Whether Courts Have Jurisdiction To Entertain An Allegation Of Breach Of The Code Of Conduct For Public Officers

By Legalpedia

MR. ADAMS ABURIME & ORS VS DR G. OLUSOJI &
ANOR

suit
no: CA/B/348/2013

Legalpedia Electronic Citation: (2021)
Legalpedia (CA) 15161

Areas Of Law:  

Appeal, Company Law, Court, Fair Hearing, Jurisdiction Tribunal,
Practice And Procedure, Words And Phrases

Summary Of Facts

This is an Appeal against the Ruling of the Benin High Court,
wherein the court held that it had powers and debarred G. E.
Oaikhena, Esq. from appearing in a court of law since he was a
lecturer.

The 6th Defendant in the lower court had filed a motion to bar
G. E. Oaikhena from conducting the suit as well as the Claimants’
counsel contending G. E. Oaikhena Esq. is a law-lecturer at the
University of Benin, which is a breach of the code of conduct of
public officers under the provision of the 5th schedule of the 1999
constitution of Nigeria.

The Appellants dissatisfied with the judgement filed a notice of
appeal against the Ruling.

HELD:

Appeal Allowed
ISSUES FOR DETERMINATION

Ø  Was the learned trial judge right when
he assumed jurisdiction to pronounce on whether a public
officer violates the provision of the code of conduct of public
officers under the 1999 constitution

Ø  Was the trial judge right when he held that the
Respondent had the locus standi to raise the issue of the violation
of the provision of the code of conduct of public officers?

Ø  Whether the trial judge was right when he held that
G. E. Oaikhena Esq is prohibited by the rules of professional
Ethics.

Ø  Whether the trial judge was right in law when he
held that G. E. Oaikhena was the person principally running G. E.
Oaikehena & Co. (the legal firm).

RATIONES

“CLAIMANT” – DEFINITION OF “CLAIMANT” UNDER THE EDO STATE HIGH
COURT UNIFORM PROCEDURE RULES

“The interpretation section of the Edo state High court uniform
procedure Rules provides a definition thus;

“Claimant” is a person who institutes all actions in Court and
shall include a claimant in a counter-claim

“Court” means the High Court of Edo State”

The name changed to Claimant instead of Plaintiff and Defendant
retains its name and since on appeal it describes the parties as in
the capacity of the appeal; Claimant/Respondent and
Defendant/Appellants does not mislead anybody as to whom the
parties are. Much as the Court of Appeal rules in Order 1 rule 5 of
the Court of Appeal, 2011   which  is same
as 20 16 defines an Appellant as the one who appeals the decision
of the lower court while Respondent is the person who is defending
the decision of the lower court, the Appellant here has described
the parties in the Notice of appeal in dual capacity of both the
Claimant in the lower court and the Appellants here in and same
goes for the Respondent and the Defendant. Much as it appears
strange this court cannot discountenance the process or hold it as
defective, the attitude of courts have changed and dwells more on
fairness and not technicalities. The Respondent has objected on the
form and not the content and it’s trite that the application of the
rules of court in and attainment   of
justice   is   generally   no   longer  allowed
or tolerated to be controlled by strict adherence to technicalities
but rather to substances. See; Odonigi v Oyeleke
(2001) 5 NSCQ VOL. 5 342“. PER
A.O.OBASEKI-ADEJUMO, J.C.A

CODE OF CONDUCT BUREAU TRIBUNAL- JURISDICTION OF CODE OF
CONDUCT BUREAU TRIBUNAL

“In Ahmed v Ahmed (SUPRA), the apex
court held on the Interpretation of Paragraph 12 of the 5th
Schedule of the 1999 Constitution (as amended) as regards
jurisdiction of Code of Conduct Bureau Tribunal thus;

