ALHAJI IDRIS ALAYA v. ENGR. ADEWUMI ADEMOLA ISAAC
(2019)LCN/12628(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/IL/123/2017
RATIO
JURISDICTION: THE IMPORTANCE OF EFFECTIVE JURISDICTION
“I have earlier tried to point out that a null judgment delivered without jurisdiction is liable to be set aside. This is because jurisdiction is not only fundamental to adjudication, but as rightly described, the life blood of adjudication itself, and before the Court assumes the jurisdiction to adjudicate, it is incumbent upon the Court to see that all the conditions necessary exposed in the case of Madukolu vs Nkemdilim (1962) All NLR (pt. 4) 587, Dangana & Anor vs. Usman & 4 Ors (2013) 6 NWLR (pt. 1349) 50 amongst others are satisfied. Evidently the learned counsel for the respondent is right in asserting that Courts are created by the constitution or statutes and in determining the scope and or the jurisdiction of any Court, it is that Constitution or statute that must be examined. The case of Jolly Nyame vs. FRN (2011) 7 NWLR (pt. 193) 344, cited by the respondent counsel is apposite. It goes without saying that failure to comply with any statutory or constitutional provision with regards to the institution of any suit, application or action will deprive the Court of the jurisdiction to adjudicate on the action. SeeAG Lagos State vs. AG of the Federation (2014) 9 NWLR (pt. 1412) 217, Osi vs. Accord Party (2017) 3 NWLR (pt. 1553) 387 @ 403.” PER HAMMA AKAWU BARKA, J.C.A.
JURISDICTION: WHETHER THE QUESTION OF JURISDICTION RAISES THE QUESTION OF LAW
“It is trite that any issue touching on jurisdiction invariably raises a question of law, and a judge whose jurisdiction is being questioned has not powers continuing to exercise judicial powers when his competence on the matter is under challenge. The jurisdiction of the Court at that instance is limited to ascertaining whether he has the requisite jurisdiction or not. It is only where he satisfies himself to the fact that he has jurisdiction, can he then proceed to hear the case. See Okoye & Sons vs. Nigerian Construction & Furniture Co. Ltd & Ors (1991) LPELR-2509 (SC). Let me emphasize that a preliminary objection raised as to the jurisdiction of the Court to try any action, cannot be subsumed in the consideration of the substantive matter. The principle behind the filing of the preliminary objection as in this case is that once it succeeds the action is rendered fundamentally defective and hearing of the action abates. See Okereke vs. James (2012) 16 NWLR (pt. 1326) 339. Thus once a preliminary objection is raised to the doing of anything it must first be considered before the Court goes further:Akere vs. Governor of Oyo State (2012) 12 NWLR (pt. 1314) 224.” PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
ALHAJI IDRIS ALAYA Appellant(s)
AND
ENGR. ADEWUMI ADEMOLA ISAAC Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the decision of the Kwara State High Court in suit No. KWS/3M/2017, between Engineer Adewumi Ademola Isaac and Alhaji Idris Alaya, delivered on the 3rd of August 2017, coram: Halima Saleeman J., wherein the Learned Trial Judge at page 24 of its judgment ruled as follows:
“I hereby set aside the exparte application and the ruling made thereto on the 16/01/2017 as well as staying further execution on the property situate and lying at tanke Alangua, Ilorin Kwara State.
Needless to state that the Preliminary Objection of the Respondent is subsumed in this ruling since it dwelled on the same issue.”
Irked and disturbed by the decision of the lower Court, the appellant filed a Notice of Appeal on the 16th of August, 2017 predicated on 14 grounds of appeal. The extant Notice of Appeal is the Amended Notice of Appeal filed on the 4th of May, 2018 with the leave of Court granted on the 2nd of May, 2018, now predicated on 15 grounds of Appeal.
The history of the case leading to the instant appeal, where viewed from the record appears straight forward. In brief, the tussle between the parties is over the ownership of a parcel of land measuring 100 feet by 50 feet, located at Tanke Alangua village Ilorin. The Record has it that sometimes in the year 1991, one Pastor J. A. Akinduro, caused a writ of summons to issue against the appellant, Alhaji Idris Alaaya, claiming declaratory reliefs amongst others, with the case ending in his favor (the plaintiff). The appellant herein appealed the said judgment to the Court of Appeal sitting in Kaduna, which Court allowed the appeal, dismissed the claim of the plaintiff at the lower Court, and granted the cross appeal by the appellant. Both parties appealed to the Supreme Court in case with number SC.296/2002, and in its judgment later reported as Akinduro vs. Alaya (2007) 15 NWLR (pt. 1057) 312 ? 339, the apex Court, dismissed the appeal and allowed the cross appeal. In other words, the decision of the Court of appeal vesting the ownership of the disputed land on the appellant was upheld.
That however is not the end of the matter, the respondent Engineer Adewumi Ademola Isaac, now showed up and claimed that the piece of land being litigated upon was earlier sold to him by the said Pastor Akinduro, and that he had in fact developed and taken possession of the said parcel of land. This led to series of negotiations between the appellant and the respondent for possible amicable settlement, and the settlement having failed, respondent instituted case no KWS/OM/64/2008 against the appellant claiming for declaratory reliefs on same parcel of land against the appellant. The appellant unsuccessfully raised the defense of estoppel and sundry other defenses and after a protracted trial, Justice M. Gafar of the Kwara State High Court on the 19th of October, 2009 granted the claimants claim, holding that the claimant vide Exhibit 1 acquired interest in the land from Pastor Akinduro, and by virtue of Exhibit 2, the land was acquired from the defendant (appellant). The counterclaim by the defendant was consequently dismissed.
Still displeased with the decision of the High Court, manned by Abdulgafar J., in suit No. KWS/OM/64/2008, appellant appealed the said decision to the Court of Appeal in appeal with No. CA/IL/34/2010. This Court in its judgment of the 4th of June, 2012 allowed the appeal and reversed the judgment of the lower Court, thus granting the appellants counterclaim as prayed. In clear terms, the Court of appeal held that the lower Court lacked the vires to have entertained the case in the first instance, and thereby struck out the case before the lower Court.
