AIR COMMADORE TAMUNO-OMISIKI OPUIYO v. MILICENT JAJA & ANOR
(2019)LCN/12648(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of February, 2019
CA/PH/407/2015
RATIO
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“I agree with the submission of Learned Counsel to Appellants that the trial Court effectively denied the Appellant the right to a defense, because as a general principle of law, where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, on the basis of law or fact or both, he ought to be granted leave to defend, that is the very essence of our adversarial system of justice; right to a defense is at its very heart, and a denial in any form is akin to thrusting a dagger at that heart; see ADEBISI MACGREGOR ASSOCIATES LTD. V. NIGERIAN MERCHANT BANK (1996) 2 NWLR part 431 page 378 and UNIVERSITY OF NIGERIA V. ORAZULIKE TRADING CO. LTD. (1989) 5 NWLR part 119 page 19.” PER MOHAMMED MUSTAPHA, J.C.A.
JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED
“That being so, it is never too early or too late in the course of proceedings for a genuine issue of jurisdiction to be raised; of course it is preferable to raise it early, but there is no wrong way of raising it, as it can in fact be raised even orally, in appropriate cases and circumstances; that is how vital and important the issue of jurisdiction is; See EJIOFODOMI V. OKONKWO (1982) 11 SC 74; SPDCN LTD V. TIEBO VII (1996) 4 NWLR (445) 657; STATE V. ONAGORUWA (1992) 2 SCNJ 1; NBN V. SHOYOYE (1977) 5 SC 181; OLOBA V. AKEREJA (1988) 3 NWLR (84) 508; OBIEKWE V. OBI (2005) 10 NWLR (932) 60; MIL. GOV. ONDO STATE V. KOLAWOLE (2008) 9 MJSC, 203 and AJAO V. JOS METRO DEV. BOARD (2006) ALL FWLR (302) 19.” PER MOHAMMED MUSTAPHA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
AIR COMMADORE TAMUNO-OMISIKI OPUIYO Appellant(s)
AND
1. MILICENT JAJA
2. CAPT. BENJAMIN ROGERS BIPIALAKA (RTD)
(Suing for himself and on behalf of Lt. Col. Said Agborere Hammed) Respondent(s)
MOHAMMED MUSTAPHA, J.C.A.(Delivering the Leading Judgment):
This is an interlocutory appeal against the Ruling of Honorable Justice I.P.C. Igwe of the Rivers State High Court of the 30th of September, 2015; wherein the trial Court declined to hear an Application filed by the Appellant on the 21st of September, 2015, challenging the jurisdiction of the trial Court to proceed with the case for being statute barred.
Dissatisfied with the Ruling the Appellant appealed by a Notice of Appeal filed on the 14th of October, 2015 on the following Grounds:
GROUNDS OF APPEAL:
GROUND 1:
The Learned Judge erred to law to insist to visit the locus in quo in a land matter without a formal Application and without any survey plant(s) tendered by the parties and this caused miscarriage of justice to the Appellant.
PARTICULARS OF ERROR
1. Order 39 Rule 1 of the High Court (Civil Procedure) Rules of Rivers State, 2010 provides that every Application shall be by way of Motion.
2.There was no formal Application to visit the locus in quo filed before the Honorable Court by any of the parties.
3. There was no survey plan(s) tendered by the parties showing the identity of the land.
4. The Court had heard only the evidence of the Claimants who has closed their case with the Defendant yet to lead evidence.
5. The visit to the locus ought to be tied to a certain area of land, clearly defined, which was not so in this case.
6. The Respondents in their pleadings and evidence stated that their land area is not known in the vast area of land area is not known in the vast area of land following the absence of their survey pillars yet to be re-established.
GROUND 2:
The Learned Judge erred in law to insist upon a visit to the locus without hearing and determining a pending Motion for mandatory injunction filed by the Respondents and this caused a miscarriage of justice to the Appellants.
PARTICULARS OF ERROR:
1.The Respondent filed a Motion for mandatory injunction on 22/7/2015.
2.The Appellant herein filed a Counter-Affidavit to the said Motion on the 31st day of July 2015 and issues were joined.
3.The Motion for mandatory injunction was ripe for hearing.
4.The Learned Judge glosses over the Motion and same was not heard prior to the visit to the locus.
5.The Learned Judge’s attention was drawn to the pendency of the Motion for mandatory injunction, albeit, he insisted upon visiting the locus before hearing and determining the said Motion on Notice on which issues had been joined.
6.The Learned Judge was duty bound to hear and determine the Motion for mandatory injunction one way or the other before any visit to locus especially following objection to such visit by Appellant.
7.The case was not a Criminal trial or in a Court of summary jurisdiction.
8.The unilateral visit to the locus by the Learned Judge with only the Respondents before hearing and determining the Motion was prejudicial to the Appellant.
9.By that visit, the Learned Judge had prejudged the outcome of the Motion on Notice.
