DR. EMERUCHE KALU NTO & ANOR v. GLOBAL SOAP & DETERGENT IND. LTD.
(2012)LCN/5361(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of May, 2012
CA/IL/53/2007
RATIO
APPEAL: RULE ON PROLIFERATION OF ISSUES FOR DETERMINATION
A single ground of appeal cannot give birth to more than one issue for determination, whereas a single issue can come from a combination of two or more grounds of appeal. See the case of AFRIBANK (NIG) PLC v. YELWA (2011) ALL FWLR (Pt.585) 299; Issues raised in the brief of argument must relate and from grounds of appeal before the court (to be competent)” See also NWAUGWE v. OKEKE (2008) ALL FWLR (Pt.431) 843; Oseni v. Bajulu 2010 ALL FWLR (Pt.511) 813. PER ITA G. MBANA, J.C.A.
JURISDICTION: IMPORTANCE OF JURISDICTION
Learned Counsel for the Appellants had submitted, and rightly, in my view, that the trial court has a duty to consider and make its decision known concerning any issue or question raised at the trial, and that where the issue touches on jurisdiction, that has to be resolved first, because if the court has no jurisdiction to hear a case, it shall have expended its energies in vain, as the proceedings would be and remain a nullity, however well conducted and brilliantly decided. See the case of Ango v. Alu (2001) 17 WRN 49; Riruwai v. Shekarau (2009) ALL FWLR (Pt.461) 975; Ogunmokun v. Military Admin. Osun State (1999) 3 NWLR (pt. 593) 261, held 6. See also the case of F. A. Akinbola v. Plisson Fisko Nig. Ltd. & Ors. (1991) 9 SCNJ 258, where the Supreme Court held that where a court lacks jurisdiction in a matter it has no jurisdiction to make orders affection subsequent determination on merits as it lacks powers to exercise any power in relation to the suit. PER ITA G. MBANA, J.C.A.
JURISDICTION: WHEN CAN THE ISSUE OF JURISDICTION BE RAISED
In the case of Moyosore v. Governor Kwara State (2012) 5 NWLR (pt.242) (1293) held 1, this court said:
“A defendant has right to raise any issue bordering on the jurisdiction of a court to try a cause or matter at anytime, even on appeal, without let or hindrance. The court has a duty to hear and dispose of any such challenge of its jurisdiction first before going into the merits substantive matter. The logic for this lies in the fact that where a court lacks jurisdiction to hear and entertain a suit, whatever it does in the case will amount to sheer waste of time and a nullify, no matter how well the case must have been conducted.” (M. v. Gongola Hope v. Simufit Cases Ltd. (2007) ALL FWLR (Pt. 388) 10005; F.C.M.B. Ltd v. S.A.I.C Ltd. Nwafor (NWLR) (Pt.1110) 418 referred to (P.278, paras. A-D) PER ITA G. MBANA, J.C.A.
JUSTICES
TIJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. DR. EMERUCHE KALU NTO
2. MENENCO INVESTMENT LTD. Appellant(s)
AND
GLOBAL SOAP & DETERGENT IND. LTD. Respondent(s)
ITA G. MBANA, J.C.A. (Delivering the lead Judgment): The claimant (now Respondent) claimed the sum of N1,232,012.24 (One Million, two hundred and thirty two thousand, twelve naira twenty four kobo) as per its writ of summons, filed on 28/4/2006 being balance due to it for supply of its products to the defendants (now Appellants).
The Defendants, on the other hand, counter-claimed against the claimant for the sum of One Million Three Hundred and Eighty five Thousand Eight Hundred and Fifty Seven Naira Twenty Nine kobo (N1,395,957.29).
But in their statement of defence, the Defendants raised a preliminary point of law, challenging the jurisdiction of the Court on grounds of locus standi and the court, in compliance with the Rules, set the same down for hearing. Both parties submitted their written addresses on the preliminary point of law. The court, however, declined to rule on the issue and rather opted to hear the case in full, that is, the court put the preliminary objection “on hold until the full hearing and determination of the substantive suit and Counter-claim therein.”