“….the said paragraph 12 provides as follows: “Any allegation
that a public officer has committed a breach of or has not complied
with the provisions of this Code shall be made to the Code of
Conduct Bureau.” The foregoing provisions are clearly unambiguous
and so construed literally mean that any breaches of any provisions
of the said 5th schedule or matters of noncompliance with any
provisions of the Code shall, (meaning that it is mandatory i.e.
must) be made to the Code of Conduct Bureau that has established
its Tribunal with the exclusive jurisdiction to deal with any
violations of any provisions under the Code. If I may emphasize,
any violations shall be made to Code of Conduct Bureau. The
provisions have made it mandatory to 1 ‘• ke any matters so covered
by the 5th schedule (supra) to the Code of Conduct Bureau and not
to any ordinary regular Courts as has been done in this instance.
If I may repeat, the Code of Conduct Tribunal has been established
with the exclusive jurisdiction to deal with all violations
contravening any of the provisions of the Code as per paragraph
15(1). This provision
has   expressly   ousted the powers
of ordinary regular Courts in respect of such violations. The
Tribunal to the exclusion of other Courts is also empowered to
impose any punishments as specified under sub-paragraphs (2) (a),
(b) & (c) of paragraph 18 as provided in sub-paragraphs 3 and 4 of
paragraph 18 while appeals shall lie as of right from such
decisions to the Court of Appeal. Simply put, to tackle any
violation of the Code starts before the Code of Conduct Bureau
Tribunal to the Court below on appeal and on a further appeal there
from to this Court. As can be seen, the lower Court exercises
appellate jurisdiction over the Code of Conduct Tribunal and no
more.”

per CHUKWUMA – ENEH, J.S.C (PP. 47 – 49, PARAS. E
-B)

–         PER
A.O.OBASEKI-ADEJUMO, J.C.A

CODE OF CONDUCT BUREAU TRIBUNAL- DUTY OF A HIGH COURT
WHERE THE CODE OF CONDUCT BUREAU TRIBUNAL HAS JURISDICTION OVER A
MATTER BEFORE IT

“From the above decision, it is clear that the code of conduct
bureau is exclusively vested with breaches of the act and other
courts such as the High court have been excluded. Therefore, the
high court was wrong, once she found that the Code of conduct
bureau had jurisdiction and the Appellants was allegedly a public
officer, the high court should have referred the matter to the code
of conduct bureau. It was an issue within the suit before her and
occurred in liminie. PER A.O.OBASEKI-ADEJUMO,
J.C.A

COURT – DUTY OF THE COURT TO TAKE COGNIZANCE OF
ILLEGALITY DISCLOSED IN PROCEEDINGS BEFORE IT

“Once he had been identified as a public servant then it became
a public domain.
The  issue  herein   is  not  apparent on   the  face   of
the
pleading;   it  was raised   by  the   plaintiff.   Therefore,
in Ibrahim v Osim (1988) LPELR –
1403(SC);

“This Court has declared repeatedly in many of its decisions
that where illegality is apparent on the face of the plaintiffs
pleadings it will not hesitate to strike out the pleadings and
dismiss the action. Similarly, if the statement of defence
discloses illegality, it will
not     hesitate     to     investigate
the C’A.B. 172.2014 allegation and if established, give the proper
judgment.”

ne, OBASEKI, J.S.C (PP. 24 – 25, PARAS. G –
A)

Also in; Sherrif & Anor v PDP & Ors (2017) LPELR – 41805
(CA); where it held on the duty of the Court to take
cognizance of illegality disclosed in proceedings before it
thus:

In Agip Nig Ltd -V- Agip Petroli Int’l (2010) 5
NWLR (Pt. 1187) 254 at 412 the apex Court per ADEKEYE
JSC held:-

“It is also settled and the principle is still evergreen in that
illegality once brought to the attention of the Court overrides all
other questions and the Court will not close its eye against such
illegality, neither will the Court lend its aid to the perpetrators
of any illegality.” per SANGA, J.C.A (P. 80, PARAS. B – D).

See also; Okoya v Santilli (SUPRA)
COURT;

“Where a Court of law, in the course of trial of a matter finds
an illegality punishable under the law, even if not triable in that
Court but in another tribunal, without prejudice to its referring
the matter to that Tribunal, must take cognizance of the
illegality.