The respondent equally felt dissatisfied with the decision of this Court in appeal No. CA/IL/34/2010 as delivered, and appealed the same to the Supreme Court in Appeal No. SC/420/2012. That appeal was however withdrawn by the respondent as appellants, and consequently struck out by the apex Court on the 20th of October, 2015.
The appellant consequent upon the striking out of the appeal by the Supreme Court, and by a motion brought ex-parte pursuant to the provisions of Section 287(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, Section 24 of the Sheriffs and Civil Process Act, Cap. S6, LFN 2004; Order 5 Rule 3 and 4 and Order 11 Rule 5 and 8 of the Judgment Enforcement Rules, as well as the inherent powers of the Court, prayed for the order of the lower Court for:
An Order of the Court directing the issuance of, and or issuing a writ of possession (or warrant of possession) in favor of the defendant/judgment creditor/applicant in the application and over the piece of land at Tanke, Ilorin Kwara State which was adjudged in the applicants favor by the Court of appeal, in Ilorin in its judgment of 4th June, 2012 in Appeal No CA/IL/34/2010 being an appeal against the judgment of this Court.
After hearing the motion ex-parte, the lower Court on the 16th of January, 2017 considered the application, and granted the prayers therein as prayed.
In the course of executing the order of possession made, the respondent on the 14th of February, 2017, approached the same High Court that gave the order for a writ of possession, and by way of a motion brought on notice pursuant to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Order 11 Rule 10 and 24, Order IV Rule 1, Order V Rule 8 (1) and (2) of the judgments (enforcement) Rules and Order 11 Rules 1 and 2 of the High Court (Civil Procedure) Rules, 2006 and under the inherent jurisdiction of this Court, praying for the following reliefs:-
1. An order of this Honourable Court setting aside and or discharging in its entirety the proceedings culminating in the ex-parte order/judgment/ruling of this honourable Court in Suit No. KWS/3M/2017 made against the Appellant on the 16th day of January, 2017 and the other steps taken thereof on grounds inter alia of lack of jurisdiction and an abuse of Court processes.
2. An order setting aside and or/discharging in its entirety on grounds inter alia of lack of jurisdiction and an abuse of Court processes, the NOTICE TO REMOVE ILLEGAL PROPERTY issued under the hand and seal of the Deputy Chief Registrar of this Court dated 1st February, 2017, pursuant to the ex-parte order of the court made on 16th January, 2017.
3. An order for the immediate removal of the said NOTICE TO REMOVE ILLEGAL PROPERTY issued under the hand and seal of the Deputy Chief Registrar of this Court dated 1st February, 2017 from the property of the Applicant herein.
4. An order of this honourable Court staying further execution and enforcement of the ex-parte order/judgment/ruling of this Court in Suit No. KWS/3M/2017 pending the hearing and determination of this application.
5. An order restraining the Deputy Chief Registrar of this Court from further acting and/or/giving effect to the ex-parte order/judgment/ruling of this honorable Court in Suit No. KWS/3M/2017 made against the Applicant on the 16th day of January, 2017 or from transferring howsoever any value of benefit thereof to the Respondent pending the hearing and determination of this application.
6. An order restraining the Respondent from taking value or benefit of the ex-parte order/judgment/ruling of this honourable Court in Suit No. KWS/3M/2017 made against the Applicant on the 16th day of January, 2017 pending the hearing and determination of this application,
7. And for such further or others as this honourable Court may deem fit to make in the circumstances.
The application was premised on the following grounds:-
1. The learned trial judge by virtue of the provisions of Order II Rules 10 and 24, Order IV Rule 1 of the judgments (Enforcement) Rules does not possess the requisite jurisdiction to grant the order of 16th day of January, 2017 pursuant to which the NOTICE TO REMOVE ILLEGAL PROPERTY of 1st February, 2017 was issued by the Deputy Chief Registrar.
2. The ex-parte application by the Respondent and the order made thereof amounts to an abuse of Court process.
3. The Respondent in making the ex-parte application had misled the Court and suppressed plenty of material facts that would have aided the Court as to the justice of the application.
4. The Notice tagged: NOTICE TO REMOVE ILLEGAL PROPERTY was made mischievously as there is no judgment of this Court on the subject matter.
There is a written address in support of the application.
In his response to the application, the respondent filed a counter affidavit of 28 paragraphs on the 14th of March 2017, and hinged on the counter affidavit are four exhibits titled K1 to K4. The applicant reacted to the counter affidavit by filing a further affidavit of 18 paragraphs on the 11th of April, 2017 and attached five exhibits marked as Exhibits FA ? FA 5. The further affidavit incorporated a written address against the preliminary objection raised by the appellant and a reply to the counter affidavit. The respondent still reacted to the filing of the further affidavit by the applicant by filing a further counter affidavit of 19 paragraphs on the 24th of April, 2017.
Not to be out done, applicant filed a further and better affidavit in support of his motion on the 2nd of May, 2017 with three exhibits attached and marked Exhibits FB1 ? FB3. In a considered ruling delivered on the 3rd of August, 2017, as afore said, the lower Court held the view that its decision rendered on the exparte application earlier on, was a nullity as an order of possession cannot be granted exparte, and that the Court had the vires to set aside its order which it made in error and without jurisdiction. It therefore vacated the application as well the orders made thereto. This is what generated the instant appeal filed on the 16th of August, 2017, and amended with leave of Court on the 2nd of May, 2018.
The records having been compiled and transmitted to this Court on the 2nd of November, 2017, parties proceeded to file in their respective briefs. The extant appellants brief is the amended appellants brief filed on the 4th of May, 2018. Appellant also filed a consequential reply brief on the 5th of November, 2018. When the appeal eventually came up for hearing on the 29th of November, 2018, Mr. A. O. Mohammed leading E. M. Bakare for the appellant identified the processes filed, adopted same in urging the Court to set aside the decision of the lower Court.
