BENJAMIN & ORS v. NZUBE INDUSTRIES LTD & ORS (2020)

BENJAMIN & ORS v. NZUBE INDUSTRIES LTD & ORS

(2020)LCN/14886(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, December 30, 2020

CA/A/1018/2019

RATIO

JURISDICTION: EFFECT OF ANY PROCEEDING OF THE COURT DONE BEREFT OF JURISDICTION

Since judgment or ruling delivered, or any proceedings filed or conducted without jurisdiction is a nullity, the Court should have disposed of the issues challenging the competence of the suit before taking any step in the matter. The Court should have first expressed its views on jurisdiction before considering the merit. In the instant case no views were expressed by the trial Court on the jurisdictional issues raised. This cannot stand. See BOGBAN VS. DIWHRE (2005) 16 NWLR (PT. 951) 274; SENATE PRESIDENT VS. NZERIBE (2004) 9 NWLR (PT. 878) 251; DAPIANLONG VS. DARIYE (2007) 8 NWLR (PT. 1036) 332; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427; NIWA VS. STB PLC (2008) 2 NWLR (PT. 1072) 483. PER BABA IDRIS, J.C.A.
JURISDICTION: FUNDAMENTAL NATURE OF THE ISSUE OF JURISDICTION

It must be understood that the issue of jurisdiction being a fundamental issue, can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record suggesting or establishing want of competence or jurisdiction in the Court, it is even the duty of the judge or justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it. It is never too late to raise the issue of jurisdiction. See STATE VS. ONAGORUWA (1992) 2 SCNJ (PT. 1) 1; IWUAGOLU VS. AZYKA (2007) 5 NWLR (PT. 1028) 613; UBWA VS. BASHI (2008) 4 NWLR (PT. 1077) 303; OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508; P. E. LTD VS. LEVENTIS TRAD. CO. LTD (1992) 5 NWLR (PT. 244) 675.
Let me just add at this juncture that a challenge to a Court’s jurisdiction is pivotally fundamental and can pass sui generis in terms of the procedure adopted to raise it. No Court should treat the issue of jurisdiction with levity. See GALADIMA VS. TAMBAI (2000) 11 NWLR (PT. 677) 1; KURKA VS. SAUWA (2019) 3 NWLR (PT. 1659) 247. PER BABA IDRIS, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. MR. MAGAJI ASUWULIYA BENJAMIN 2. MRS. FAJI ALH ALI 3. MR. MOMOH OKPANACHI 4. MRS. OLUWATOYIN ADEOYE 5. MRS. OBI VICTOR IGWENNA 6. MRS. OLALEYE FLORENCE FOLAKE 7. MRS. AKINTOLA TUDUN SALEWA 8. MRS. AWAN ISSA SIMON 9. OLUBUNMI BAMIDELE 10. OKOH KINGSLEY CHUKS 11. IBIDUNNI ADENIYI 12. MR. AND MRS. ORESANYA THERESA OLUSANYA 13. OGUEJIOFOR UGONWA CHIBUGO 14. ODUA WENCESLAS OKWUDILI 15. MRS. OKON NSE VICTOR 16. MR. BABALOLA OLUFEMI NURUDEEN 17. MRS. OYEWALE ABIDEMI ADETOUN APPELANT(S)

And

1. NZUBE INDUSTRIES LIMITED 2. SARAHA HOMES LIMITED 3. ALHAJI HARUNA KABIRU 4. THE MINISTER, FEDERAL CAPITAL TERRITORY 5. THE FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The instant appeal was filed by the Appellants against the judgment of Honourable Justice O. A Musa of the High Court of the Federal Capital Territory, Abuja delivered on the 30th day of September, 2019.

