MISS. LUCIA TAIWO ADEYEMI & ORS v. V. O. ACHIMU/NDIC/ASSURANCE BANK LIMITED & ORS (2015)

MISS. LUCIA TAIWO ADEYEMI & ORS v. V. O. ACHIMU/NDIC/ASSURANCE BANK LIMITED & ORS

(2015)LCN/7741(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of January, 2015

CA/K/330/2011

RATIO

APPEAL: PRELIMINARY OBJECTION; WHETHER A PRELIMINARY OBJECTION OUGHT TO BE DETERMINED WHEN RAISED BEFORE PROCEEDING FURTHER IN THE MATTER

The settled position of the law is that where a preliminary objection is raised to the hearing of an appeal or any process, it is incumbent upon the court to determine such objection before proceeding further in the matter, and the obvious reason for this is that as in the instant case where the jurisdiction of the court is challenged the objection has the tendency to terminate the life of the suit, or appeal. See OKEREKE V. YAR’ADUA (2008) ALL FWLR (Pt.430) 626; SANI V. OKENE LG TRADITIONAL COUNCIL (2008) ALL FWLR (Pt. 429) 464; UDENWA v. UZODINMA (2012) 12 MJSC (Pt.111) 1. per. ISAIAH OLUFEMI AKEJU, J.C.A.

COURT: JURISDICTION; THE SIGNIFICANCE OF THE JURISDICTION OF THE COURT IN MATTERS OF ADJUDICATION

The significance of the jurisdiction of the Court has been established through various expressions and pronouncements of the Courts wherein jurisdiction has been stated as fundamental, radical and threshold in matters of adjudication. In JOHN EBHODAGHE V. MR. MIKE OKOYE (2005) ALL FWLR (Pt.241) 200, KALGO JSC expressed the significance of jurisdiction on pages 211 – 212 as follows:
“It is not in dispute that both learned Counsel for the parties agree with the general principle that jurisdiction is a central issue to any case before any Court and once it is challenged, the Court concerned is duty bound to determine whether it has jurisdiction before proceeding to entertain the case. See NDAOYO v. OGUNNAYA (1971) 1 SC 11; OSCROFT v. BANEBO (1967) 2 ALL ER 557. This is so, because any act, orders or proceedings made by a Court without jurisdiction is a nullity and remains so for all purpose. See FUNDUK ENGINEERNG LTD. V. MC ARTHUR (1995) 4 NWLR (Pt 392) 640 at 651; ALAO v. C.O.P. (1987) 4, NWLR (Pt. 64) 199; ALHAJI RUFAI V. ALHAJI OLUGBEJA (1986) 5 NWLR (Pt. 40) 162. It is also trite law that jurisdiction can be raised at any time even on appeal. See AFRICAN NEWSPAPERS OF NIGERIA LTD. V. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (Pt 6) 137 at 161).
Also in UTIH V. ONOYIVBE (1991) NWLR (Pt. 166) at 241, BELLO CJN stated that;
“Moreover, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise”. per. ISAIAH OLUFEMI AKEJU, J.C.A.

LEGAL SYSTEM: THE DOCTRINE OF STARE DECISIS; WHETHER SUBORDINATE COURTS ARE BOUND BY THE DECISION OF THE APEX COURT

There cannot be any doubt from the state of our law that any subsisting decision of the Supreme Court being the apex Court is binding on this Court and any other Court below the Supreme Court in our judicial hierarchy in cases that are similar, and such decision must be enforced by them, This has been made abundantly clear by Section 297 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that “The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Supreme Court”. This provision is a Constitutional recognition of the principle of stare decisis which literarily means to stand by the things decided.
By this doctrine of stare decisis otherwise called judicial precedent, a Court that is lower in the judicial hierarchy is bound, and must hold itself bound by any subsisting decision of a higher Court. Failure by any Court to do so amounts to “arrogance and judicial irresponsibility which must be depreciated” as stated by WALI JSC in ATOLAGBE v. AWUNI (1997) 9 NWLR (Pt.522) 536 at 565. per. ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES:

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

1. MISS. LUCIA TAIWO ADEYEMI
2. MISS. KEHINDE PATRICIA ADEYEMI
3. MR. CHARLES ADEMOLA ADEYEMI
4. MR. ANTHONY ABAYOMI ADEYEMI – Appellant(s)

AND

1. V.O. ACHIMU/NDIC/ASSURANCE BANK LIMITED
2. MR. ADEPOJU ADEYEMI
3. MRS. OLUYINKA ROBERTS
4. MRS. OLUBUNMI LAJA – Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court sitting at Kano delivered on 25th May, 2007 wherein the learned judge, Hon. Justice Adamu Bello refused to set aside the judgment of the Failed Banks Tribunal delivered on 20th day of April, 1999 for want of jurisdiction. The appellants herein are the children of one Michael Babatunde Adeyemi (now deceased) who was the 2nd Judgment Debtor in suit No. FBT/11/KNZ/CV/22/98 before the Failed Banks Tribunal holden at Kano whose property located at No. 253, Muri Okunola Street, Victoria Island Lagos was used by one Temple & Golders Ltd., a customer of the defunct Assurance Bank to secure some credit facilities from that Bank and some other banks which facilities were not settled or fully paid up to the time the Failed Banks (Recovery of Debts) and Financial Malpractices in banks Decree No. 18 of 1994 was promulgated.

