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AIGHOBAHI & ORS v. UWADIA & ORS (2022)

AIGHOBAHI & ORS v. UWADIA & ORS

(2022)LCN/16119(CA)

In the Court of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, July 07, 2022

CA/B/359/2017

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. ENAWAKPONWHEN AIGHOBAHI 2. GODSPOWER UWADIA 3. LUKE AIKOROGIE 4. ARENDENOGBAKHUE EMOVON (For Themselves And On Behalf Of Ikhuen-Obo Village) APPELANT(S)

And

1. CHIEF FRIDAY UWADIA 2. DAVID OMOROGIEVA ERHUNMWUNSE 3. MR. JOLLY AGBONTAEN 4. MR. SUNDAY AGBONTAEN RESPONDENT(S)

 

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

On the jurisdiction of the Court, it is settled fundamental principle and decision that the issue of jurisdiction is the life blood of any adjudication. It is so fundamental that it must be resolved before any other step is taken in the proceedings. Any proceeding conducted without jurisdiction would amount to a nullity and any decision reached therein is liable to be set aside. See Shell Petroleum Development Company of Nig. V. Anaro (2015) 12 NWLR (Pt.1472) 122 at 185. Jurisdiction is the dignity which a Court has by power to do justice in a cause or complain brought before it is in issue. It is a threshold matter which the Court must determine before taking any further step in the case, for proceeding conducted without jurisdiction remains a nullity. At a challenge to its jurisdiction, the only jurisdiction the Court can exercise is to determine whether or not it has jurisdiction in the matter. See Brittania U. (Nig.) Ltd. V. Seplat Petroleum Development Co. Ltd(2016)4 NWLR (Pt.1503)541 at 602.
Flowing from this background, it is established that where the issue of jurisdiction is raised against any action, the issue must first be resolved before further step is taken. This principle is relevant to the issue at hand. PER BOLA, J.C.A.

THE POSITION OF LAW WHERE A PLANTIFF’S ACTION DOES NOT DISCLOSE A CAUSE OF ACTION

The preliminary objection also raises the point that the Claimant (Appellant) case disclosed no reasonable cause of action. It is not in doubt that cause of action is a combination of facts and circumstances giving rise to the right to file a claim in Court for a remedy. It includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the Plaintiff to succeed. It arises as soon as the combination of acts giving a right to complain accrues or happens. See Okafor V. Bende Union Jos Branch (2017) 5 NWLR (Pt.1559) 385 at 417.
When the issue is raised that the Plaintiff’s action does not disclose a cause of action and by extension jurisdiction to enter the action on the merit is challenged thereby, it is necessary to first determine whether the action discloses a reasonable cause of action before proceeding to the merit of the action. This is against the background that where the statement of claim discloses no causes of action if the Court is satisfied that no amendment however, ingenious, will cure the defect, the statement of claim will be struck out and the action dismissed. See Thomas V. Olufosoye (1986) 1 NWLR (Pt.18) page 669 at 682. It is therefore clear that an objection as to lack of reasonable cause of action must first be determined before proceeding to the merit of the matter.
PER BOLA, J.C.A.

THE AIM AND OBJECTIVE OF A PRELIMINARY OBJECTION
Invariably the totality of the preliminary objection filed by the Defendant (Respondents) against the suit of the Claimant (Appellant) raised issues that affect the validity and the justifiability of the action filed by the Respondents which go to the root of the jurisdiction of the lower Court and had to be determined ab initio of the action.
Further to the above, I refer to the case UBA Plc V. Onuoha & Ors (2014) LPELR-24360 (CA) where it was held:
“It is now beyond any argument that this Court must decide first on the Notice of Preliminary Objection filed by the Respondents. The reason is not farfetched. The aim and objective of an objection is to bring an abrupt end to the life in an appeal or action due to obvious defect, incompetence, jurisdictional impediment of an intervening event militating against the hearing of a suit or an appeal.”
See Adebayo Oni V. Dr. Fayemi & Ors (2013) 12 NWLR (Pt.1369) 421. The Court had a duty to make its decision of the preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against the same. A successful preliminary objection saves the valuable time, energy and resources of the Court and of the parties which would otherwise be dissipated on hearing an incompetent appeal or suit. See Hassan V. Aliyu (2010) 17 NWLR (Pt.1223) 547, Yaro V. Arewa Construction Coy. Ltd. & Ors (2007) 6 SCNJ 419.
Without much ado, and flowing from this background, this Court comes to the conclusion that the learned trial Judge was right in entertaining the preliminary objection of the Respondent at the stage which he did.
PER BOLA, J.C.A.

