ALL PROGRESSIVE CONGRESS & ANOR v. GHAGHARA OCHUKO WISDOM & ORS
(2019)LCN/13019(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of April, 2019
CA/B/08/2019
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1) ALL PROGRESSIVE CONGRESS (APC)
2) COMRADE ADAMS OSHIOMHOLE
(THE NATIONAL CHAIRMAN, ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1) GHAGHARA OCHUKO WISDOM
(STATE YOUTH LEADER, DELTA STATE ALL PROGRESSIVE CONGRESS)
2) LAZARUS IWARAH
(EX-OFFICIO ETHIOPE EAST LGA, DELTA STATE ALL PROGRESSIVE CONGRESS)
3) ILELEJI BLESSING EBABA-REKEME
(CHAIRMAN WARD 1, UVWIE LOCAL GOVT. AREA
(ALL PROGRESSIVE CONGRESS)
4) ODOGWU AZUBUIKE PHILIP
(CHAIRMAN, WARD 5, NDOKWA EAST LOCAL GOVT. AREA, ALL PROGRESSIVE CONGRESS)
5) EDADE E. ANTHONY
(CHAIRMAN WARD 9, NDOKWA EAST LOCAL GOVT. AREA ,ALL PROGRESSIVE CONGRESS)
6) ODILI UGBOMAH PARRISON
(CHAIRMAN WARD 10, NDOKWA EAST LOCAL GOVT. AREA ALL PROGRESSIVE CONGRESS)
7) OYEM CHRIS IFEANYI
CHAIRMAN WARD 2, NDOKWA EAST LOCAL GOVT. AREA ALL PROGRESSIVE CONGRESS)
(SUING FOR THEMSELVES AND ON BEHALF OF ALL THE EXECUTIVES OF ALL PROGRESSIVE CONGRESS ELECTED AT THE WARDS AND LOCAL GOVERNMENT
AREAS OF ALL PROGRESSIVE CONGRESS HELD ON THE 5TH AND 12TH DAY OF MAY, 2018 RESPECTIVELY)
8) ODJEBOBO DESIRE NAYEMEFE
(UVWIE LOCAL GOVT. AREA ALL PROGRESSIVE CONGRESS WARD 2)
9) LYNDON L.O.I. UGBOME
(ETHIOPE EAST LOCAL GOVT. AREA ALL
PROGRESSIVE CONGRESS, WARD 3) Respondent(s)
RATIO
WHETHER OR NOT OBJECTIONS TO THE JURISDICTION OF THE COURT ARE TAKEN FIRST BEFORE HEARING THE CASE ON MERIT
It is true and it is trite law that objections to the jurisdiction are to be taken first before proceeding to hear the case on merits. See FBN PLC V T.S.A. INDUSTRIES (2010) 15 NWLR (PT. 1216) 247; USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORGANIZATION LTD (2001) 15 NWLR (PT.736) 305; UGO ?NGADI V FRN (2018) LPELR ? 43903 (SC). But when there are facts which are crucial to the determination of the point of law the disputed facts have to be resolved first.
See EXXON MOBIL CORPORATION 5959 LAS CONILAS BOULEVARD IRVING TEXAS (USA) V ARCHIANGA (JP) & ORS (2018) LPELR ? 44979 (SC). It is equally trite law that a consent order obtained by fraud could be set aside by the Court that delivered it or another Court of competent jurisdiction. See RACE AUTO SUPPLY CO LTD & ORS V. AKIB (2006) 13 NWLR PART 997 p. 373; AFEGBAI V. A.G. EDO STATE & ANOR (2001) 14 NWLR PART 733 p.425. PER AWOTOYE, J.C.A.