The 1st Respondent in this appeal, V.O. Achimu/NDIC/Assurance Bank filed a claim before the Failed Banks.
Tribunal Kano Zone on 29/10/98 for the Recovery of the sum of N35, 724, 513.80 being the total indebtness of Temple & Golders Ltd., Michael Babatunde Adeyemi and Ade Babington Ashayaye as at 28th August, 1998. Although the suit, No. FBT/I/KNZ/CV/22/98 was initially struck out for absence of parties, it was later relisted and adjourned to 20th April, 1999 for hearing while it was ordered by the Tribunal inter alia;
“that the processes be served on the respondents by substituted means by sending through courier to Mrs. Fatima Abdul Azeez & Co. No. 10, Ondo Street (west) Ebute – Metta, Lagos to effect service by either pasting on the wall of their House or serving same on any member of the Household, and same shall be deemed proper service”.

The Tribunal gave default judgment on 20th April, 1999 after being satisfied that there had been due compliance with the order for service of the processes; and following the application of the claimant/applicant’s Counsel. The judgment was entered in favour of the applicant as per its claim and against the Respondents.

Following the promulgation of Decree No. 62 of 1999, the 1st Respondent V. O. Achimu/NDIC (Assurance Bank) applied to the Federal High Court, Kano in suit No. FHC/CS/100/1999 for the execution of the judgment of the Failed Banks Tribunal, but the 2nd Judgment debtor Mr. Adeyemi filed a motion on 30th December, 1999 for setting aside of the judgment of the Tribunal on ground of non service and followed same with an application for stay of execution of the judgment. The said 2nd Judgment Debtor/Applicant died on 25th February, 2003 and was substituted by other persons.

As a result of the refusal of the application for the order setting aside the Tribunal’s judgment by the Federal High Court, the Appellants who are the heirs to the estate of late Michael Babatunde Adeyemi sought and were granted leave by this Court as interested parties to appeal against that Ruling of the Federal High Court.

The Appellants’ Notice of Appeal was filed on 27/05/2011 which was amended by inclusion of other grounds of Appeal as in the Amended Notice of Appeal filed on 31/3/14 containing 13 grounds of Appeal.

In the Appellant’s Brief of Argument prepared by Akinlolu Kehinde, SAN and filed on 12/6/14, the following issues were formulated for determination of the appeal;
1. Whether from the facts and circumstances of this case the Federal High Court (the Trial Court) has not affirmed, the denial of the 2nd Defendant’s (late Michael Babatunde Adeyemi) right to fair hearing and thereby occasioning a miscarriage of justice.
2. Whether from the facts and circumstances of this case, the trial Court (Federal High Court) misconceived the 2nd defendant’s (late Michael Babatunde Adeyemi) case and by extension the Appellant’s case and thereby occasioned a miscarriage of justice.

The 1st respondent had, in the Brief of Argument filed on 25/6/14 and settled by S.J. Gani Haliru Yakubu incorporated the argument on a preliminary objection that this Court has no jurisdiction in respect of this appeal, and that the appeal is incompetent based on the Notice of Preliminary Objection earlier separately filed, and after arguing the preliminary objection on pages 2 – 8 of the Brief, thereafter formulated the following issues for determination;
1. Whether the Federal High Court was right by holding that from the record the then 2nd defendant was served with the processes of the Court thereby giving him fair hearing.
2. Whether the federal High Court was right by holding that the appellants did not file a defence to the claim but instead acknowledged the judgment and debt owed.

The preliminary objection of the 1st respondent is that this court lacks the jurisdiction to hear this appeal and that the appeal itself is incompetent.
The learned Counsel, for the respondent submitted that the issue of jurisdiction can be raised at any time and at whatever stage of the proceedings either orally or in writing; PROJESSICA ENTERPRISES LTD. V. LEVENTIS TECHNICAL COMPANY LTD. (1992) NWLR (Pt 244) 675.

It was further submitted that the appellate jurisdiction of this Court as specified by section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) does not cover the Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Tribunal as it is not one of the Courts listed in that section; and a Court cannot exercise appellate jurisdiction that has not been statutorily or Constitutionally donated; EHUWA V. ONDO STATE (2006) 12 SCNJ 259. It was also submitted on the authority of the same EHUWA V. ONDO STATE (Supra) that an appellate Court cannot exercise jurisdiction over a matter in which the trial Court has no jurisdiction.

The learned Counsel submitted that the jurisdiction of the Federal High Court in respect of a matter from the Failed Banks Tribunal is derived from the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999, particularly sections 2, and 3 thereof.