DEFINITION OF A DEMURRER PROCEEDING

Does the Notice of Preliminary Objection filed by the Respondents (Claimant) constitute a demurrer? What is Demurrer proceeding? The case Aarti Steel (Nig.) Ltd V. Otapo & Sons(2018) LPELR-45751 (CA) explained demurrer proceeding thus:
“In a demurrer proceeding the basic essence is that the party raising same contends that even if all the allegation in the statement of claim are, right, it still does not disclose a cause of action for the party contending would not proceed with his pleading but, having raised a point of law as to whether any case had been made not in the opponents pleading for him to answer, awaited the decision on that point.”
In Okito V. Obioru (2006) LPELR-21590 (CA), it was stated:
“…The said application for striking out of the suit is the basis that the suit was statute barred having been brought after a period of 12 years of the commencement of an alleged trespassed as prescribed by Section 6(2) of the Limitation Law Cap. 89 Laws of Bendel State ​when all that had been filed was the Writ of Summons. No Statement of Claim had been filed. With the abolition of DEMURRER not only must a Statement of Claim have been filed but also a Statement of Defence where the limitation would have been raised.”
“Demmurer” originated from the Latin word “demorari” meaning to wait or stay proceedings by not filing a Statement of Defence but relying on the statement of claim that it disclosed insufficient material or was self defeating to entitle the plaintiff to the relief sought in the suit and urging the Court to dismiss or strike out the suit in limine on the insufficiency of the Statement of Claim in favour of the Defendant without calling on the Defendant to join issues with the claimant by filing a Statement of Defence and offering evidence. See Gombe & Ors V. Aderinola & Ors (1977) 1 SC 1, Bamisile V. Osasuyi (2007) 9 NWLR (Pt.1042).
PER BOLA, J.C.A.

ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice V.O. Eboreime of the Edo State High Court delivered on the 16th day of March, 2017.

The Respondents by way of Preliminary Objection raised at the lower Court that the Appellants had no right of action against the Respondents in that the Supreme Court which is the apex Court in Nigeria had given final verdict in respect of the subject matter and by virtue of the Constitution of the Federal Republic of Nigeria, the lower Court could not entertain the action of the Appellants, and that the case be struck out. The Preliminary Objection was argued by the parties, and it was sustained by the lower Court. The Appellant being dissatisfied with the ruling appealed against same to this Court by filing a Notice of Appeal containing Six Grounds of Appeal filed on 24th March, 2017.

The Record of Appeal was compiled and transmitted to this Court on 04-08-2017 and was deemed compiled and transmitted on 6/5/2022. The Supplementary Record transmitted to this Court on 24th April, 2018 was deemed transmitted on 6/5/2022.

​The Appellants’ Brief of Argument settled by Chief H.O. Ogbodu (SAN) was filed on 30/8/17 but was deemed properly filed and served on 6/5/2022. The Respondent’s brief settled by Olayiwola Afolabi Esq., was filed on 2-11-2018 but deemed properly filed and served on 7/4/2022 and further deemed on 6/5/2022. The Appellants Reply Brief filed on 11/4/2022 was deemed filed on 6/5/2022.

BACKGROUND FACTS
The action in these proceedings was initiated in a representative capacity by the Appellants against the Respondents also in a representative capacity with the leave of Court below.

In the main claims of the Appellants as reflected in the final endorsement in their statement of claim is for:
“1. A declaration that by the peaceful and amicable resolution of the boundary dispute between the Claimants’ Village (Ikhuen-Obo) and the Defendants Village (Iguomo) as reflected in the Edo State Notice No. 14 published in the Edo State of Nigeria Gazzette No. 5 Benin City 7th April, 2016, Vol. 24, the Defendants are precluded and or stopped from taking any further steps by way of seeking to enforce the Judgments delivered by this Honourable Court in suit No. HAB/11/87 on 3-10-1997, affirmed by the Court of Appeal on 14-12-2000 and the Supreme Court of Nigeria on 3-2-2006 against the Claimants.
2. A declaration that it will be overreaching and an abuse of the process of Court for the Defendants to seek to enforce the judgment delivered by this Court in suit No. HAB/11/87 on 3-10-1997 affirmed by the Court of Appeal on 14-12-2000 and the Supreme Court of Nigeria on 3-2-2006 against the Claimants having agreed to the peaceful and amicable resolution of the boundary dispute between the Claimants’ Village and the Defendants Village after the Judgment of the Supreme Court.
3. AN ORDER of injunction restraining the Defendants perpetually from seeking to in any way whatsoever either by themselves, privies, assigns or agents to enforce the judgment delivered by this Court on 3-10-1997 in suit no. HAB/11/87, affirmed by the Court of Appeal on 14-12-2000 and the Supreme Court of Nigeria on 3-2-2006 against the Claimants, the said judgments having been compromised by the parties thereto.
4. Any other relief(s)”

The Respondents admitted all the averments in the Appellant’s statement of claim because they did not file a statement of defence. Instead of filing a statement of defence, they chose to file a notice of preliminary objection asking that the case be struck out.