It was the opinion of the learned chief Judge that, since the Defendants, despite their preliminary objections on the jurisdiction of the court and venue of trial, had gone ahead to counter-claim in the matter, it was wise to hear the case in full.
That is the decision the Appellants appealed against, being aggrieved. They filed their Notice and grounds of appeal on 6/8/2007, disclosing six grounds of appeal as follows (pages 53 to 55 of the Records):
“GROUNDS OF APPEAL
1. ERROR-IN-LAW
The learned Trial Judge erred in Law when he declined to determine the Application of the Defendants/Appellants questioning the locus standi of the Plaintiff on the ground that he cannot at;
“this early stage determine whether the court lacks jurisdiction or not… until the full facts of the case has been highlighted in the course of hearing of this case”
PATICULARS OF ERROR
(a)The court conceded that the parties have filed all the requisite court Processes
(b)To resolve the issue of locus standi the court only need to look at the statement of claim, affidavit evidence and exhibits before the court. It is not the law that hearing has to be commenced before the court can determine the issue of locus standi:-
II. ERROR-IN-LAW
The Learned Trial Judge erred in law when he postponed the determination of the question of whether the Claimant have (sic) locus standi or not on the ground that issue of jurisdiction can be
“raised and determined at any stage proceedings even at the court of last resort”
PARTICULARS OF ERROR
It is the law that issue of locus standi and/or jurisdiction once raised must be determined one way or the other before proceeding further. This is because once a court lacks jurisdiction whatever further step it takes is a nullity no matter how well the proceedings is conducted.
III. ERROR-IN-LAW
The Learned Trial Judge erred in raw where he failed to advert his mind to the fact that putting the Preliminary objection on “hold until full hearing and determination of the substantive suit is tantamount to
overruling the Defendants’ preliminary objection that the High court Ilorin is not the proper venue for the trial of this case without considering the case presented by the Defendants and thereby denied them fair hearing.
PARTICULARS OF ERROR
(i) The preliminary objection raised by the defendants as to the venue ought to be considered first before the court embark on hearing the matter.
(ii) Hearing the matter without resolving that point one way or the other will amount to ignoring and/or prejudicing the Defendants’ objection and thereby denying him right to fair hearing.
IV. ERROR-IN-LAW
The Learned Trial Judge erred in law when he held thus:
“in spite of this preliminary objection, the Defendants went ahead and filed an eight paragraph statement of defence with an additional two paragraph counter-claim”
PARTICULARS OF ERROR
Filling statement of defence in spite of preliminary objection does amount to waiver but rather is in compliance with the Rules of Court.
V. ERROR-IN-LAW
The Learned Trial Judge erred in law when he put on hold the Defendants/Appellants Application questioning the claimant locus standi to bring this suit and the appropriate venue for the trial and determination of this suit all of which are threshold issues which cannot be put on hold as the trial court sought to do in the instant case.
PARTICULARS OF ERROR
i. That by the nature of the Application before the court which raises threshold issue it cannot be put on hold.
ii. Application which questions the jurisdiction of the court as in the instant case cannot be put on hold.
VI. ERROR-IN-LAW
The Learned Trial Judge erred in law when despite the agreement by the parties and/or admission by the claimant that the distributorship contract was between the 2nd Defendant and Doyin Group of companies still decline to apply the law to the admitted fact.
PARTICULARS OF ERROR
i. The claimant in his Reply to the defendants’ submission on locus standi concedes that the contract was between DOYIN GROUP OF COMPANIES and the 2nd Defendant.
ii. On that admitted fact there was ample material upon which the court can rule one way of the other.
Appellants filed their Brief of arguments on 2/1/2008 and distilled 3 Issues for determination, namely;
(1) Having regards to the fact that all the materials and/or facts necessary for the resolution of the issue of locus standi one way or the other was before the Court, was the Court right in putting the resolution of the same on hold, anchoring same on the fact that issue of jurisdiction can be raised at any time (Grounds 1, 2 and 3)
(2) Where (sic) the decision of the trial court to proceed with the hearing of the case without resolving the issue of venue raised by the Defendants/Appellants does not amount to denying the Defendants/Appellants (sic) fair hearing (Ground 3)
(3) Whether the Learned Trial Judge was right in failing to grant the prayer of the Defendants/Appellants to strike out this suit, having regards to the facts and/or admissions by the Claimant in the documents filed by him that the distributorship contract was between the 2nd Defendant and Doyin Group of Companies (Ground 6).