In opposing the appeal, Mr. Rotimi Oyegbola, learned counsel for the respondent filed a respondents brief on the 31st October, 2018, incorporating a preliminary objection. He adopts the brief identified by him in urging the Court to uphold the preliminary objection and thereby expunge the further evidence adduced on appeal and to dismiss the appeal.
In the appellants brief settled by A. O. Mohammed and from the totality of the grounds of appeal contained in the Appellant’s Amended Notice of Appeal, the learned counsel is of the view that the following issues are germane to the just determination of this appeal;
I. Whether the trial Court had the requisite jurisdiction to entertain the Respondent?s application that culminated into the appeal after having become functus officio upon its grant of Appellant?s application for issuance of writ of possession. (Ground 15)
II. Whether the trial Court was correct in its approach by not pronouncing on all the issues submitted to it by the parties on the preliminary objection raised by the Appellant and whether it’s doing so has not truncated the Appellant’s right to fair hearing and occasioned a grave miscarriage of justice on the Appellant. (Ground 1)
III. Whether the trial Court was correct in holding that the proper procedure for applying to the Court for issuance of a writ of possession was by way of motion on notice to the particular High Court judge before whom the proceedings was pending and whether the Respondent’s right to fair hearing was breached when the Appellant applied through a motion exparte. (Grounds 4,5.6,9,10 and 14)
IV. Whether the trial Court was right in entertaining the Respondent’s motion that culminated into this appeal when it lacked jurisdiction to do so on the face of the non-fulfillment of condition precedent by the Respondent and when the application constitutes an abuse of Court process. (Grounds 11 and 12)
V. Whether the trial Court had requisite jurisdiction to entertain the Respondent’s motion when the Respondent was an adjudged trespasser and when he lacked the locus standi to institute the action, and whether the trial Court was not wrong in entertaining the Respondent’s application which was academic, speculative, Hypothetical and of no utilitarian value to the parties (Grounds 7, 8 and 13)
VI. Whether the trial Court was right in setting aside its Order made on 16/1/2017 and staying further execution on the land in dispute without giving a time limit to its order for stay of execution. (Grounds 2 and 3)
In the respondents brief settled by Kamaldeen Quadri, and at page 4 of the brief, a notice of preliminary objection against the tendering and admission of the judgment of the High Court of Kwara State in suit KWS/353/2016, Akinduro & Anor vs. Alaya delivered on the 26th of July, 2017 as fresh evidence on appeal was raised, thus urging the Court to strike out the same.
Two grounds were adduced for the objection, namely;
1.The fresh evidence now sought to be adduced on appeal is not a matter that arose ex-improviso, which no human ingenuity could for-see as same had been in existence since 26th of July, 2018 when it was delivered, while the judgment in the suit culminating in the instant appeal was only delivered on the 3rd of August, 2018 and the appellants notice of appeal in this appeal was filed on the 16th of August, 2017.
2. The admissibility of the said judgment will not serve the interest of justice but will rather be prejudicial to the respondent as it is a ploy by the appellant to fortify and improve upon his case on appeal by bringing further evidence which to all purpose and intent has no bearing on the appeal.
This notwithstanding, learned respondent’s counsel adopted the issues formulated by the appellant in the resolution of the appeal.
Having also studied the submissions of the learned counsel on both sides, I do agree that the issues distilled by the appellant and adopted by the respondent are germane to the resolution of the appeal, and thereby adopt same for the resolution of this appeal.
But before delving into the resolution of the issues aforementioned, it is my intention in adhering to the wise and immutable counsel by this Court as well as the apex Court, that the preliminary objection raised be attended to first in time. The reasoning always being that should the preliminary objection succeed, the Courts time is saved for more purposeful matters.
In the words of the Apex Court, an appellate Court should first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees with it or not, because a successful preliminary objection may have the effect of disposing of the appeal. It does not matter if the objection is frivolous or not, It must not be ignored. This is because it is a cardinal principle of the administration of justice to let a party know the fate of his application, whether properly brought or not. See FBN PLC vs. TSA Industries Ltd (2010) LPELR-1283 (SC) per Adekeye JSC.
The Preliminary Objection.
The respondent counsel argued his preliminary objection from paragraphs 3.5 to 3.5.8 at pages 5 ? 6 of the respondents brief filed on the 31st of October, 2018. Therein the Learned counsel argued the preliminary objection after identifying a sole issue in determining the objection viz:-
Whether the appellant has satisfied the conditions precedent for an order for leave to adduce fresh evidence on appeal.
Learned counsel then contended that the judgment which was admitted as fresh evidence on appeal was not relevant to the instant appeal.
He referred to pages 120 and 200 of the record, where the respondent by their motion on notice had attached Exhibit E, being the same as Exhibit FA, and was opposed by the appellant. He contended also that the appellants grounds 2 and 3 attacked the decision of the trial Court admitting the document in contention. Further submits that the respondents case at the trial Court brought under the provisions of Order II Rule 24 of the Judgment (Enforcement) Rules does not contemplate the judgment in suit No. KWS/353/2016. Further submits that what the respondent is seeking to do with the introduction of the said judgment is to pre-empt the decision of this Court by seeking to correct his errors and omissions and thereby overreaching the respondent?s case in an unjust manner. Further still submits that the provisions of Order 4 Rule 2 of this Court is of no help to the appellant having failed to disclose any special ground or circumstance to warrant the discretion of the Court being exercised in his favor, as by the said rule, only evidence on matters that happened after the trial or hearing is permissible after the party had shown special grounds.
The case of Comfort Asaboro vs. MGD Aruwaji & Anor (1974) 4 SC 119 @ 123 – 124 was cited in support.
He finally urged the Court to strike out the judgment in suit No KWS/353/2016 adduced as fresh evidence on appeal, having not shown to have any important effect on the case except to enable the appellant to improve his case.