The preliminary objection was argued by the parties and considered by the learned trial Judge who thereafter dismissed the case of the Appellants contrary to the request of the Respondents in their notice of preliminary objection.

ISSUES FOR DETERMINATION: APPELLANTS BRIEF.
The Appellants formulated three issues for determination to wit:
1. Whether the learned trial Judge was right in entertaining the Preliminary Objection of the Respondents at the stage at which she did (Ground 4).
2. Whether the learned trial was right when she dismissed the case of the Appellants on grounds of jurisdiction to entertain same (Grounds 1 and 2).
3. Whether the learned trial Judge was right when she determined the main case of the Appellants at interlocutory stage and granted reliefs not sought by the parties in the case (Grounds 3, 5 and 6).

ISSUE ONE
Whether the learned trial Judge was right in entertaining the Preliminary Objection of the Respondent the stage at which she did.

It was submitted that the learned trial Judge was in grave error to have entertained the Preliminary Objection of the Respondent the stage at which she did for the reason that jurisdiction is the authority that the Court has to decide or take cognizance of matters preserved for its decision citing the cases. See Mobil Producing (Nig) Unlimited V. LASEPA (2002) 18 NWLR (Pt. 798) 1, Madukolu V. Nkedilim (1962) 2 SCWLR page 341.

It was submitted that on the face of the Preliminary Objection the Respondents did not raise any issue as to the qualification of the Court to adjudicate over the issue. That the Respondents did not raise any issue as to whether or not the case was initiated in the Court without due process of the law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. He referred to page 159 of the record for the orders sought by the Respondents in their Notice of Preliminary Objection which prayed for the striking out of the suit on the ground of (I) want of jurisdiction (II) Non-disclosure of any reasonable cause of action but merely raises issue of academic and hypothetical question (III) striking out as the Claimants/Respondents had no locus standi in respect of the subject matter (IV) Dismissing the suit of the Claimant/Respondents the same being an abuse of Court process.

It was argued that the real grounds the Respondents predicated the Preliminary Objection can be found on pages 159 – 160 of the Records. That these grounds upon which the Preliminary Objection was predicated were all question of facts which will ordinarily will require taking and assessment of evidence and also exhibition of documents if necessary. That it had nothing to do with the jurisdiction of the Court at all. That being the case, pleadings ought to be filed in accordance with the extant rules of Court pursuant to Order 22 Rules 1 and 2 of the Edo State High Court (Civil Procedure) Rules 2012. Which abolished demurrer and other points of law may be raised by pleading.

It was argued that the stage at which the Preliminary Objection was filed was premature because they did not file their Statement of Defence. That the Defendant/Respondent engaged in demurrer which had been abolished by rules of Court.

Counsel urge this Court to intervene by setting aside the position of the Judge and resolve the issue in favour of the Appellants and against the Respondents.

ISSUE 2
Whether the learned trial Judge was right when she dismissed the case of the Appellants on ground of lack of jurisdiction to entertain same.

It was argued that the learned trial Judge was in error to have dismissed the suit of the Appellants in its entirety for want of jurisdiction to entertain same for the reason that the conditions in Madukolu V. Nkedilim (Supra) upon which a Court may lack jurisdiction were not present in this case. That there was no quarrel about the qualification of the Court of hearing the matter just as there was no quarrel as to whether the action was properly initiated.

That what the Defendant appears to be quarreling with was whether the matter that went to the Supreme Court was being relitigated. That it was not the case here because what determines jurisdiction of the action is the cause of action of the Claimant as reflected in the Writ of Summon and the Statement of Claim. These are the processes the Court should look at to determine jurisdiction. He referred to the case Omnia (Nig.) Ltd V. Dyktrade Ltd (2007) 15 NWLR (Pt. 1058) at 598. He referred to the claims of the Claimants as reflected in the Statement of the Claimant in the lower Court and the matter that was decided at the Supreme Court.

He submitted that from the reliefs of the Claimants at the High Court and the matter that was decided by the Supreme Court, the actions were different. He referred to the case Omnia (Nig.) Ltd V. Dyktrade Ltd (Supra) on the decision of the Supreme Court on when estoppels is established.

Counsel further submitted that the learned trial Judge should have realized that it was wrong for the Respondents to have attached documentary evidence to their notice of preliminary objection which is not acceptable in law. He urged this Court to discountenance the documents. It was also argued that it was wrong to introduce affidavit evidence in the notice of preliminary objection of the Respondents because affidavit evidence will be dealing on facts which cannot be considered without pleadings. The case Brawal V. Onwadike Co. Ltd (2000) 11 NWLR (Pt. 678) 407 at 408 was cited on the proper procedure for demurrer proceedings.

