Propriety of the Attorney-General of the Federation Advising Non-compliance with Decisions of Courts

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 10th Day of December 2021

 Before Their Lordship

Mary Ukaego Peter- Odili

Kudirat Motonmori Olatokunbo Kekere-Ekun

 Muhammed Lawal Garba

Ibrahim Mohammed Musa Saulawa

 Emmanuel Akomaye Agim

Justices, Supreme Court

  1. 939/2015


            Michael K. Aondoakaa SAN                                                     Appellant



  1. Emmanuel Bassey Obot
  2. Attorney-General of the Federation & Respondents

Minister of Justice

  (Lead judgement delivered by Honourable Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)


The Peoples Democratic Party (PDP) held primary elections to determine its candidate for the Uyo Federal Constituency of Akwa Ibom State, for the 2007 general election. The 1st Respondent emerged the winner and was duly presented to the Independent National Electoral Commission (INEC) as the party’s candidate. A suit was instituted when the 1st Respondent’s name was substituted with the name of another candidate. The Court of Appeal delivered judgement in favour of the 1st Respondent and held that the President of the Court of Appeal (PCA) should set up a new Tribunal to hear the 1st Respondent’s Petition. The Appellant, who was the Attorney-General of the Federation and Minister of Justice (AGF), wrote to the PCA urging His Lordship not to comply with the judgement. The PCA however, went ahead to comply with the Order of court and set up the panel.

The new panel ordered that the 1st Respondent be sworn into the House of Representatives as the member representing Uyo Federal Constituency. An appeal against the decision of the panel was unsuccessful. The Appellant, once more, wrote to the INEC Chairman and the Speaker of the House of Representatives, advising them not to obey the judgement of the Court of Appeal, which he described as “an obvious desecration of the institution of the judiciary.” Consequently, the 1st Respondent was neither issued with his Certificate of Return nor sworn into office. The 1st Respondent, therefore, instituted an action at the Federal High Court against the Appellant and 2nd Respondent (personally, and in his capacity as the AGF). The learned trial judge entered judgement in favour of the 1st Respondent. The Appellant’s appeal to the Court of Appeal was unsuccessful. Hence, the further appeal to the Supreme Court.

Issues for determination

The following five issues were considered by the court:

  1. “Whether the Court of Appeal was right to hold that the Appellant was granted fair hearing and thereby, affirming the judgement of the trial court, when the entire proceedings was tainted and vitiated by the non-service of the Originating Summons and subsequent hearing notices on the Appellant.
  2.  Whether the Court of Appeal was right to affirm the Order of the trial court granting reliefs not claimed by the 1st Respondent against the Appellant.
  3.  Whether the Court below was right to hold that the trial court had jurisdiction to entertain the suit relating to an alleged breach by the Appellant of his Oath of Allegiance and Oath of Office, and the outcome of which had been overtaken by events.
  4. Whether Exhibit B, C, D being uncertified photocopies of Public Documents were admissible in evidence, having regard to Section 97, 109, 111 and 112 of the Evidence Act
  5.  Whether the Court of Appeal were right in affirming the Order of the trial court awarding exemplary damages in the sum of N50 million against the Appellant and 2nd Respondent, contrary to the legal principles and factors governing award of damages.

The court, however, considered issues 1, 3 and 4 first before issues 2 and 5.


Submitting on issue one, Counsel for the Appellant argued that service of originating processes is fundamental to adjudication and where there is no evidence of service, the court would have no jurisdiction to entertain the matter. Counsel submitted that service of the Originating Summons was effected on the office of the 2nd Respondent in Abuja and that there is no document in the record evidencing proof of service on the Appellant. He posited that the Appellant having been sued in his personal capacity, was entitled to be served personally and that given the reliefs sought and the Orders made by the trial judge, the Appellant ought to have been given the opportunity of a fair hearing as envisaged by Section 36(1) of the Constitution. In response, lcounsel for the 1st Respondent submitted that from the record, the Appellant was duly served with the Originating Summons and that he entered appearance through a counsel in his office. He argued that the best evidence of a party’s notice of commencement of an action against him is his appearance in court either personally or through his counsel. He submitted that although service of process is fundamental to the jurisdiction of the court, non-service or improper service can be waived by a Defendant who may voluntarily submit to the jurisdiction of the court and take part in the proceedings till judgement. He contended that having submitted to the jurisdiction of the court by entering appearance and being represented my counsel, the Appellant is estopped from complaining about non-service and denial of a reasonable opportunity of being heard.