The said judgment which can be found at pages 1122 – 1145 of the Record of Appeal (Volume II) was in favour of the 1st Respondent as follows:
1. The Plaintiff is the lawful holder of leasehold interest and grantee of Plot Number 6, Cadastral Zone C09, Lokogoma District, Abuja measuring approximately 200,000 square meters vide an allocation Letter of Accelerated Development programme within the Federal Capital Territory dated 28th July, 2005 pursuant to which a Development Lease Agreement for Mass Housing Development Scheme dated 15th September, 2005 was made between the Federal Capital Development Authority and the 1st Respondent.
2. The 1st and 2nd Defendants have no power under Federal Capital Development Authority Act and/or under the Developer/Financer Agreement dated the 10th day of June, 2008 between the Plaintiff and the 1st and 2nd Defendants without the consent of

the Plaintiff to allocate land, sell or lease, or sublease or put a third party including 3rd to 21st Defendants and people they represent or any other person claiming or deriving title from the 1st and 2nd Defendants other than the Plaintiff in possession of the Plaintiff’s leasehold interest in Plot No. 6, Cadastral Zone C09, Lokogoma District, Abuja measuring approximately 200,000 square metres known as Nzube Estate.
3. That any allocation of land, sale, lease, sublease to a third party including 3rd – 21st defendants and people they represent or any other person claiming or deriving title from the 1st and 2nd Defendants other than the Plaintiff in contravention of Federal Capital Development Authority Act and the Developer/Financier Agreement dated 10th June, 2008 between the Plaintiff and 1st and 2nd Defendants without the consent of the Plaintiff is null and void and confers no interest in the third parties including 3rd to 19th Defendants and people they represent or any other person claiming or deriving title from 1st and 2nd Defendants other than from the Plaintiff.
4. Order is hereby granted to the plaintiff to eject the 3rd to

19th Defendants and people they represent, their privies, agents, servants, or any other person claiming through them or any person claiming or deriving title from 1st and 2nd Defendants other than from the Plaintiff from Plot Number 6, Cadastral Zone C09, Lokogoma District, Abuja measuring approximately 200,000 square metres or from any portion thereof leasehold interest of which belongs to the plaintiff forthwith and vesting immediate right of possession and enjoyment of the leasehold interest in the Plaintiff forthwith according to the terms of the Development Lease Agreement for Mass Housing Development Scheme dated 15th September, 2005 made between the Plaintiff and Federal Capital Development Authority.
5. An order of perpetual injunction is hereby made restraining the 3rd – 19th Defendants and people they represent, their privies, agents, servants, or any other person claiming or deriving title from 1st and 2nd Defendants other than from the Plaintiff from entering, occupying or in any way obstruct or disturb the Plaintiff’s right of possession or re-entry of the 200,000 square metres or any other portion thereof belonging to the

Plaintiff from the 1st and 2nd Defendants in accordance with the judgment of the Court in Suit No: FCT/HC/CV/499/2009.
6. I shall award to the Plaintiff damages in the sum of N750,000.00 against the Defendants jointly and severally, I so ordered. Having so entered judgment for the Plaintiff, I am inclined to hold and I do hold that the counter-claim of the 3rd – 19th Defendants remain unproved by them. The said counter-claim is liable to be dismissed and I hereby dismiss same.

Being dissatisfied with the judgment, the Appellants proceeded to file the instant appeal vide a Notice of Appeal dated the 2nd day of October, 2019. The Notice of Appeal is at pages 1146 – 1156 of the record of appeal (Volume II).

The parties filed and exchanged their respective briefs of argument. Only the Appellants and the 1st Respondent filed briefs which they adopted at the hearing of the appeal.