It was submitted that the Court ought not to have determined at interlocutory stage what should have been it to ought to determined at the end of the full trial of the case. See Orji V. Zaria Industries Ltd (1992)1 NWLR (Pt. 216 124, Icon Ltd V. FBN Ltd (1995) 6 NWLR (Pt. 401) 370.

Counsel argued that the trial Judge erred in dismissing the Appellant’s case when the order he should have made it at all he had no jurisdiction (assuming) to entertain the case was to strike out the action. See UTB (Nig). Ltd V. Ukpabia (2000) 8 NWLR (Pt. 670) 570, Oloriode V. Oyebi (1984) 1 SCLRN 390.

It was further argued that the trial Judge descended into the arena of justice when he gave to the Respondents what they did not ask for. That the prayer of the Respondents was for striking out of the matter and not dismissal as was done by the trial Judge. See Dingyadi V. INEC (No.2) (2010) 18 NWLR (Pt. 1224) 154; Stowe V. Benstowe (2012) 9 NWLR (Pt. 1306) 405.

ISSUE NO. 3
On the third issue, whether the trial Judge was right when he determined the case of the Appellants at interlocutory stage and granted an order not sought by the parties in the case. It was submitted that the learned trial Judge was in error when he determined the main case of the Appellant at interlocutory stage and granted an order not sought by the parties in the case and thereby occasioned miscarriage of Justice. He referred to the claim of the Claimants as set out in the Statement and the Preliminary Objection of the Respondent at page 159 of the record.

That the Respondents admitted all the averment in the Statement of Claim of the Appellants by their refusal to file that Statement of defence. That the Respondents denied there was any settlement on their affidavit in support of the Preliminary Objection which conflicted with the Statement of Claim of the Appellant. That this should have been resolved by calling on evidence of the parties which was never done. Refer to Falobi V. Falobi (1976) 9 – 10 SC 1 at 15.

Submitted that the learned trial Judge having declined jurisdiction to entertain the case was in error to have gone into considering Exhibit ‘E’ (the Gazette) at the Interlocutory stage.

The parties did not ask for nullification of Exhibit ‘E’ the trial Court therefore lacked jurisdiction to grant relief not claimed by party and should not grant same.

Counsel urge the Court to resolve the issue in favour of the Appellant and allow the appeal.

RESPONDENTS’ BRIEF AND ISSUES DISTILLED
The Respondents fashioned out three issues for determination which are:
1. Whether with regards to the position of the law, the learned trial Judge was right in entertaining the Preliminary Objection of the Respondents at the stage which she did (Ground 4)
2. Whether with regards to the circumstance of this case, the trial Judge was right in dismissing the case of the Appellant for lack of jurisdiction (Grounds 1 and 2)
3. Having regards to the circumstances of the case, whether the learned trial Judge was right when it evaluated on the whole, all the facts placed before it (sic) in determining the objection and granting the said relief consequently (Grounds 3, 5, 6).

ISSUE ONE
Whether with regards to the position of the law the learned trial Judge was right in entertaining the Preliminary Objection of the Respondents at the state which he did.

It was submitted that the learned trial Judge was right to have entertained the Preliminary Objection of the Respondents which was challenging the jurisdictional capacity of the Court to determine the continuance of the suit of the Appellants. The Respondents had filed a Preliminary Objection which challenged the jurisdiction of the trial Court and it behoves on the Court according to law that same be determined at the earliest opportunity to avert the possibility of nullity of proceedings and a complete waste of time. He cited the case of National Union of Road Transport Workers & Anor V. RTEAN & Ors (2012) LPELR – 7840 (SC).

It was argued that the order sought by the Respondents were such that were hinged on the legal position of the law as it relates to the facts and circumstance of the instant case which were clearly revealed from the affidavit evidence presented by the parties and documents annexed thereto. That the Respondents’ contention that the objection was a demurrer proceeding was unfounded in practice and procedure. That the objection was strictly on point of law which could be raised and determine by a trial Court in the absence of a Statement of defence. Referred to the case Iloegbunam V. Obiora (2012) 4 NWLR (Pt. 1291) 405 at 449 – 450, NDIC V. CBN (2002) FNLR (Pt. 99) 1021, Usman V. Baba (2005) 5 NWLR (Pt. 917) 113.

It was argued that the Appellants’ contention that the Preliminary Objection of the Respondents was a demurrer was unfounded and of no moment. That the decision of the lower Court was in consonance with the position of law as enunciated by the apex Court.