On issue three, counsel contended on behalf of the Appellant that the main complaint before the trial court was that the Appellant had acted in breach of his Oath of Office as prescribed by Section 149 of the Constitution. Counsel submitted that there is nothing in Section 251 of the 1999 Constitution that confers jurisdiction on the Federal High Court to adjudicate on a matter involving breach of the Code of Conduct by any public officer. He submitted that the orders made preventing the Appellant from holding any public office in Nigeria were made without jurisdiction and that the trial court condemned the Appellant to a far more severe punishment than contemplated by the Constitution. Reacting to the submissions, counsel for the 1st Respondent argued that the trial court is vested with the necessary jurisdiction to entertain the suit by virtue of Section 251(1) of the 1999 Constitution because the subject matter relates to an act of an officer of the Federal Government. He submitted that the issue in contention was whether it was not unbecoming of the Chief Law Officer of the Federation to use the status of his office to urge individuals and institutions not to obey the judgement of the Court of Appeal, particularly having regard to the fact that the judgement of the Court of Appeal was final as regards the Election Petition in issue.

Submitting on the fourth issue, learned counsel for the Appellant argued that the lower court was wrong when it admitted uncertified photocopies of public documents attached to the affidavit before the court and in contravention of Sections 102, 104, 105 and 106 of the Evidence Act. Conversely, counsel submitted for the 1st Respondent that once a document is found to be relevant and admissible, the probative value to be attached to it is a different matter entirely, and whereas in this case, the content of the documents are not in dispute, they need not be certified. Assuming without conceding that the documents were inadmissible, counsel contended the judgement was based on the affidavit evidence of the 1st Respondent which stood uncontroverted, and the court was entitled to treat the uncontroverted facts as true and act upon them, provided they are not frivolous, contrary to reason or unsupported by documents where such is required.

Regarding the second issue, counsel for the Appellant argued that the Court of Appeal erred in affirming reliefs granted by the trial court, which were not claimed by the 1st Respondent – EKPENYONG v. NYONG (1975) 2 SC 71. He contended that the trial judge expanded the boundaries of the litigation in this case by making an Order referring the Appellant to the Nigeria Bar Association (NBA) for appropriate disciplinary action and making a declaration that he abused the powers conferred on him by Section 150(1) of the 1999 Constitution and acted in breach of Section 149 thereof. Reacting to the submissions, counsel argued for the 1st Respondent that the court is entitled to make consequential orders which give effect and meaning to the judgement and that they must be incidental to and flow directly from the relief sought in the suit. He posited that the court bears both the moral and constitutional duty to condemn and reprimand unscrupulous and fraudulent characters in the strongest possible terms.

On the fifth issue the Appellant submitted that the trial judge awarded exemplary damages against the Appellant and the 2nd Respondent whereas the 1st Respondent did not seek this specie of damages. Counsel submitted that the trial court acted upon a wrong principle of law in making the award. Responding to the submission, counsel for the 1st Respondent submitted that the primary objective of an award of damages is to compensate the Plaintiff for the harm done to him; while a secondary objective is to punish the Defendant for inflicting that harm. Counsel submitted that exemplary damages would come into play where the Defendant’s conduct is sufficiently outrageous to merit punishment, as in this case.