It was contended that it was that Decree which conferred jurisdiction on the Federal High Court that took away that Court’s jurisdiction on concluded matters and by section 2 (4) ousted the jurisdiction of the Federal High Court from entertaining any question on judgments delivered by the Tribunal before the commencement of the Decree on 28/5/1999 thereby preserving those judgments which the Federal High Court has powers to only enforce by virtue of Section 2 (5) and to deliver the judgments of the Tribunal written but not delivered. The Federal High Court also has jurisdiction over matters that were part-heard as at 28/5/99 and in respect of all new proceedings that would have been otherwise filed before the Tribunal before the commencement of the Decree.

The substance of the learned Counsel’s submission is that the judgment of the Failed Banks Tribunal in the instant case delivered on 20/4/99 is preserved by virtue of Section 2 (4) of the Decree and therefore the only jurisdiction the Federal High Court can exercise in respect thereof is to enforce same under Section 2 (5) of the Decree.

It was submitted by the learned Counsel that the application of the present applicants who were substituted for the judgment Debtor/Applicant does not fall within the matters the Federal High Court could determine under Sections 2 and 3 of Decree 62 of 1999, same not being a part heard matter and for the same reason this Honourable Court is not vested with jurisdiction to entertain an appeal over the subject matter.

The case of AREWA PAPER CONVERTERS LTD. V. NDIC (NIG. UNIVERSAL BANK) LTD. (2006) 7 SCNJ 457 was cited by learned Counsel with emphasis that the facts thereof and those of the instant case are strikingly similar or indeed the same, the application giving rise to both cases having been predicated on non-service of process and lack of fair hearing after default judgment had been delivered following an order for substituted service.

As further contended by the learned Counsel, the judgment in the instant case having been delivered on 20/4/99, more than one month before commencement of Decree No. 62 of 1999, the Federal High Court could not exercise jurisdiction thereupon not being a part-heard matter pending before the Failed Banks Tribunal as at 28/5/99, and this appeal is also incompetent because the entire proceedings before the Federal High Court including the ruling of that Court are a complete nullity.

With reliance on this decision of the Supreme Court in AREWA PAPER CONVERTERS V. NDIC (supra) we were urged to strike out this appeal for want of jurisdiction, and declare the proceedings before and ultimate ruling of the Federal High Court that led to this appeal a nullity having been conducted and given without jurisdiction. The implication of the forgoing as submitted by the learned Counsel is that the leave granted to the appellants on 16/2/11 was done without jurisdiction and should be set aside. The case of TOMTES V. FEDERAL HOUSING (2009) 12 SCNJ 190 was cited and relived upon.

We were urged to uphold the preliminary objection, thereby rendering it undesirable or unnecessary to go into the issues raised for determination in the appeal.

In his response to the objection on pages 1 to 4 of the Appellant’s Reply Brief of Argument A.T. Kehinde SAN, submitted that this Court has jurisdiction to entertain this appeal, as the ruling appealed against is that of the Federal High Court Kano which Court is under the jurisdiction of this court by virtue of Section 240 of constitution of the Federal Republic of Nigeria, 1999 and Section 7 of the Federal High Court Act, 2004.

The senior Counsel argued that the subject matter of this appeal is the Ruling of the Federal High Court by which his lordship, Adamu Bello J. refused to extend time and set aside the judgment of the Failed Banks Tribunal that was said to have been entered without jurisdiction and in breach of the right to fair hearing which issues were considered by this court before granting leave to the appellants to commence this appeal.

It was submitted that Section 2(1) of Tribunal’s (Certain Consequential Amendments etc) Decree No. 62 of 1999, conferred jurisdiction on the Federal High court to try claims and offences created under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree 1994 and Section 2 (2 and 3) grant jurisdiction to the Federal High court to entertain applications brought before it.

It was contended by the Senior Counsel that preserving the judgment of the Tribunal under section 2 (4) of the Decree does not amount to an ouster of jurisdiction of the Court, rather it makes the judgment of the Tribunal to remain as that of the Federal High Court.

It was further contended that the case of AREWA v. NDIC (supra) heavily relied upon by the 1st respondent does not apply to this case because in the instant case there is no evidence on record that the order for substituted service was effected, and unlike the Arewa’s case, this application in the instant case was brought pursuant to Section 36 (1 and 2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended): Order 38 Rule 9 of Federal High Court Rules 2000 as well as the inherent jurisdiction of the Federal High Court.

The Ruling delivered on 25/5/2007 that led to this appeal is copied at pages 340 – 350 of the Record of Appeal, and it is sequel to the application by the 2nd defendant in suit No. FHC/K/CS/100/99, Michael Babatunde Adeyemi for the order setting aside the judgment of Failed Bank Tribunal sitting in Kano delivered on 20th day of April, 1999; an extension of time to seek the order, and an order setting aside the Writ of Attachment and sale of goods and Notice of Attachment already issued and any other step already taken towards the execution of the judgment.
The two grounds for the motion are that the 2nd defendant was not given any fair hearing before the judgment was delivered and he was not served with the initiating process or any processes relating to the suit. The application was opposed by the Judgment Creditor (respondent) by filing a Counter affidavit of 7 paragraphs to the supporting affidavit of the applicant.
After considering the application, the affidavit evidence of the parties and the submission of their learned Counsel, the learned trial judge found that the applicant had before filing the application acknowledged the judgment debt and offered to settle same by paying an amount of N31,000,000.00 in full and final settlement thereof as stated in the letter attached to the affidavit in support of the motion as exhibit GFC8. The Court also found that the applicant failed to show any defence or arguable defence to the action but rather knowledged the judgment. The motion was held to be an after thought and was dismissed for failure to show any substance or reason to warrant its being granted.

