Iyizoha, JCA.
The issues in contention have been adequately addressed and I agree with the reasoning and conclusion contained therein. I also uphold the Preliminary Objection on the competence of this appeal. The said appeal is hereby struck out and I abide by the consequential orders in the lead judgment including order as to cost.