The Respondents, on their part, filed their Brief on 13/4/2012 and the same was deemed duly fired and served on 25/4/2012. They raised 4 (four) issues for determination, as follows;
(1) Whether the court does not have discretion to hear the Appellants’ application during the hearing and determination of the substantive suit.
(2)Whether the Court, was right in reserving the Defendants’ preliminary objection until the full hearing and determination of the substantive suit.
(3) Whether the Defendant/Appellant is entitled to the prayers sought by him
(4) Whether this honourable Court can entertain the Appellants’ argument on locus standi.
The Respondents’ counsel did not relate the issues to the grounds of appeal in the brief but at the hearing, learned counsel for the respondent, on being questioned, related the issue as follows:
Issue 1 – ground 1, Issue 2 – ground 6, Issue 3 – ground 3 and Issue 4 – grounds 4 and 5.
It can be appreciated that Appellants did not distill any issue from grounds 4 and 5 of their grounds of appeal and the same, accordingly are deemed abandoned and struck out. Additionally, the Appellants distilled issue 1 from grounds 1, 2, and 3 and at the same time distilled issue 2 from the same ground 3 of the appeal. That is not permissible in law. A single ground of appeal cannot give birth to more than one issue for determination, whereas a single issue can come from a combination of two or more grounds of appeal. See the case of AFRIBANK (NIG) PLC v. YELWA (2011) ALL FWLR (Pt.585) 299; Issues raised in the brief of argument must relate and from grounds of appeal before the court (to be competent)” See also NWAUGWE v. OKEKE (2008) ALL FWLR (Pt.431) 843; Oseni v. Bajulu 2010 ALL FWLR (Pt.511) 813.
Thus, Issue two, which the Appellants distilled from ground 3 of the Appeal (after having combined the same ground 3 with 1 and 2, to frame issue 1) is incompetent and is accordingly struck out, together with the arguments there under. See the case of ALH. RIWANU DAUDA JULDE AWORI v. PDP & 3 ORS. CA/YL/EPT/TR/SHA/19/2011(unreported) delivered on 6/1/2012. What is therefore left of the Appellants’ Issues and grounds are Issues 1 and 3, distilled from grounds 1, 2 and 3 and from ground 6, respectively.
Arguing their Issue 1, Appellants’ Counsel AC Chioma Esq. (who settled the Brief) submitted that the learned trial judge was wrong when she decided to put the resolution of the issue of locus standi of the claimant on hold on the ground that the issue of jurisdiction can be raised and determined at any stage of the proceedings; that by so holding; the court fell into error. Counsel conceded that issue of jurisdiction can be raised at any stage of the proceedings, even at appeal, but submitted that since the issue has been raised at this stage, it must be resolved first before the court can take any further step; that the question of locus standi being an issue of jurisdiction is a radical and crucial question of competence; for if the court has no jurisdiction to hear a case, the proceedings are and remain a nullity, however well conducted and brilliantly decided they might otherwise have been as a defect in competence is not intrinsic but rather extrinsic to the adjudication. He relied on the case of OGUNMOKU v. THE MILITARY ADMINISTRATOR OF OSUN STATE OF NIGERIA (1999) 6 NWLR (Pt.594) 261; EGOLUM v. OBASANJO (1990) 7 NWLR (Pt.611) 355. He added that it is after resolving the issue of jurisdiction that the trial judge can be competent to proceed further with the case, depending on the outcome of the challenge to jurisdiction. He cited the case of IMADE v. MILITARY ADMINISTRATOR OF EDO STATE (2001) 6 NWLR (Pt.709) 478; Nnadi v. Okoro (1998) NWLR (Pt.535) 573.