In his response, the appellant from paragraph 2.0 – 2.08 at pages 3 – 5 of the consequential reply brief of argument, urged the Court to discountenance the respondents arguments having been predicated on misconception of law and facts surrounding the case.
Relying on the facts deposed in the affidavit in support of the motion to adduce fresh evidence on appeal filed on the 5th of October, 2018 and granted on the 22nd of October, 2018, learned counsel posits that the guiding principles in the admission of fresh evidence on appeal are as set out in the case of Sambakiu vs. Sanni (2010) ALL FWLR (pt. 505) 1629 @ 1634. He submits that all the listed conditions therein must coexist, further submitting that all the three conditions set out have been met in the instant case.
Ordinarily, I must state that the objection incorporated herein is not tenable. This is because a preliminary objection is meant and aimed at considering the Court?s jurisdiction or competence in entertaining the appeal: Hassan vs. Aliyu (2010) 17 NWLR (pt. 1223) 547, also reported as (2010) LPELR-1357 (SC); SPDCN vs. Ojiowhor Monday Amadi (2011) LPELR 3204 (SC). The process is adopted only for the hearing of an appeal and not for any other process. See Amadi vs. NNPC (2000) 10 NWLR (pt. 674)76, Adigun vs. Ayinde (1993) 8 NWLR (pt. 313) 534, Wachukwu vs. Owunwanne (2011) LPELR) ? 3466(SC). It has therefore been held that the purpose of a preliminary objection in an appeal is to move the Court to see reason why the appeal should not be entertained at all. See Olagbaju vs. Abass (2011) LPELR-3721 (CA). It accords with good reasoning therefore that a preliminary objection is not meant for settling grounds of complaint as in the instant case which can conveniently be raised as a ground of appeal.
I do however think it wise to dispose of the complaint, not minding the manner in which it was raised, and doing that, I have carefully studied the submissions of the learned counsel on the issue.
I think the respondent is right recognizing the issue for determination in the preliminary objection as being whether appellant satisfied this Court on the precedent for an order for leave to adduce fresh evidence on appeal. It should be recalled that appellant by a motion brought on notice and filed on the 5th of October, 2018 sought the leave of this Court to adduce fresh evidence, which application was granted on the 22nd of October, 2018, without objection. The grounds for the grant of the objection was scrutinized by this Court to the result that the fresh evidence be admitted without opposition. My take on this opposition is simple, why should the respondent who failed to object to the admission of the fresh evidence at the first place open mouth to complain at this stage. It is a standing principle of our law that a party should not be seen as reprobating and approbating at the same time. Even then, the respondent by the grounds and averments in the affidavit in support of the application adduced and filed on the 22nd October, 2018 adduced unchallenged reasons as to why the application was necessary.
That apart, and as posited by the learned counsel for the appellant, the Courts have evolved conditions for the reception of fresh evidence on appeal. In the case of Sambakiu vs. Sanni (2010) ALL FWLR (pt. 505) 1629 @ 1634, this Court relying on a host of cases held that where the following grounds co-exist, fresh evidence is admissible:
1. The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial or is a matter that may have occurred after the judgment in the trial Court.
2. The evidence must be such that if given would have an important influence on the result of the case although it needs not be decisive.
3. The evidence must be such as is apparently credible in the sense that it is capable of being believed and it needs not to be incontrovertible.
See also the recent case of Statoil Nigeria Ltd vs. Inducon Nigeria Limited & anor (2018) LPELR ? 44387 (SC), where the Supreme Court laid down guiding principles for the grant of an application for leave to adduce fresh/ additional/ or further evidence on appeal. Without any doubt all these conditions co – exist as postulated by the appellant. All said the objection is lacking in merit, and same is hereby dismissed.
MAIN APPEAL.
It was contended by learned counsel for the appellant, which contention was not made an issue, that though this issue was not raised before the trial Court, being a jurisdictional matter, it can be raised at any point in time. The case of Nyesom vs. Peterside (2016) ALL FWLR (pt. 842) 1573 @ 1618 was cited and relied on.
He referred to the appellants motion filed on the 4th of January, 2017 and granted on the 16th of January, 2017 for the issuance of writ of possession, submitting that the respondents motion filed on the 14th of February, 2017 was after the bailiffs of the Court had proceeded to execution. Submits that the trial Court had become functus officio upon the grant of the appellants motion on the 16th of January, 2017 and therefore without the requisite jurisdiction to entertain any issue relating to its order made on the 16th of January, 2017. Also submits that once the Court has given its order based on the materials before it, it cannot review same, save for correcting typographical errors made by the Court.
Learned counsel cited the case of Attorney-General of Kwara State vs. Lawal (2017) ALL FWLR (pt. 903) 1053 @ 1089 – 1090 per Kekere – Ekun JSC, and the decision of this Court in the case of M. T Delmar vs. M. T. Ane (2016) ALL FWLR (pt. 836) 552 @ 587 to support his submission. He posits that the only option open to the respondent was to have appealed against the order of the Court, and the hearing and determination of the respondents motion by the trial Court constituted an affront to the settled position of the law. In urging the Court to resolve the issue in its favor, counsel is of the position that the trial Court lacked the jurisdiction to entertain the respondents motion which culminated to this appeal, which was a nullity, and cannot therefore stand.
In his response to the issue, learned counsel for the respondent contended that appellants contention on the issue is misplaced. Argued that there was no scintilla of truth in the appellants argument that the respondents application and other processes filed, after execution of the Court’s order of the 16th of January, 2018, and referred to Exhibit D in that regard. He maintains that when the respondents application was served on the appellant, including appellants preliminary objection to the said motion, the purported execution had not been completed. Though conceding that a completed act cannot be stayed, counsel submits that where a parties legal right has been invaded and there is a continuance or the threat to such continuance of invasion, he is entitled to an injunction in the circumstance.