Once a transaction is illegal, it is void and all things
emanating from that transaction is a nullity.”

per BELGORE, J.S.C (P. 52, PARAS. D – E)

In the light of the above, the Respondents’ Counsel properly
raised it to draw the Court’s attention and once it is noted it, it
is the duty of the court to direct same for appropriate attention
and also the duty of the Respondents’ Counsel to complain to the
employers of the public officer and to make a complain at the Code
of Conduct Bureau. It is like when a Counsel misconducts himself in
the face of the court, the matter is referred to the disciplinary
committee of the Nigeria Bar Association for investigation and
necessary action not for the court to take summary
action. PER A.O.OBASEKI-ADEJUMO, J.C.A

ISSUES RAISED SUO MOTU – EFFECT OF RAISING AN ISSUE SUO
MOTU WITHOUT CALLING PARTIES TO ADDRESS THE COURT ON THE
ISSUE

“This issue appears to have been raised suo moto as neither
parties raised same, they were not called upon to address on the
issue, therefore, for the lower court to find it contrary amounts
to a miscarriage of justice and a breach of fair
hearing. PER A.O.OBASEKI-ADEJUMO, J.C.A

ISSUES RAISED SUO MOTU – INSTANCES WHERE A COURT CAN AND
CANNOT RAISE AN ISSUE SUO MOTO

“The instance where a court can and cannot raise an issue suo
moto was enumerated in;

Moses – Obiekwe v Ojogbede (2019) LPELR
-47290;

“Deciding specifically on raising an issue of jurisdiction suo
motu by the Court and deciding on it without affording the parties
the opportunity to be heard the Supreme Court held in the case of
Alims Nigeria Limited v. United Bank for Africa (2013) 6 NWLR
(pt.1351) 613 at 626 per the judgment prepared by his lordship,
Fabiyi, J.S.C., inter alia that – “It is now clear that the issue
of jurisdiction is a threshold one which can be taken at any stage
of the proceedings; even before the apex Court for the first time.
It can be raised by any of the parties or by the Court suo motu.
Where there are sufficient facts ex facie on the record
establishing a want of competence or jurisdiction, the judex has
the duty to raise it suo motu, if the parties fail to draw the
attention of the Court to it. In such a situation where the judex
raises it suo motu, it is proper to invite the address of both
counsel before deciding one way or the other. However, failure of
the Court to so invite the address of counsel, does not, ipso
facto, render such a decision a nullity unless it is shown that the
decision is incorrect or occasioned a miscarriage of justice.
See: Olutola v. University of Ilorin (supra); Katto v.
CBN. (supra); Ima v. Okobe (supra); Ejowhomu v. Edok-Eter Mandilas
Ltd. (1986) 5 NWLR (Pt. 39) 1. ‘ The lead judgment (supra)
was concurred in by their lordships of the Apex Court (Muhammad,
Peter-Odili, Ariwoola and Aka’ahs, JJ.S.C). The Supreme Court also
held in the case of Gbagbarigha v. Toruemi and Anor.
(2013) 6 NWLR (pt.1350) 289 at 310 -311 per the lead
judgment prepared by his lordship, Rhodes-Vivour, J.S.C., inter
alia that – “When a judge raises an issue on his own motion, or
raises an issue not in the contemplation of the parties; or an
issue not before the Court, the judge is said to have raised the
issue suo motu. The well laid down position of the law is that when
an issue is raised suo motu the parties should be heard before a
decision is reached on the issue. This is what procedural fairness
entails. See Kuti v. Balogun (1978) 1 SC p. 53;
Ogiamien v. Ogiamien (1967) NMLR p. 246, (1967) SCNLR 311; Adeniji
v. Adeniji (1972) 4 SC p. 10; Iriri v. Erhurhobara (1991) 2 NWLR
(Pt. 173) p. 252 but there is an exception to this
procedure. There would be no need to call on counsel to address the
Court on an issue raised suo motu by the judge – 1. When the issue
relates to the Courts own jurisdiction; 2. When both parties are
not aware or ignored a statute which may have bearing on the case;
or 3. When on the face of the record serious questions of the
fairness of the proceedings is evident. See Comptoir
Commercial & Ind S.PR^[1]. Ltd. v. O.G.S.W.C.
(2002) FWLR (Pt. 105) p. 839, (2002) 9 NWLR (Pt. 773) 629; MD.
Kolawole & ors v. A .-G., Oyo & 3 ors (2006) 3 NWLR (Pt. 966) p.
50 

Finally, since the issue of jurisdiction raised suo motu by the
judge without affording counsel a hearing has not led to
miscarriage of justice, the decision will not be set aside. The
Court of Appeal was right to uphold the issue of jurisdiction
raised suo motu by the learned appellate High Court Judge.” (My
emphasis). The lead judgment (supra) of the Apex Court was
concurred in by their lordship (Onnoghen, Chukwuma-Eneh, Muhammad
and Ogunbiyi, JJ.S.C). Since the trial learned chief magistrate
raised the issue of jurisdiction of the magistrate Court itself in
the matter without affording the parties the opportunity to be
heard and having regard to the fact that the Appellants did not
establish a miscarriage of justice, the Court below should not have
reversed the decision of the learned Chief Magistrate to take and
decide the issue of the jurisdiction of the Magistrate Court in the
matter suo motu without affording the parties the opportunity to be
heard.”

