CHIEF INNOCENT IWUJI & ORS v. GOVERNOR OF IMO STATE & ORS
(2014)LCN/7000(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of March, 2014
CA/PH/202M/2005
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF INNOCENT IWUJI
2. STEVE ANAELE
3. MARCEL OSUJI
4. INNOCENT IWUH Appellant(s)
AND
1. GOVERNOR OF IMO STATE
2. COMMISSIONER FOR CHIEFTAINCY AND LOCAL GOVERNMENT AFFAIRS
3. ATTORNEY-GENERAL OF IMO STATE
4. CHAIRMAN, AHIAZU-MBAISE L.G.A.
5. CHIEF P.I.P. ONU
6. CHIEF CHRISTIAN IROULO
7. BEN ONUOHA Respondent(s)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
It is now settled that the issue of jurisdiction is fundamental to the question of the competence of the court adjudicating. It is therefore crucial for any court adjudicating to first determine that issue. It is an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. See Kalio vs. Kalio (1975) 2 SC 15; Barclays Bank vs. CBN (1976) 6 SC 175; and Oloba vs. Akejera (1988) 7 SC (PART 1) 11. Jurisdiction is always regarded as a fundamental issue. It is the life wire of any litigation and the base on which adjudication rests. It is variously described by courts as the bedrock and foundation of adjudication. A decision reached without jurisdiction is a nullity and the proceedings become an exercise in futility. This is the reason the issue of jurisdiction takes precedence over all other issues whenever it arises.
Once the issue of jurisdiction is raised, whether before, at or in the course of any proceedings, it must be addressed first, otherwise, if the court proceeds with adjudication and it is later found that it lacked jurisdiction, it would have involved itself, the parties and the machinery of justice in a futile exercise. In other words, when a challenge is made to the jurisdiction of the court, the issue should be settled one way of the other before the hearing of the suit.
It is also a settled principle of law that the issue of jurisdiction can be raised at any stage of a case, be it, at the trial, on appeal to the Court of Appeal or to the Supreme Court. It can be raised once it is apparent to any party that the court may not have jurisdiction; a fortiori the court can raise it suo motu. See Osadebay vs. A.G. Bendel State (1991) 1 NWLR (Pt.169) 525; and Owoniboys Technical Services Ltd. vs. John Holt Ltd (1991) 6 NWLR (Pt.199) 550. This therefore means that there is no specific format for raising the issue of jurisdiction which could be raised before, at or after the trial of the suit. See Ibrahim vs. Gaye (supra); Akegbejo vs. Ataga (1998) 1 NWLR (Pt.534) 459. It could even be raised viva voce see Petrojessica Enterprises vs. Leventis Technical (supra). PER AJI, J.C.A.
MEANING OF A PRELIMINARY OBJECTION
A preliminary objection is an objection against the regularity of a court process, that is, a suit, motion, e.t.c. The primary objective of such an objection is to terminate the proceedings at the stage the objection is raised. The objection must be preliminary in the sense that no other proceeding which may have the effect of waiver on the part of the objector shall have taken place in the entire proceedings. See Okoi vs. Ibiang (supra). PER AJI, J.C.A.
WHETHER OR NOT AN AFFIDAVIT IS A PREREQUISITE FOR RAISING A PRELIMINARY OBJECTION
Affidavit is not therefore a prerequisite to the raising of a preliminary objection unless the objection takes the form of a Motion on Notice and the fact that sufficient grounds were not stated will not vitiate the objection as to jurisdiction and competence of the Court to entertain the suit before it. This is so because the issue of jurisdiction can be raised orally or by the Court suo motu. See Bello vs. National Bank of Nigeria (Supra). PER AJI, J.C.A.
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of Honourable Justice A.O.H. Ukachukwu of the High Court of Imo State in Suit No. HOW/157/2005 delivered on the 23rd May, 2005.
The Appellants as Plaintiffs vide a writ of summons dated and filed on the 3/6/2003 instituted a suit against the Respondents as Defendants and claim declaratory and injunctive reliefs as follows:-
1. A DECLARATION that the 6th and 7th Defendants are bound by a popular and democratic decision of the generality of the Nnemere Mpam people made on 1st January, 2003, to set up a Constitution Drafting Committee to draft a new Constitution; to have the constitutional draft thoroughly debated by all the people of Nnemere Mpam, home and abroad, and to embark on the process of identification, selection and presentation of the Eze-elect through a democratic process based on the new constitution after its approval.
2. A DECLARATION that consequent upon the manipulations and deliberate failure or refusal of the 6th and 7th Defendants and their Executive Committee members to convene mandatory general or emergency meetings with requisite notifications to Nnemere Mpam citizens home and abroad including the Plaintiffs for the mandatory First, Second and Third Readings and public debates on the said draft constitution, the Nnemere Mpam Autonomous Community lacks any constitution upon which any identification, selection and presentation of the 5th Defendant or anyone else for that matter as the Eze-elect of the community can be based.
3. A DECLARATION that the 6th and 7th Defendants have no powers or authority whatsoever to reverse the said democratic decision to identify, select and present a candidate for the exalted office of Eze Nnemere Mpam through the democratic process of free and fair election, or to impose their own candidate on the people of Nnemere Mpam Autonomous community outside the agreed due process.