THE JURISDICTION OF THE COURT OF APPEAL
According to Akintan J.S.C in INAKOJU & ORS V ADELEKE & ORS (supra):
?It is settled law that the Court of Appeal is conferred with full jurisdiction under the said Section 16 of the Court of Appeal Act, over the whole proceedings in an appeal before it. And such powers are equal to the powers of the Court before which the suit was instituted or the Court from where the appeal emanated: See Jadesinmi V. Okotie-Eboh (No.2) (1986) 1 NWLR (PT 16) 264; Yusufu V Obasanjo (2003) 16 NWLR (PT. 847) 554; and Adeyemi v Y.R.S Ike-Oluwa & Son Ltd. (1993) 8 NWLR (PT 309)27. However, it must be mentioned that the Court does not exercise the power to rehear in every occasion and that it is expected to do so only where the justice of the case before it demands that the power should be exercised. Similarly, certain fundamental conditions must be met before the Court could exercise the very wide powers conferred by the section, such conditions that must exist include:
(a) availability of the necessary materials to consider and adjudicate in the matter; (b) The length of time between the disposal of the action at the trial Court and the hearing of the appeal; and (c) the interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for rehearing and the hardship such an order would cause on either or both parties in the case. See Adeyemi V. Y.R.S. Ike-Oluwa & Sons Ltd. supra in Re Adewunmi (1988) 3 NWLR (Pt. 83) 483 at 501; University of Lagos V. Olaniyan (1985) 1 NWLR (Pt. 1) 156; and Jadesinmi v. Okotie-Eboh, supra.?
Section 15 of the Court of Appeal Act can only be activated by a ground of appeal. PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellants challenging the decision of Delta State High Court in Suit No. HCK/57/2018: APC & ANOR VERSUS GHAGHARA OCHUKO WISDOM & ORS decided on 20/12/2018.
The claimants at the lower Court had instituted an action claiming as per paragraph 42 of their joint statement of claim as follows:
WHEREOF the claimants claims from the Defendants the following reliefs:
a) ?A DECLARATION that the Federal High Court Abuja lacked the jurisdiction to adjudicated on SUIT NO. FHC/ABJ/CS/509/2018 BETWEEN (1) ODJEBOBO DESIRE (2) LYNDON L.O.I. UGBOME-WARD 2, UVIEW LGA, DELTA STATE (suing for themselves, and on behalf of all the Executives and Delegates at the Delta State APC Ward/ local Government Congresses held on 5th and 12 May, 2018), AND (1) THE NATIONAL CHAIRMAN-ALL PROGRESSIVE CONGRESS (APC) (2) THE NATIONAL WORKING COMMITTEE? ALL PROGRESSIVE CONGRESS (APC) because there were no defendants in the Suit, as the parties names as defendants in the Suit are non-Juristic persons, therefore are not
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known to Law.
b) A DECLARATION that the terms of settlement BETWEEN (1) ODJEBOBO DESIRE ONAYEFEME-WAR (2) UVWIE LGA, DELTA STATE, (2) LYNDON L.O.I. UGBOME-WARD 3, ETHIOPE EAST LGA, DELTA STATE (suing for themselves and on behalf of all the Executives and Delegates at the Delta State APC Ward/Local Government Congresses held on 5th and 12th of May, 2018) AND (1) THE NATIONAL CHAIRMAN-ALL PROGRESSIVE CONGRESS (APC) (2) THE NATIONAL WORKING COMMITTEE ? ALL PROGRESSIVE CONGRESS (APC) in SUIT NO. FHC/ABJ/CS/509/2018, dated 1st June, 2018 is invalid, it having not been executed in line with the execution clause contained in the terms of settlement which requires the parties in the Suit to Sign same.
c) A DECLARATION that Sir E.I. Adoh-Ogbuta, Deputy National Legal Adviser who signed the Terms of Settlement in place of the National Chairman/National Working Committee (defendants in the Suit) is not a Party to the Suit, neither is he National Working Committee member and does not have authority/consent of the National Chairman or National Working Committee to so sign.
d) A DECLARATION THAT Dare Oketade who signed the Consent Judgment on
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behalf of the National Chairman/National Working Committee did not have the authority or consent of parties to the Suit as the said office of Head of Legal is unknown to the All Progressive Congress Constitution.