The crux of the argument of the 1st respondent in the instant objection is that this Court has no jurisdiction in respect of this appeal in that the appeal itself is incompetent as the Federal High Court from where the appeal emanated lacked the competence to entertain the application and thus this Court cannot entertain an appeal upon that incompetent matter. The 1st respondent relied on some provisions of the Tribunals (Certain Consequential Amendments etc) Decree No.62 of 1999 and the judgment of the Supreme Court in the case of AREWA PAPER CONVERTERS LTD. V. NDIC (NIG. UNIVERSAL BANK) LTD. also reported in (2006) ALL FWLR (Pt. 335) 1.

I have read the case of AREWA PAPER CONVERTERS LTD. V. NDIC (NIGERIA UNIVERSAL BANK) LTD (Supra) relied upon by the learned Counsel for the 1st respondent in the pursuit of this objection. It is a judgment of the Supreme Court from an appeal against the decision of the Court of Appeal which had struck out the appellant’s appeal after hearing the preliminary objection of the respondent. I find the facts of that case to be quite similar with those of the instant case, in that there was a judgment of the Failed Banks Tribunal delivered against the appellant therein by the Kano zone in suit No. FBT/KNZ/CV/242 on 24/4/98. The case was heard under the Failed Banks Decree No. 18 of 1994 before its amendment to confer jurisdiction on the Federal High Court in respect of such cases through the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999. The appellant did not appeal against the judgment and did not file any application before the Failed Banks Tribunal which went into extinction on 28/5/99 with the commencement of Decree No. 62 of 1999. The appellant rather applied to the Federal High Court for order setting aside the judgment of the Failed Banks Tribunal on the ground of irregular service.

that Although the learned silk in the instant case has submitted that the application resulting in this appeal was not brought under Decree No. 62 of 1999, but under the Constitution of Federal Republic of Nigeria; 1999 (as amended) the Court of Appeal Act and the inherent jurisdiction of this Court, it was held per MOHAMMED JSC (as he then was) at page 33 of the case of AREWA PAPER CONVERTERS LTD. V. NDIC (NIG. UNIVERSAL BANK) LTD. (supra) that “Coming back to the appeal filed by the appellant against the decision of the Federal High Court in exercise of its jurisdiction under Section 2 and 3 of Decree No. 62 of 1999 dismissing the appellant’s application, the right of appeal does not stem out of or derive exclusively from the provisions of the 1999 Constitution as argued by the appellant. The true position is that the right of appeal of the appellant from the decision of the Federal High Court on a matter originating from the decision of a Failed Banks Tribunal with effect from 28/5/99 to the Court of Appeal lies in section 7(1) of Decree No. 62 of 1999”.
It was held at pages 32 – 33 that:
“The appellant not having availed itself of the remedies at its disposal under Decree No. 18 of 1994 before the amendment to either apply before the Tribunal to set aside its judgment given against the appellant in suit No. FBT/KNZ/CV/242/98 on 24/4/98, on grounds of improper service or appeal against the judgment within the time prescribed by Section 5(1) of the Decree is no longer clothed with any right to seek remedy before the Federal High Court under the new dispensation brought about by Decree No. 62 which on its commencement on 28/5/99 swept away not only the Failed Banks Tribunal but also the Special Appeal Tribunal from which the appellant ought to have sought remedy on appeal. Since there is no provision in Sections 2 and 3 of Decree No. 62 of 1999 to deal with any matter already heard and disposed of by the dissolved Tribunal, the Federal High Court clearly is without jurisdiction to entertain and determine the appellant’s application…
…Following this ouster of the jurisdiction of the Federal High Court, to entertain the appellant’s application, the judgment of the Failed Banks Tribunal against it being a judgment of a Court of competent jurisdiction against which there was no appeal subsists. The rights created, preserved or determined in that judgment remain valid until set aside. However, the trial Federal High Court by virtue of the provisions of Decree No. 62 of 1999 is incompetent to vary and/or reject rights thus established by the Court of competent jurisdiction namely the Failed Banks Tribunal. This means even if there were some errors in the judgment of the Tribunal against the appellant, it is for the competent Court to which an appeal lies against the judgment in this case the special Appeal Tribunal to correct it or so declare. The result of the proceedings undertaken in the absence of jurisdiction by the trial Court is of course obvious as the law on the situation is trite”.