4. A DECLARATION that the imposition of one of the contestants, Chief P.I.P Onu (5th Defendant) on the Nnemere Mpam people by the 6th and 7th Defendants in a secret, hastily-arranged meeting of 22nd February, 2003 without any reference whatsoever to the people of Nnemere Mpam or even the 1st Plaintiff contrary to the Resolution of the Nnemere Mpam Aladinma or people’s general assembly of 1st January, 2003, amounts to a gross violation of the 1st Plaintiff’s right to fair-hearing and natural justice which a democratic process of free and fair election would have afforded.
5. A DECLARATION that the 6th and 7th Defendant’s deliberate failure to summon the mandatory monthly general meetings of Nnemere Mpam Town Union (which holds on the last Saturday of every month) or even to notify the Plaintiffs and other Nnemere Mpam people resident in Lagos and elsewhere on the subject of debating and approving the new draft constitution amounts to a denial of the 1st Plaintiff’s right to a democratic process leading to a free and fair election of candidates for the office of Eze-elect for the new Autonomous Community.
6. A DECLARATION that the afore-mentioned anti-democratic and anti-social acts of the 6th and 7th Defendants, if not reversed by this honourable Court, will occasion a terribly injustice on the candidacy of the 1st Plaintiff and will deny the 1st Plaintiff the fair chance to participate in the envisaged democratic process of constitution-making and ultimately the chance to present himself in a democratic process of election for the purpose of being made the Eze-elect of the community.
7. A DECLARATION that the 1st Plaintiff as a bonafide indigene of Nnemere Mpam Autonomous Community and a reputable citizen of the Federal Republic of Nigeria is entitled to every protection afforded by the provisions of the Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999 and the rules of natural justice and therefore equal opportunity to compete with the 5th Defendant on a level-playing field, devoid of any surprises, horse-trading or related disadvantages foisted on the system by the 6th and 7th and Defendants.
8. A DECLARATION that the secret appointment of the 5th Defendant by the 6th and 7th Defendants and their cronies on 22nd February, 2003 without the due process or any notification whatsoever to the Plaintiffs and other stake-holders especially the 1st Plaintiff who is the favourite contestant for the Ezeship stool of the community constitutes a gross breach of the fair-hearing provisions of the Constitution of the Federal Republic of Nigeria 1999 and the rules of natural justice in relation to the 1st Plaintiff and is therefore unwarranted, unconstitutional null and void and of no effect whatsoever.
9. A DECLARATION that the purported presentation of the 5th Defendant by the 6th and 7th Defendants to 4s Defendant in April, 2003 without a CONSTITUTION debated and approved by the people of Nnemere Mpam Autonomous Community as required by the Traditional Rulers and Autonomous Communities Law of 1999 (Imo State); without any notice of meeting for that purpose to all the relevant stake-holders and the general Nnemere Mpam public and without the due process of Law and custom of the people is unwarranted, illegal, unconstitutional, null and void and of no effect whatsoever.
10. AN ORDER OF PERMANENT INJUNCTION to restrain the 2nd Defendant by himself, his agents, workers or privies, howsoever from accepting and or processing any application for Recognition of the 5th Defendant as Eze of Nnemere Mpam Autonomous Community.
11. AN ORDER OF PERMANENT INJUNCTION to restrain the 1st Defendant by himself, his servants, agents, Commissioners, Advisers, privies or howsoever from accepting any application from the 2nd, 3rd and 5th Defendants or any of them or their agents, servants, workmen or privies for the purpose of granting to the 5th Defendant RECOGNITION as the Eze of Nnemere Mpam Autonomous Community.
12. AN ORDER OF PERMANENT INJUNCTION to restrain the 1st Defendant by himself, his agents, workers, privies or howsoever from issuing a Certificate of Recognition to the 5th Defendants as the Eze of the Nnemere Mpam Autonomous Community.
13. AN ORDER OF PERMANENT INJUNCTION to restrain the 5th Defendant from parading himself either by conduct, writing or speech-making including presiding over any communal meetings or gatherings as Eze-elect of Nnemere Mpam Autonomous Community.
14. AN ORDER on the 6th and 7th Defendants to submit the DRAFT CONSTITUTION in question to a public debate and requisite First, Second and Third Readings at well-publicized general meetings of Nnemere Mpam people according to that community’s age-long convention, for approval or rejection.
15. AN ORDER on the 6th and 7th Defendants to convene without any further delay after proper notification to all relevant stake-holders and citizens of Nnemere Mpam home and abroad, a general meeting for the purpose of identifying, selecting and presenting a suitable person for the office of Eze-elect for the community through the democratic process of free and fair election as decided by Aladinma Nnemere Mpam (i.e. the people’s general assembly) on 1st January, 2003.
The Appellants by their writ of summons are seeking some reliefs including an Order of injunction restraining the 1st Defendant/Respondent from according recognition to the 5th Defendant/Respondent as the Traditional Ruler (Eze) of Nnemere Mpam Autonomous Community in the Ahiazu-Mbaise Local Government Area of Imo State and an Order of injunction restraining the 5th Defendant/Respondent from parading himself as the Traditional Ruler (Eze) of Nnemere Mpam Autonomous Community pending the determination of the substantive suit.