e) A DECLARATION that the Ward and Local Government Areas Congress of 5th and 12th May 2018 conducted by members of Delta State All Progressive Congress Committee headed by Hon. Emmanuel Chindah are the proper and acceptable Congress.
f) A DECLARATION of the consent judgment delivered by the Federal High Court, Abuja in SUIT NO. FHC/ABJ/CS/509/2018 BETWEEN (1) ODJEBOBO DESIRE ONAYEFEME-WARD 2, UVWIE LGA, DELTA STATE, (2) LYNDON L.O.I. UGBOME-WARD 3, ETHIOPE EAST LGA, DELTA STATE (suing for themselves, and on behalf of all the Executives and Delegates at the Delta State APC Ward/Local Government Congresses held on 5th and 12 May, 2018, AND (1) THE NATIONAL CHAIRMAN-ALL PROGRESSIVE CONGRESS (APC) (2) THE NATIONAL WORKING COMMITTEE?ALL PROGRESSIVE CONGRESS (APC) null and void. It being that the Court lacked the jurisdiction to entertain the Suit and also lacked the powers to enter the terms of settlement as consent judgment
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because the condition precedent to entering the said terms of settlement as judgment of Court was not me, because th e parties to the suit did not execute the terms of settlement by signing same as required by the execution clause.
g) An order of Court setting aside the consent judgment delivered by the Federal High Court Abuja in SUIT NO. FHC/ABJ/CS/509/2018 BETWEEN (1) ODJEBOBO DESIRE ONAYEFEME-WARD 2, UVWIE LGA, DELTA STATE, (2) LYNDON L.O.I. UGBOME-WARD 3, ETHIOPE EAST LGA, DELTA STATE (suing for themselves, and on behalf of all the Executives and Delegates at the Delta State APC Ward/Local Government Congresses held on 5th and 12 May, 2018, AND (1) THE NATIONAL CHAIRMAN-ALL PROGRESSIVE CONGRESS (APC) (2) THE NATIONAL WORKING COMMITTEE?ALL PROGRESSIVE CONGRESS (APC) for same being null and void.
?h) An Order perpetual injunction restraining the 1st and 2nd Defendants whether by themselves, their agents, servants or howsoever called from swearing-in, recognizing and/or dealing with any other Ward and Local Government Areas Executives of the All Progressive Congress (APC), Delta State, apart from persons whose names are contained in
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the Ward congress election results declared by Alhaji Usman Kutigi and four other members of Delta State All Progressive congress and the Local Government Congress election result declared by the Committee headed by Chief (Hon.) Emmanuel Chindah.?
Parties filed and exchanged pleadings.
Counsel for the 1st and 2nd defendants by an application dated 18/8/2018 challenged the jurisdiction of the Court below by seeking the following prayer:
1. ?AN ORDER setting aside the interim Order made on 12th July, 2018 against the 1st & 2nd Defendants/ Applicants in this suit.
2. AN ORDER setting aside the Form 48, being Notice of Consequence of Disobedience of Order of Court filed and issued on the 19th July, 2018 for want of jurisdiction.
3. AND ORDER of the Honourable Court striking out and/or dismissing the Plaintiff?s suit for want of jurisdiction/competence.
4. AN ORDER dismissing this suit for being an abuse of Court process.
5. AN ORDER of this Honourable Court dismissing the suit in liminine for want of competency.
?AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to
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make in the circumstance of this suit.
ALSO TAKE NOTICE THAT THIS APPLICATION IS PREDICATED ON THE FOLLOWING GROUNDS:
i. The subject matter of this suit has been dealt with and determined by a Court of competent jurisdiction, sitting at the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/509/2018 and judgment delivered on 19th June, 2018.
ii. The order of this Honourable Court made on 12th July, 2018 was made without jurisdiction.
iii. The Claimants herein lack the necessary locus standi to bring this action, in so far as it relates to the ward, Local Government and State Congresses held in Delta State.
iv. This Honourable Court lacks requisite jurisdiction to entertain and determine this matter as presently constituted before the Court.
v. The claimants herein were not parties in Suit No. FHC/ABJ/CS/509/2018.?