10.By reason of all the foregoing; the proper hearing of Appellant?s case was sacrificed on the altar of irregular procedure contrary to the Rules of the High Court and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
11.Further Grounds shall be filled upon receipt of the full Records of Appeal. See page 206 of Record.
From these Grounds the following issues were formulated for determination in the brief settled by C.S. Maduba Esq., of Counsel to the Appellant and filed on the 28th of October, 2015:
1. Whether the Learned Judge was right in refusing/declining to hear and determine the issue of jurisdiction and competence of the suit raised by the Appellant? (GROUND 1 & 3).
2. Whether the Learned Judge was correct in denying the Appellant the fundamental right to a just, fair and dispassionate presentation of a defense on law.
In response the following issues were formulated for determination in the brief settled by F.A. Iyagba Esq., of Counsel to the Respondents on the 31st of March, 2017 but deemed properly filed on the 10th of May, 2018:
1.In the light of the fact of the case, can this honorable Court rightly hold that the Applicant was denied right to fair hearing. See page 232-233 of the Additional Record of Appeal.
2.Is there any Appeal before this Honorable Court worthy of any consideration.
The Respondents’ Preliminary Objection earlier filed was withdrawn.
The issues formulated by Learned Counsel for the Appellant suffice for the determination of this appeal; the two issues will be taken together.
ISSUES ONE & TWO:
It is submitted for the Appellant that the trial Court was wrong in declining to hear and determine the Motion challenging its jurisdiction, especially as the issue of jurisdiction could be raised at any stage, regardless of the stage of the proceedings; Learned Counsel referred this Court to AJOMALE V YADUAT (1991) 5 SCNJ page 172, MOBIL PRODUCING NIG. UNLTD V LASEPA (2002) 18 NWLR part 798 page 1, UTIH V ONOYIVWE (1991) 1 SCNJ 25 page 49 and THE MINISTER OF WORKS & HOUSING V SHITTU (2007) 16 NWLR part 1060 page 351.
That the proper thing to do after issues were joined is to hear and determine the challenge to the jurisdiction of the Court; and the failure of the trial Court to hear and determine the objection raised clearly occasioned a miscarriage of justice; Learned Counsel referred to STATE V ONAGORUWA (1992) 2 SCNJ part 1 page 1 and ELABANJO V DAWODU (2006) 15 NWLR part 1001 page 76.
That it is within the Appellant’s right to put up a defense, whether of law or facts or both; and that it is in furtherance of that right that the Appellant raised the issue of statute bar in the way and manner he did during trial; and also that it is not mandatory for all the processes to be in Court before a defense of statute bar can be raised by a party who has reason to believe the suit ought not to be heard on account of it being statute barred; Learned Counsel referred this Court to NDIC V CBN (2002) 7 NWLR part 766 page 272; and further argued that the defense when raised ought to be determined, especially as a refusal or neglect to do so amounts to a denial of the Appellant’s right to fair hearing; he referred this Court to BOGBAN V DIWHRE (2005) 16 NWLR part 951 page 274.
It is submitted in response that the trial Court did not foreclose the Appellant from moving their Motion on notice but gave reason why the Application could not be heard at that time by the trial Court, as a result the Appellant cannot be said to have been denied his constitutionally guaranteed right to fair hearing.
That all the Appellant set out to do was to cash in on the available Constitutional provisions on his right to appeal to buy time, and nothing more; Learned Counsel urged this Court to dismiss this appeal and remit same to the trial Court for continuation of hearing to conclusion.
RESOLUTION:
The issue of statute bar raised affects the jurisdiction of the High Court to adjudicate over the suit; it is an issue which could be raised before, during or after the filing of pleadings. It is important to understand from the onset that as a matter of fact, it can be raised at any stage of the proceedings; nothing stops either party or even the Court, to suo moto to raise an issue of jurisdiction when or where it becomes necessary; see CBN V AMAO (2007) All FWLR part 351 page 1490.
This is essentially because the issue of jurisdiction of a Court to adjudicate over a matter brought before it is as intrinsic as it is extrinsic to any judicial proceeding. The lack of jurisdiction renders any proceeding null, void and of no legal effect whatsoever, ab initio. It is for this reason that it is proper to emphasize that any proceeding conducted without jurisdiction is sheer waste of valuable time, regardless of how well it is conducted; see MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; IKE V. NZEKWE (1975) 2 S.C 1.