It was submitted that the processes filed by the Appellants before the trial Court constitute a classical and good example of abuse of Court process and when it is found that the Court’s process had been abused an appropriate order is that of dismissal. Refer to the case Globe Motors Holdings Ltd V. Honda Co. Ltd. (1998) 5 NWLR (Pt. 550) 373 at 381 – 382.

On the whole, the Respondents’ Counsel submitted that the trial Judge was right in entertaining and deciding on the Preliminary Objection of the Respondents at the stage when it was raised. He urged the Court to resolve issue one in favour of the Respondents.

ISSUE TWO
It is whether with regards to the circumstances of this case and the position of the law, the trial Judge was right in dismissing the case of the Appellants for lack of jurisdiction.

It was submitted that the lower Court did not make any mistake in dismissing the suit of the Appellant in its jurisdiction for want of jurisdiction. A Court is empowered in law to make an order that ordinarily can be made within the ambits of its jurisdiction. Refers to the case Madukolu V. Nkedilim (supra).

It was submitted that the totality of the Respondent’s Objection at the trial Court was the estoppels res judicata created against the Appellants according to law which preview the parties from re-litigating a subject matter already decided by the Court completely.

It was further argued that where an issue has been settled by Judicial decisions between the same parties or their privies the same parties are estopped from relitigating on the same issue and subject matter. Refer to Dr. Adeiwunm Adeyemo – Bero V. Lagos State Development Corporation & Anor (2012) LEPLR 20615 (SC). Tunde Osunrinde & Ors V. Ajamogun & Ors (1992) LPELR 2819 (SC).

Further to the above, it was submitted that the trial Court in dealing with the Preliminary Objection was right in law to have made an order dismissing the Appellant’s suit. Refer to Abioye V. Abidoye (2012) LPELR – 19694 (CA) per Iyizoba JCA.

On the submission of filing an affidavit evidence and documents to support the Appellants Preliminary Objection, Respondents Counsel submitted that where facts were in issue as regards Preliminary Objection, an affidavit would be necessary which can be backed up by documentary properly exhibited. He urged the Court to resolve the second issue in favour of the Respondent.

ISSUE THREE
Issue No. 3 raises the question. Having regard to the circumstances of the case, whether the learned trial Judge was right when it evaluated on the whole all the facts placed before it in determining the objection at an interlocutory stage and granting the said relief consequently?

It was submitted that the trial Court had the competence to evaluate the facts before it. That the assessment and/or appraisal of oral evidence and ascription of probative value of such evidence is the primary duty and within the exclusive preserve of the trial Court, which it did in its case.

It was also submitted that trial Court is competent in law to use documents filed in a case to arrive at a jurisdiction. Moreso that such documents (Exhibit ‘E’) was attached to an affidavit.

It was the submission of Counsel that the parties never mutually submitted to the Edo State House of Assembly any arbitration whatsoever. That the learned trial Court was correct when in interpreting Exhibit `’E’ held that the Edo State House of Assembly did not act as an arbitrator but decided to sit to review the decision of the Supreme Court which power the House never had. He urge this Court to dismiss this appeal on this ground.

In conclusion, it was submitted that the ruling of the lower Court was founded on law and sound principles.

Having gone through the issues raised and argued by the Counsel to the parties in their respective Briefs of Argument the following issues are fashioned out by this Court for determination in this appeal:
“1. Whether the learned trial Judge was right in entertaining the preliminary objection of the Respondents at the stage which he did.
2. Whether the trial Judge was right when he dismissed the case of the Appellants on grounds of jurisdiction and whether the preliminary objection was not a demurrer.

RESOLUTION OF ISSUES
ISSUE ONE
Was the learned trial Judge right in entertaining the preliminary objection of the Respondents at the stage which he did?

Kickstarting the resolution of this issue it is pertinent highlighting the preliminary objection filed by the Defendants (Respondent) against the suit of the Claimant (Appellant) at the trial Court. The notice of preliminary objection filed before the lower Court on 14/6/2016 prayed for the following orders:
“1. An order of this Honourable Court striking out this suit for want of jurisdiction to entertain, hear and determine this suit.
2. An order of this Honourable Court striking out this suit as it does not disclose any reasonable cause of action but merely raise issue of academic and hypothetical question.
3. An order striking out this suit as the Claimants/Respondents have no locus standi in respect of the subject matter.
4. An order dismissing this suit of the Claimants/Respondents the same being an abuse of Court process.”