The Appellants herein who had filed 13 grounds of appeal formulated 6 (six) issues for determination before this Court. The issues are as follows:-
1. WHETHER THE TRIAL COURT WAS RIGHT WHEN IT FAILED TO DETERMINE ISSUES CHALLENGING ITS JURISDICTION

RAISED BY THE APPELLANTS IN THEIR FINAL WRITTEN ADDRESS BEFORE IT PROCEEDED TO GIVE ITS JUDGMENT?
2. WHETHER THE TRIAL COURT WAS RIGHT IN ITS INTERPRETATION OF EXHIBIT AA3, WHEN IT FAILED TO INTERPRETE THE WHOLE DOCUMENT EMBODYING THE AGREEMENT IN ORDER TO ASCERTAIN THE REAL INTENTION OF THE PARTIES BUT RATHER ISOLATED FEW CLAUSES AND IMPORTED EXTRINSIC EVIDENCE IN ITS INTERPRETATION?
3. WHETHER THE TRIAL COURT WAS RIGHT WHEN IT PLACED RELIANCE ON ORAL EVIDENCE ABOVE UNCHALLENGED AND UNCONTRADICTED DOCUMENTARY EVIDENCE ALREADY ADMITTED IN EVIDENCE BEFORE IT TO ARRIVE AT ITS JUDGMENT?
4. WHETHER THE TRIAL COURT WAS RIGHT TO HAVE ASSUMED THE JURISDICTION IN INTERPRETING EXHIBIT AA4 A CONSENT JUDGMENT OF A COURT OF CORDINATE JURISDICTION AND IN SO DOING CONFERRED ON THE SAID EXHIBIT AA4 RETROSPECTIVE POWERS AND MADE IT BINDING ON PERSONS NOT PARTIES TO IT?
5. WHETHER THE TRIAL COURT WAS RIGHT TO HAVE GIVEN ITS JUDGMENT AGAINST THE 10TH TO 17TH APPELLANTS WHERE AN UNCONTRADICTED AND UNCHALLENGED EVIDENCE AND ADMISSION EXIST BEFORE THE COURT THAT THEY PAID SOME MONEY TO THE 1ST RESPONDENT DIRECTLY AFTER EXHIBIT AA4 WAS OBTAINED AND COUPLED THAT

THE 1ST RESPONDENT IN THE COURSE OF TRIAL HAD MAINTAINED THAT HE DID NOT SUE THE 10TH TO 17TH APPELLANTS.
6. WHETHER THE TRIAL COURT WAS RIGHT IN ARRIVING AT ITS JUDGMENT IN VIEW OF THE EVIDENCE BEFORE IT?

On the first issue, it was argued that the trial Court was wrong when it neglected and failed to determine issues challenging its jurisdiction raised by the Appellants in their final written addresses before handing down its judgment.

On the second issue, learned counsel for the Appellants argued that the trial Court was wrong to have failed to read the whole of Exhibit AA3 in order to understand the intentions of the parties before it. Learned counsel submitted that the trial Court again merely isolated few clauses from Exhibit AA3 for interpretation whereas the whole of Exhibit AA3 spoke for itself and a composite and compound reading of it would reveal the real intention of the parties to it. It was argued that all the responsibilities of a land owner by Exhibit AA3 had been given to the 2nd Respondent and the trial Court was wrong when it came to its judgment when it isolated only relevant portions of Exhibit AA3 but failed to read the

whole of the said exhibit.

On the third issue, learned counsel for the Appellants argued that the trial Court was wrong to have placed reliance on oral evidence above unchallenged and uncontradicted documentary evidence.

On issue four, it was argued that the trial Court was wrong when it assumed the jurisdiction of interpreting Exhibit AA4 being the consent judgment of another High Court being a Court of coordinate jurisdiction, and that the trial Court was wrong when it interpreted Exhibit AA4 to be an order against the Appellants when they were not parties to the said exhibit.

On issue five, learned counsel for the Appellants argued that the trial Court was wrong to have given its judgment against the 10th–17th Appellants, when the 1st Respondent maintained all through the trial that he had no cause of action against the said Appellants.

On the sixth issue, learned counsel for the Appellants argued that the judgment of the trial Court was against the weight of evidence. That the trial Court failed to avert its mind and evaluate documentary evidence before it which showed that the 1st Respondent ratified the action of the 2nd

Respondent, and that the trial Court did not pay attention to the dates and contents of the documents tendered before it to ascertain what they were for and when they were made.