The Claimant/Respondent reacted to the said objection to the Court?s jurisdiction with a 17 paragraphed counter affidavit
Most pertinent of the paragraphs are paragraph 6 of the counter affidavit which states thus:
That the Claimant/Respondents denies paragraph 7 of the 1st-2nd
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Defendants/Applicants affidavit and states as follows:
I. That the 3rd ? 4th Defendants/Respondents without the consent/authorization and knowledge of the Claimant/Respondents claims to have filed FHC/ABJ/CS/509/2018 in representatives capacity, without bringing any document in the said suit or in this present suit to show that the Claimants/Respondents authorized/consented to their bringing FHC/ABJ/CS/509/2018 in representative capacity.
II. That the Claimants/Respondents were not parties to the suit FHC/ABJ/CS/509/2018 and never reached any agreement to enter out of Court settlement with the defendants on record or any other person.
III. That the terms of settlement EXHIBIT ?APC 6? was a fraud as the Defendants in FHC/ABJ/CS/509/2018 did not consent to it.
IV. That the said consent judgment is a nullity as the said terms of settlement, the basis of the consent judgment is invalid.
?V. That Sir E.I. Adoh-Ogbuta (KSJI) and Dare Oketade, Esq who signed EXHIBIT ?APC 6? as deputy National Legal Adviser and Head Legal Services of the 1st Defendant/Applicant did not get the authorization and consent of JOHN
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ODIGIE OYEGUN who was the National Chairman of the 1st Defendant/Applicant at the time of pendency of FHC/ABJ/CS/509/2018 before signing the terms of settlement as he consequently deposed to an affidavit on 20th June, 2018 disassociating himself from the said terms of settlement and also stating the fact that he had debriefed Ebuka Nwaese Esq. from further representing the Defendants in the suit before the date the consent judgment was entered. The said affidavit date 20th June, 2018 is attached and marked EXHIBIT ?B?.?
After hearing the parties, the learned trial judge gave a ruling adopting his reasoning and findings in HCK/56/2018 where he ruled thus:
?I appreciate the fact that whenever the issue of jurisdiction is raised in any proceedings, it must be dealt with first before any further step is taken, it must also be noted that Court must resist the temptation of making any pronunciation on the main issue for determination in interlocutory proceedings.
In view of the above, I chose a middle course and that is the Court will reserve its ruling, hear from the parties and give judgment together with the ruling at the
8
same time. This is to avoid any pit falls earlier mentioned and to also order accelerated hearing.?
Miffed by the said Ruling the appellants filed Notice of appeal challenging it on 3 grounds as follows:
GROUND 1
The learned trial judge erred in law when he failed to consider on merit, the Appellants? Motion on Notice filed on 9th July, 2018 wherein the jurisdiction of the lower Court was challenged even after arguments of all parties have been taken by the lower Court.
PARTICULARS OF ERROR
I. The Appellants had challenged the jurisdiction of the lower Court to hear and determine the substantive suit on the ground that due process of law was not followed in the commencing the suit, conditions precedent to the commencement of the suit were not observed, the mode of service of originating processes was not in accordance to the law, lack of locus standi on the part of the Claimants (herein referred to as Respondents), the subject matter of the suit had earlier been dealt with in Suit No: FHC/ABJ/CS/509/2018 and judgment delivered on 19th June, 2018 (issue estoppel).
II. It is settled law that issue of jurisdiction
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when raised must be resolved before any other issue can be entertained in the same suit. The learned trial judge heard the appellants? Motion on Notice filed on 9th July 2018 which was premised majorly on the jurisdiction of the lower Court but the lower Court in its ruling delivered on 20th December 2018 reserved its ruling till the substantive issues are considered thereby refusing to make any pronouncement on the issue of jurisdiction raised by Appellants.
III. The learned trial judge failed to direct his mind toward the facts that he could not consider the merit of the suit without the requisite jurisdiction and whatever done without jurisdiction is null and void.
GROUND 2
The learned trial judge erred in law when his lordship held that trial should proceed despite the application of the Appellant challenging the jurisdiction of the Court to entertain this suit.