On Issue 3, counsel submitted that in the determination of the locus standi of the plaintiff, the court is entitled to look at, not only the statement of claim, but also any other material brought before the it such as counter-affidavit in order to decide whether a plaintiff has locus standi or not. He cited the case of Attorney General of Enugu State v. Omabe & Ors. (1998) 1 NWLR (Pt.532) 83. He submitted that in this case (at hand) a look at the statement of claim, the exhibits attached to the oath of the claimant the affidavit of the claimant as well as the reply to statement of defence shows conclusively that it is DOYIN GROUP OF COMPANIES that entered into contract with the 2nd defendant and not the claimant herein; that in the bid to answer the Defendants objection, the claimant stated that it is a “subsidiary of DOYIN GROUP of companies” (page 43 of the Record). He submitted that being a subsidiary of DOYIN GROUP of companies (which he did not concede) did not confer locus standi on the claimant to sue; that the holding company and its subsidiaries are each distinct and separate legal personalities, each owning its own assets and properties. He relied on the case of M. O. KAWU & SONS & CO v. FBN PLC (1998) 11 NWLR (Pt.572) 116.
Thus, he said, the fact that a company is a subsidiary does not make it an appendage to the holding company nor does it give the subsidiary right to enforce contract entered into by the holding company. He relied on the case of Thomas Chukwuma Makwe v. Chief Obanua Nwakor (2001) 14 NWLR (Pt.733) 356 and said that “the Claimant not being a party to the purported contract between the claimant and 2nd Defendant has no interest and/or right.” (See page 7 paragraph 6.07) of the Appellants Brief); that the claimant has no right to sue and/or enforce the purported. Contract. He relied on the case of Thomas & Ors. v. Olufosoye (1986) ANLR 261.
Counsel referred us to the letter (Exhibit A) attached to paragraph 4 of claimant’s counter affidavit, whereof the 2nd Defendant was appointed Distributor, and submitted that the said letter, which is the contract document between the 2nd Defendant and DOYIN, is very clear as to who entered into contract with the 2nd Defendant, as such no extraneous meaning can be read into it; he said that the Claimant herein is a stranger to the contract; that “only parties to a contract can enforce same, even if the contract was made for its benefit and purports to give him the right to sue or to make it liable upon it.” He relied on the case of Makwe v. Nwakor (supra).
Thus, he said that the learned trial judge was in error to have put the determination of the issue of the locus standi of the claimant on hold, in the face of clear facts on the face of the Record; that if the court finds out that it has no jurisdiction to entertain a matter the matter should be struck out; that, a fortiori where the appellate court is satisfied that the lower court had no jurisdiction to try the case, the proper order to make is to allow the appeal and strike out the case before the trial court and declare the whole proceeding a nullity ab-initio. He relied on the case of Chief Emmanuel O. Lakanmi v. Peter Adebayo Adene & 3 Ors. (2003) 10 NWLR (Pt. 828) 353.
He urged us to resolve the issues in favour of the Appellants and allow the Appeal.
The Respondent, on its 1st Issue, submitted that, considering the nature of the instant case, hearing and ruling on the interlocutor application would amount substantial delay on the substantive suit; that hearing the preliminary objection at that stage did not amount to injustice on the Applicants, who would still have the right to appeal on the interlocutory application and on the substantive suit, in the event he was not satisfied with the final decision of the trial court. Counsel urged us to follow the decision of Uwais CJN (as he then was) in the case AMADI v. NNPC (2000) 1 NWLR (Pt.674) 76 at 100, where he said:
“With the success of the plaintiff’s appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merit after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that counsel owe it, as a duty, to the court to reduce the period of delay on determining preliminary objections, as the one here, so that adage “Justice delayed is” may cease to apply to the proceedings in courts.