The Court was urged to resolve all the six issues in favour of the Appellants and allow the appeal. The following authorities were relied on:-
A. CASES
1. AJAOKUTA STEEL CO. LTD V. G. I. & S. LTD (2019) 8 NWLR (PT. 1674) PG. 214 PP 223
2. OKIKE V. LPDC (N0. 2) (2005) 15 NWLR (PT. 949) 471
3. ADESOLA V. ABIDOYE (1999) 14 NWLR (PT. 637) 28
4. MADUKOLU V. NKEMDILIM (1962) SCNLR 341
5. KURMA V. SAUWA (2019) 3 NWLR (PT. 1659) PG. 247 PP. 258 – 259
6. DANIEL V. AMOSUN (2012) 11 WRN 47
7. SHELIM V. GOBANG (2009) 12 NWLR (PT. 1156) 435
8. ELUGBE V. OMOKHAFE (2004) 18 NWLR (PT. 905) 319
9. PETROJESSICA ENT. LTD V. LEVENTIS TECHNICAL CO. LTD (1992) 5 NWLR (PT. 244) 677
10. KATTO V. CBN (1991) 9 NWLR (PT. 214) 126,
11. OLORIODE V. OYEBI (1984) 1 SCNLR 390
12. EZOMO V. OYAKHIRE (1985) 1 NWLR (PT. 2) 195
13. LADO V. CPC (2011) 18 NWLR (PT. 1279) 689
14. NDULUE V. IBEZIM (2002) 12 MJSC PG. 150 PP. 164
15.

ADEGBITE & ORS V. LAWAL & ORS (1948) 12 WACA 398
16. AROWOLO V. ADIMULA (1991) 8 NWLR (PT. 212) 753 AT 767
17. EKETE AKPATA & ANOR VS. CHIEF EKEM OBO & ANOR (1968) SCNLR 103
18. UKAGA & ORS V. UKACHI (1961) 1 ALL NLR 36
19. BABALOLA V. ALAWOROKO (2001) 3 MJSC 17, PP. 29
20. HON. MARTIN OKONTA V. KINGSLEY NONYE PHILIPS & ORS (2010) 12 MJSC 93
21. NATIONAL DEMOCRATIC PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2012) 12 MJSC (PT. III)
22. CHIEF ABUSI DAVID GREEN V. DR. E. T. DUBLIN GREEN (1987) NWLR (PT. 60) 480
23. UKU V. OKUMAGBA (1974) 1 ALL NLR 475
24. UBN LTD V. NWAOKOLO (1995) 6 NWLR (PT. 400) PG. 127 AT 154, IGUH JSC
25. ANOD & ANOR V. KESSRAWANI (1956) 1 FSC 35
26. NWANGWU V. NZEKWE & ANOR (1957) 3 FSC 36
27. AG KADUNA STATE & ORS V. ATTA & 2 ORS (1986) 4 NWLR (PT. 38) 785

SOLICITOR GENERAL, WESTERN NIGERIA V. ADEBONOJO (1971) 1 ALL NLR 178
29. UNION BANK OF NIGERIA LTD V. OZIGI (1994) 3 NWLR (PT. 333) 385
30. AGBAREH V. MIMRA (2008) 2 MJSC 137 PP 157
31. A. G. FERRERO & CO. LTD V. HENKEL CHEMICAL NIG. LTD (2011) 5 – 7 PT.