The writ of summons, statement of claim and motion on notice for injunction dated 6th June, 2003 and filed on the same date were served on the Respondents respectively.
The 5th, 6th & 7th Respondents filed their joint statement of defence dated 14th July, 2003 on the 16th July, 2003, which was served, on the Appellants, while the 1st – 3rd Respondents filed a motion on Notice dated 16th September, 2003 and filed on the same date challenging the jurisdiction of the Honourable Court to entertain the suit.
During the pendency of the suit and the application for injunction, the 1st Respondent accorded recognition and gave staff of office to the 5th Respondent as the Traditional Ruler (Eze) of Nnemere Mpam Autonomous Community in the Ahiazu Mbaise Local Government Area of Imo State.
The Appellants, upon the recognition of the 5th Respondent filed a Motion on Notice dated 21st November, 2004 and filed on 23rd November, 2004, seeking an Order of the Honourable trial Court to set aside the said recognition accorded the 5th Respondent Chief P. I. Onu by the 1st Respondent as Traditional Ruler of Nnemere Mpam Autonomous Community.
Before the motion to set aside the recognition of the 5th Defendant could be heard, the 5th – 7th Respondents through their Counsel filed a Notice of preliminary objection dated 13th December, 2004 and filed on the same date seeking an Order striking out the motion to set aside the recognition for want of jurisdiction.
In a considered ruling delivered on 23rd May, 2005, the learned trial judge upheld the preliminary objection and held that the Court lacked jurisdiction to set aside the recognition of the 5th Respondent by the 1st Respondent during the pendency of the suit.
It is against the said ruling that the Appellants filed a Notice of Appeal dated 4th June, 2005 and filed 6th June, 2005 containing three (3) grounds of Appeal. The grounds of Appeal are hereunder reproduced without their particulars.
GROUNDS OF APPEAL
Ground One
The learned trial Judge erred in law when it failed to set aside the recognition of the 5th Defendant on the ground that an objection as to his competence to hear the substantive suit before him had not been determined.
Ground Two
The learned trial Judge erred in law when it upheld the preliminary objection filed by the 5th Defendant instead of dismissing same for breaching the fundamental rule of fair hearing after expressly holding that the Notice
“lacked in sufficient details in that it failed to disclose the grounds of the objection leaving the opposing party in the lurk as to the grounds of objection to the jurisdiction” (emphasis supplied).
Ground Three
The learned trial Judge erred in law when he failed to invoke the court’s Disciplinary jurisdiction to protect the sanctity and integrity inherent disciplinary jurisdiction to protect the sanctity and integrity of the judicial process after becoming aware that the subject matter of the suit pending before him had been destroyed by the act of a party in the proceeding.
Reliefs Sought From the Court of Appeal:
a. That the appeal be allowed and the decision of the trial Court set aside.
b. That the preliminary objection filed by the 5th Defendant on 13/12/04 be dismissed.
c. That the application of the plaintiff to set aside the recognition of the 5th Defendant by the 1st Defendant during the pendency of the suit be granted and the said recognition set aside.
Upon the receipt of the Records of Appeal, both parties filed and exchanged briefs of argument. The Appellants brief settled by I.F Amaefule Esq for M.I Ahamba & Co.; dated 6th June, 2006 was filed on 7th June, 2006. Therein, learned Counsel formulated two (2) issues for determination, namely:-
1. Whether the learned trial Judge was right not to have set aside the recognition of the 5th Defendant/Respondent by the 1st Defendant/Respondent when the substantive suit and application for interlocutory injunction before the Court were yet to be determined.
2. Whether the learned trial Judge was right in upholding the preliminary objection after finding that the same lacked the necessary particulars upon which it could be granted.
The 1st, 2nd and 3rd Respondents’ brief of argument was settled by M.C Uwasomba Esq Ag. Director Legal Drafting, Ministry of Justice, Owerri, Imo State. The brief was dated 20th June, 2006 and filed on the 27th June, 2006. Learned Counsel formulated the following two issues for determination:-
1. Whether the preliminary objection filed by the Counsel for the 4th-6th Defendants/Respondents was proper.
2. Whether the Lower Court was right in holding that it lacked the jurisdiction to entertain the motion of the Appellants first.
The 4th Respondent has not filed any process in this appeal. The 5th to 7th Respondents brief of argument was settled by Dr. Livy Uzoukwu, SAN. Therein, Learned silk distilled a sole issue for determination to wit: –
Whether the learned trial judge was right when he held that having regard to the part heard objection to his jurisdiction to entertain the substantive action, he could still proceed to take arguments on the alleged acts bordering on contempt, rule on same and return to the issue of jurisdiction.
At the hearing of the appeal on the 13th day of January, 2014, Learned Senior Counsel for the Appellants, Chief M. I Ahamba, SAN, adopted and relied on the Appellants’ brief of argument dated 6/6/2006 and filed on the 7th June, 2006 and urged the court to allow the Appeal.