Counsel also relied on the decision of NIKI TOBI JSC in A.P.C. Ltd. v. NDIC (NUB LTD.) (2006) 15 NWLR (Pt.1002) 404 at 443, when he held:
“…Courts below the Supreme Court will not be wrong to take the merits of the matter in the alternative. This exercise useful and becomes very handy in the event that the court wrongly rules that it had no jurisdiction when in law it had. This helps in no little way in saving litigation period. Instead of sending the case back to the court to hear the matter because it had jurisdiction, a decision in the alternative will stop such a procedure…”
Counsel therefore submitted that it was within the discretion of the court to hear the application before the substantive suit or within the substantive (that is, hear the application together with the substantive suit); that appellate court does not interfere with the discretion of the lower court, once it is exercise judiciously and judicially. He relied in the case of ABUBAKAR v. CHUKS (2007) 12 SC page 1 at 40 – 42; ISIAKA v. OGUNDIMU (2006) 12 NWLR (Pt.997) 401 at 418.
On its Issue 3, whether the Appellants are entitled to the prayers sought, the Respondent submitted that the Appellants, by their letter to Doyin Group of companies, dated 12/10/2005, attached as one of the documents relied on by the Respondent and referred to as Exhibit C in the counter affidavit of the claimant/Respondent (titled “Proposal on how to defray our debt”), cannot deny having any transaction with Global soap and Detergent Industry – (Respondent); that such denial would amount to approbating and reprobating which the court frowns at. Respondent’s counsel added that the Appellants cannot be entitled to the prayers sought, when the application is yet to be heard and determined by the court; that it is after hearing the application that the court can rule one way or the other.
On its 4 – whether this court an entertain the Appellants’ argument on locus standi – counsel for the Respondent submitted that we cannot, at this stage, decide the merits of the Appellants’ application at the lower court; that we must not loose sight of the fact that what led to this appeal is a ruling as to, inter alia, whether or not the lower court was right in holding the hearing and determination of the Appellants’ application on jurisdiction till the hearing of the substantive matter. He referred us to the case of ARO v. LAGOS ISLAND LGC (2002) 4 NWLR (Pt. 757) 385 at 415 (per Onnoghen J.C.A. (as he then was): ABACHA v. STATE (2002) 11 NWLR (Pt.779) 437 at 502, where Kutigi J.S.C (as he then was) said:
“I also realize that the appeal before us being in the nature of an interlocutory appeal because the case is yet to be tried, care must be taken not to talk too much or make observations on the facts in the judgment which might appear to prejudge the main issue or issues in the proceedings relating to the interlocutory ruling or judgment. See for example EGBE v. ONOGUN (1972) 1 ANLR (Pt. 1) Page 95, OJUKWU v. GOVENOR LAGOS STATE (1986) 3 NWLR (Pt.26) 39…”
Counsel, therefore, urged us to discountenance the Appellants’ submission on locus standi as this will prejudice the substantive and the application (preliminary objection) which is yet to be heard and determined by the lower court; that since the issue of locus standi does not arise from the appeal, such is not ripe for determination by us.
IN THE ALTERNATTVE (according to Respondent’s counsel), he submitted that the cases relied upon by the Appellants, namely M. O. KANU & SONS & CO v. FBN (supra), Thomas Chukwuma Makwe v. Chief Obanua Nwakor (supra) are not relevant to the issue; that the first case (M. O. KANU) (supra) merely treated the issue of determining the financial status of a company and not whether a subsidiary company can sue in an agreement entered on behalf of the Groups of companies and transaction involving the subsidiary but entered in the name of the holding company. He submitted that the documents by Respondent contained in the Record of proceedings have put nobody in doubt that the Appellant took delivery of the Respondent’s products from Ilorin namely, detergent and soaps manufactured in Ilorin in her factory and is still indebted to the claimant.
Counsel further submitted that the two tests used in determining locus standi are:
(1) The action must be justiceable
(2) There must be a dispute between the parties (He relied on the case of Elendu v. Ekwoaba (1993) 3 NWLR (Pt. 386) 704 at 741).