1 MJSC 55 PER TABAI JSC AT PAGE 69
32. BAKER MARINE LTD V. CHEVRON LTD (2006) 12 MJSC 179 AT 184
33. OYEWUSI V. OLAGBAMI (2018) 14 NWLR (PT. 1639) 279
34. UGUEDE V. ASADA (2018) 10 NWLR (PT. 1628) 460 SC
35. SHUAIBU V. MUAZU (2014) 8 NWLR (PT. 1406) 207 PG 291
36. COLLEGE OF EDUCATION EKIADOLOR V. OSAYANDE (2010) 6 NWLR (PT. 1191) 433 AT 450
37. CUSTOMARY COURT OF APPEAL EDO STATE V. AGUELE & ORS (2017) LPELR – 44632 (SC) 21 – 23
38. ONAGORUWA V. IGP (1991) 5 NWLR (PT. 193)
39. BABALOLA V. ALAWOROKO (2000) 5 MJSC 17 PP 29
40. HON. MARTIN OKONTA V. KINGSLEY NONYE PHILIPS & ORS (2010) 12 MJSC
41. NATIONAL DEMOCRATIC PARTY V. INEC (2012) MJSC (PT. III)
42. CARDOSO V. DANIEL & ORS (1986) LPELR – 830 (SC)
43. LAWAL V. DAWODU & ANOR (1972) 1 ALL NLR (PT. 2) 270, 282
44. APC V. INEC & ORS (2014) LPELR – 24036 (SC)
45. EGBUE V. ARAKA (1988) 3 NWLR (PT. 84) 598 AT 613
46. ECOBANK (NIG) PLC V. GATEWAY HOTELS LTD (1999) 11 NWLR (PT. 627) 397 AT 418
47. EGBE V. ADEFARASIN (1987) 1 NWLR (PT. 47) 1 AT 20
48. AFOLAYAN V. OGUNRINDE (1990) 1 NWLR

(PT. 127) 369 AT 373
49. SAVAGE V. UWECHIA (1972) 1 ALL NLR (PT. 1) 251 AT 257
50. IBRAHIM V. OSIM (1988) 1 NNSC 1184 AT 1194
51. VULCAN V. GESELLSCHAFT (2001) 4 MJSC PG 153 PP. 167
52. CARLEN NIGERIA LIMITED V. UNIVERSITY OF JOS & ANOR (1994) 1 NWLR (PT. 323)
53. ONYKWELU V. ELF P N (2009) 2 MJSC (PT. 1) PG. 25
B. STATUTES
ELECTORAL ACT 2010 (AS AMENDED)

The 1st Respondent formulated the following 8 (eight) issues in its brief of argument:-
1. Whether the institution of the instant case against the Appellants and others, having the same interest in the subject-matter in dispute, in a Representative Capacity was proper and whether or not the failure of the trial Court to pronounce on the capacity in which the Appellants were sued is fatal or occasion a miscarriage of justice. (Distilled from Ground 1 of the Notice of Appeal)
2. Whether all the acts and actions carried out by the 2nd Respondent outside the terms embedded in Exhibit “AA3” (Developer/Financier Agreement) could bind the 1st Respondent assuming without conceding there was an Agency Relationship between them. (Distilled from Ground 2 of

the Notice of Appeal)
3. Whether the trial Court, in its judgment, used oral evidence to vary the contents of “written exhibits” before the Court. (Distilled from Ground 3 of the Notice of Appeal)
4. Whether, in the light of the Consent Judgment (Exhibit “AA4”) and Developer/Financier Agreement (Exhibit “AA3”), the transactions between the 2nd and 3rd Respondents and the Appellants were valid and proper. (Distilled from Ground 4 of the Notice of Appeal)
5. Whether the trial Court’s reliance on the consent judgment (Exhibit AA4) amounts to interpretation of judgment and purporting to confer retrospective powers on same. (Distilled from Grounds 5 and 12 of the Notice of Appeal)
6. Whether the consent judgment (Exhibit “AA4”), which has not been appealed against, binds the Appellants and the 2nd and 3rd Respondents. (Distilled from Ground 6 of the Notice of Appeal)
7. Whether there is any specific decision of the trial Court holding that the 10th – 17th Appellants had no titles in Nzube Estate and, if there is, whether the 10th – 17th Appellants would not embrace the same

fate with other Appellants having applied to be joined as parties to the suit on their own volition. (Distilled from Grounds 10 and 11 of the Notice of Appeal)
8. Whether the judgment of the trial Court is against the weight of evidence before it. (Distilled from Ground 13 of the Notice of Appeal)

On the first issue, learned counsel for the 1st Respondent argued that this action was validly instituted against the Appellants, and that the Appellants and others sued in representative capacity had the same equal interest in the subject matter in dispute. That the issue of jurisdiction was not properly raised or placed before the trial Court, and that same be struck out.