Per IKYEGH, J.C.A (PP. 9 – 12, PARAS. C – E)”. PER
A.O.OBASEKI-ADEJUMO, J.C.A

BUSINESS NAME -LEGAL IMPLICATION OF REGISTERING A
BUSINESS NAME

“Finally, the holding that G. E Oaikhena Esq is a separate legal
entity different from G. E. OAIKHENA & CO, 1 find solace in the
CAMA (Companies and Allied Matters Act) wherein the law firm is
registered as a business name and not an incorporated company of a
charitable organization. It is either registered as a partnership
or associates but the name as it is, is clearly a sole business
name with the name of the main legal practitioner.

The legal implication is that there is no separate entity, the
name is the same as the law7 firm, and they have no separate
identity in law as enjoyed by the incorporated registered
company/business under part A of the CAMA. The liabilities differ;
the business name is solely liable for all liabilities while the
company is responsible for liabilities of the companies with the
exclusion of the Directors or shareholders

In Adamu v FRN (2018) LPELR – 46029
(CA); on the effect of registering a business name,
this Court held that;

“The Cross Appellants as DW2 admitted under cross examination on
page 411 of the record that he is the sole proprietor of MJIE
Enterprises. He further confirmed that, it was registered as a
business name in 2009 not a company. The legal implication of a
registered business name, unlike a company is that the registered
business name and its proprietor are regarded one and the same
person. Hence the management of
the    business    name    can    never
be transferred to another person because the business name has no
legal personality of its own independent of the proprietor. See
F.C.D.A Vs Unique Future Leaders International Ltd (2014)
17 NWLR (part 1436) 213.”

per JAURO, J.C.A (PP. 24 – 25, PARAS. E –
B)

–         PER
A.O.OBASEKI-ADEJUMO, J.C.A

CODE OF CONDUCT BUREAU
TRIBUNAL –WHETHER COURTS HAVE JURISDICTION TO
ENTERTAIN AN ALLEGATION OF BREACH OF THE CODE OF CONDUCT FOR PUBLIC
OFFICERS

The motion to disqualify G. E. Oaikhena from conducting the case
was premised the allegation that the said counsel was in breach of
the Code of Conduct for Public Officers as set out in the 5th
Schedule to the Constitution of the Federal Republic of Nigeria,
1999 (as amended). Paragraph 12 of the said Schedule provides:

” Any allegation that a public officer has committed a breach of
or has not complied with the provisions of this code shall be made
to the Code of Conduct Bureau.”

In Ahmed v Ahmed (2013) 15 NWLR (Pt. 1377)
274,329 Chukwuma-Eneh JSC, interpreted the foregoing
provisions thus:

” The foregoing provisions are clearly unambiguous and so
construed literary mean that any breaches of any provisions of the
said 5th Schedule or matters of non¬ compliance with any provisions
of the Code shall(meaning that it is mandatory i.e. must) be made
to the Code of Conduct Bureau that has established its Tribunal
with the exclusive jurisdiction to deal with any violations of any
provisions under the Code, if I may emphasise any violations shall
be made to the Code of Conduct Bureau. The provisions have made it
mandatory to take any matters so covered by the 5th Schedule
(supra) to the Code of Conduct Bureau and not to any ordinary
regular courts as has been done in this instance. If I may repeat,
the Code of Conduct Tribunal has been established with the
exclusive jurisdiction to deal with all violations contravening any
of the provisions of the Code as per paragraph 15(1). This
provision has expressly ousted the powers of the ordinary regular
courts in respect of such violations.”