He urged us to hold that the Respondent has locus standi to bring the action; that Doyin Group of companies is a conglomerate of independent limited companies of which Global soap and Detergent Industries Ltd. is one, each having its own properties and products’ while the umbrella under which they operate is Doyin Group of Companies, and the latter has no particular product other than that of the companies under its umbrella; that the arrangement of Doyin Group of Companies and Global Soap and Detergent Industries Ltd. is that of conglomeration of Independent Limited Companies as shown on the letter of appointing the Appellant/Defendant as a distributor (page 31 of the Record).
In conclusion, Counsel urged us to dismiss the appeal; that it is aimed at evading justice, delaying and frustrating the Claimant/Respondent’s case. He added that in determining locus standi, it is only the writ of summons and the statement of claim that the court is bound to consider; that the statement of claim, as in this suit, has shown sufficient NEXUS and interest of the Claimant in the case. He relied on the case of Adesanoye v. Adewole (2006) NWLR (pt.) Adesanya v. President FRN (1981) 5 SC 112; Pharmater Ind. v. Trade Bank & Ors. (1997) 7 NWLR (Pt. 514) 639 at 654.
The point of law (preliminary objection) raised by the Appellants at the lower Court was paragraph one of their statement of defence. It stated as follows and for the following orders:
TAKEN NOTICE that the Defendant (sic) will at the hearing urge the court to strikeout this suit on the ground that the claimant lacks jurisdiction to maintain his action in that:-
(i) The claimant lacks locus standi to maintain this action in that the Defendants have no contract and/or distributorship agreement with the claimant; that there is no agreement and/or contractual relationship between the claimant and the 2nd defendant.
(ii) The High Court Ilorin is not the proper venue for the trial of this case in that:
(a) The 2nd defendant carries on the business of distributorship on behalf of Doyin Group of Companies at Umuahia.
(b)The Defendants reside in Umuahia the Court outside the jurisdiction of the court.
(c)The cause of action arose in Umuahia.
(d) The defendant also carries (sic) on their business in Umuahia.
(iii) The 1st defendant does not have any distributorship and/or contract with the Doyin Group of Companies and/or Claimant.”
In her short ruling, the learned Chief Judge said:
”… In spite of this preliminary objection, the defendants went ahead and filed in an eight paragraph statement of Defence with additional two paragraph Counter Claim. Since the issue of jurisdiction can be raised and determined at any stage of the proceedings even at the court of last Resort, if is my view that I cannot at this early stage determine whether this court lacks jurisdiction or not in this matter, not until the full facts of this case have been highlighted in the course of hearing the case. Parties in this case have filed in all the requisite court processes, in compliance with the Kwara State 2005 High Court Civil Procedure Rules. That being the position – I shall order the commencement of hearing in this case and if parties desire a pre-trial conference to hold before hearing, then they should let the court know. Meanwhile, the preliminary objection is to remain on hold until full hearing and determination of the substantive suit; and the counter-claim therein.”
I have already reproduced the issues distilled by the Appellants for determination (out of which the 2nd Issue was struck out for incompetence) together with the arguments of the Appellants.
I have also reproduced the 4 Issues distilled by the Respondent as well as the argument of counsel there under. Of course, having struck out ground 4 and 5 of the appeal (from which no issue(s) was distilled by the Appellants), and Issue 2 by the Appellants, this appeal is mainly predicated on Issues 1 and 3 by the Appellants, distilled from grounds 1, 2, 3 and 6 of the appeal.
However, I think the real live issue in this interlocutory appeal is whether the Chief Judge was right in placing hearing and determination of the preliminary objection on hold pending the hearing of the substantive matter, – was such discretion exercised judiciously and judicially? And after resolving same, what order should the appellate court make, in the circumstances?
Learned Counsel for the Appellants had submitted, and rightly, in my view, that the trial court has a duty to consider and make its decision known concerning any issue or question raised at the trial, and that where the issue touches on jurisdiction, that has to be resolved first, because if the court has no jurisdiction to hear a case, it shall have expended its energies in vain, as the proceedings would be and remain a nullity, however well conducted and brilliantly decided. See the case of Ango v. Alu (2001) 17 WRN 49; Riruwai v. Shekarau (2009) ALL FWLR (Pt.461) 975; Ogunmokun v. Military Admin. Osun State (1999) 3 NWLR (pt. 593) 261, held 6. See also the case of F. A. Akinbola v. Plisson Fisko Nig. Ltd. & Ors. (1991) 9 SCNJ 258, where the Supreme Court held that where a court lacks jurisdiction in a matter it has no jurisdiction to make orders affection subsequent determination on merits as it lacks powers to exercise any power in relation to the suit.