PARTICULARS OF ERROR
I. The Appellants herein has filed a Motion of Notice challenging the jurisdiction of the trial Court to entertain the suit of the 1st?4th Respondents and has raised the objection timeously.
?II. His lordship of the lower
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Court in his ruling ignored the application challenging the Court?s jurisdiction and ordered the hearing of the substantive suit.
III. That based on the judgment of the 19th June 2018 in suit no. FHC/ABJ/CS/509/2018 the 1st ? 4th Respondents herein are not members of the executives of the 1st Appellant in Delta State.
GROUND 3
The learned trial judge of the lower Court erred in law when His Lordship held that he would reserve his ruling on the Appellants? Preliminary Objection and deliver judgment together with the ruling at the same time, despite the glaring abuse of Court processes before the lower Court.
PARTICULARS OF ERROR
I. The preliminary objection of the Appellants? touches on the jurisdiction of the trial Court to hear and determine the suit of the 1st?3rd Respondents herein.
II. The suit of the 1st -4th Respondents was instituted at the trial Court by a Writ of Summons which requires a full trial and not by originating summons which is determined by affidavit evidence.
?III. The subject matter of the suit of the 1st -4th Respondents before the lower Court had already been
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determined by coordinate Court competent jurisdiction, i.e. the Federal High Court holding at Abuja before His Lordship, Honourable Justice A. I. Chikere in Suit No: FHC/ABJ/CS/509/2018 on the 19th of June, 2018.
IV. That the judgment of 19th June 2018 is yet to be set aside.
V. That Supreme Court had in the case of GARUBA V. OMOKHODION (2011) 15 NWLR (PT. 1269) 145 held that where preliminary objection touches on the jurisdiction of the Court, it is imperative on the Court to hear and determine the issue of jurisdiction first.?
After transmission of record of appeal to the Court parties filed and exchanged briefs of argument.
The Appellants? Brief of Argument was settled by Chief Adeniyi Akintola SAN and filed on 30/01/2019. Learned Senior Counsel formulated one sole issue for determination in this appeal thus;
Whether the decision of the trial Court to reserve its ruling on the issue of jurisdiction raised by the appellants and then proceed to hear the respondents? substantive suit is right and/or proper in law having regard to the well settled position of the law on jurisdiction being a threshold issue that ought
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to be determined or resolved first once raised in a pending proceeding before the Court proceeds further in the matter.
The Learned Senior Counsel to the Appellants argued that the trial judge position in the ruling appeal against was an infraction of the trite position of law that once the issue of jurisdiction was raised at anytime in pending proceeding the Court seised thereof was duty bound to determine or resolve same first before proceeding further in the matter. The trial Court however erroneously jettisoned the position and went further to reserved the ruling on objection to jurisdiction to hear the substantive suit.
Learned Senior Counsel submitted that the pronouncement of the trial Court in its ruling of 20/12/2018 to keep his decision on the issue of jurisdiction in abeyance to attend to the substantive suit ran counter to the well established and laid down principle of law.
Learned Senior Counsel submitted that jurisdiction was very fundamental and non negotiable in adjudication and must therefore be resolved or determined first by a Court of law once raised in a pending proceedings before the Court proceeds further in the
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matter.
Learned Senior Counsel also submitted that jurisdiction was the live-wire of any proceedings. He referred the Court to the case of DARIYE V FRN (2015) 10NWLR (PT. 1467) PG. 325 @ pg 352 Para. A ? C.
Learned Senior Counsel submitted that it was the law that gave jurisdiction to Court and it was a mandatory duty on Court.
Learned Senior Counsel urged the Court to invoke the provision of Sec. 15 of the Court of Appeal Act to hear and determine the preliminary objection raised by the Appellants in line with the decision in INAKOJU V ADELEKE (2007) 4 NWLR (PT. 1025) 423.
Learned Senior Counsel urged the Court to rectify the error made by the trial Court in the interest of substantial Justice, allow the Appeal and set aside the judgment of the lower Court.