He also submits that while it is true that a Court becomes functus officio once it has delivered its judgment in a suit, the position of the law is not without exception, and in the instant case, the breach of procedure which occasioned miscarriage of justice. Submits that a Court of law has the inherent jurisdiction to set aside an order made which is a nullity, and cited the cases of Adegoke Motors Ltd vs. Adesanya (1989) 3 NWLR (pt. 109) 250 @ 273; Sanusi vs. Ayoola (1992) 9 NWLR (pt. 265) 275 @ 290; Elebute vs. Faleke (1995) 8 NWLR (pt. 375) 82 @ 103 and Obayiawana vs. Ede (1998) 1 NWLR (pt. 535) 670 @ 679 – 680.
Learned counsel enumerated four instances, where a Court of trial can invoke its inherent power to set aside its judgment, and urged the Court to critically look into the circumstances that led to the Court reviewing its decision, thus granting stay of execution, contending that the ex-parte application being incompetent, and all actions and orders of the trial Court having been predicated upon the incompetent process rendered the hearing and orders given a nullity.
It seems to me that the plank of the appellants contention with regards to this issue relates to his argument that the Court below having heard and granted appellant’s reliefs exparte, lacked the necessary vires to revisit the issue being functus officio, and furthermore that the Court that gave the orders exparte not being the trial court, cannot issue a warrant of possession. The respondent on the other hand is of the view that although once a Court makes a determination of a case on the merits he is functus officio, exceptions, such as the case at hand can be entertained, more so the application exparte being incompetent, thus the orders made pursuant thereto made without jurisdiction and liable to be set aside by the same Court that issued the orders being complained of.
Further submitting on points of law raised in the respondents brief, counsel argued that the issue of suppression of facts is an affront to the practice and procedure of this Court, the respondent having failed to cross appeal. He argued nonetheless, that an appraisal of the motion ex-parte and the exhibits attached thereto spelled out all the nitty-gritty of the case; and on whether execution was actualized or not before the latter application was made, counsel opined that in land cases, once the bailiff enters the land, then execution is said to have taken place. He finally urged the Court to resolve the issue in the appellant’s favour.
I have accorded the arguments of the two learned counsel a solemn but dispassionate consideration. It appears to me that there is no dispute to the fact that appellant by way of a motion exparte filed on the 3rd of January, 2017 sought for and was granted the reliefs borne on the face of the motion papers, i.e. a warrant of possession in favour of the applicant/appellant over the piece of land in contention. Equally, there is no disputing the fact that by a further application brought by way of motion on notice filed on the 14th of February, 2017, the lower Court set aside the said exparte application, and the attendant orders made, further directing for a stay of execution. On whether the lower Court had the vires to revisit its orders made in the former application, the learned trial judge at page 321 of the record, stated that:
“This Court has the vires to set aside its order made in error and without jurisdiction. See the case of Sunnet Ltd vs. Nig. Electricity Regulatory Commission (2014) ELC 2268 page 1.”
The appellant faults the decision of the lower Court contending that the Court having determined the former application to finality, became functus officio, and thereby lacked the vires to entertain the latter application. I will still seek guidance from the decision of FBN Ltd vs. TSA Ind. Ltd (supra) per Adekeye JSC, where the erudite jurist on what the term functus officio means, had this to say:
‘A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its functions in respect of that matter and therefore lack potency to review, re-open or re-visit the matter. Thus once a Court delivers its judgment on a matter it cannot re-visit or review the said judgment except under certain conditions. More importantly the Court lacks the jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings is relating to the issue is an abuse of Court process. Ukachukwu vs. Uba (2005) 18 NWLR (pt 956) 1, Anyaegbunam vs. AG Anambra State (2001) 6 NWLR (pt. 710) 532, Mohammed vs. Husseini (1998) 14 NWLR (pt. 584) 108 referred to.’
It has been argued and strongly too based on the decisions of Attorney General of Kwara State vs. Lawal (2017) ALL FWLR (pt. 903) 1053 @ 1089, and M. T Delmar vs. MT Ane (2016 ALL FWLR (pt. 836) 552 @ 587, that once a Court has given a decision on an issue or matter placed before it for adjudication, it becomes functus officio and precluded from reviewing or varying the form of judgment or order given except for correcting clerical mistakes or accidental slips. The fact that this sounds out the current position of the law, and still stands, the position of the respondent is that, that is not without exceptions. He alluded to the fact that where a decision is a nullity or in breach of procedure, the trial Court has the power to set aside the decision made ex-debito justiciae, and finds support in the cases of Adegoke Motors Ltd vs. Adesanya (supra) and other cases cited in that regard.
In the case of FBN Plc vs. TSA Ind. Ltd (supra), the Apex Court drew the line by stating that where a decision of a Court is reached when it has the jurisdiction to entertain the case, the only remedy available to any aggrieved party is by way of appeal. However where the decision reached is by a Court without jurisdiction and or is a nullity from lack of fair hearing, fraud or is a default judgment, the Court that rendered the decision can set aside the said decision. See also Witt & Busch Ltd vs. Dale Power systems Plc (2007) 17NWLR (pt. 1062)1, Fajinmi vs. Speaker Western Region House of Assembly (1962) 1 SCNLR 300. In that event, the person affected by the order of the Court so obtained which is a nullity is entitled as a matter of right ex debito justitiae to have it set aside.
The lower Court in its judgment, specifically at page 313 of the record identified the respondents complaint in the latter application.
Posing the question, what is the status of the ex-parte application in this matter, the learned trial judge understood the complaint before him as being:
‘The applicants stance is that he ought to be put on notice and failure to be put on notice makes the exparte application (Exhibit K2 of the respondent) incompetent resulting to nullity of the whole proceeding that resulted or gave birth to the ruling of 16/1/2017 (Exhibit K1) of the respondents counter affidavit.’