In the case of Moyosore v. Governor Kwara State (2012) 5 NWLR (pt.242) (1293) held 1, this court said:
“A defendant has right to raise any issue bordering on the jurisdiction of a court to try a cause or matter at anytime, even on appeal, without let or hindrance. The court has a duty to hear and dispose of any such challenge of its jurisdiction first before going into the merits substantive matter. The logic for this lies in the fact that where a court lacks jurisdiction to hear and entertain a suit, whatever it does in the case will amount to sheer waste of time and a nullify, no matter how well the case must have been conducted.” (M. v. Gongola Hope v. Simufit Cases Ltd. (2007) ALL FWLR (Pt. 388) 10005; F.C.M.B. Ltd v. S.A.I.C Ltd. Nwafor (NWLR) (Pt.1110) 418 referred to (P.278, paras. A-D)
The Respondent had argued that the trial Court has discretion to shift the call to determing jurisdiction, since the issue can be raised at any stage of the proceedings (even at appeal) and to consider such issue(s) touching on jurisdiction, in particular, relating to locus standi, when hearing the substantive suit, and that this is necessary to avoid wasting judicial time in pursuit of interlocutory matters at the expense of the substantive issues only to get the matter sent back for hearing on the merits after years of sojourn in the appellate courts). He relied on the case of Amadi v. NNPC (supra); and APC LTD. v. NDIC (NUB LTD.) (supra), where Tobi JSC held:
”…Courts below the Supreme Court will not be wrong to take the merit of the alternative. This exercise is useful and become vey handy in the event that the Court wrongly rules that it had no jurisdiction when in law it had. This helps in no little way in saving litigation period. Instead of sending the case back to the court to hear the matter, because it had jurisdiction a decision in thee alternative will stop such a procedure…”
Meanwhile, my Lord Uwais CJN (as he then was) had lamented over a situation in which an appeal over preliminary objection to jurisdiction had sojourned in the appellate court for about 13 years, for the matter to be remitted back to the trial High Court to be heard on the merit because the trial court had jurisdiction. This jurist had held:
“Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that counsel owe it, as a duty, to the court to reduce the period of delay in determination cases in our courts by avoiding unnecessary preliminary objections as the one here so that the adage “Justice delayed is justice denied” may cease to apply to the proceeding in courts.”
Recently, I expressed similar sentiment, trying to counsel lawyers to rather focus on getting their cases to be heard on the merits, by incorporating their preliminary objections into their defence to the main suits, such that the objections are heard together with the substantive matter, and in the event of appeal, the appellate court will consider the issues raised both on the objection and on the merits at the same time, to save time and causes, especially in election matters See the case of SAROR & ANOR v. SUSWAN & ORS: CA/MK/EPT/11/2012 (Dissenting judgment) delivered on 26/4/2012 (pages 15 and 16 thereof) (unreported), when I said:
“The spirit of the electoral Act appears to have been that of allowing the substantive matter to be heard and determined on the merit, such that any objection raised under paragraph 12 (5) of the 1st Schedule to the Electoral Act 2010 (as amended), was to be taken and heard together with the substantive matter, so that appeal thereon would be taken together, in the interest of justice, in view of the time constraint/limitation to hear the petition”
I therefore think the learned Chief Judge had rightly exercised her discretion, judiciously and judicially, when she opted to take the substantive case, especially:
“since the issue of jurisdiction can be raised and determined at any stage of the proceedings, even at the court of last Resort …(as she) cannot at this early stage determine whether this court lacks jurisdiction or not in this matter, not until the full facts of this case have been highlighted in the course of hearing of the case.”
