AITEO EASTERN E & P CO. LTD v. TIMIFAST INTEGRATED SERVICES LTD
(2022)LCN/16125(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Tuesday, January 18, 2022
CA/PH/143/2020
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
AITEO EASTERN E & P COMPANY LIMITED APPELANT(S)
And
TIMIFAST INTEGRATED SERVICES LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT THE ISSUE OF JURISDICTION MUST BE DETERMINED AS SOON AS IT IS RAISED
The issue of jurisdiction is thus a question of law, which must be determined as soon as it is raised. See GOLDMARK (NIG) LTD & ORS Vs. IBAFON CO LTD & ORS (2012) LPELR–9349(SC).
Whenever the subject matter of the claim is within the jurisdiction of the Court and the Court is properly constituted in its composition and qualification of its members and there is no extrinsic factor affecting its jurisdiction, the Court is competent to exercise jurisdiction. See MADUKOLU Vs. NKEMDILIM (1962) 1 ALL NLR. (Pt. 4) 587, (1962) 2 SCNLR 341. PER KOLAWOLE, J.C.A.
WHETHER OR NOT PRELIMINARY OBJECTION MUST BE SUPPORTED BY AN AFFIDAVIT DEPOSITION
Let me also remark by way of obiter dictum, that by the decision of the Supreme Court in A.N.P.P & ORS V. A. G. OF THE FEDERATION & ANOR. (2003) 18 NWLR (Part 851) S. C. 182 at 207 per Niki Tobi, JSC (Rtd) of blessed memory, it is not part of our adjectival principles of law, that a Preliminary Objection can or should be supported by an affidavit deposition. The rationale for this principle is based on the proposition, that a Preliminary Objection implies an objection that is based on pure issues of law, and must be sustained and argued on the basis of the facts pleaded by the Plaintiff which in law, the Defendant/Objector is deemed to have admitted but who nevertheless, maintained that the Plaintiff’s suit is incompetent based on issues of law. An objector cannot rely on his own facts as may be contained in his Statement of Defence or deposition on oath to argue the objection which is assumed to be founded on issues of law, and has impliedly admitted the facts as presented by the Plaintiff or Claimant. So, it was erroneous on the part of the Appellant to seek to rely on the fact that the Respondent did not file a Counter Affidavit to its Preliminary Objection as a valid ground to sustain its Preliminary Objection because, in the first place, it was not required by our adjectival rules of procedure to file an affidavit in support of a Preliminary objection in which the Objector was deemed to have admitted the facts as presented by the Respondent as the Plaintiff. Secondly, it is not the principle of law, that objection as to jurisdiction is an issue which the Court can entertain and determine outside the facts as presented by the Plaintiff. See the Supreme Court’s decision in ADEYEMI V OPEYORI (1976) 9–10 S.C. 31 at 51. PER KOLAWOLE, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Bayelsa State, Yenagoa Judicial Division, presided over by Honourable Justice D. E. Adokemein in Suit No. YHC/28/2018 delivered on 24th February, 2020. The Respondent as Claimant at the lower Court commenced an action against the Appellant as Defendant vide an amended writ of summons seeking the following reliefs:
1. An Order of the Court directing the Defendant to pay the Claimant the outstanding payment for 13 months from December 2016 to December 2017 amounting to N19,628,700.00 (Nineteen Million, Six Hundred and Twenty-Eight Thousand, Seven Hundred Naira only).
2. An Order of Court directing the Defendant to pay the Claimant the sum of N38,070,000.00 (Thirty-Eight Million, Seventy Thousand Naira only) for feeding of 47 workers engaged by the Claimant in executing the contract of surveillance and protection of wellheads belonging to the Defendant.
3. An Order of Court directing the Defendant to pay the Claimant the sum of N3,00,000.00 (Three Million Naira only) for erection of ten (10) security houses used in executing the contact of surveillance and protection of wellheads belonging to the Defendant.
4. An Order of Court directing the Defendant to pay the Claimant the sum of N200,000.00 (Two Hundred Thousand Naira) only being the amount spent by the Claimant in effecting the arrest of Jeremiah the culprit behind the vandalization of wellhead 48.
5. N10,000,000.00 (Ten Million Naira) for general damages for breach of contract, trauma and inconvenience suffered by the Claimant.”
Upon being served with the originating processes, the Appellant herein entered appearance and filed an application challenging the jurisdiction of the lower Court to entertain the Respondent’s claim. In a considered ruling contained at pages 266 to 270 of the Record of Appeal, the lower Court dismissed the said application, holding that it has the requisite jurisdiction to entertain the suit. Dissatisfied with the ruling, the Appellant initiated the present appeal vide a notice of appeal dated 26th February, 2020 found at pages 271 to 272 of the Record of Appeal.