The preliminary objection was predicated on the following grounds:

“1. The Claimants having admitted that they lost the land case between them and the Defendants up to the Supreme Court have not shown any reasons why this case shall be relitigated.
2. This Court even convicted some of the Claimant/Respondents (especially the 1st Claimant (sic) now {an ex convict} for contempt and they appeal to the Court of Appeal which appeal against their conviction for contempt arising from the Supreme Court judgment was dismissed.
3. The Writ of execution has been issued and warrant of execution has since been given to the Defendants/Applicants’ community after the bailiffs and policemen executed the judgment and given possession of the property to the Defendants/Applicants Community.
4. There is nothing to show that there is amicable settlement between the Claimants and the Defendants in respect of this matter as the Defendants never entered into any amicable settlement with the Claimants and the Edo State House of Assembly has no power to set aside the decision of the Supreme Court or any other Court in Nigeria.
​5. The Claimants herein have earlier filed similar processes before the Edo State High Court No.1 and the matter is now fixed to 23th (sic) day of June, 2016 for hearing.
6. All these facts were known to the Claimants before they filed this suit but they deceived this Honourable Court by keeping secret these highlighted facts which conduct Court always frown at this (sic) Court is a Court of equity that delights in lean (sic) lands.”

The preliminary objection raises four fundamental issues namely (1) jurisdiction of the lower Court (2) disclosure of reasonable cause of action (3) locus standi and (4) abuse of Court process. They constitute the preliminary objection filed by the Respondents.

On the jurisdiction of the Court, it is settled fundamental principle and decision that the issue of jurisdiction is the life blood of any adjudication. It is so fundamental that it must be resolved before any other step is taken in the proceedings. Any proceeding conducted without jurisdiction would amount to a nullity and any decision reached therein is liable to be set aside. See Shell Petroleum Development Company of Nig. V. Anaro (2015) 12 NWLR (Pt.1472) 122 at 185. Jurisdiction is the dignity which a Court has by power to do justice in a cause or complain brought before it is in issue. It is a threshold matter which the Court must determine before taking any further step in the case, for proceeding conducted without jurisdiction remains a nullity. At a challenge to its jurisdiction, the only jurisdiction the Court can exercise is to determine whether or not it has jurisdiction in the matter. See Brittania U. (Nig.) Ltd. V. Seplat Petroleum Development Co. Ltd(2016)4 NWLR (Pt.1503)541 at 602.
Flowing from this background, it is established that where the issue of jurisdiction is raised against any action, the issue must first be resolved before further step is taken. This principle is relevant to the issue at hand.

The preliminary objection also raises the point that the Claimant (Appellant) case disclosed no reasonable cause of action. It is not in doubt that cause of action is a combination of facts and circumstances giving rise to the right to file a claim in Court for a remedy. It includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the Plaintiff to succeed. It arises as soon as the combination of acts giving a right to complain accrues or happens. See Okafor V. Bende Union Jos Branch (2017) 5 NWLR (Pt.1559) 385 at 417.

When the issue is raised that the Plaintiff’s action does not disclose a cause of action and by extension jurisdiction to enter the action on the merit is challenged thereby, it is necessary to first determine whether the action discloses a reasonable cause of action before proceeding to the merit of the action. This is against the background that where the statement of claim discloses no causes of action if the Court is satisfied that no amendment however, ingenious, will cure the defect, the statement of claim will be struck out and the action dismissed. See Thomas V. Olufosoye (1986) 1 NWLR (Pt.18) page 669 at 682. It is therefore clear that an objection as to lack of reasonable cause of action must first be determined before proceeding to the merit of the matter.

Another issue raised in the preliminary objection of the Respondents borders on locus standi when a party’s standing to sue is an issue the question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue is justifiable. See Adesanya V. President of Nigeria (1981) 1 ANLR (Pt.1) 1. The issue of locus standi must be raised and determined at the stage the issue was raised. This is because the question whether a person has locus standi to bring an action raises an issue of jurisdiction. See A.G. Federation V. A.G. Lagos State (2017) 8 NWR (Pt.1566) 20 at 55.

It is equally a trite issue that an objection can be taken against the hearing or determination of an action on its merit if it constitute an abuse of Court process. It is an action that also challenges the jurisdiction of the Court. It must be taken timeously by the Court.

Invariably the totality of the preliminary objection filed by the Defendant (Respondents) against the suit of the Claimant (Appellant) raised issues that affect the validity and the justifiability of the action filed by the Respondents which go to the root of the jurisdiction of the lower Court and had to be determined ab initio of the action.
Further to the above, I refer to the case UBA Plc V. Onuoha & Ors (2014) LPELR-24360 (CA) where it was held:
“It is now beyond any argument that this Court must decide first on the Notice of Preliminary Objection filed by the Respondents. The reason is not farfetched. The aim and objective of an objection is to bring an abrupt end to the life in an appeal or action due to obvious defect, incompetence, jurisdictional impediment of an intervening event militating against the hearing of a suit or an appeal.”
See Adebayo Oni V. Dr. Fayemi & Ors (2013) 12 NWLR (Pt.1369) 421. The Court had a duty to make its decision of the preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against the same. A successful preliminary objection saves the valuable time, energy and resources of the Court and of the parties which would otherwise be dissipated on hearing an incompetent appeal or suit. See Hassan V. Aliyu (2010) 17 NWLR (Pt.1223) 547, Yaro V. Arewa Construction Coy. Ltd. & Ors (2007) 6 SCNJ 419.
Without much ado, and flowing from this background, this Court comes to the conclusion that the learned trial Judge was right in entertaining the preliminary objection of the Respondent at the stage which he did.