In other words, the Court gave heed to the contention by the respondent before the Court below that the application by the appellant ought to have been by way other than by an exparte application. Reviewing the arguments of the learned counsel on the issue, the lower Court relying on the decision of Alhaji Na Giwa vs. The Nigerian Loan and Mortgage Co. Ltd 18 NLR 81, while commenting on the decision of Idigbe J, AHTW in the case of Opubor vs. Demiruru (1961) 2 ANLR 436, concluded that the appellant ought to have initiated his application for a warrant of possession by way of motion on notice. The Court further held that failure to serve notice as required is a fundamental breach capable and rendered the whole proceedings a nullity.
On the second arm of the respondents complaint before the lower Court, i.e. whether the lower Court was the appropriate Court to approach in the quest for a writ of possession, the lower Court leaned on the provisions of Order II Rule 10, Order II Rule 24 and the case of Oyefeso vs. Madam Tola (1968) NMLR 317 to arrive at the conclusion that the exparte application was not lodged in the proper Court, and all these add up to the fact that the proceedings before it in the exparte application was a nullity liable to be set aside. It is apparent from the record that based on that belief that the exparte application was a nullity, the lower Court had the vires to set it aside, that prompted the lower Court to order the setting aside of its orders made pursuant to the exparte application adjudged by him as being incompetent.
Whether the decision of the lower Court was right or wrong in describing its earlier decision as a nullity is a different thing altogether. The fundamental question is whether the Court had the jurisdiction to set aside the said decision or not. I have earlier tried to point out that a null judgment delivered without jurisdiction is liable to be set aside. This is because jurisdiction is not only fundamental to adjudication, but as rightly described, the life blood of adjudication itself, and before the Court assumes the jurisdiction to adjudicate, it is incumbent upon the Court to see that all the conditions necessary exposed in the case of Madukolu vs Nkemdilim (1962) All NLR (pt. 4) 587, Dangana & Anor vs. Usman & 4 Ors (2013) 6 NWLR (pt. 1349) 50 amongst others are satisfied. Evidently the learned counsel for the respondent is right in asserting that Courts are created by the constitution or statutes and in determining the scope and or the jurisdiction of any Court, it is that Constitution or statute that must be examined. The case of Jolly Nyame vs. FRN (2011) 7 NWLR (pt. 193) 344, cited by the respondent counsel is apposite. It goes without saying that failure to comply with any statutory or constitutional provision with regards to the institution of any suit, application or action will deprive the Court of the jurisdiction to adjudicate on the action. SeeAG Lagos State vs. AG of the Federation (2014) 9 NWLR (pt. 1412) 217, Osi vs. Accord Party (2017) 3 NWLR (pt. 1553) 387 @ 403.
I must agree with the respondent also that in the determination of whether a Court has jurisdiction or not, it is the statement of claim of the plaintiff that is to be examined. In the con of the application, the subject of this appeal, the relevant Court process that must be examined is the affidavit hinged in support of the application. Rhodes ? Vivour JSC, in the case of PDP vs. Sylva (2012) 13 NWLR (pt. 1316) 85 @ 127, stated the position of the law thus:
‘Jurisdiction of a Court to entertain a suit is resolved by scrupulous examination of the writ of summons, the statement of claim and the reliefs claimed. No other document should be examined.’
At the risk of seeming to be repeating myself, it is clear from the records that the respondents application brought by way of motion on notice was for the order of the same Court discharging or setting aside its order made exparte on the 16th of January, 2017 and all steps taken thereof on grounds of lack of jurisdiction and abuse of Court process.
It was posited in the application as a ground that the respondent in making the exparte application misled the Court and suppressed material facts that would have aided the Court in giving justice to the case, and specifically paragraphs 10 and 11 of the affidavit in support of the motion, reproduced reads as follows:-
10. That I Know as a fact that there is a pending action which is suit No. KWS/353/2016 on the same property, the subject matter of the said order of Court and the subsequent Exhibit D since October, 2016. Copy of the Originating summons of the said suit is hereby attached and marked as Exhibit E.
11. That I was reliably informed by one Isaac Itunu Akinduro, one of the sons of the vendor who sold the land in dispute to me whom I verily believed that the respondent is quite aware of the said pending suit in Hon. Justice Mohammed’s Court before making the application exparte.
Indeed by these averments, the applicant now respondent is heard as saying that there is a pending action on the property, which was not taken into account when the exparte application was made and granted.
In the consideration of whether there is a pending action in respect of the land, the subject matter of the various applications, although Mr. K. K. Eleja SAN, is heard as deposing that they were unaware of the pendency of the action, now identified as Exhibit E, and that even then the rights of the parties had already been settled by the Apex Court. With due respect to the Learned Silk, the legal position is that documents speak for themselves, in other words, Exhibit K having been shown to have been served, no matter how frivolous, or undeserving the action might be, it cannot be swept under the carpet until disposed of by the Court. This Court in the case of First City Monument Bank Plc vs Tamstel Nigeria Ltd & Ors (2017) LPELR 42509 (CA) per Abadua JCA, placing heavy reliance on the case of Vaswani Trading Company vs. Savalakh and Co (1972) ALL NLR 922 held that:
“in Vaswani vs. Savalakh (supra) where the writ was executed and possession wrested from the applicants whilst their motion to the Court for a stay of execution was pending and awaiting a date to be assigned by the Court for the hearing of the application, .. the action of the respondents constitute an abuse of the process of the Court and that it was idle of the respondents to argue that they were not aware of the pending proceedings in the Court.”
In the same vein, I would agree with the appellants counsel that the act of the appellants seeking to perfect the execution of the judgment, when a case touching on the subject matter sought to be executed, would amount to an abuse of the Court process. I would on whether the lower Court had jurisdiction to have entertained the subsequent (latter) application, hold that in the circumstance of the case, it had the vires to entertain the application setting aside its earlier decision obtained as a result of abuse of process. This issue is determined in favor of the respondent.