The foregoing far reaching findings and holdings by the Supreme Court in the Arewa Paper Converter case are directly applicable to the instant case where the appellants neglected to appeal against the decision of the Failed Banks Tribunal to the Special Appeal Tribunal or to apply to the Failed Banks Tribunal for setting aside of its judgment delivered on 20th April, 1998 but waited till 12th June, 1999 before approaching the Federal High Court for setting aside of the judgment which application for setting aside does not relate to, or form a pending part-heard matter before the Tribunal as at 29th May, 1999 when Decree No. 62 came into effect.
The case of the appellant does not fall within the category in which the Failed Bank Tribunal had written its judgment but same had not been delivered before commencement of Decree No. 62 of 1999 and which could have been delivered by the Federal High Court under section 2 (6) of the same Decree.
In the concluding part of the lead judgment in the AREWA PAPER CONVERTER case, his lordship Mohammed JSC (as he then was) said;
“Thus in the case at hand, upon the state of the law conferring jurisdiction on the Federal High Court as at 22/10/99 in respect of matters arising from the Failed Bank Decree No. 18 of 1999 as amended, the Federal High Court was deprived of the jurisdiction to entertain and determine the appellant’s application. Therefore the Court below having found the appellant’s appeal incompetent, after striking out the appeal for lack of jurisdiction to entertain it, the Court ought to have proceeded to make the consequential order of declaring the proceedings and ultimate ruling of the Federal High Court being appealed against a nullity having been conducted or given without jurisdiction. All the same, although the Court below did not make specific finding that the trial Court has no jurisdiction to entertain the appellant’s application, its decision upholding the objection of the respondent and striking out the appellant’s appeal is quite in order”.

As far as this instant appeal is concerned therefore, it becomes obvious that this Court is not endowed with the jurisdiction to hear the same since obviously no valid proceedings have been brought before it. The principle is that no one can put something upon nothing. It definitely will not stand. See MACFOY V. U.A.C. (1962) AC 152.

The consequence is that the preliminary objection of the 1st respondent is meritorious and it is accordingly upheld by me. The appeal is struck out for want of jurisdiction by this Court.

I have stated the issues placed before this Court for its consideration of the merit of this appeal. I am of the view that the appeal can effectively be determined by the two issues raised by the Senior Counsel for the appellant which I earlier set out in this judgment. The issues concern the non service of originating process on the appellants leading to breach of fair hearing or whether there has been a miscarriage of justice occasioned by the decision of the Federal High Court.

The Federal High Court found from the record of the Failed Banks Tribunal that the 2nd defendant now represented by the appellants and indeed the other defendants before the Tribunal were served with the originating process and that it was after the Tribunal had been so satisfied that it gave judgment in default.

The Failed Bank Tribunal had rendered its judgment on 20/4/99 but there was no application to that Tribunal to complain of any lack of service or any irregularity in service by the 2nd respondent nor any appeal to the Special Tribunal as stipulated under the provisions of Decree No. 18, but the application for setting aside was only made to the Federal High Court pursuant to Decree No. 62 of 1999 by virtue of which Decree, the Federal High Court is incompetent to vary, and/or reject rights established by the Failed Banks Tribunal and even if there were errors in the judgment, it could only have been corrected by the Special Appeal Tribunal. See the case of AREWA PAPER CONVERTERS (Supra).

In view of the foregoing I can only conclude that even on its merit this appeal is lacking in substance and it is accordingly dismissed.
I award costs of N30,000.00 in favour of the 1st Respondent only.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Isaiah Olufemi Akeju, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.

This appeal is against the Ruling of the Federal High Court sitting in Kano in Suit No FHC/K/CS/100/1999 delivered by Honourable Justice Adamu Bello on the 25th of May, 2007. By an application for recovery of debt dated 29th of October, 1998, the first Respondent, as applicant, commenced an action before the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal covering the Kano Zone against Temple & Golders Ltd. Michael Babatunde Adeyemi and Ade Babington Ashaye, as respondents. The claim of the first Respondent was for the sum of N35,724,513.80 being the total sum due and payable to Assurance Bank Limited at the close of business on 28th of August 1998 in respect of the facility granted by Assurance Bank Limited to Temple & Golders, the first respondent, together with interest at the rate of 21% per annum until the whole debt is finally liquidated. The matter was listed as Suit No FBT/II/KNZ/CV/22/98 and the Tribunal ordered that service be carried out on the Respondents by substituted means. On the 20th of April, 1999, after convincing itself that substituted service of the originating processes had been duly effected on the Respondents, the Tribunal entered default judgment against the Respondents in the sum claimed. The Respondents did not appeal to the Special Appeal Tribunal set up under the Failed Banks Recovery of Debts) and Financial Malpractices in Banks Decree No 18 of 1994 against the default judgment.

The Failed Banks Recovery of Debts) and Financial Malpractices in Banks Tribunal in Kano was abrogated in May 1999 and the matters before it were taken over by the Federal High Court sitting in Kano pursuant to the provisions of the Tribunals (Certain Consequential Amendments etc) Decree 62 of 1999. The first Respondent approached the Federal High Court to take steps to execute the judgment of the Failed Banks Recovery of Debts) and Financial Malpractices in Banks Tribunal and in response to which the Michael Babatunde Adeyemi, the second respondent in the matter before the Tribunal, filed a motion on notice on the 30th of December, 1999 praying for an order setting aside the judgment of the Tribunal on the ground of non-service. The Federal High Court heard the application on the merits and dismissed it. In the meantime, Michael Babatunde Adeyemi died and the Appellants herein, who are the heirs to his Estate, sought for and were granted leave by this Court to appeal against the Ruling of the Federal High Court dismissing the application. This is this present appeal.