In the undated Appellant’s brief of argument filed on September 24th, 2020, and settled by Emeka Ozoani, SAN and J. I. Nwatu, Esq., a sole issue was formulated thus:
“Whether having regard to the claim and the applicable law the trial Court was right to have assumed jurisdiction to entertain the suit?
On the other hand, Smart O. Njoku, Esq., settled the Respondent’s brief of argument filed on 6th November, 2020, but deemed properly filed on 30th June, 2021. The Respondent formulated a sole issue for the determination of this appeal:
Whether the trial Court was right in overruling the preliminary objection of the Appellant?
Since the present appeal is essentially a complaint by the Appellant against the decision of the trial Court overruling its preliminary objection, I am of the view that the sole issue formulated by the Respondent is apt, since it accommodates the Appellant’s complaint. Therefore, this issue shall be adopted in the resolution of this appeal.
Arguing the sole issue formulated, the Appellant’s Counsel submitted that the trial Court was wrong to have assumed jurisdiction over the present suit. Counsel noted that the Respondent’s claim was for services which it allegedly performed for the Appellant for the months of December 2014 to December 2017. Counsel submitted that in the affidavit filed in support of the motion challenging the jurisdiction of the lower Court, the Appellant denied that the Respondent provided services to it in the period in question and that there was no existing contract between the parties within the relevant period. Counsel submitted that the Respondent failed to file a counter affidavit to controvert the facts deposed to by the Appellant, and is therefore deemed to have admitted the said facts, relying on the cases of TAYASA DREDGING & CONSTRUCTION Vs. KARLANDER NIG. [2000] 13 NWLR (Pt. 684) 627; OTTO Vs. MABAMIJE [2004] 17 NWLR (Pt. 903) 489 at 506, paras C–F. The Appellant’s counsel further submitted that the learned trial Judge erred when it failed to evaluate the Appellant’s affidavit evidence before it and erroneously relied on paragraph 4 of the Respondent’s statement of claim to hold that the Respondent’s claim stems from a purported oral contract allegedly backed up by consideration given by the Appellant. Counsel contended that contrary to the finding made by the trial Judge, the fact deposed in the affidavit in support of the motion disclosed that only an oral on-the-need basis contract existed between the parties and that the said contract was terminated on 15th December, 2016 and payment made for services rendered. Relying on the decision in the case of ODUA INVESTMENT CO. LIMITED Vs. TALABI (1997) LPELR–2232 (SC), Counsel argued that the Claimant’s suit cannot be allowed to stand since its foundation is anchored on a non-existing contract.
In response, it is contended on behalf of the Respondent that it is only upon a careful examination of the parties’ pleadings, that a Court can ascertain its jurisdiction, citing TSKJ (NIG.) LIMITED Vs. OTOCHEM (NIG.) LIMITED [2018] 11 NWLR (Pt. 331) 341, paras C–D; paras D–E. Counsel argued that the Appellant is erroneously inviting the Court to determine its jurisdiction based on its defence and not on the claim of the Claimant. He noted that the lower Court has jurisdiction to entertain the suit since the Respondent has a cause of action which can only be determined at trial.
On failure to file counter affidavit, Counsel contended that the presumption that facts are deemed admitted where a party fails to file a counter affidavit does not hold in all situations. He argued that where averments contained in the affidavit in support of an application are contradictory or not enough to sustain the Applicant’s prayers, filing a counter affidavit will be unnecessary. He argued that every case must be treated according to its given set of facts and circumstances, citing the decisions in EFEFOR Vs. OKEKE [2000] 7 NWLR (Pt. 665) 363; LAWRENCE Vs. A.G., FEDERATION [2008] FWLR (Pt. 426) 1901 at 1925–1926, paras H–B; ORUNLOLA Vs. ADEBOYE [1995] 6 NWLR (Pt. 401) 338; EKEANEN Vs. EBONG [2008] ALL FWLR (Pt. 425) 1780. Counsel further submitted that the facts deposed in the affidavit in support of the notice of preliminary objection and the Appellant’s witness statement on oath, cannot sustain the preliminary objection. He submitted that the averments are hearsay and contradictory. For example, the averment that the Respondent’s workers were chased out of the site on 27th July, 2017 contradicts the averment that the Respondent’s oral contract was terminated on the 15th December, 2016. Section 126 of the Evidence Act, 2011 and the cases of MISS FELICIA OSAGIEDE OJO Vs. DR. OJO GHARORO & ORS. (2006) 5 MJSC 28 at 43, paras B–C and a host of other authorities were relied upon. Counsel finally argued that the issue of whether the contract was terminated in December 2016 can only be determined after a full trial.