RESPONDENT BRIEF OF ARGUMENT
The 1st – 7th Respondents Brief of Argument was prepared by Chief F.T. Obigbor their counsel and filed on 7/02/2019. Learned Counsel adopted the sole issue as distilled by Learned Senior Counsel for appellants with minor modification.
?
Whether the trial judge erred in law and came to a perverse decision when after hearing arguments both
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in support and in opposition held as follows ?I choose a middle course and that is the Court will reserve its ruling at the same time?. I therefore reserve my ruling for the reason stated above, parties shall be allowed three days each to present their case especially as it is election related matter.”
Learned Counsel argued that this was an appeal against the interlocutory ruling of the High Court wherein the lower Court chose a middle course and reserved its ruling on preliminary objection of the appellants herein, till after hearing from parties and gave judgment together with the ruling at same time to avoid the pit falls of delving into the substantive issues and ordered accelerated hearing.
Learned Counsel submitted that the appellants filed the appeal without first having obtained leave of Court, without leave of Court having not been first sought and obtained before filing the appeal, the appeal was incompetent and liable to be struck out pursuant to Sec. 223(3) of the 1999 Constitution of F.R.N. ?
Learned Counsel submitted that it was desirable to take interlocutory issues together with substantive suit in order to save
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time and refer the Court to the case of PDP V ABUBAKAR (2007) 2 NWLR (PT 1018) 303@ 391, Para. D-G.
Learned Counsel concluded that leave was required in an interlocutory appeal of mixed law and facts as in this instant case. The Appellants having failed to comply with the condition precedent, the resultant effect is that appeal was bound to fail and urged the Court to dismiss the appeal with excruciating cost.
APPELLANTS REPLY BRIEF
Learned Appellant?s Counsel filed their reply on 19/2/19 and submitted that the Respondent?s objection to the appeal on the ground that the Appellants did not first seek and obtain leave to appeal before filing a notice of appeal was misconceived and referred the Court to the motion on notice dated 30/01/19 filed before this Honourable Court comprising of the trinity prayers.
Learned Senior Counsel further submitted that the inadvertent omission of the Appellants to seek leave before filing notice of appeal in an interlocutory appeal that was of mixed law and facts could be cured afterwards in the interest of justice and referred the Court to the case of NALSA & TEAM ASSOCIATES V NNPC (1991)
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8 NWLR (PT 212) 652 @ 676, Para. D ? F and SOUTH ATLANTIC PETROLEUM LTD V MINISTER OF PETROLEUM RESOURCES (2014) 4 NWLR (PT 1396) 24 @ 41, Para. E-F.
Finally, Learned Senior Counsel submitted that objection to jurisdiction could be raised at any stage in a proceeding, the issue of jurisdiction must first separately be determined before any further step(s) could be taken so as not to waste the sacred judicial time.
RESOLUTION
I shall adopt the sole issue as framed by learned Senior Counsel for appellants in this judgment.
I have deeply considered the arguments of counsel on both sides and the contents of the Record of Appeal.
In resolving this sole issue it is pertinent to ask oneself what essentially is the claim of the claimants at the lower Court and what is the nature of the preliminary objection of the Defendants?
In essence it is on the proceeding of the Federal High Court in Suit No. FHC/ABJ/CS/509/2018 BETWEEN ODJEBOBO DESIRE ONAYEFEME AND OTHERS VERSUS NATIONAL CHAIRMAN?APC AND OTHERS and the terms of settlement and default judgment obtained in the said proceeding at the said Federal High Court. (see
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paragraphs 32 -40 of the Joint Statement of Claim).
The 1st and 2nd Defendants (now appellants) joined issues with the claimant on paragraph 32 -40 asserting that the consent judgment terms of settlement were validly obtained as the consent of the National Chairman of the party was obtained before signing the terms of settlement. See paragraphs 19 and 20 of 1st and 2nd Defendants Statement of Defence.
The Preliminary Objection of the appellants at the lower Court hinges on the validity of the consent judgment obtained in FHC/ABJ/CS/509/2018 delivered on 19/6/2018.