Dr. Livy Uzoukwu, SAN for the 5th, 6th and 7th, Respondents adopted and relied on their brief of argument dated 12/10/2006 and filed on the 16/10/2006 but deemed properly filed on the 19/11/2008 and urged the court to dismiss the appeal.
The 1st to 3rd Respondents brief of argument dated 20/6/2006 and filed on the 27/6/2006 was deemed argued pursuant to Order 18 Rule 9(4) of the Rules of this court 2011.
Having regard to the grounds of appeal filed by the Appellants, I am of the view that the sole issue formulated by the 5th – 7th Respondents will determine this appeal. I shall therefore adopt same in the determination of this appeal. The Appellants’ issues and 1st – 3rd Respondents issues are subsumed into the 5th – 7th Respondents sole issue; that is:-
Whether the learned trial judge was right when he held that having regard to the part heard objection to his jurisdiction to entertain the substantive action, he could still proceed to take arguments on the alleged acts bordering on contempt, rule on same and return to the issue of jurisdiction
In arguing his issues, the learned senior Counsel for the Appellants’ Chief M. I. Ahamba, SAN argued that the court has the inherent power to set aside any act of either of the parties before it which tends to disrespect or treat the court with contempt. He argued that once parties have submitted their disputes to the court for determination, none of the parties is allowed to do any act or omission that would over-reach the interest of the other, pending the determination of the suit, and if any of the parties does anything to the contrary, the court has the inherent power to set aside such an act which tends to ridicule the court.
Reliance was placed on the cases of Government of Lagos State vs. Ojukwu (1986) 1 N.W.L.R. (PT.18) 621; and Obeya Memorial Hospital vs. A.G. Federation (1987) 3 NWLR (PT.60) 325. He also relied on Ezegbu vs. F.A.T.B Ltd (1992) 1 NWLR (Pt.220) 699 @ 725 to further submit that parties are bound to maintain status quo and on no account should parties resort to self help. He argued that in the instant case, there was a motion for injunction before the 1st Respondent purported to have recognized the 5th Respondent. He stated that this act of disrespect for judicial process was brought to the notice of the trial court via a motion to set aside the said recognition, but the trial judge declined to do so, because according to him, he had no jurisdiction to set aside the recognition, although made during the pendency of the suit before him. The learned Silk further argued that the learned trial judge accepted in his ruling that he had inherent powers to protect the authority and integrity of the court but missed the point when he did not set aside the act of the 1st Respondent but proceeded on the issue of jurisdiction. He relied on the authority of Erisi vs. Iduka (1987) 4 NWLR (Pt.66) 503 @ 512. He stated that the learned trial judge failed to set aside the act of the 1st Respondent when his competence to handle the substantive suit was under challenge in a part heard motion and submitted that the learned trial judge missed the point that the said proceedings on jurisdiction was in fact part of the judicial process that the court had a duty to protect.
He also submitted that the 1st Respondent should have waited to know the decision of the court before acting as if the court had no competence to adjudicate on the matter and should not have pre-empted the court. The Learned Silk concluded that the learned trial judge should have set aside the purported recognition done in utter disrespect for the integrity of the court instead, he did the opposite by declining jurisdiction. He urged the court to set aside the purported recognition.
The Learned Senior Counsel for the Appellants’ Chief Ahamba, SAN also submitted that the learned trial Judge ought to have dismissed the Preliminary Objection as it lacked the materials upon which to consider the merit of objection. He argued that the object of notice of Preliminary Objection is like pleadings to give notice to the opposing side of the case and enables the party to prepare for arguments upon the issues, the subject matter of objection. That where the opposing party is taken by surprise by the fact that the Preliminary Objection is lacking in particularity as in the instant case, the trial court ought to dismiss same. He placed reliance on the case of Okoi vs. Ibiang (2002) 10 N.W.L.R (Pt 776) 455 A-C, to submit that the learned trial Judge failed to appreciate or ignored the fundamental conditions under which affidavit could be dispensed with in a Preliminary Objection and treated the matter as if affidavit was ordinarily a prohibited process in a Preliminary Objection proceeding. He stated that the learned trial judge having held that the Preliminary Objection lacked sufficient details, in that it failed to disclose the grounds of objection leaving the opposing party in the lurk as to grounds of objection to jurisdiction ought to have dismiss the preliminary objection.
It is also the view of Learned Silk that the trial court was in error by treating the omission of an affidavit to the Preliminary Objection as a mere irregularity instead of a breach of rule of fair hearing which is fundamental rather than a technical matter. He urged the court to resolve this issue in favour of the Appellants.
The Learned Counsel to the 1st, 2nd and 3rd Respondents, M. C. Uwasomba, Esq. in his brief of argument, submitted that jurisdiction is always regarded as a fundamental issue, the life wire of any litigation and the base on which adjudication rests. He submitted that it is a misconception that objection of jurisdiction cannot be raised except by a notice of Preliminary Objection supported with an affidavit. He relied on the cases of Ibrahim vs. Gaye (2002) 13 NWLR (Pt.784) 267 @ 297; Ekara vs. Takum (1995) 5 NWLR (Pt.394) 242; and Petrojessica Enterprises Ltd & Anr vs. Leventis Technical Company (1992) 5 NWLR (Pt.244) 675 @ 693; to also submit that there is no specific format for raising the issue of jurisdiction in view of its vital and fundamental importance. According to the Respondent Counsel, in some other cases jurisdiction can be raised orally or by the court suo moto and the issue of jurisdiction can also be raised by Preliminary Objection as was in this case, and when raised by Preliminary Objection, affidavit is not mandatory. He relied on the case of; Bello vs. N.B.N (1992) 6 NWLR (Pt 244) 675 at 693.