RESOLUTION
The crux of the Appellant’s complaint in this appeal is that the learned trial Judge erred when it assumed jurisdiction to entertain the Respondent’s claim founded on a non-existent contract – since the oral contract between the parties had been terminated since December 15th, 2016, whereas the claims relate to services rendered between December 2016 and December 2017. The Appellant contended that the learned trial Judge failed to consider the unchallenged affidavit evidence before it, in reaching its decision.
It is elementary law that the jurisdiction of the Court is determined by the pleadings filed by the plaintiff and the claim he seeks.
The issue of jurisdiction is thus a question of law, which must be determined as soon as it is raised. See GOLDMARK (NIG) LTD & ORS Vs. IBAFON CO LTD & ORS (2012) LPELR–9349(SC).
Whenever the subject matter of the claim is within the jurisdiction of the Court and the Court is properly constituted in its composition and qualification of its members and there is no extrinsic factor affecting its jurisdiction, the Court is competent to exercise jurisdiction. See MADUKOLU Vs. NKEMDILIM (1962) 1 ALL NLR. (Pt. 4) 587, (1962) 2 SCNLR 341.
In the instant case, the learned trial Judge after examining the grounds of the Appellant’s objection, and arguments canvassed by parties, held at pages 269 to 270 of the Record of Appeal as follows:
“Going through the statement of claim, the claims of the Claimant/Respondent is from a purported oral contract, which was allegedly backed up by consideration by the Defendant/Objector, bank statements etc supporting this assertion were attached to the Writ of Summons and Statement of Claim.
If there is a disagreement as to the extent and duration of the said contract, it is question of facts and evidence that will be tested in the course of trial and not at preliminary stage…
So long as the Statement of Claim discloses some cause of action or raises some question fit to be decided by a Judge as in this case, the mere fact that the case is weak and not likely to succeed, is no ground for striking it out.
In the instant case, the pleadings of the Claimant shows a cause of action, whether it will succeed or not will be determined at the end of the trial, he is therefore entitled to have his day in Court to prove his case, the preliminary objection is therefore overruled.”
The Appellant’s Counsel’s stance is that, due to the failure of the Respondent to file a counter affidavit in response to the Appellant’s affidavit, the learned trial Judge ought to have accepted the unchallenged averments contained in the Appellant’s affidavit to reach the conclusion that the Respondent’s claim was founded on a non-existent contract. Therefore, the lower Court cannot assume jurisdiction.
I cannot subscribe to the baseless proposition put forward by the Appellant’s Counsel. In the first place, as noted earlier, the Court is bound to consider the claim of the Plaintiff before it, before deciding the question of jurisdiction. It is by the pleadings contained in the claim and the reliefs sought that the Court can determine if by statute, it is endowed with the competence to adjudicate the dispute before it. It is noteworthy that the learned trial Judge considered the settled position of the law on jurisdiction and averments contained in the Respondent’s statement of claim, before reaching the conclusion that the lower Court is seised of the suit before it. It is certainly not the Appellant’s contention that the claim as constituted does not fall within the jurisdiction of the High Court as provided under Section 272 of the Constitution of the Federal Republic of Nigeria, 1999, because such contention will be undoubtedly unfounded. See the Supreme Court’s often cited decision in ADEYEMI V. OPEYORI (1976) 9-10 S. C. 31 at 51.
In addition, in view of the averments contained in paragraph 4 of the Respondent’s statement of claim to the effect that the parties entered into a contract in June, 2016, any question as to whether the contract was terminated is a matter that must be reserved for substantive trial and cannot be determined at the preliminary stage of the proceedings. As the learned trial Judge rightly noted, in so far as the Respondent’s claim discloses a reasonable cause of action, it is bound to consider the claim on the merit; the question as to the strength or weakness of the case is immaterial. See the case of WESTERN STEEL WORKS LTD & ANOR Vs. IRON AND STEEL WORKERS UNION OF NIG. & ANOR (1987) LPELR-3480(SC), where the Apex Court, per KARIBI-WHYTE, JSC held that the jurisdiction of the Court cannot be determined by the effect of a successful claim.
I am unable to either directly or remotely see how the ground of objection on the fact that the Respondent’s claim is founded on a non-existent contract can result in the lower Court declining jurisdiction to entertain the claim at the preliminary stage of the proceedings. It is best for all parties in this appeal, particularly the Appellant, to submit themselves to the jurisdiction of the lower Court since there is no feature in the case to warrant the lower Court to decline jurisdiction. This is a view I have expressed based on the proposition as held by the apex Court in BARCLAYS BANK LTD V. C.B.N. (1976) All NLR (Reprinted Ed) 326 at 335 that the jurisdiction of every superior Court of Record is presumed to exist until the contrary is proved.