–         PER
J.E. EKANEM, J.C.A

Statutes Referred To:

Companies and Allied Matters Act

Constitution of the Federal Republic of Nigeria, 1999 (as
amended)

Regulated and other Professions (Private Practice Prohibition)
Law Lecturers Exemption (No 2) Order

Rules Professional Conduct for Legal Practitioners, 2007

By Legalpedia

MR. ADAMS ABURIME & ORS VS DR G. OLUSOJI &
ANOR

suit
no: CA/B/348/2013

Legalpedia Electronic Citation: (2021)
Legalpedia (CA) 15161

Areas Of Law:  

Appeal, Company Law, Court, Fair Hearing, Jurisdiction Tribunal,
Practice And Procedure, Words And Phrases

Summary Of Facts

This is an Appeal against the Ruling of the Benin High Court,
wherein the court held that it had powers and debarred G. E.
Oaikhena, Esq. from appearing in a court of law since he was a
lecturer.

The 6th Defendant in the lower court had filed a motion to bar
G. E. Oaikhena from conducting the suit as well as the Claimants’
counsel contending G. E. Oaikhena Esq. is a law-lecturer at the
University of Benin, which is a breach of the code of conduct of
public officers under the provision of the 5th schedule of the 1999
constitution of Nigeria.

The Appellants dissatisfied with the judgement filed a notice of
appeal against the Ruling.

HELD:

Appeal Allowed
ISSUES FOR DETERMINATION

Ø  Was the learned trial judge right when
he assumed jurisdiction to pronounce on whether a public
officer violates the provision of the code of conduct of public
officers under the 1999 constitution

Ø  Was the trial judge right when he held that the
Respondent had the locus standi to raise the issue of the violation
of the provision of the code of conduct of public officers?

Ø  Whether the trial judge was right when he held that
G. E. Oaikhena Esq is prohibited by the rules of professional
Ethics.

Ø  Whether the trial judge was right in law when he
held that G. E. Oaikhena was the person principally running G. E.
Oaikehena & Co. (the legal firm).

RATIONES

“CLAIMANT” – DEFINITION OF “CLAIMANT” UNDER THE EDO STATE HIGH
COURT UNIFORM PROCEDURE RULES

“The interpretation section of the Edo state High court uniform
procedure Rules provides a definition thus;

“Claimant” is a person who institutes all actions in Court and
shall include a claimant in a counter-claim

“Court” means the High Court of Edo State”

The name changed to Claimant instead of Plaintiff and Defendant
retains its name and since on appeal it describes the parties as in
the capacity of the appeal; Claimant/Respondent and
Defendant/Appellants does not mislead anybody as to whom the
parties are. Much as the Court of Appeal rules in Order 1 rule 5 of
the Court of Appeal, 2011   which  is same
as 20 16 defines an Appellant as the one who appeals the decision
of the lower court while Respondent is the person who is defending
the decision of the lower court, the Appellant here has described
the parties in the Notice of appeal in dual capacity of both the
Claimant in the lower court and the Appellants here in and same
goes for the Respondent and the Defendant. Much as it appears
strange this court cannot discountenance the process or hold it as
defective, the attitude of courts have changed and dwells more on
fairness and not technicalities. The Respondent has objected on the
form and not the content and it’s trite that the application of the
rules of court in and attainment   of
justice   is   generally   no   longer  allowed
or tolerated to be controlled by strict adherence to technicalities
but rather to substances. See; Odonigi v Oyeleke
(2001) 5 NSCQ VOL. 5 342“. PER
A.O.OBASEKI-ADEJUMO, J.C.A

CODE OF CONDUCT BUREAU TRIBUNAL- JURISDICTION OF CODE OF
CONDUCT BUREAU TRIBUNAL

“In Ahmed v Ahmed (SUPRA), the apex
court held on the Interpretation of Paragraph 12 of the 5th
Schedule of the 1999 Constitution (as amended) as regards
jurisdiction of Code of Conduct Bureau Tribunal thus;