The learned 1st – 3rd Respondents’ Counsel further submitted that there is no legal requirement for the Preliminary Objection in this case to be supported by an affidavit. If at all, the Preliminary Objection lacked any material; all materials and issues necessary were highlighted at the stage of arguing the Preliminary Objection by the counsel for the 5th-7th Respondents, since the issue of jurisdiction could also be raised orally. He further stated that the motion on notice filed by all Respondents earlier, challenging the court’s jurisdiction are sufficient materials before the lower court. He urged the court to hold that the Preliminary Objection was proper in law and to uphold the ruling of the lower court in this regard.
It is further submitted that the learned trial court was right in declining jurisdiction to entertain the Motion first. It is his view that the said motion challenging the jurisdiction of the lower court by the Respondents has been argued extensively, before counsel for the Appellants brought his motion now on appeal and that the learned trial judge was right not to have abandoned the earlier objection to its jurisdiction relying on the cases of Anoghalu vs. Oraelosi (1994) 2 NWLR (Pt.324) 68 at page 76 paragraph E – F; Kotoye vs. Saraki (1994) 7 NWLR (Pt.357) SC 414; Kalio vs. Daniel Kalio (1975) 2 SC 15; and Barclays Bank vs. CBN (1976) 6 SC 175. Counsel argued that the court must resolve the issue of its jurisdiction as raised by the Respondents in this appeal before going into the motion for setting aside filed by the Appellants. He further submitted that the counsel for the Appellants is relying so much on the inherent powers or jurisdiction of the court to deal with his motion to set aside but the law is that the inherent jurisdiction of the court is not exercisable where the court lacks the jurisdiction. In other words, the inherent jurisdiction of the court only comes in where it has jurisdiction and if where its jurisdiction is being challenged as in the present case, it has to determine first whether it has jurisdiction before being called upon to exercise its inherent jurisdiction as the Appellants are requesting in this case. He relied on the case of Odofin vs. Agu (1992) 3 NWLR (Part 229) 350 SC at 369; Nokoprise Int. Co. Ltd. Vs. Dobest Trad. Corp. (1997) 9 NWLR (Pt. 520) 334 @ 344.
Respondent Counsel urged the court to uphold the view of the lower court that the decisions cited by the Appellants are only relevant if and when the court properly determines its jurisdiction to handle a matter. He further urged the court to dismiss this appeal and affirm the decision of the lower court.
The 5th to 7th Respondent’s counsel, Dr. Livy Uzoukwu, SAN submitted that the learned trial judge demonstrated a clear understanding of the issue before him when he declined jurisdiction to hear arguments challenging his jurisdiction to entertain the alleged acts of contempt complained of by the Appellant. He argued that the issue of jurisdiction is so radical that it forms the foundation or pivote of adjudication, because if the court lacks jurisdiction, it also lacks the necessary competence to try the case at all. He relied on the cases of Akagbejo & Ors vs. Ataga & Ors (1998) 1 NWLR (PT. 534) 468; Ajayi vs. Military Governor, Ondo State (1997) 5 NWLR (Pt.504) 259.
Learned Senior Counsel argued that, in order to clothe the court with jurisdiction, the Plaintiff must show that he has the locus standi to commence or institute the action, as in this case on appeal wherein the Respondents complained of lack of locus among others. He submitted that the locus standi of a Plaintiff is a precondition to the court assuming jurisdiction. That, where this initial hurdle in the judicial process is not satisfied by a Plaintiff, he cannot proceeds to the next stage of litigation. Reliance was placed on the following cases, TSA Industries Nigeria Ltd vs. Melwani (1994) 3 NWLR (Pt.333) 481 @ 488 and Soda vs. Kuringa (1992) 8 NWLR (Pt.261) 632 @ 638.
Learned Senior Counsel further argued that it is the law that a notice of preliminary objection complaining about the Plaintiffs lack of standing as in the case of this matter on appeal should be settled first, citing Oroh & Ors vs. Buraimoh (1990) 2 NWLR (Pt.134) 641 @ 645.
Learned Senior Counsel also submitted that when a courts’ jurisdiction is challenged or once an objection has been raised challenging the jurisdiction of the court to adjudicate over the matter before it, it is mandatory that the court first deal with such objection, since it is the outcome of such consideration that will determine whether or not the substantive suit will be considered or any step taken in the matter. He placed reliance on the cases of UBN Plc vs. Umeoduagu (2004) 13 NWLR (Pt.890) 352 @ 362; A.G. Kwara State vs. Arah & Ors (1995) 7 NWLR (Pt.405) 120 @ 126 – 127; Ajomale vs. Yaduat (1991) 5 NWLR (PT. 191) 266; and Onyeanusi vs. The Miscellaneous Offences Tribunal, Eastern Zone, Owerri (1995) 8 NWLR (PT.415) 628 @ 641.