Issue No. 1 is consequently resolved in favour of the Respondent against the Appellant.

Proceeding to issue 2, the question arises whether the trial Judge was right when he dismissed the case of the Appellants on ground of jurisdiction and whether the preliminary objection was not a demurrer.

It was Appellants’ contention that the trial Court was in error to have dismissed the case for want of jurisdiction since the condition or features highlighted in Madukolu V. Nkedilim’s case were not present in the Appellants case at the lower Court to warrant dismissal for want of jurisdiction.

The Appellants raised a fundamental issue in the submission of the Counsel. It is that the trial Court was in error to have determined the case and proceeded to dismiss it. The ruling revealed that the trial Court considered the preliminary objection on affidavit evidence including documentary evidence particularly Exhibit ‘E’ the Gazette which the lower Court declared null and void.

It was also argued that the Respondent’s Preliminary Objection was a demurrer upon which the preliminary objection could not be taken and determined by the Court. On the other hand, the Respondent argued that the preliminary objection was not a demurrer but in respect of the issue of jurisdiction.

Does the Notice of Preliminary Objection filed by the Respondents (Claimant) constitute a demurrer? What is Demurrer proceeding? The case Aarti Steel (Nig.) Ltd V. Otapo & Sons(2018) LPELR-45751 (CA) explained demurrer proceeding thus:
“In a demurrer proceeding the basic essence is that the party raising same contends that even if all the allegation in the statement of claim are, right, it still does not disclose a cause of action for the party contending would not proceed with his pleading but, having raised a point of law as to whether any case had been made not in the opponents pleading for him to answer, awaited the decision on that point.”
In Okito V. Obioru (2006) LPELR-21590 (CA), it was stated:
“…The said application for striking out of the suit is the basis that the suit was statute barred having been brought after a period of 12 years of the commencement of an alleged trespassed as prescribed by Section 6(2) of the Limitation Law Cap. 89 Laws of Bendel State ​when all that had been filed was the Writ of Summons. No Statement of Claim had been filed. With the abolition of DEMURRER not only must a Statement of Claim have been filed but also a Statement of Defence where the limitation would have been raised.”
“Demmurer” originated from the Latin word “demorari” meaning to wait or stay proceedings by not filing a Statement of Defence but relying on the statement of claim that it disclosed insufficient material or was self defeating to entitle the plaintiff to the relief sought in the suit and urging the Court to dismiss or strike out the suit in limine on the insufficiency of the Statement of Claim in favour of the Defendant without calling on the Defendant to join issues with the claimant by filing a Statement of Defence and offering evidence. See Gombe & Ors V. Aderinola & Ors (1977) 1 SC 1, Bamisile V. Osasuyi (2007) 9 NWLR (Pt.1042).
The attribute of demurrer application are (i) an application by way of demurrer must be made before issues are joined in the suit, after the filing of the Statement of Claim and before the filing of the Statement of Defence; (ii) the Defendant shall base his application for a dismissal of the suit on the assumption that all the facts alleged in the statement of claim are true, admitted and established; (iii) the applicant is not under the law to contest whether directly or indirectly, the truth or otherwise of such pleaded facts in the Statement of Claim, neither is he to tender evidence; and (iv) it is invoked where the applicant is merely relying as a crucial point of law like locus standi, limitation of action, lack of cause of action in that only the Statement of Claim is relied on to decide whether or not the demurrer succeeds. See Williams V. Williams (1995) 2 NWLR (Pt.375) 1, Brawal Shipping Nig. Ltd V. Onwadike (Supra), Moyosore V. Governor of Kwara State & Ors (2012) 5 NWLR (Pt.1293) 242.
Ogunwumiju JCA (as he then was) held that “a party raising demurrer contends that even if all the allegation in the pleadings were fine, it does not in law disclose a cause of action for the party to answer or file a defence to the party’s claim or by a Plaintiff challenging the defence. In each case, the contention is the same form namely, assuming all allegations in the pleading are to be fine, it is nonetheless bad in law, it discloses no cause of action or defence to a claim”. Where there is a demurrer, the party contending does not proceed with his own pleading but has to wait for the decision for the Court as the objection. See Pemu V. NDIC (2014) LPELR-24627 (CA).
The above are the features and the attributes of a demurrer proceeding.