On the second issue, it was argued that the acts of the 2nd Respondent which were outside the terms embedded in Exhibit AA3 did not bind the 1st Respondent. Whilst on the third issue, it was submitted that the trial Court did not in its judgment use oral evidence to vary the contents of written documents.

On issue four, it was argued that in the light of the consent judgment Exhibit AA4, the purported transactions between the 2nd and 3rd Respondents and the Appellants were

improper and invalid.

On issue five, learned counsel for the 1st Respondent argued that the trial Court did not interpret the consent judgment, Exhibit AA4 but merely made reference to it and relied on same in its judgment. While on issue six, it was argued that the consent judgment, Exhibit AA4 which had not been appealed against binds the Appellants in their capacities as privies and the 2nd and 3rd Respondents.

On issue seven, learned counsel for the 1st Respondent argued and submitted that there was no specific decision of the trial Court holding that the 10th – 17th Appellants had no title to the Nzube Estate, and that assuming there was, the said Appellants ought to embrace the same fate as the other Appellants.

On the last issue, it was submitted that the judgment of the trial Court was not against the weight of evidence adduced at the trial Court, and that the appeal be dismissed. The following authorities were relied on:-
LIST OF AUTHORITIES
1. RE: EJIOFOR APEH & ORS VS. PEOPLES DEMOCRATIC PARTY (PDP) & ORS (2017) 11 NWLR (PT. 1576) PG 252 AT 292 PARAS A – D
2. SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED VS. CHIEF TIGBARA EDAMKUE & ORS (2009) 14 NWLR (PT. 1160) PG. 1

OZURUMBA NSIRIM VS. DR. SAMUEL W. AMADI (2016) 5 NWLR (PT. 1504) PG. 42 AT 60 PARAS E – F; 63 AT 63 PARAS B – C
4. BEN E. CHIDOKA & ANOR VS. FIRST CITY FINANCE COMPANY LIMITED (2013) 5 NWLR (PT. 1346) PG. 144 AT 162 PARAS D – E
5. BARRISTER MAGAJI HENRY DANJUMA VS. S. C. C. NIG. LTD & ORS (2017) 6 NWLR (PT. 1561) PG. 175
6. U. T. C. (NIG) PLC & ORS VS. DANIEL PHILIPS (2012) 6 NWLR (PT. 1295) PG. 136 AT 161 PARAS G – H
7. OKOTIE EBOH VS. MANAGER (2005) 2 MJSC
8. JOSEPH ADEMOLA AKIN-TAYLOR VS. BOJA INVESTMENT & DEVELOPMENT CO. LTD & ORS (2014) 15 NWLR (PT. 1429) PG. 180
9. ACMEL NIGERIA LIMITED & ANOR VS. FIRST BANK OF NIGERIA PLC & ANOR (2014) 6 NWLR (PT. 1402) PG. 158 AT 190, PARAS A – B
10. ALHAJI MU’AZU ALI VS. THE STATE (2012) 7 NWLR (PT. 1299) PG. 209 AT 257 PARAS B – E
11. OLAWUYI RAHEEM TUNJI & ANOR VS. ELDER DAVID BAMIDELE & ORS (2012) 12 NWLR (PT. 1315) PG. 477 AT 492 PARA. C
12. GEORGE ABI VS. CENTRAL BANK OF NIGERIA & ORS (2012) 3