Dr. Livy Uzoukwu, SAN for 5th to 7th Respondents also argued that the Appellants totally missed the point when they argued that there were no sufficient details to anchor the objection. It is his view that details were available, sufficient and clear. That the lower court appreciate the fact that there was a part heard argument challenging the jurisdiction of the trial judge to entertain the substantive suit, but that the Appellants want the court to suspend further hearing and consider the alleged contemptuous acts and make orders and resume the hearing of arguments on the issue of jurisdiction. It is the view of Learned Senior Counsel that the court must not give an order in the suit affecting the Defendants until the issue of jurisdiction is settled when it has been raised, and that no amount of urgency should compel a court to make an order when its competence or its power to adjudicate on the matter is called into question, and is yet to be argued and resolved. Reliance was placed on the cases of NDIC vs. CBN (2002) 7 NWLR (PT. 766) 272 @ 292; and Asogwa vs. Chukwu (2002) 4 NWLR (PT.811) 540 @ 579. The court was urged to resolve this issue against the Appellants and to dismiss the appeal.
The main contention of the Appellants in this appeal is the failure of the learned trial judge to invoke its disciplinary jurisdiction under its inherent powers to set aside the recognition of the 5th Respondent, Chief P. I. Onu as the Traditional Ruler of Nnemere Mpam Autonomous Community by the 1st Respondent during the pendency of this suit.
The Respondents joined issues with the Appellants in the suit which was commenced by a writ of summons. The 1st, 2nd and 3rd Respondents reacted by filing a motion on notice on the 16/9/2006, challenging the jurisdiction of the court on the following grounds: –
(a) That some relevant provisions (condition precedent) of law No.3 of 1999 were not complied.
(b) The Plaintiffs lack the locus standi to institute the action.
The 5th – 7th Respondents also filed a motion in that regard challenging the jurisdiction of the court. The said motions were moved and argued by the Respondents to which the Appellants were yet to respond. In the interim, the 1st Respondent accorded recognition and gave staff of office to the 5th Respondent as the Traditional Ruler of Nnemere Mpam Autonomous Community. This compelled the Appellants’ to file a motion on the 23/11/2004 seeking an order of court to set aside the said recognition. The Respondents raised preliminary objection to the jurisdiction of the court to hear the said motion which was upheld by the trial court.
Before delving into the matter, let me say without any hesitation agree with the Learned Senior Counsel to the Appellants, Chief M. I. Ahamba, SAN, that it is trite law that once parties have submitted their disputes to the court for determination, none of the parties is allowed to do any act or omission that would over-reach the interest of the other pending the determination of the suit, and if any of the parties does anything to the contrary, the court has the inherent power to set aside such act which tends to ridicule the court. Therefore, where a party is aware of a pending court process, and whether the court has not given a specific injunctive order, parties are bound to maintain status quo pending the determination of the court process. They should on no account resort to self help. See Government of Lagos State vs. Ojukwu (supra). Obeya Memorial Hospital vs. A.G. Federation (supra) and Ezegbu vs. F.A.T.B. (supra). In other words, it is not permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness or which may give the impression that the court is being used as a mere subterfuge, to tie the hands of one party while the other party helps himself extra-judicially. Both parties are expected to await the result of the litigation and the appropriate order of court before acting further. Once the court is seized of the matter, no party has the right to take the matter into his own hands. It is a reprehensible conduct for any party to an action or appeal pending in court to proceed to take the law into his hands, without any specific order of the court and to do any act which would pre-empt the result of the action. The courts frown against such a conduct and would always invoke their disciplinary powers to restore the status quo. See Abiodun vs. C. J. Kwara State (2007) 18 NWLR (Pt.1065) 109 at 139. paras. C-F; 140-141. paras. A-B; Registered Trustees, Apostolic Church vs. Olowoleni (1990) 6 NWLR (Pt.158) 514.
In the instant case, the act of disrespect for judicial process was brought to the notice of the trial court via a motion to set aside the said recognition accorded the 5th Respondent by the 1st Respondent but the trial court declined to set aside the said recognition on the ground that it had no jurisdiction.
Given the facts and circumstances of this case, would such pronouncement be right in view of the fact that the learned trial judge has the inherent powers to protect the authority and integrity of the court?
It is now settled that the issue of jurisdiction is fundamental to the question of the competence of the court adjudicating. It is therefore crucial for any court adjudicating to first determine that issue. It is an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. See Kalio vs. Kalio (1975) 2 SC 15; Barclays Bank vs. CBN (1976) 6 SC 175; and Oloba vs. Akejera (1988) 7 SC (PART 1) 11. Jurisdiction is always regarded as a fundamental issue. It is the life wire of any litigation and the base on which adjudication rests. It is variously described by courts as the bedrock and foundation of adjudication. A decision reached without jurisdiction is a nullity and the proceedings become an exercise in futility. This is the reason the issue of jurisdiction takes precedence over all other issues whenever it arises.