In the case at the lower Court, the Appellant, (Claimant) filed their Writ of Summon and Statement of Claim. The Respondent (Respondents) filed no Statement of Defence but a Notice of Preliminary Objection. This is clearly a Demurrer proceeding as clearly pointed in the above decisions of the appellate Courts.
Order 22 Rules 1 and 2 of the Edo State High Court (Civil Procedure) Rules 2012 state:
“1. Demurrer abolished
No demurrer shall be allowed.
2. Points of law may be raised by pleading
Any party shall be entitled to raise by his pleadings any point of law any points so raised shall be disposed of by the Judge who tries the cause at or after the trial:
Provided that by consent of the parties, or by order of the Court of a Judge on the application of either party, it may be set down for hearing and disposed of or any time before the trial.”
It could be seen clearly as revealed from the record of appeal, the Respondents failed to file that Statement of Defence and by extension failed to raise by his pleading the point of law raised in his Notice of Preliminary Objection. This constitutes demurrer which has been abolished by the Rules of the lower Court.
The Respondent should have filed their pleading that is Statement of Defence with all issues of law pleaded therein before setting down for hearing the issues of law raised in the preliminary objection and determining the preliminary objection.
It is unequivocal that the Respondents, (Defendants) proceeded to challenge the claimant action by way of demurrer proceedings which has been abolished by Order 22 Rules 1 and 2 of the Rules of Edo State High Court. Thereby rendering the Preliminary Objection incompetent.
Having proceeded to challenge the Appellants action by way of demurrer proceeding which has been abolished by the Rules of the trial Court, the preliminary objection should not have been determined by the lower Court on its merit. The Court should not have proceeded to dismiss the substantive matter at the interlocutory stage. By reason of this, this Court would have considered this appeal meritorious for the purpose of remitting the action back to the trial Court for fresh hearing. If that is done, the same conclusion would have been reached dismissing or striking out for being statute barred with a fresh objection filed at the lower Court. Therefore it will serve no purpose dismissing this appeal as the Respondent may file fresh application complying with Order 22 Rule 1 of the Edo State High Court (Civil Procedure Rules) 2012. It is by reason of the above that I dismiss this appeal and affirm the Ruling of the lower Court.

There shall be no order as to cost.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now the draft of the lead judgment just delivered by my learned brother, SAMUEL ADEMOLA BOLA, JCA.

I adopt the reasoning and conclusion reached in dismissing the appeal. I also dismiss this appeal and uphold the ruling of the High Court of Edo State delivered on 16th March, 2017 by V. O. Eboreime, J. in Suit No. HAB/18/16.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the judgment delivered by my learned brother, Samuel Ademola Bola, JCA. I adopt the reasoning and conclusion reached therein.

Order 22 Rules 1 and 2 of the Edo State High Court (Civil Procedure) Rules, 2012 prohibits demurrer proceedings. Therefore what the respondents were expected to do was to have filed their statement of defence, and therein raised the point of law on which their objection is predicated, and if they chose not to wait for it to be decided at the end of the trial, apply to have it set down for hearing in the course of the trial. This was not done rather they chose to go by demurrer proceedings in clear contravention of the Rules of the trial Court.

However, one point the Court must note is whether the decision of the trial Court would have been different if the respondents adopted the proper procedure to raise their objection. In other words, assuming the provision of Order 22 Rules 1 and 2 of the Edo State High Court (Civil Procedure) Rules, 2012 was compiled with in bringing their objection, would the decision of the trial Court be different. This answer lies in the resolution reached in issue one, which my learned brother meticulously considered and resolved in favour of the respondents.

Therefore, it will serve no utilitarian purpose to allow this appeal, as the respondents will expectedly bring the same application in compliance with Order 22 Rules 1 and 2 of the Edo State High Court (Procedure Rules) 2012.

It is settled law that where the decision of the Court is right, the reason for it is immaterial.
See – Ayoola & Ors v. Lawal & Ors (2012) LPELR-19721 (CA) P. 21 paras E – F, NIIA v. Ayanfalu (2006) LPELR – 5960 (CA) P.10 paras B- D, Dike-Ogu & Ors v. Amadi & Ors (2008) LPELR – 8659 (CA), Alade & Ors. v. Ogundele & Anor (2013) LPELR – 21382 (CA) P. 21 paras C – E.

It is on the foregoing ground that I too dismiss this appeal and affirm the ruling of the trial Court.

Appearances:

Etinosa Iginenikaro, For Appellant(s)

E.O. Afolabi, Esq, with him, I. Agbontaen, For Respondent(s)