The position of the learned trial Chief Judge, in my humble view, was perfectly in order and was even more so, considering the fact that the Appellants, in their statement of defence and counter-claim, had prayed and urged the same court as follows:
“The 2nd Defendant counter – claim (sic) against the CLAIMANT that the CLAIMANT pay (sic) to the Defendants the sum of N1,385,857.29 (One Million, Three Hundred and Eighty five Thousand, Eight Hundred and fifty seven naira, twenty nine kobo), being the allowance and Rebate due to the 2nd defendant from the CLAIMANT. The defendants will rely on the averments in the statement of defence in proof of the counter claim.”
If the court lacked jurisdiction to hear the claimant’s case, from where would it get the jurisdiction to entertain the Appellants’ counter-claim? And if there was no contractual relationship between the Claimant and the Defendants, (particularly the 1st Defendant) from where did the Defendants derive the cause of action to demand “that the CLAIMANT pay (sic) to the Defendant the sum of N1,385,857.29… being the allowance and Rebate due to the 2nd Defendant from the CLAIMANT?”
I think, as the learned trial chief Judge had rightly observed, all these questions could only be answered after the full hearing of the substantive suit on the merit, and each party must be given opportunity to be heard on their claims. It is after such hearing that the alleged issue of locus standi and proper venue of trial will play out by evidence for the parties to address the court for an informed decision to be made.
Order 26 Rule 2 of the Kwara State High Court (Civil Procedure) Rules, which makes provision for filing of preliminary objections, in lieu of demurrer proceedings, allows the trial court to exercise its discretion to take on the preliminary objection raised in the statement of defence of the Defendant either at the hearing or before the commencement of the hearing.
Such matters, which by that provision, must be raised in the pleading include issues relating to cause of action, ground of defence, statutory provisions or defences. See the case of Okoye v. Nigerian Construction and Furniture Company (1991) 6 NWLR (Pt. 199) 501 at 540; Nwoye v. Anyiche (2005) 2 NWLR (Pt.910) 623 at 659, where Oguntade J.S.C. held:
“It seems to me therefore that cases to the effect that jurisdiction can be raised before service of statement of defence are those in which it is ex-facie apparent from the writ of summons and statement of claim that there is no jurisdiction in the court. Where it is still necessary to call evidence in proof of matter which may lead to decline its jurisdiction, it is inevitable that the fact be clearly pleaded.”
In the case of Moyosore v. Governor of Kwara State (supra) at 279 it was held:
“While trying to ensure that a free channel remains for genuine complaints to be raised against unnecessary or hopeless/frivolous litigations meant to stretch the limits of the court’s powers, care must be taken by the court, which also is expected to be vigilant to guard its jurisdiction jealously, to refuse any ploy by the defendant to shortchange the plaintiff and deny him access to redress, on frivolous challenge of jurisdiction. Thus, the defendant’s penchant for throwing the punch of lack of jurisdiction should not be allowed to provide a cover or bunker for him to hide away from justice or stay there to continue his mischief against the claimant or plaintiff.” (P.279) paras. D-F
It is sad that this unfortunate application has also caused undue delay in the hearing and determination of this case filed since 2006, already.
I resolve the issue against the Appellants and hold that the Appeal lacks merit and should be dismissed. It is accordingly with fifty thousand naira (N50,000.00) cost against the Appellant, to the Respondent.
TIJANI ABDULLAHI, J.C.A.: I have read in advance the lead judgment of learned brother, I. G. Mbaba, J.C.A. just delivered. I agree with the succinct judgment and I have nothing useful to add. I adopt the reasoning and conclusions as mine. I too hold the view that the appeal is completely devoid of my merit and same is accordingly dismissed.
I abide by the order on cost contained therein.
OBANDE OGBUINYA, J.C.A.: I had the opportunity of reading the leading judgment delivered by my learned brother, Ita G. Mbaba, JCA, and I agree with him.
Appearances
A. C. Chioma Esq. with him K. Nnochiri Esq.For Appellant
AND
Kizito Oji Esq. with him Tosin Alawode Esq. and Abdulrazaq A. Daibu Esq.For Respondent