Once the issue of jurisdiction is raised, whether before, at or in the course of any proceedings, it must be addressed first, otherwise, if the court proceeds with adjudication and it is later found that it lacked jurisdiction, it would have involved itself, the parties and the machinery of justice in a futile exercise. In other words, when a challenge is made to the jurisdiction of the court, the issue should be settled one way of the other before the hearing of the suit.
It is also a settled principle of law that the issue of jurisdiction can be raised at any stage of a case, be it, at the trial, on appeal to the Court of Appeal or to the Supreme Court. It can be raised once it is apparent to any party that the court may not have jurisdiction; a fortiori the court can raise it suo motu. See Osadebay vs. A.G. Bendel State (1991) 1 NWLR (Pt.169) 525; and Owoniboys Technical Services Ltd. vs. John Holt Ltd (1991) 6 NWLR (Pt.199) 550. This therefore means that there is no specific format for raising the issue of jurisdiction which could be raised before, at or after the trial of the suit. See Ibrahim vs. Gaye (supra); Akegbejo vs. Ataga (1998) 1 NWLR (Pt.534) 459. It could even be raised viva voce see Petrojessica Enterprises vs. Leventis Technical (supra).
In the instant appeal the issue of jurisdiction was raised by way of preliminary of objection by the Respondents to the Appellants motion to set aside the recognition of the 5th Respondent. The contention of the Appellants and as agreed by the learned trial judge was that the Notice of Preliminary objection lacked sufficient details in that it failed to disclose the grounds of objection leaving the party in the lurk as to the grounds of the objection to the jurisdiction.
A preliminary objection is an objection against the regularity of a court process, that is, a suit, motion, e.t.c. The primary objective of such an objection is to terminate the proceedings at the stage the objection is raised. The objection must be preliminary in the sense that no other proceeding which may have the effect of waiver on the part of the objector shall have taken place in the entire proceedings. See Okoi vs. Ibiang (supra).
It is argued by the Appellants that the preliminary objection lacked sufficient details in that it failed to disclose the grounds of objection. Preliminary objections are raised by a separate notice, usually titled “Notice of Preliminary Objection” or “Preliminary Objection”, which may or may not be supported by affidavit depending on whether they are based on point of law or facts. Where a preliminary objection is based on point of law, it does not require an affidavit but if based on facts an affidavit is necessary. See A.G. Federation vs. A.N.P.P. (2003) 18 NWLR (PT.851). In other words, where the preliminary objection deals strictly with issues of law, there is no need for any supporting affidavit, but the grounds for objection need be clearly stated. However, when the objection leaves the province of law and dwells on the facts of the case, the party relying on such preliminary objection must support same by filing an affidavit.
What then is the nature of the Respondents’ notice of preliminary objection in this case? In the instant case, the Respondents filed a motion challenging the jurisdiction of the court to entertain the motion filed by the Appellants to invoke its disciplinary jurisdiction under the inherent powers of the court to set aside the recognition of the 5th Respondent by the 1st Respondent made during the pendency of the case.
A notice of preliminary objection complaining about the Plaintiff’s lack of standing as in the instant appeal should first be settled. In order to clothe the court with jurisdiction, the Plaintiff must show that he has locus standi to commence or institute the action whereas as in this case on appeal wherein the Respondents complained of lack of locus standi among others. This is because the locus standi of a Plaintiff is a pre-condition to the court assuming jurisdiction. Where this initial hurdle in the judicial process is not satisfied by a Plaintiff, he cannot proceed to the next stage of litigation. See TSA Industries Nig. Ltd. Vs. Melwani (supra) and Soda vs Kuringa (supra).
In the circumstances, what then are the grounds of the preliminary objection that the Respondents are required to disclose so that the Appellants would not be seen to be taken by surprise? The Appellants’ locus standi to institute the action was challenged thereby rendering the suit instituted incompetent and equally divesting the court of competence and jurisdiction to entertain the said suit. It must be pointed out here that the Respondents need not file along with the notice of preliminary objection affidavit stating the facts and circumstance of their objection. It is trite that once preliminary objection to the jurisdiction of the court is raised, it is sufficient notice to the other party since no affidavit need be filed by the Objector. In Bello vs. National Bank of Nigeria (1999) 6 NWLR (Pt.246) 206, it was held that there is no mandatory requirement under the Rules of the High Court for a preliminary objection to be accompanied by an affidavit except where the party raising the objection has proceeded by way of Motion on Notice. In Okoi vs. Ibiang (Supra) it was also held that an objection must be based on the document already before the Court and no evidence whether oral or documentary shall be allowed. A preliminary objection needs not be supported by an affidavit as long as enough material is placed before the Court on which it can judiciously pronounce on the objection.
In Ibrahim vs. Gaye (2002) 13 NWLR (Pt.784) 267, the issue of jurisdiction was raised by the Respondents in the course of arguments on an interlocutory injunction. This court held the procedure proper and added that the issue of jurisdiction may be raised by the pleading or otherwise and that there is no specific format for raising the issue of jurisdiction in view of its vital and fundamental importance. See Ekara vs. Takim (1995) 5 NWLR (Pt.394) 242; Petrojessica Enterprises Ltd vs. Leventis Technical Co. Ltd (Supra). I am therefore of the firm view that the issue of jurisdiction can be raised by preliminary objection as was done in this case, raised by preliminary objection.