Counsel to the first Respondent filed a notice of preliminary objection to the hearing of the appeal and it was predicated on the lack of jurisdiction of this Court to entertain the appeal. The contention of Counsel was that the Tribunals (Certain Consequential Amendments etc) Decree 62 of 1999 which empowered the Federal High Court to take over the matters that were before the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal did not grant the Federal High Court an all encompassing power over such matters. Counsel stated that Decree 62 of 1999 did not give the Federal High Court power to look into, question or in any way inquire into matters that had been concluded and in respect of which judgments had been delivered by the Failed Banks Tribunal before they were abrogated on the 28th of May, 1999 and that the only power given to the Federal High Court in respect of such matters was to enforce the judgments of the Tribunal. In other words, that the judgment of Failed Banks Recovery of Debts) and Financial Malpractices in Banks Tribunal sitting in Kano in Suit No FBT/II/KNZ/CV/22/98 delivered on the 20th of April, 1998, more than a month before the abrogation of the Tribunal, was preserved by the provisions of Decree 62 of 1999 and it could not be set aside or any way derogated from or inquired into by the Federal High Court, Kano. Counsel stated that the lower Court thus lacked the requisite jurisdiction to have entertained the application of the Appellants to set aside the judgment and that the entire proceeding of the lower Court thereon was a nullity as well as the ruling delivered therein.
Counsel concluded there from that this Court cannot thus entertain an appeal in respect of proceedings and a ruling that are nullities and he placed reliance on the decision of the Supreme Court in Arewa Paper Converters Ltd Vs NDIC (Nigeria Universal Trust Bank Ltd) (2006) 7 SCNJ 457, the facts of which he said were on all fours with the instant case.

In response, the learned Silk for the Appellants contended that this Court possesses the requisite jurisdiction to entertain the appeal as it was against the decision rendered by the Federal High Court and whose judgment was subject to appeal to this Court by the provisions of Section 240 of the 1999 Constitution and of Section 7 of the Federal High Court Act, 2004. Counsel conceded that the application heard and dismissed by the Federal High Court was for prayers seeking for extension of time to set aside and to set aside the judgment of the Failed Banks Tribunal sitting in Kano delivered in Suit No FBT/II/KNZ/CV/22/98 on the 20th of April, 1999 and he stated that the Federal High Court had jurisdiction under Decree 62 of 1999 to try claims and offences brought under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No 18 of 1994 and to hear applications brought before it in respect thereof. Counsel said that the preservation of the judgments already delivered by the Failed Banks Tribunal by Decree 62 of 1999 did not amount to an ouster of the jurisdiction of the Federal High Court in respect of such judgments, but rather it made the judgments to remain as the judgments of the Federal High Court.
Counsel said that the decision of the Supreme Court in Arewa Paper Converters Ltd Vs NDIC (Nigeria Universal Trust Bank Ltd) supra relied upon by Counsel to the just Respondent was inapplicable in the instant case as there was no evidence in the present case that the order for substituted service made by the Tribunal was complied with and that the provisions of section 36 of the 1999 Constitution were not considered in the case.

I have read the decision of the Supreme Court in Arewa Paper Converters Ltd Vs NDIC (Nigeria Universal Trust Bank Ltd) supra, both the majority opinions and the minority opinion. The facts of the case are exactly the same as the facts of the present case and the same issues as in the instant case were raised for consideration; all the issues raised by Counsel to the Appellants as constituting distinguishing features between that case and this present case were indeed raised and considered by the Supreme Court in that case, particularly in the minority judgment of Oguntade, JSC. The conclusion of the majority opinions was that the provisions of Decree 62 of 1999 ousted the power and jurisdiction of the Federal High Court to look into, question or in any way inquire into matters that had been concluded and in respect of which judgments had been delivered by the Failed Banks Tribunal before they were abrogated on the 28th of May,1999, irrespective of whether it was a default judgment or judgment on the merits and no matter the ground for the application; the Federal High Court had no jurisdiction to set aside such judgment The Supreme Court sated that by the provisions of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No 18 of 1994 a party dissatisfied with the judgment of a Failed Banks Tribunal had the option of appealing to the Special Appeal Tribunal set up under the Decree within twenty-one days and that the judgment of the Special Appeal Tribunal shall be final. The Supreme Court endorsed the decision of the Court of Appeal striking out as incompetent the appeal brought against the decision of the Federal High Court that had heard, considered and dismissed an application seeking to set aside the judgment of the Tribunal on the merits. The Supreme Court opined that since the Federal High Court had no jurisdiction to hear and determine such an application in the first place, its proceedings thereon were a nullity and an appeal against such proceedings was incompetent. My learned brother had, in the lead judgment, quoted in extenso from the statements of the learned Justices of the Supreme Court in that judgment so much that my repeating the portions of the judgment herein will be unnecessary tautology.