NWLR (PT. 1286) PG. 1 AT 28 PARAS F – H
13. UNITED BANK FOR AFRICA PLC VS. GODM SHOES INDUSTRIES (NIG) PLC (2011) 8 NWLR (PT. 1250) PG. 590 AT 634 – 635 PARAS F – A
14. I. T. F. O. ODUNLAMI (NN/2121) VS. THE NIGERIAN NAVY (2013) 12 NWLR (PT. 1367) PG 20 AT 54 PARAS D – E
15. CAPTAIN SHULGIN OLEKSANDR & ORS VS. LONESTAR DRILLING COMPANY LIMITED & ANOR (2015) 9 NWLR (PT. 1464) PG. 334
16. EJIKE OGUEBEGO & ANOR VS. PEOPLES DEMOCRATIC PARTY & ORS (2016) 4 NWLR (PT. 1503) PG. 446 AT 480 PARAS C – D; 482 PARAS B – D
17. ABDUL HAMID SALIHU & ORS VS. MINISTRY OF EDUCATION GOMBE STATE & ORS (2017) 3 NWLR (PT. 1551) PG. 124
18. DR. USENI UWAH & ANOR VS. DR. EDMUNDSON T. AKPABIO & ANOR (2014) 7 NWLR (PT. 1407) AT 489 PARAS D – E
19. INTERCONTINENTAL BANK LTD VS. BRIFINA LIMITED (2012) 13 NWLR (PT. 1316) PG. 1 AT 23 PARAS D – E
20. ALHAJI MUKATAR AHMED MOHAMMED VS. MOUKTAR MOHAMMED & ANOR (2012) 11 NWLR (PT. 1310) PG. 1 AT 36
21. LAGOS STATE BULK PURCHASE CORPORATION VS. PURIFICATION TECHNIQUES (NIG) LTD (2013) 7 NWLR (PT. 1352) PG. 82<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ECONOMIC AND FINANCIAL CRIMES COMMISSION VS. YANATY PETROCHEMICHAL LIMITED (2017) 3 NWLR (PT. 1552) PG. 171
23. SENATOR ALI MODU SHERIFF & ANOR VS. PEOPLES DEMOCRATIC PARTY & ORS (2017) 14 NWLR (PT. 1585) PG. 212
24. OKWUDU NWAKANOBI VS. BENEDICT UDEORAH & ORS (2013) 7 NWLR (PT. 1354) PG.499 AT 508 – 509 PARAS G – A
25. LAGOS STATE WATER CORPORATION VS. SAKAMORI CONSTRUCTION (NIG.) LTD (2011) 12 NWLR (PT. 1262) PG. 569
26. CONGRESS FOR PROGRESSIVE CHANGE VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS (2011) 18 NWLR (PT. 1279) PG. 493 AT 532 – 533 PARAS H – A
27. STEPHEN HARUNA VS. THE ATTORNEY-GENERAL OF THE FEDERATION (2012) 9 NWLR (PT. 1306) PG. 419
28. HON. JAMES BAITACH & ANOR VS. HON. SALIHU ADAMU SHADAFI & ORS (2012) 13 NWLR (PT. 1317) PG. 396 AT 418 PARAS G – H
29. BABALOLA BORISHADE VS. FEDERAL REPUBLIC OF NIGERIA (2012) 18 NWLR (PT. 1332) PG. 347 AT 409 PARAS G – H

The Appellants filed a reply brief to the 1st Respondent’s brief of argument wherein they urged the Court to allow this appeal.

Having read the briefs filed

by the parties to this appeal, I shall now proceed to resolve the issues as raised by the Appellants in their brief of argument.