The judgment in FHC/ABJ/CS/509/2018 which is the pillar on which the appellants? preliminary objection rests is what the claimants want the lower Court to set aside.
It seems clear to me that the resolution of the disputed facts (joined issues) in the pleadings is crucial to the determination of the objection of Learned Senior Counsel to the appellants. Was the consent judgment obtained by fraud or validly obtained? The fulcrum on which the entire case at the lower Court turns depends on the resolution of some of the disputed facts which are closely intertwined with the
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points of law being raised by the parties.
It is true and it is trite law that objections to the jurisdiction are to be taken first before proceeding to hear the case on merits. See FBN PLC V T.S.A. INDUSTRIES (2010) 15 NWLR (PT. 1216) 247; USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORGANIZATION LTD (2001) 15 NWLR (PT.736) 305; UGO ?NGADI V FRN (2018) LPELR ? 43903 (SC). But when there are facts which are crucial to the determination of the point of law the disputed facts have to be resolved first.
See EXXON MOBIL CORPORATION 5959 LAS CONILAS BOULEVARD IRVING TEXAS (USA) V ARCHIANGA (JP) & ORS (2018) LPELR ? 44979 (SC). It is equally trite law that a consent order obtained by fraud could be set aside by the Court that delivered it or another Court of competent jurisdiction. See RACE AUTO SUPPLY CO LTD & ORS V. AKIB (2006) 13 NWLR PART 997 p. 373; AFEGBAI V. A.G. EDO STATE & ANOR (2001) 14 NWLR PART 733 p.425. If the claimant seeks the lower Court to set aside the consent judgment in FHC/ABJ/CS/509/2018 but the factual basis on which the prayer of the claimant is seeking its setting aside is being disputed by
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the respondent it does not seem right and in the interest of justice to allow the Respondent to use that same judgment to challenge the jurisdiction of the lower Court. The disputed facts have to be resolved.
I am therefore in agreement with the learned trial judge when he reserved the ruling on the issue of jurisdiction raised by the appellants and proceeded to hear the substantive Suit.
I resolve the sole issue in favour of the Respondents.
Learned Senior Counsel for the appellants has urged this Court to invoke the provision of Section 15 of the Court of Appeal Act to rectify the error of the trial Court and hear and determine the application of the appellants challenging the jurisdiction of the lower Court. I respectfully disagree. Section 15 of the Court of Appeal Act does not give the Court the original jurisdiction it does not have. The facts have to be resolved by the lower Court. The necessary materials to consider and adjudicate in this matter are not available. There are conflicting affidavits which might have to be resolved viva voce. Issues have also been joined on crucial matters. According to Akintan J.S.C in
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INAKOJU & ORS V ADELEKE & ORS (supra):
?It is settled law that the Court of Appeal is conferred with full jurisdiction under the said Section 16 of the Court of Appeal Act, over the whole proceedings in an appeal before it. And such powers are equal to the powers of the Court before which the suit was instituted or the Court from where the appeal emanated: See Jadesinmi V. Okotie-Eboh (No.2) (1986) 1 NWLR (PT 16) 264; Yusufu V Obasanjo (2003) 16 NWLR (PT. 847) 554; and Adeyemi v Y.R.S Ike-Oluwa & Son Ltd. (1993) 8 NWLR (PT 309)27.
However, it must be mentioned that the Court does not exercise the power to rehear in every occasion and that it is expected to do so only where the justice of the case before it demands that the power should be exercised. Similarly, certain fundamental conditions must be met before the Court could exercise the very wide powers conferred by the section, such conditions that must exist include:
(a) availability of the necessary materials to consider and adjudicate in the matter; (b) The length of time between the disposal of the action at the trial Court and the hearing of the appeal; and (c) the interest of
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justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for rehearing and the hardship such an order would cause on either or both parties in the case. See Adeyemi V. Y.R.S. Ike-Oluwa & Sons Ltd. supra in Re Adewunmi (1988) 3 NWLR (Pt. 83) 483 at 501; University of Lagos V. Olaniyan (1985) 1 NWLR (Pt. 1) 156; and Jadesinmi v. Okotie-Eboh, supra.?