Court’s Judgement and Rationale

Deciding the first issue, the Supreme Court reiterated the settled principle of law that service of an originating process on a named party, who ought to be served, is an indispensable aspect of any adjudication; it goes to the root of the court’s competence and jurisdiction to entertain the suit – KIDA v OGUNMOLA (2006) 13 NWLR (Pt. 997) 377. The court noted that the circumstances of the instant appeal are somewhat unique because at the time the action was instituted, the Appellant occupied the office of the AGF. He was sued in his official capacity as AGF and in his personal capacity as the 2nd Defendant. It is not in dispute that the Originating Summons was duly served on the office of the AGF and a motion filed by Mrs. Akpan of counsel sought an order for extension of time for the 1st and 2nd Defendants to file their Memorandum of Appearance out of time and a deeming Order. Attached to the motion is an affidavit deposed to by the same person admitting that the processes were duly served on her client and explaining the reason for the delay in filing. Having admitted service of the originating processes on both parties, it no longer lies in the mouth of the Appellant to contend that he was not served. Though counsel on record for the Appellant and the 2nd Respondent applied orally to withdraw her appearance in the matter, the court directed her to comply with Order 9 Rule 36(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2019 which requires the legal practitioner to serve every party to the cause the notice. Relying on the authority of MAGNA MARITIME LTD v OTEJU (2005) NSCQR (Pt. 1) 295 at 317, it was held that “a court of can indulge a party only within the confines of its rules. … Where Rules of Court in line with the fair hearing principles order a specific conduct on the part of parties, the Court has a duty to enforce the rules. In such a situation, a defence of fair hearing is not available to the aggrieved party because the rule itself has complied with fair hearing.” Thus, the court found that the allegation of breach of fair hearing is unfounded.

On issue three, the apex court referred to the issues and reliefs sought by the 1st Respondent, which are purely civil. Proceedings before the Code of Conduct Tribunal are quasi-criminal and guided by the Criminal Procedure Code or Act (now Administration of Criminal Justice Act, 2015). Given the provisions of Section 251(1)(r) of the 1999 Constitution, the court held that the suit was properly commenced before the Federal High Court to assuage an injury done to a private citizen as a result of the administrative action of the Appellant and the 2nd Respondent. The fact that the Appellant ceased to hold office as the AGF does not alter the fact that a cause of action was disclosed.

In resolving issue four, the Supreme Court held that a trial conducted based on an Originating Summons is by affidavit evidence and the averments in an affidavit, not challenged, are deemed admitted and the court is entitled to act on them. Any objection to documents attached to the supporting affidavit could only be raised at the hearing of the suit. In this instance however, since the Appellant did not raise an objection during trial, the affidavit and the documents thereto stood unchallenged and uncontroverted, and the trial court was entitled to rely on them.

On issue two, Their Lordships held that the declarations made by the lower court were in line with the reliefs sought and the aspects of the Order complained of are in the nature of consequential orders naturally flowing from the declarations made and are intended to give effect to the judgement. The court relied on U.O.O. NIGERIA PLC v. MR. MARIBE OKAFOR & ORS (2020) (SC) and Section 150(1), Section 287(2) of the 1999 Constitution. Section 287(2) provides that “The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by the Courts with subordinate jurisdiction to the Court of Appeal.” The court noted that it was indeed highly reprehensible for the Chief Law Officer of the Federation to counsel disobedience to any judgement at all, talk less of a judgement from which there is no further right of appeal. The Supreme Court also affirmed the decision of the court below that the order made, though not specifically asked for, is a consequential Order flowing naturally from the resolution of the questions for determination in the 1st Respondent’s favour and the grant of his reliefs. The court has a duty to use its powers to do justice in the case where an attempt to subvert the administration of justice has occurred. It was within the court’s power to make consequential Order referring the Appellant to the NBA for disciplinary action having regard to his condemnable conduct which is against the ethics of the profession and in breach of the Rules of Professional Conduct for Legal Practitioners, 2007. By Rule 30 thereof, “A lawyer is an officer of the court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.”

Resolving the fifth issue, the Supreme Court held that its decision in NURSING AND MIDWIFERY COUNCIL OF NIGERIA v. PATRICK OGU & ANOR (2019) LPELR-53899 (SC) is apt here. The court held that pleadings in this case support the award of exemplary damages against the Defendants, having established unconstitutional acts committed by the writing of letters to the President of the Court of Appeal, the Speaker of the House of Representatives and the Chairman of INEC, advising them to disregard Orders made by the Court of Appeal, in flagrant breach of Section 287(2) of the 1999 Constitution which the Appellant swore to uphold, and Section 246(3) thereof.

Appeal dismissed.


Okon N. Efut with Victor Ogbonna, John Bosco Bakong and Jacob M. Jacob-Duke for the Appellant.

Uwemedimo Nwoko, SAN with Itibe Nwoko and O.D. Pius for the 1st Respondent.

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