On the 2nd issue canvassed by the appellant, it was contended that the trial Court erred when it subsumed the issue of the preliminary objection raised by him in its ruling. Learned counsel referred to his preliminary objection filed on the 14th of March, 2017, challenging the propriety of entertaining the respondents application, on the grounds that the application was a flagrant abuse of Court process; that the applicant having been adjudged a trespasser had no locus to approach the Court with the application and that the application was baseless, unknown to law amounting to a mere academic exercise. Submits that the trial Court rather proceeded to hear the merit of the substantive application even before making any remarks on the preliminary objection raised. Placing reliance on the case of Adeyemi vs. V.O.Achimu (2016) ALL FWLR (pt. 814) @ 162, counsel argued that the Court ought to have resolved the challenge to its jurisdiction before delving into the merit of the case.
He contended that the issue considered by the Court related only to the substantive application thus ignoring the preliminary objection raised. He also referred to the case of Honeywell Flour Mills Plc vs. Ecobank (Nig) Ltd (2016) 16 NWLR (pt. 1539) 387 in support of the legal principle that a Court of law is duty bound to consider all issues brought before it, and further argued that jurisdiction being the life wire of adjudication, Utih vs. Onoyivwe (1991) 1 NWLR (pt. 166) 241, the Courts approach in refusing to treat the issue of jurisdiction placed before it drained the life in the respondents application.
In the respondents response on the issue, it was contended that there was nothing on record establishing that the alleged failure of the Court to specifically pronounce on appellants preliminary objection occasioned a miscarriage of justice. Submits that the failure of the Court to specifically pronounce on each of the issues formulated by the appellant in his preliminary objection did not affect the competence or jurisdiction of the Court being a procedural defect. The case of Ejelikwu vs.The State (1993) 7 NWLR (pt. 307) 554 @ 583 was referred to. Further relying on the cases ofUdo vs. Ekpo & Anor (2016) LPELR-41383(CA), Adebayo vs. AG Ogun (2008) LPELR 80 (SC), counsel is of the view that though as a general rule a Court has the duty of considering all issues put before it, where the Court forms the opinion that the consideration of one issue is enough to dispose of the matter, the Court is under no obligation to consider the other issues of the parties. Further submits that the lower Court having held that appellants preliminary objection was subsumed in the ruling having dwelt on the same issue as the substantive issue, the Court was not bound to make any specific pronouncement on it.
Responding on issues of law raised, appellant counsel maintains that the issues in the preliminary objection and the substantive issue are not the same as canvassed. He posits that the Court delved into his alternative issue without considering the arguments in support of the preliminary objection.
It is clear beyond peradventure that the grouse of the appellant with respect to the issue borders on the alleged failure of the lower Court to determine the preliminary objection to the hearing of the respondents motion. The position of the law is clear on this. The Supreme Court through Adekeye JSC in the case of First Bank of Nigeria Plc vs. TSA Industries Ltd (2010) LPELR-1283 (SC) had this to say on the issue.
“Usually where a Court’s jurisdiction is challenged by the defense, it is better to settle the issue one way or the other before proceeding to hearing of the case on the merits. Any failure by the Court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which renders any further step taken in the proceedings a nullity.”
A.G. Lagos State vs. Dosunmu (1989) 3 NWLR (pt. 111) 552, Madukolu vs. Nkemdilim (1981) 1 NCLR 135, Sofekun vs. Akinyemi (1981) 1 NCLR 135.
And recently this Court in the case of Adeyemi vs. Achimu/NDIC/Assuarance Bank Ltd & Ors, (2016) ALL FWLR (pt. 814) 144 @ 162, also reported as (2015) LPELR-24379 (CA) per Akeju JCA, it was reiterated that:
‘The settled position of the law is that where a preliminary objection is raised to the hearing of an appeal or any other 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 of terminating the life of the suit or appeal. See Okereke vs. Yar’adua (2008) ALL FWLR (pt. 430) 626; Sani vs. Okene LG Traditional Council (2008) ALL FWLT (pt. 429) 464; Udenwa vs. Uzodinma (2012) 12 MJSC (pt. 111) 1.”
It is not subject to dispute that by the Notice of preliminary objection of the appellant filed on the 14th of March, 2017, the competence of the respondents application, and thereby the jurisdiction of the lower Court in entertaining the same was placed on the front burner.
In other words, the jurisdiction of the Court to entertain the application was challenged. It is trite that any issue touching on jurisdiction invariably raises a question of law, and a judge whose jurisdiction is being questioned has not powers continuing to exercise judicial powers when his competence on the matter is under challenge. The jurisdiction of the Court at that instance is limited to ascertaining whether he has the requisite jurisdiction or not. It is only where he satisfies himself to the fact that he has jurisdiction, can he then proceed to hear the case. See Okoye & Sons vs. Nigerian Construction & Furniture Co. Ltd & Ors (1991) LPELR-2509 (SC).
Let me emphasize that a preliminary objection raised as to the jurisdiction of the Court to try any action, cannot be subsumed in the consideration of the substantive matter. The principle behind the filing of the preliminary objection as in this case is that once it succeeds the action is rendered fundamentally defective and hearing of the action abates. See Okereke vs. James (2012) 16 NWLR (pt. 1326) 339. Thus once a preliminary objection is raised to the doing of anything it must first be considered before the Court goes further:Akere vs. Governor of Oyo State (2012) 12 NWLR (pt. 1314) 224.
Evidently from the record before the Court the trial Court in his wisdom, proceeded to attend to the substantive application, and having disposed of the substantive application, remembered the preliminary objection before it and then turned round to state that:
“Needless to state that the preliminary objection of the respondent is subsumed in this ruling since it dwelt on the same matter.”
The respondent counsel and the lower Court cannot be correct having asserted that the issues fronted by the preliminary objection and the substantive case are the same in view of the undisputable fact that while the preliminary objection attacks the jurisdiction of the Court, the substantive action was questioning the competence of the appellants application filed exparte and the orders granted thereat. I agree with the learned counsel for the appellant in view of the position of the law that the lower Court?s approach to the challenge on its jurisdiction was wrong. Jurisdiction as argued is the life wire of adjudication without which any purported exercise of adjudication no matter how well exercised amounts to nothing. See Utih vs Onoyivwe (supra) 241 per Bello CJN.