Affidavit is not therefore a prerequisite to the raising of a preliminary objection unless the objection takes the form of a Motion on Notice and the fact that sufficient grounds were not stated will not vitiate the objection as to jurisdiction and competence of the Court to entertain the suit before it. This is so because the issue of jurisdiction can be raised orally or by the Court suo motu. See Bello vs. National Bank of Nigeria (Supra).I therefore agree with the learned counsel for the Respondents that the Motions on Notice filed by all the Respondents in the matter challenging the jurisdiction of the Court which documents were solely relied upon by the Respondents are sufficient materials before the court which it relied on in refusing to entertain the motion of the Appellants to set aside. In any case, the fact that the Appellants have not asked or called for further particulars of the grounds of objection but proceeded to argue the preliminary objection on grounds of jurisdiction shows that the Appellants were not taken by surprise and as such the objection is not prejudicial in any way whatsoever. The Appellants cannot now be heard to complain that the preliminary objection failed to disclose sufficient materials or grounds and I therefore so hold.
From all the facts and circumstances of this case, including the submissions of learned counsel thereon, I am of the considered view that the learned trial judge was right in declining jurisdiction to entertain the motion for contempt first. From the bundle of papers filed, the Ruling of the lower court as well as the brief of argument by the Appellants, it is admitted that there was a motion by the Respondents challenging the jurisdiction of the lower court to entertain the substantive matter. It is also not in dispute that the said motion challenging the jurisdiction of the court by the Respondents has been argued by Counsel awaiting the Appellants’ response before the Appellants brought this motion for contempt by way of motion on notice against the 1st Respondent.
The objection raised relates to the competence or jurisdiction of the court to entertain the application. The issue of jurisdiction must therefore first resolved. The logic here is very clear because the existence or absence of jurisdiction goes to the root of the matter so as to sustain or nullify the court’s decision or order in respect of the relevant subject matter. Thus, the court must resolve the issue of its jurisdiction as raised by the Respondents in this appeal first before going into the motion for the setting aside filed by the Appellants. See Kotoye vs. Saraki (Supra); Kalio vs. Kalio (Supra) and Barclays Bank vs. C.B.N (Supra).
It is trite that the court must not give an order in the suit affecting the Defendants until the issue of jurisdiction is settled when it has been raised. See NDIC vs. CBN (2002) 7 NWLR (Pt.766) 272 at 292. In Asogwa vs. Chukwu (2002) 4 NWLR (Pt.811) 540 at 579, it was held that no amount of urgency should compel a court in the con of the Nigerian jurisprudence to make an order when its competence or its power to adjudicate on the matter is called into question and is yet to be argued and resolved. In the instant case, the hearing on the challenge of the lower court jurisdiction was part heard and not yet resolved by the Court.
Also in this case, the Appellants’ Senior Counsel Chief Ahamba, SAN, relied so much on the inherent power or jurisdiction of the court to deal with his motion to set aside the recognition of the 5th Respondent. It is trite that the inherent jurisdiction of the court is not exercisable when the court lacks jurisdiction. See Odofin vs. Agu (1992) 3 NWLR (Pt.229) 350 at 369. What this means is that the inherent jurisdiction of a court only comes in where it has jurisdiction, and where its jurisdiction is being challenged as in the present case, it has to determine first whether it has jurisdiction before being called upon to exercise its inherent jurisdiction as the Appellants are requesting in the present case. See Nokoprise International Co. Ltd vs. Dobest Trading Corporation (1997) 9 NWLR (Pt.520) 334 at 344. I am therefore of the firm view that the lower court was right to have refused to consider the motion for contempt when it has not resolved the issue of its competence or jurisdiction being raised by the Respondents.
Consequently, the finding of the learned trial judge at page 49 of Record of Appeal is flawless, wherein it observed as follows:
“The issue in my view is whether in the face of a part argued objection to the jurisdiction of this court to entertain the substantive action. It could nevertheless proceed to take arguments on the alleged acts bordering on contempt, rule on it, before continuing on the issue of its jurisdiction.”
Based on the foregoing, the sole issue in this appeal is hereby resolved against the Appellants. The appeal therefore lacks merit and it is hereby dismissed. The Ruling of the lower court delivered on the 23rd day of May, 2005 is hereby affirmed.
I make no order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, (PJ) JCA. I agree that this appeal lacks merit and it is also hereby dismissed by me. The ruling of the lower court of 23rd day of May, 2005 is hereby affirmed. I make no order as to costs.
PETER OLABISI IGE, J.C.A.: I have read in advance the judgment just delivered by my Noble Lord, UWANI MUSA ABBA AJI (PJ) and I agree entirely with the said judgment.
Appearances
Chief M. I Ahamba, SAN, with him, C.C. Okoroafor, Esq. and T. E. Nwokedi, Esq.For Appellant
AND
M. C. Uwasomba, Esq. Ag. Director Legal Drafting.
M.O.J., Owerri, Imo State, for the 1st, 2nd and 3rd Respondents
Dr. Livy Uzoukwu, SAN, with him C. K. Uba, Esq, and Mike Onyekachi, Esq. for the 5th, 6th and 7th RespondentsFor Respondent
