INTERCONTINENTAL BANK PLC v. SUNSHINE OIL & CHEMICAL DEVELOPMENT COMPANY
(2014)LCN/6818(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of February, 2014
CA/I/M.313/2011
RATIO
WHY THE COURT IS TO BE ATTENTIVE WHEN AN ISSUE OF JURISDICTION IS RAISED
When an issue of jurisdiction is raised, the court must be attentive for two reasons
- To ensure that valuable time is not expended on a flawed process.
2. To guard against vexatious preliminary objections used as a ploy to delay the progress of the case or to, shut out a party prematurely on technical grounds beclouded in jurisdictional garb. Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
INTERCONTINENTAL BANK PLC Appellant(s)
AND
SUNSHINE OIL & CHEMICAL DEVELOPMENT COMPANY Respondent(s)
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Lead Ruling): This is a Motion on Notice dated the 16th day of May, 2012 and filed the 17th day of May, 2012 seeking the following reliefs:-
1. AN ORDER of this honourable Court extending the time within which the Appellant/Applicant may seek leave to appeal against the decision of the High Court of Oyo State, contained in the ruling of Honourable Justice A. A. Gbolagunte delivered in Suit No. I/992/2008: Sunshine Oil & Chemical Development Co. Ltd. v. Access Bank Plc. on 15th November, 2011 refusing the Appellant/Applicant application dated 20th September, 2011 seeking to dismiss the Respondent’s suit in limine.
2. AN ORDER granting leave to the Appellant/Applicant to appeal (on grounds of mixed law and facts) against the decision of the High Court of Oyo State contained in the ruling of Honourable Justice A. A. Gbolagunte delivered in suit No: I/992/2008: Sunshine Oil & Chemical Development Co. Ltd v. Access Bank Plc. on 19th November, 2011 refusing the Appellant/Applicant dated 20th September, 2011 seeking to dismiss the Respondent’s suit in limine.
3. AN ORDER extending the time within which the Appellant/Applicant may appeal (on grounds of mixed law and facts) against the decision of the High Court of Oyo State, contained in the ruling of Honourable Justice A. A. Gbolagunte delivered in I/992/2008: Sunshine Oil & Chemical Development Co. Ltd v. Access Bank Plc. on 19th November, 2011 refusing the Appellant/Applicant application dated 20th September, 2011 seeking to dismiss the Respondent’s suit in limine.
4. AND FOR SUCH further or other orders as this Honourable Court may deem fit to make in the circumstances.
The grounds for the reliefs are endorsed as follows:-
i. “The Applicant is dissatisfied with the ruling of Honourable Justice A. A. Gbolagunte delivered in I/992/2008: Sunshine Oil & Chemical Development Co. Ltd v. Access Bank Plc on 15th November, 2011.
ii. The ruling of Honourable Justice A. A. Gbolagunte delivered in I/992/2008: Sunshine Oil & Chemical Co. Ltd v. Access Bank Plc on 15th November, 2011 is interlocutory decision and the proposed ground of appeal contains mixed law and fact.
iii. The Applicant made similar application before the lower Court for leave to appeal but could not be taken within 14 days.
iv. The Applicant is desirous to appeal against the ruling of the lower Court.”
The application is supported by an affidavit of 27 paragraphs deposed to by one Dapo Oduwole, Male; a legal practitioner of the firm of the Applicant’s learned Counsel.
The application is opposed by the Respondent who filed a Counter-Affidavit of 6 paragraphs.
Chief Felix Fagbohungbe SAN appearing with Oluwaseun Omotoso Esq. for the Applicant, moved the motion. It is the opinion of the learned silk that the application which is non-contentious challenges the jurisdiction of the learned trial judge. The main thrust of the complaint is conveyed in paragraphs 12, 13, 17, 18, 22 and 24 of the affidavit in support of the motion. The learned silk says that the application is substantial since it challenges the jurisdiction of the trial court, that contrary to the submission of the learned Counsel to the Respondent, it would be a monumental waste to proceed with the suit of the Respondent at the trial court in the face of a fundamental defect which touches on the jurisdiction of the court. That the delay in filing the appeal was due to the change of the name of the plaintiff at the trial court. The learned Silk urges the Court to discountenance the counter-affidavit which depositions are mere conclusions and legal arguments and are totally bereft of facts.
Mrs. Taiwo Daudu of counsel on behalf of the Respondent, submits that no substantial reasons were canvassed by the Applicant in support of the grounds for the application. The learned Counsel challenges the application particularly in paragraphs 3, 4 and 5 of the Counter-affidavit.
It is further the submission of the learned Counsel for the Respondent that the application placed before the court seeks the exercise of the discretion which is not granted merely for the asking.