I am not in doubt as rightly conceded by the respondent, that the Court has a duty to pronounce on all matters placed before it. It is also the law that the duty to consider all issues might not be necessary where in the opinion of the Court, the issue determined disposes of the appeal and or application or suit as the case may be. Learned counsel needs to be reminded however that any determination of any issue is consequent upon the Court having the requisite jurisdiction to do so. See Madukolu vs. Nkendilim (supra). All the cases cited on the issue, admittedly good law, cannot with respects apply to the case at hand. Having been settled by the apex Court that any resolution of issue or issues without ascertaining and or determining the jurisdiction of the Court, once it arises amounts to a nullity, such must be the fate of the lower Court?s decision of the 3rd of August, 2017, and I so hold. This issue is hereby resolved in favor of the appellant.
Having determined this issue conclusively that the proceedings of the lower Court in the latter application amounted to a nullity, it becomes unnecessary determining the arguments raised in the remaining issues three to six, as that would surely amount to chasing shadows, of no practical utilitarian value hypothetical and an exercise in futility. See Salik vs. Idris (2014) 15 NWLR (pt. 14290 36).
With the success of this issue, the appeal succeeds, and regardless of my holding in issue one. The judgment and orders made by Halima Saleeman J., in suit No. KWS/3M/2017 on the 3rd of August, 2017 is hereby set aside. The consequence is that the orders of the same Court made on the 16th of January, 2017 subsists. Appellant is awarded costs of N100, 000.00 (One Hundred Thousand Naira) against the respondents.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother Barka, JCA, has accorded me the privilege of perusing the draft of the Judgment just delivered.
Instructively, the ruling, the very basis of the instant appeal, spans a total of 23 pages (pages 298 ? 321) of the Record of Appeal. The Court below in the course of the vexed ruling came to the conclusion that the exparte application was incompetent and thereby held:
‘I hereby set aside the exparte application and the ruling made thereto on 16/1/2017 as well as staying further execution on the property situate and lying at Tanke Alangua Ilorin, Kwara State.’
However, regarding the Appellant’s (Respondent’s) preliminary objection, the Court below in its wisdom held:
‘Needless to state that the preliminary objection of the Respondent is subsumed in this ruling since it dwelled on the same issue.’
Most regrettably, the above conclusive finding by the Court is contrary to the trite fundamental doctrine governing preliminary objection proceedings. Preliminary objection, by its very nature and purport, deals strictly with issues of law. Thus, it does not require an affidavit. A preliminary objection squarely deals with law and on the ground that the Court lacks jurisdiction or the Court process is incompetent. It could also be predicated upon the ground of abuse of court process.
Invariably, where a preliminary objection is successfully upheld, the Court should not proceed to determine the matter on the merits, as it ought to be struck out in limine. See AGF VS. ANPP (2003) LPELR ? 630 (SC); (2003) 18 NWLR (Pt. 851) 182; (2003) 12 SC (Pt. 11) 146; @ 22 paragraphs A – E.
In AYINDE VS. ADIGUN, the Apex Court was recorded to have aptly held:
‘It was well settled that where a defendant conceives that he has a good legal or equitable defence to an action, he is entitled as a matter of preliminary objection to raise such a defence.’ See (1993) 11 SCNJ 1; (1993) LPELR ? 878 (SC) per Karibi – Whyte, JSC @ 15 paragraphs D – E.
Equally, in the case of DANGANA VS. USMAN (2012) LPELR ? 782 (SC) (consolidated), the Apex Court aptly postulated that a preliminary objection to the hearing of an action (appeal) may be raised on the ground that the Court has no jurisdiction to hear the appeal or that time within which to hear a matter had since run out:
‘If it succeeds, the appeal would still be heard on other grounds that can sustain the appeal. A successful preliminary objection terminates the hearing to the appeal.’ Per Rhodes – Vivour, JSC @ 50 paragraphs C – E.
In the instant case, it tantamounts to an afterthought for the Court below to hold, as it did, that the Appellant’s preliminary objection ‘is subsumed in this ruling since it dwelt on the same matter.’ Undoubtedly, the Appellant’s preliminary objection ought to have been determined by the Court below before proceeding to determine the Respondent’s application. This view is amply predicated upon the trite fundamental doctrine, that an order by a Court granting or dismissing a relief, is based on the assumption of the existence of Jurisdiction to make a valid and binding pronouncement in the action. As aptly held by the Apex Court:
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 any attempt to resuscitate it without infusing blood into, it would be an abortive exercise.
See UTIH VS. ONOYIVWE (1991) LPELR 3436 (SC) @ 46 paragraphs C – D per Bello, CJN.
Hence, having adopted the reasoning and conclusion reached in the Judgment as mine, I too hereby unhesitatingly hold that the instant appeal succeeds, and it is hereby allowed by me. Consequently, the ruling and orders made by the High Court of Kwara State, Coram Halima Saleeman, J., on August 3, 2017 in suit NO. KWS/3M/2017, are hereby set aside. I abide by the order of costs of ?100,000.00 awarded in favour of the Appellant.
BALKISU BELLO ALIYU, J.C.A.: I had the opportunity of reading the judgment of my learned brother HAMMA AKAWU BARKA, JCA before it was delivered. I agree with the reasoning and conclusion reached in dismissing the preliminary objection of the Respondent. I agree the objection has no merit and deserved to be dismissed. I dismiss it.
On the main appeal, I agree with the conclusion reached in the lead judgment and I hold that the appeal has merit and it is allowed by me. Consequently, the judgment of the Kwara State High Court delivered on the 3rd August, 2017 by Halima Saleeman J., in suit No: Kws/3M/2017 is set aside. But the orders made by the same Court on 16th January, 2017 in the same suit subsist. I abide by the order of cost made in the lead judgment.
Appearances:
A. O. Mohammed with him, E. M. Bakare.For Appellant(s)
Rotimi Oyegbola.For Respondent(s)