“….the said paragraph 12 provides as follows: “Any allegation
that a public officer has committed a breach of or has not complied
with the provisions of this Code shall be made to the Code of
Conduct Bureau.” The foregoing provisions are clearly unambiguous
and so construed literally mean that any breaches of any provisions
of the said 5th schedule or matters of noncompliance with any
provisions of the Code shall, (meaning that it is mandatory i.e.
must) be made to the Code of Conduct Bureau that has established
its Tribunal with the exclusive jurisdiction to deal with any
violations of any provisions under the Code. If I may emphasize,
any violations shall be made to Code of Conduct Bureau. The
provisions have made it mandatory to 1 ‘• ke any matters so covered
by the 5th schedule (supra) to the Code of Conduct Bureau and not
to any ordinary regular Courts as has been done in this instance.
If I may repeat, the Code of Conduct Tribunal has been established
with the exclusive jurisdiction to deal with all violations
contravening any of the provisions of the Code as per paragraph
15(1). This provision
has   expressly   ousted the powers
of ordinary regular Courts in respect of such violations. The
Tribunal to the exclusion of other Courts is also empowered to
impose any punishments as specified under sub-paragraphs (2) (a),
(b) & (c) of paragraph 18 as provided in sub-paragraphs 3 and 4 of
paragraph 18 while appeals shall lie as of right from such
decisions to the Court of Appeal. Simply put, to tackle any
violation of the Code starts before the Code of Conduct Bureau
Tribunal to the Court below on appeal and on a further appeal there
from to this Court. As can be seen, the lower Court exercises
appellate jurisdiction over the Code of Conduct Tribunal and no
more.”

per CHUKWUMA – ENEH, J.S.C (PP. 47 – 49, PARAS. E
-B)

–         PER
A.O.OBASEKI-ADEJUMO, J.C.A

CODE OF CONDUCT BUREAU TRIBUNAL- DUTY OF A HIGH COURT
WHERE THE CODE OF CONDUCT BUREAU TRIBUNAL HAS JURISDICTION OVER A
MATTER BEFORE IT

“From the above decision, it is clear that the code of conduct
bureau is exclusively vested with breaches of the act and other
courts such as the High court have been excluded. Therefore, the
high court was wrong, once she found that the Code of conduct
bureau had jurisdiction and the Appellants was allegedly a public
officer, the high court should have referred the matter to the code
of conduct bureau. It was an issue within the suit before her and
occurred in liminie. PER A.O.OBASEKI-ADEJUMO,
J.C.A

COURT – DUTY OF THE COURT TO TAKE COGNIZANCE OF
ILLEGALITY DISCLOSED IN PROCEEDINGS BEFORE IT

“Once he had been identified as a public servant then it became
a public domain.
The  issue  herein   is  not  apparent on   the  face   of
the
pleading;   it  was raised   by  the   plaintiff.   Therefore,
in Ibrahim v Osim (1988) LPELR –
1403(SC);

“This Court has declared repeatedly in many of its decisions
that where illegality is apparent on the face of the plaintiffs
pleadings it will not hesitate to strike out the pleadings and
dismiss the action. Similarly, if the statement of defence
discloses illegality, it will
not     hesitate     to     investigate
the C’A.B. 172.2014 allegation and if established, give the proper
judgment.”

ne, OBASEKI, J.S.C (PP. 24 – 25, PARAS. G –
A)

Also in; Sherrif & Anor v PDP & Ors (2017) LPELR – 41805
(CA); where it held on the duty of the Court to take
cognizance of illegality disclosed in proceedings before it
thus:

In Agip Nig Ltd -V- Agip Petroli Int’l (2010) 5
NWLR (Pt. 1187) 254 at 412 the apex Court per ADEKEYE
JSC held:-

“It is also settled and the principle is still evergreen in that
illegality once brought to the attention of the Court overrides all
other questions and the Court will not close its eye against such
illegality, neither will the Court lend its aid to the perpetrators
of any illegality.” per SANGA, J.C.A (P. 80, PARAS. B – D).

See also; Okoya v Santilli (SUPRA)
COURT;

“Where a Court of law, in the course of trial of a matter finds
an illegality punishable under the law, even if not triable in that
Court but in another tribunal, without prejudice to its referring
the matter to that Tribunal, must take cognizance of the
illegality.