Section 15 of the Court of Appeal Act can only be activated by a ground of appeal.
?The real issue in the appeal must be clearly donated by the ground or grounds of appeal since that is the legal basis of the complaint by an appellant. Therefore before a Section 16 power could be invoked for the determination of the real question in controversy in the appeal the question must be a ground of appeal.? Per Tobi J.S.C in INAKOJU?S case (supra). It is pertinent to state that Section 16 of the Court of Appeal Act 1976 is now S.15 of the Court of Appeal Act 2004. It is only after the resolution of the facts that the appellant can challenge the findings of facts in his Notice of Appeal. That is when this Court has
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jurisdiction to invoke the provision of Section 15 of the Court of Appeal Act. SEE INAKOJU & ORS V ADELEKE & ORS (2007) 2FWLR PT 366 p. 403
This appeal lacks merit. It is accordingly dismissed suit No. HCK/57/2018 APC & ANOR V. GHAGHARA OCHUKO WISDOM & ORS is hereby remitted back to the trial Court for its final determination. N250,000.00 cost is awarded in favour of the 1st – 7th Respondents.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read hitherto the draft of the judgment just delivered by my learned brother TUNDE OYEBANJI AWOTOYE JCA in this interlocutory appeal. I agree with the reasoning and conclusion that indeed this appeal lacks merit and should be dismissed. I concede that ordinarily the issue of jurisdiction should be settled one way or another before the substantive issues in controversy are dealt with since the proper jurisdiction donates power to a Court to hear any matter. However in this case, even though it is not strictly speaking a pre-election matter within the contemplation of S. 285 (14) of the 1999 Constitution (as amended), as none of the parties is a candidate at an election, it is
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election related and a pre-primary matter. Thus, time is of essence in deciding all the issues thrown up by the parties. The current conventional wisdom is that in such matters, interlocutory appeals even on matters of jurisdiction are discouraged since all the issues in controversy including the challenge to the jurisdiction of the trial Court can be decided at the end of hearing the claims of the parties. In the peculiar circumstances of this case, the facts in dispute particularly relates to the authenticity of the terms of settlement/consent judgment which is in consideration before the trial Court. The question of whether the trial Court has jurisdiction and the contentious facts before the trial Court can be determined together in the final substantive judgment of the trial Court. Suit No. HCK/57/2018: A.P.C. & Anor v. Chaghara Ochuko Wisdom & Ors. is hereby remitted back to the trial Court for conclusion of the trial. Appeal Dismissed. I abide by the order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I had the opportunity of reading before now, the Ruling delivered by my learned brother, TUNDE OYEBANJI AWOTOYE, JCA.
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My Lord has ably and painstakingly addressed the issue argued in the appeal. I too agree that this appeal lacks merit and deserves to be dismissed outrightly. I agree with his reasoning and the conclusion and adopt them as mine.
Accordingly, the suit No. HCK/57/2018 APC & ANOR V. GHAGHARA OCHUKO WISDOM ORS is hereby remitted to the trial Court for hearing and determination.
I abide by the award of N300,000.00 cost in favour of the 1st-7th Respondents.
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Appearances:
Chief Adeniyi Akintola SAN with him, Oladele Oyelami Esq., O.O. Samuel Esq. and Lucky Ajokperiniovo Esq.For Appellant(s)
F.I. Obigbor with him, C.A. Akpe Esq. for 1st – 7th Respondents
E.R. Emukpoeruo for 8th & 9th Respondents
For Respondent(s)
Appearances
Chief Adeniyi Akintola SAN with him, Oladele Oyelami Esq., O.O. Samuel Esq. and Lucky Ajokperiniovo Esq.For Appellant
AND
F.I. Obigbor with him, C.A. Akpe Esq. for 1st – 7th Respondents
E.R. Emukpoeruo for 8th & 9th RespondentsFor Respondent