Now, Nigeria is a common law country and the foundation upon which the common law system is erected is the doctrine of judicial precedent. In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. Black’s Law Dictionary 5th Edition at page 1059 defines “precedent” as a “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.” Speaking on the doctrine of judicial precedent, the learned authors of Lloyd’s Introduction to Jurisprudence at pages 1100-1101 stated thus:
“To follow past decision is a natural and indeed a necessary procedure in our everyday affairs. To take the same course as has been taken previously, or has usually been adopted in the past, not only confers the advantage of the accumulated experience of the past but also saves the effort of having to think out a problem anew each time it arises. Accordingly, in almost any form of organization, precedents have to be established as guides to future conduct, and this applies not merely to legal systems but to all rule or norm-creating bodies, whether clubs, government departments, schools, business firms or churches.” (5th Edition by Lord Lloyd of Hampstead and M.D.A. Freeman)
The doctrine of judicial precedent is commonly referred to as the principle of stare decisis, and it is a legal principle by which Judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim stare decisis et non quieta movere “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. Its meaning is that when a point of law has been once solemnly and necessarily declared by the decision of a competent court, it will no longer be considered open to an examination, or a new ruling, by the same court or tribunal or by those which ate bound to follow its adjudications. In a hierarchical judicial arrangement, it precludes the Judges of subordinate courts from changing what has been determined by a higher court. In other words, they should keep the scale of justice even and steady and not liable to waver with every Judge’s opinion – Adesokan Vs Adetunji (1994) 5 NWLR (Pt 345) 540, Okeke Vs Okoli (2000) 1 NWLR (Pt 642) 641, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1. The doctrine postulates that where the facts in a subsequent case are similar or close as facts in an earlier case that had been decided upon, judicial pronouncements in the earlier case ate subsequently utilized to govern and determine the decision in the subsequent case – Nwangwu Vs Ukachukwu (2000) 6 NWLR (Pt 662) 674.
The reasons which underlie this rule were stated by Chancellor Kent, in a much quoted passage from his Commentaries, as follows:
“A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community has a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law.” (1 Kent’s Commentaries at page 475)
Similarly, Judge Cooley observed:
“Even if the same or any other court, in a subsequent case, should be in doubt concerning the correctness of the decision which has been made, there are consequences of a very grave character to be contemplated and weighed before the experiment of disregarding it should be ventured upon. That state of things, when judicial decisions conflict, so that a citizen is always at a loss in regard to his rights and his duties, is a very serious evil; and the alternative of accepting adjudged cases as precedents in future controversies resting upon analogous facts, and brought within the same reasons, is obviously preferable.” (Cooley, Constitutional Limitations, page 50)
In Nigeria, the maintenance of this doctrine is of peculiar importance on account of the deference which we are accustomed to pay to the decisions of the law courts, even in cases where their logical correctness is open to doubt. This recognition of the power and province of the judicial tribunals in the guidance and settlement of our civil institutions, leads the Nigerian citizen to yield his implicit obedience to their doctrines even when the decision of a court lays a controlling and shaping hand, not formally, perhaps, but in the necessary deductions from its conclusions, upon the most zealously debated political questions, of the most important affairs of government.
Then if progress be desirable, if the growth of the nation, in the perfect development of constitutional government, as well as in the stability of its institutions, be a desideratum, these objects can certainly not be attained by a disregard of the principle of stare decisis. Hence, in the construction of statutes and the organic law, whether of a State or of the Federation, the rule is almost universal: to adhere to the doctrine of stare decisis under any and all circumstances.

Nigeria operates a hierarchical judicial arrangement and the Supreme Court is the highest court in that arrangement. The operation of the doctrine of judicial precedent prescribes that all previous decisions and judgments of the Supreme Court ate binding on all courts in the judicial arrangement including the Supreme Court itself, and that the Supreme Court can only depart from its earlier decisions and judgments in certain exceptional circumstances – Atolagbe vs Awuni (1997) 9 NWLR (Pt.522) 536, Okulate Vs Awosanya (2000) 2 NWLR (Pt 646) 530 and Odugbo Vs Abu (2001) 14 NWLR (Pt.732) 45. The concept of stare decisis is the foundation upon which the consistency of the Nigerian judicial system is based – Dalhatu Vs Turaki (2003) 15 NWLR (Pt 843) 310. Adherence to precedent is one of the strongest principles of judicial policy which provides for an orderly and reliable development of legal rules and it does not involve an exercise of judicial discretion; it is mandatory – Amaechi Vs Independent National Electoral Commission (2008) 5 NWLR (Pt 1080) 227 and Dingyadi Vs Independent National Electoral Commission (2011) 10 NWLR (Pt. 1255) 347.