Once a transaction is illegal, it is void and all things
emanating from that transaction is a nullity.”

per BELGORE, J.S.C (P. 52, PARAS. D – E)

In the light of the above, the Respondents’ Counsel properly
raised it to draw the Court’s attention and once it is noted it, it
is the duty of the court to direct same for appropriate attention
and also the duty of the Respondents’ Counsel to complain to the
employers of the public officer and to make a complain at the Code
of Conduct Bureau. It is like when a Counsel misconducts himself in
the face of the court, the matter is referred to the disciplinary
committee of the Nigeria Bar Association for investigation and
necessary action not for the court to take summary
action. PER A.O.OBASEKI-ADEJUMO, J.C.A

ISSUES RAISED SUO MOTU – EFFECT OF RAISING AN ISSUE SUO
MOTU WITHOUT CALLING PARTIES TO ADDRESS THE COURT ON THE
ISSUE

“This issue appears to have been raised suo moto as neither
parties raised same, they were not called upon to address on the
issue, therefore, for the lower court to find it contrary amounts
to a miscarriage of justice and a breach of fair
hearing. PER A.O.OBASEKI-ADEJUMO, J.C.A

ISSUES RAISED SUO MOTU – INSTANCES WHERE A COURT CAN AND
CANNOT RAISE AN ISSUE SUO MOTO

“The instance where a court can and cannot raise an issue suo
moto was enumerated in;

Moses – Obiekwe v Ojogbede (2019) LPELR
-47290;

“Deciding specifically on raising an issue of jurisdiction suo
motu by the Court and deciding on it without affording the parties
the opportunity to be heard the Supreme Court held in the case of
Alims Nigeria Limited v. United Bank for Africa (2013) 6 NWLR
(pt.1351) 613 at 626 per the judgment prepared by his lordship,
Fabiyi, J.S.C., inter alia that – “It is now clear that the issue
of jurisdiction is a threshold one which can be taken at any stage
of the proceedings; even before the apex Court for the first time.
It can be raised by any of the parties or by the Court suo motu.
Where there are sufficient facts ex facie on the record
establishing a want of competence or jurisdiction, the judex has
the duty to raise it suo motu, if the parties fail to draw the
attention of the Court to it. In such a situation where the judex
raises it suo motu, it is proper to invite the address of both
counsel before deciding one way or the other. However, failure of
the Court to so invite the address of counsel, does not, ipso
facto, render such a decision a nullity unless it is shown that the
decision is incorrect or occasioned a miscarriage of justice.
See: Olutola v. University of Ilorin (supra); Katto v.
CBN. (supra); Ima v. Okobe (supra); Ejowhomu v. Edok-Eter Mandilas
Ltd. (1986) 5 NWLR (Pt. 39) 1. ‘ The lead judgment (supra)
was concurred in by their lordships of the Apex Court (Muhammad,
Peter-Odili, Ariwoola and Aka’ahs, JJ.S.C). The Supreme Court also
held in the case of Gbagbarigha v. Toruemi and Anor.
(2013) 6 NWLR (pt.1350) 289 at 310 -311 per the lead
judgment prepared by his lordship, Rhodes-Vivour, J.S.C., inter
alia that – “When a judge raises an issue on his own motion, or
raises an issue not in the contemplation of the parties; or an
issue not before the Court, the judge is said to have raised the
issue suo motu. The well laid down position of the law is that when
an issue is raised suo motu the parties should be heard before a
decision is reached on the issue. This is what procedural fairness
entails. See Kuti v. Balogun (1978) 1 SC p. 53;
Ogiamien v. Ogiamien (1967) NMLR p. 246, (1967) SCNLR 311; Adeniji
v. Adeniji (1972) 4 SC p. 10; Iriri v. Erhurhobara (1991) 2 NWLR
(Pt. 173) p. 252 but there is an exception to this
procedure. There would be no need to call on counsel to address the
Court on an issue raised suo motu by the judge – 1. When the issue
relates to the Courts own jurisdiction; 2. When both parties are
not aware or ignored a statute which may have bearing on the case;
or 3. When on the face of the record serious questions of the
fairness of the proceedings is evident. See Comptoir
Commercial & Ind S.PR^[1]. Ltd. v. O.G.S.W.C.
(2002) FWLR (Pt. 105) p. 839, (2002) 9 NWLR (Pt. 773) 629; MD.
Kolawole & ors v. A .-G., Oyo & 3 ors (2006) 3 NWLR (Pt. 966) p.
50 

Finally, since the issue of jurisdiction raised suo motu by the
judge without affording counsel a hearing has not led to
miscarriage of justice, the decision will not be set aside. The
Court of Appeal was right to uphold the issue of jurisdiction
raised suo motu by the learned appellate High Court Judge.” (My
emphasis). The lead judgment (supra) of the Apex Court was
concurred in by their lordship (Onnoghen, Chukwuma-Eneh, Muhammad
and Ogunbiyi, JJ.S.C). Since the trial learned chief magistrate
raised the issue of jurisdiction of the magistrate Court itself in
the matter without affording the parties the opportunity to be
heard and having regard to the fact that the Appellants did not
establish a miscarriage of justice, the Court below should not have
reversed the decision of the learned Chief Magistrate to take and
decide the issue of the jurisdiction of the Magistrate Court in the
matter suo motu without affording the parties the opportunity to be
heard.”