The application placed before the Court seeks three reliefs to wit:
Extension of time to seek leave to appeal,
Grant of leave to appeal on grounds of mixed law and facts,
Extension of time within which to appeal on grounds of mixed law and facts against the decision of the High Court of Oyo State as clearly stated in the Motion which has been reproduced and
Any other order the Court deems fit to make.
This is an interlocutory appeal.
The applicant has raised an issue of jurisdiction as a grouse for seeking the filing of this interlocutory appeal. The grounds and facts in support of the application have not been effectively controverted by the Respondent in the Counter-affidavit which has also been reproduced.
The counter-affidavit dated and filed on the 21st of May, 2012 was deposed to by one Miss Ndidi Osaemedike, female, legal Practitioner of the firm of the Respondent’s learned Counsel. The counter-affidavit particularly Paragraph 4 of the Counter-affidavit merely cites paragraphs 7, 19, 25, 26 and 27 of the affidavit in support of the application and declares the depositions therein as untrue, no reasons were given.
“(3) I have had read a copy of the affidavit in support of the application dated 16 May, 2012.
(4) Paragraphs 7, 19, 25, 26 and 27 thereof not true.
(5) I verily believe that:
i. the complaint of the applicant can conveniently be taken together in an appeal against the final judgment of the trial court and
ii. as to the application dated 20 September, 2011 was filed 3 years after institution of the suit at the trial court.”
When an issue of jurisdiction is raised, the court must be attentive for two reasons
1. To ensure that valuable time is not expended on a flawed process.
2. To guard against vexatious preliminary objections used as a ploy to delay the progress of the case or to, shut out a party prematurely on technical grounds beclouded in jurisdictional garb.
The counter-affidavit, especially paragraph 4 does not constitute sufficient traverse of the depositions of the Applicant as none of the facts have been effectively controverted. A mere declaration that facts deposed to in an affidavit are not true is not sufficient unless the deponent is the same person who made the earlier deposition.
Section 240(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) confers a right of appeal.
Section 14(1) of the Court of Appeal Act and Order 7 Rules 4 and 10 of the Court of Appeal Rules 2011, state the conditions for the grant of the application and the inherent jurisdiction of this court is employed to enhance the exercise of rights as conferred by the Constitution.
The subject being one of jurisdiction and which have not been shown to be frivolous, there being no compelling challenges to the facts deposed to in support of the application, the condition in Order 7 have been satisfied.
It would be a monumental waste of judicial time to deny an applicant a right to appeal at the inception of a suit if such suit could be shown to be fundamentally flawed. A stitch in time could safe several months/years of empty adjudication. We are fortified on this in the decision of the Supreme Court per Belgore JSC (AHTW) when my lord held that:-
“Jurisdiction is the very basis on which any tribunal tries a case; it is the life line of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason while it can be raised at any stage of a case. Be it at trial, on appeal to the Court of Appeal or to the Supreme Court, a fortiorari the court can suo moto raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction but once it is apparent to any party that the court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issues of jurisdiction so as to save time and costs and to avoid a trial in nullity.” (Petro Jessica Enterprises Ltd v Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 @ 690.
This application is granted and ordered as prayed in the motion process.
The applicant is allowed 7 days within which to file the notice of appeal at the Registry of the trial court.
It is hereby so ordered.
HARUNA SIMON TSAMMANI, J.C.A.: I read before now the Ruling just delivered by M.B. Dongban-Mensem, JCA.
The application under consideration is by way of the “trinity prayers” so as to enable the Applicant appeal the Ruling of the Oyo State High Court wherein the learned trial Judge of the court below, refused the Applicant’s motion seeking to have the Respondent’s case dismissed in limine. It is therefore an application which seeks to drink from the wisdom of this court in the exercise its discretionary powers, so that the Applicant can exercise his right of appeal.
I find from the depositions in the affidavit of the Applicant, and which have not been seriously controverted, that substantial reasons have been presented to us why this application should be granted. This is more so as the ground that informed the application at the court below touch on the issue of jurisdiction, which is a threshold issue in all litigations. Accordingly, I agree with my learned brother for the reasons stated in the lead Ruling, that the application has merit. I also grant same.
I abide by the consequential order(s) made in the lead Ruling.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the ruling of my Lord Monica Bolna’an Dongban-Mensem J.C.A. I agree that no good reason has been adduced to dissuade us from granting the prayers in the Motion on Notice filed on 17/5/2012. I also agree with my lord that the applicant be granted an extension of time of 7 days from today within which to file the Notice of Appeal.
Appearances
Chief Felix Fagbohungbe SAN, with Oluwaseun Omotosho Esq.For Appellant
AND
Mrs. Taiwo DauduFor Respondent