This Court is bound by the decision of the Supreme Court in Arewa Paper Converters Ltd Vs NDIC (Nigeria Universal Trust Bank Ltd) supra on the issue of the jurisdiction of the Federal High Court to inquire into or tamper with the concluded judgments of the Failed Banks Tribunal and it is obligated to apply it in the instant case, irrespective of what its own views on the subject might be. The lower Court in the instant case thus had no jurisdiction to entertain the application of the Appellants seeking to set aside the judgment of the Failed Banks (Recovery of Debs) and Financial Malpractices in Banks Tribunal covering the Kano Zone in Suit No FBT/II/KNZ/CV/22/98 and delivered on the 20th of April, 1999. Jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties. It defines the power of courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority.

The issue of jurisdiction is most fundamental in the adjudication or determination of a cause or matter by court. It is “the blood, life wire, bedrock and foundation of adjudication and without it the ‘labourers’ therein, that is both the litigants and counsel on the one hand and the Judge on the other hand, labour in vain” – Attorney General of Lagos State Vs Dosunmu (1989) 3 NWLR (Pt 111) 552. A court with jurisdiction builds on a solid foundation because jurisdiction is the rock on which court proceedings are based. But a court that lacks jurisdiction and continues to hear a matter and determine judicial proceedings builds on quick sand and all proceedings and steps based on it will not sand – Emeka Vs Okadigbo (2012) 18 NWLR (Pt.1331) 55. Thus, the entire deliberations of the lower Court on the application of the Appellants to set aside the judgment of the Failed Banks Tribunal and the ruling delivered thereon were nullities. This present appeal against the Ruling of the lower Court on the application must necessarily be incompetent; you cannot put something on nothing, it will not stand. I agree that the there is merit in the preliminary objection of the first Respondent to the competence of this appeal. I uphold the preliminary objection.

My learned brother went further in the lead judgment to consider the merits of the appeal. This is in accord with the advice given by the Supreme Court in National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170 that this court, being the penultimate Court in out judicial system, when confronted with the issue of jurisdiction should decide the issue one way or the other and then proceed to determine the main appeal thereby affording the Supreme Court the benefit of its opinion. I concur with the resolution of the merits of the appeal in the lead judgment and I am in full agreement that this appeal be dismissed. I abide the consequential order on costs.

AMINA AUDI WAMBAI, J.C.A.: I was privileged to read in draft, the lead Judgment delivered by my learned brother, ISAIAH OLUFEMI AKEJU, JCA with whom I am in complete agreement.

The appeal is against the Ruling of the Federal High Court sitting in Kano delivered on 25/05/2007 which refused an application to set aside the Judgment of the Kano Zone of the Failed Bank Tribunal delivered on 20/04/1999 in favour of the applicants therein.

After the delivery of the Judgment by the Failed Bank Tribunal (FBT) on 20/04/1999 but before the execution of the Judgment, the Federal Military Government promulgated Decree No. 62 of 1999 on the 28/05/1999.

While the first Respondent applied to the Federal High Court for the execution of the said Judgment of the Failed Bank Tribunal, the 2nd Judgment debtor applied to the same Court to set aside the said Judgment on ground of non service and to stay execution. The refusal of the Federal High Court to set aside the Failed Bank Tribunal’s Judgment gave birth to this appeal by the Appellant, the heir of the deceased 2nd judgment debtor Michael Baba Tunde Adeyeni who were granted leave to appeal as interested parties.

The gist of the preliminary objection raised by the 1st Respondent to the hearing of this appeal is that the decision of Failed Bank Tribunal of the 20/04/1999 not been a part heard matter, by Sections 2 and 3 of Decree 62, 1999, the Federal High Court has no jurisdiction to entertain same and for the same reason this court is divested of jurisdiction to hear the appeal arising therefrom.

Like my learned brother in the lead Judgment, I also find the Supreme Court decision in the case of AREWA PAPER CONVERTERS LTD VS. NDIC (NIG.UNIVERSAL BANK LTD) (2006) 7 SCNJ 457 very instructive. The case is almost on all fours with the present appeal. The Supreme Court was emphatic that by Sections 2 and 3 of Decree No. 62 of 1999, the Federal Court has no jurisdiction to entertain a matter already heard and determined by the dissolved Failed Bank Tribunal, and thus, could not have properly entertained the application. The remedy which availed the applicants therein was to have appealed to the special Appeal Tribunal before the promulgation of Decree NO. 62 of 1999. Having not done so, by 28/05/1999 when Decree No. 62 was promulgated their right was completely extinguished and swept away.

Decree No. 62 1999 ousted the jurisdiction of the Federal High Court to entertain an already completed matter and a fortiorori, this court also lacks jurisdiction to entertain this appeal. The effect is that the Judgment of the Failed Bank Tribunal delivered on 20/04/1999 subsists.

For this and the detailed reasons in the lead Judgment, I also uphold the preliminary objection and dismiss the appeal.

Appearances

A.I. Kehinde, SAN with E.J. Okoye and B.O. Amawu For Appellant

AND

S.J. Gani for the 1st Respondent.
Ibrahim Idris for the 2nd, 3rd and 4th Respondents. For Respondent