Per IKYEGH, J.C.A (PP. 9 – 12, PARAS. C – E)”. PER
A.O.OBASEKI-ADEJUMO, J.C.A

BUSINESS NAME -LEGAL IMPLICATION OF REGISTERING A
BUSINESS NAME

“Finally, the holding that G. E Oaikhena Esq is a separate legal
entity different from G. E. OAIKHENA & CO, 1 find solace in the
CAMA (Companies and Allied Matters Act) wherein the law firm is
registered as a business name and not an incorporated company of a
charitable organization. It is either registered as a partnership
or associates but the name as it is, is clearly a sole business
name with the name of the main legal practitioner.

The legal implication is that there is no separate entity, the
name is the same as the law7 firm, and they have no separate
identity in law as enjoyed by the incorporated registered
company/business under part A of the CAMA. The liabilities differ;
the business name is solely liable for all liabilities while the
company is responsible for liabilities of the companies with the
exclusion of the Directors or shareholders

In Adamu v FRN (2018) LPELR – 46029
(CA); on the effect of registering a business name,
this Court held that;

“The Cross Appellants as DW2 admitted under cross examination on
page 411 of the record that he is the sole proprietor of MJIE
Enterprises. He further confirmed that, it was registered as a
business name in 2009 not a company. The legal implication of a
registered business name, unlike a company is that the registered
business name and its proprietor are regarded one and the same
person. Hence the management of
the    business    name    can    never
be transferred to another person because the business name has no
legal personality of its own independent of the proprietor. See
F.C.D.A Vs Unique Future Leaders International Ltd (2014)
17 NWLR (part 1436) 213.”

per JAURO, J.C.A (PP. 24 – 25, PARAS. E –
B)

–         PER
A.O.OBASEKI-ADEJUMO, J.C.A

CODE OF CONDUCT BUREAU
TRIBUNAL –WHETHER COURTS HAVE JURISDICTION TO
ENTERTAIN AN ALLEGATION OF BREACH OF THE CODE OF CONDUCT FOR PUBLIC
OFFICERS

The motion to disqualify G. E. Oaikhena from conducting the case
was premised the allegation that the said counsel was in breach of
the Code of Conduct for Public Officers as set out in the 5th
Schedule to the Constitution of the Federal Republic of Nigeria,
1999 (as amended). Paragraph 12 of the said Schedule provides:

” Any allegation that a public officer has committed a breach of
or has not complied with the provisions of this code shall be made
to the Code of Conduct Bureau.”

In Ahmed v Ahmed (2013) 15 NWLR (Pt. 1377)
274,329 Chukwuma-Eneh JSC, interpreted the foregoing
provisions thus:

” The foregoing provisions are clearly unambiguous and so
construed literary mean that any breaches of any provisions of the
said 5th Schedule or matters of non¬ compliance with any provisions
of the Code shall(meaning that it is mandatory i.e. must) be made
to the Code of Conduct Bureau that has established its Tribunal
with the exclusive jurisdiction to deal with any violations of any
provisions under the Code, if I may emphasise any violations shall
be made to the Code of Conduct Bureau. The provisions have made it
mandatory to take any matters so covered by the 5th Schedule
(supra) to the Code of Conduct Bureau and not to any ordinary
regular courts as has been done in this instance. If I may repeat,
the Code of Conduct Tribunal has been established with the
exclusive jurisdiction to deal with all violations contravening any
of the provisions of the Code as per paragraph 15(1). This
provision has expressly ousted the powers of the ordinary regular
courts in respect of such violations.”

–         PER
J.E. EKANEM, J.C.A

Statutes Referred To:

Companies and Allied Matters Act

Constitution of the Federal Republic of Nigeria, 1999 (as
amended)

Regulated and other Professions (Private Practice Prohibition)
Law Lecturers Exemption (No 2) Order

Rules Professional Conduct for Legal Practitioners, 2007