Let me also remark by way of obiter dictum, that by the decision of the Supreme Court in A.N.P.P & ORS V. A. G. OF THE FEDERATION & ANOR. (2003) 18 NWLR (Part 851) S. C. 182 at 207 per Niki Tobi, JSC (Rtd) of blessed memory, it is not part of our adjectival principles of law, that a Preliminary Objection can or should be supported by an affidavit deposition. The rationale for this principle is based on the proposition, that a Preliminary Objection implies an objection that is based on pure issues of law, and must be sustained and argued on the basis of the facts pleaded by the Plaintiff which in law, the Defendant/Objector is deemed to have admitted but who nevertheless, maintained that the Plaintiff’s suit is incompetent based on issues of law. An objector cannot rely on his own facts as may be contained in his Statement of Defence or deposition on oath to argue the objection which is assumed to be founded on issues of law, and has impliedly admitted the facts as presented by the Plaintiff or Claimant. So, it was erroneous on the part of the Appellant to seek to rely on the fact that the Respondent did not file a Counter Affidavit to its Preliminary Objection as a valid ground to sustain its Preliminary Objection because, in the first place, it was not required by our adjectival rules of procedure to file an affidavit in support of a Preliminary objection in which the Objector was deemed to have admitted the facts as presented by the Respondent as the Plaintiff. Secondly, it is not the principle of law, that objection as to jurisdiction is an issue which the Court can entertain and determine outside the facts as presented by the Plaintiff. See the Supreme Court’s decision in ADEYEMI V OPEYORI (1976) 9–10 S.C. 31 at 51.
Before drawing the curtain, I must observe that the preliminary objection filed at the lower Court by the Appellant and the present interlocutory appeal are undoubtedly unnecessary and a waste of precious judicial time and perhaps, client’s resources. The attitude of pursuing interlocutory appeals have been deprecated by the Supreme Court and this Court on several occasions. It is always better to go into and treat the substance of a case rather than waste time and scarce resources on unnecessary objection. See AMADI V. NNPC (2000) 10 NWLR (Part 674) 76. The notice of preliminary objection filed by the Appellant leading to the instant appeal is without much ado, completely baseless. Counsel must understand that the principle of law that a Court is under a duty to hear and determine every application properly brought before it, is not a judicial proposition meant to confer unbridled licence on Counsel or Litigants to file spurious, frivolous and vexatious applications that achieve no other goal than to waste the scarce judicial time of the Court. As noted above, the time utilized by the lower Court and even this Court on hearing the preliminary objection and the present appeal could have been better utilized to deal with more serious matters including hearing the substantive case on its merit. I must say that the filing of unnecessary applications as in the instant case, where the grounds of objection can at best form the Appellant’s defence, is nothing other than a sign of desperation, perhaps bad and unedifying advocacy which does not help the cause of a party in any manner. As a matter of fact, it does not advance the course of justice at all. As my learned brother, ABIRU, JCA aptly said in the case of FIDELITY BANK Vs. GUMAU & ANOR (2019) LPELR–47068 (CA), this attitude “gives the Court the impression, very early on, that the Counsel does not know what he is doing and it might compromise the perspective of the Court of an otherwise meritorious and good response to the substantive appeal.”
The sole issue in this appeal is resolved in the Respondent’s favour. In the circumstance, the decision of the lower Court overruling the Appellant’s objection contained in the ruling delivered on 24th February, 2020 is hereby affirmed. Costs of N250,000.00 (Two Hundred & Fifty Thousand Naira) is awarded against the Appellant in favour of the Respondent. The suit in the lower Court shall resume, and be expeditiously heard and disposed of. Appeal is dismissed.
TANI YUSUF HASSAN, J.C.A.: I read in draft, the lead judgment of my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA. I also dismiss the appeal for lacking in merit and abide by the orders made.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have had the privilege of reading the draft judgment just delivered by my learned brother, the HON. JUSTICE GABRIEL OMONIYI KOLAWOLE, JCA. Where he declared this appeal to be unmeritorious and so dismiss it.
I also dismiss this appeal and abide by all consequential orders.
Appearances:
Mrs. C. A. Chimezie, holding brief for J. I. Nwatu, Esq, For Appellant(s)
Mr. Timifast (MD), with him, K. C. Eze, Esq, who holds brief of S. O. Njoku, Esq, For Respondent(s)