That being so, it is never too early or too late in the course of proceedings for a genuine issue of jurisdiction to be raised; of course it is preferable to raise it early, but there is no wrong way of raising it, as it can in fact be raised even orally, in appropriate cases and circumstances; that is how vital and important the issue of jurisdiction is; See EJIOFODOMI V. OKONKWO (1982) 11 SC 74; SPDCN LTD V. TIEBO VII (1996) 4 NWLR (445) 657; STATE V. ONAGORUWA (1992) 2 SCNJ 1; NBN V. SHOYOYE (1977) 5 SC 181; OLOBA V. AKEREJA (1988) 3 NWLR (84) 508; OBIEKWE V. OBI (2005) 10 NWLR (932) 60; MIL. GOV. ONDO STATE V. KOLAWOLE (2008) 9 MJSC, 203 and AJAO V. JOS METRO DEV. BOARD (2006) ALL FWLR (302) 19.
The Appellant in this case filed a Motion challenging the jurisdiction of the trial Court by reason of being statute barred, see pages 143 to 156 of the Record of Appeal. The challenge was based on Paragraphs 8 and 18 of the Amended Statement of Claim among other things see pages 7 and 9 of the Record of Appeal.
From the pleadings and evidence before the trial Court the matter was instituted 12 years after the accrual of the right of action, because it arose in 2001, when the suit was instituted in 2013, in total contravention of Section 1 of the Limitation Law of Rivers State Edict 1988 No.71 Chapter 80, which provides that:
‘no action shall be brought by any person to recover any land after the expiration of ten years from the date of which the right of action accrued to him or, if it first accrued to same person through whom he claims, to that person.?
It is clear from the Record, see page 157 to 158, that the Respondents filed a Counter Affidavit in response to the Motion challenging the jurisdiction of the trial Court; now that being so, one would have expected the trial Court to hear and determine the challenge to its jurisdiction, especially as issues were joined; yet the trial Court charged on with a single minded determination to hear the suit to its logical conclusion regardless.
The contention of Learned Counsel for the Respondent that the trial Court did not foreclose the Appellant from moving the Application, is untenable to say the least; because it did indeed foreclose the hearing of the Motion when it held: the Motion by the defendants challenging the jurisdiction of the Court is not grounded on the writ or Statement of Claim. I hold the view that at this stage I cannot proceed to resolving the evidence
The proper thing to do in the circumstances would have been to hear and determine the Application challenging the jurisdiction of the trial Court, not to ignore it; seeISPAT STEEL NIG. LTD V SAM GRACE & CO LTD & ORS (2017) LPELR-41874-CA, STATE V ONAGORUWA supra and BOGBAN V DIWHRE supra.
I agree with the submission of Learned Counsel to Appellants that the trial Court effectively denied the Appellant the right to a defense, because as a general principle of law, where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, on the basis of law or fact or both, he ought to be granted leave to defend, that is the very essence of our adversarial system of justice; right to a defense is at its very heart, and a denial in any form is akin to thrusting a dagger at that heart; see ADEBISI MACGREGOR ASSOCIATES LTD. V. NIGERIAN MERCHANT BANK (1996) 2 NWLR part 431 page 378 and UNIVERSITY OF NIGERIA V. ORAZULIKE TRADING CO. LTD. (1989) 5 NWLR part 119 page 19.
The challenge to the jurisdiction of the trial Court was actually raised on the basis of Paragraphs 8 and 18 of the amended statement of claim, laying the foundation for the Appellant to raise the issue of statute bar as a defense. The defence of an action being statute-barred can be raised at any time because it affects or involves the competence of the Court to adjudicate i.e. its jurisdiction to entertain the action; so long as the parties would have the opportunity to be heard on same, just as it was in this case; See AREMO II V. ADEKANYE (2004) ALL FWLR (PT. 224) 2113, (2004) 7 SC (PT. II) 28; N.P.A. PLC V. LOTUS PLASTICS (2005) 12 SC (PT. II) 19, (2006) ALL FWLR (PT. 297) 1023.
‘In the circumstances therefore, the trial Court was wrong in its failure to hear and determine the issue of jurisdiction raised in an Application, thus occasioning a miscarriage of justice; and it was equally wrong to denying the Appellants the fundamental right to a fair and dispassionate presentation of their defense; accordingly both issues one and two are resolved in favour of the Appellant, against the Respondents.
Having resolved both issues for determination in favour of the Appellant, against the Respondent, the appeal succeeds per force. It is accordingly allowed.
Consequently, it is ordered that the substantive suit be assigned by the Honorable Chief Judge of Rivers State to another Judge other than honorable Justice I. P. C. Igwe to hear.
No order as to cost.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, MOHAMMED MUSTAPHA JCA gave me the oppourtunity of reading the lead judgment before it was delivered. I agree with the reasoning of my learned brother and the conclusion that the appeal succeeds. I allow the appeal and abide by the consequential order.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Mohammed Mustapha, JCA. I am in complete agreement with the reasonings and conclusions reached therein. I too allow the appeal and abide by all consequential orders therein.
Appearances:
C.S. Maduba, Esq. with him, C.I. Nuume, Esq. and C.P. Ezugw, Esq. For Appellant(s)
F.A. Iyagba with him, A.C. Nkire and D.L. DokuboFor Respondent(s)