RESOLUTION OF THE ISSUES
The issues as raised by the Appellants in their brief are again reproduced hereunder as follows:-
1. WHETHER THE TRIAL COURT WAS RIGHT WHEN IT FAILED TO DETERMINE ISSUES CHALLENGING ITS JURISDICTION RAISED BY THE APPELLANTS IN THEIR FINAL WRITTEN ADDRESS BEFORE IT PROCEEDED TO GIVE ITS JUDGMENT?
2. WHETHER THE TRIAL COURT WAS RIGHT IN ITS INTERPRETATION OF EXHIBIT AA3, WHEN IT FAILED TO INTERPRETE THE WHOLE DOCUMENT EMBODYING THE AGREEMENT IN ORDER TO ASCERTAIN THE REAL INTENTION OF THE PARTIES BUT RATHER ISOLATED FEW CLAUSES AND IMPORTED EXTRINSIC EVIDENCE IN ITS INTERPRETATION?
3. WHETHER THE TRIAL COURT WAS RIGHT WHEN IT PLACED RELIANCE ON ORAL EVIDENCE ABOVE UNCHALLENGED AND UNCONTRADICTED DOCUMENTARY EVIDENCE ALREADY ADMITTED IN EVIDENCE BEFORE IT TO ARRIVE AT ITS JUDGMENT?
4. WHETHER THE TRIAL COURT WAS RIGHT TO HAVE ASSUMED THE JURISDICTION IN INTERPRETING EXHIBIT AA4 A CONSENT JUDGMENT OF A COURT OF CORDINATE JURISDICTION AND IN SO DOING CONFERRED ON THE SAID EXHIBIT AA4

RETROSPECTIVE POWERS AND MADE IT BINDING ON PERSONS NOT PARTIES TO IT?
5. WHETHER THE TRIAL COURT WAS RIGHT TO HAVE GIVEN ITS JUDGMENT AGAINST THE 10TH TO 17TH APPELLANTS WHERE AN UNCONTRADICTED AND UNCHALLENGED EVIDENCE AND ADMISSION EXIST BEFORE THE COURT THAT THEY PAID SOME MONEY TO THE 1ST RESPONDENT DIRECTLY AFTER EXHIBIT AA4 WAS OBTAINED AND COUPLED THAT THE 1ST RESPONDENT IN THE COURSE OF TRIAL HAD MAINTAINED THAT HE DID NOT SUE THE 10TH TO 17TH APPELLANTS.
6. WHETHER THE TRIAL COURT WAS RIGHT IN ARRIVING AT ITS JUDGMENT IN VIEW OF THE EVIDENCE BEFORE IT?

ISSUE ONE
This issue simply challenges the failure of the learned trial judge to determine first, or at all, the issues challenging its jurisdiction which were raised by the Appellants herein in their final written addresses, before proceeding to deal with the merits of the matter in its judgment.

Did the Appellants herein raise the issue of jurisdiction of the trial Court in their final written address? It is clear that they did.

At page 994 of Volume 2 of the record of appeal, the first issue formulated by the Appellants herein in their final written address was:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Whether the Court has jurisdiction to make an ex-parte order mandating some parties to a suit to defend the suit in a representative capacity for some other persons not sued without their consent.”

The above issue was argued at pages 994 – 998 of the aforementioned final written address.

At page 1012 of Volume 2 of the record of appeal, the fifth issue formulated by the Appellants herein in the said final written address was:-
“Whether this Court has the jurisdiction to interpret the decision of the High Court of the Federal Capital Territory Abuja in Suit No. CV/499/08 to bind 3rd – 19th Defendants who were not parties to the said suit?”

This issue was argued at pages 1012 – 1015 of the aforementioned final written address filed by the Appellants.

The Appellants are right that the 1st Respondent did not respond to the above jurisdictional issues in its final written address which can be found at pages 1019 – 1053 of volume 2 of the record of appeal.

The Appellants are right when they submitted that while adopting the aforementioned final written address, counsel for the

Appellants specifically drew the attention of the trial Court to the jurisdictional issues. At pages 1120 – 1121 of the record of appeal Volume 2, this was what transpired:-
“Claimant Counsel: The matter is for adoption of the final addresses of the parties. We are ready on our own part.
Defendant Counsel: The 3rd to 19th defendants pursuant to the rules of this Court, filed on the 6th June, 2019 their final address. And on the 25th June, 2019 filed their reply to the claimant final written address. We will be adopting them for the 3rd to 19th defendants in this suit. We will like to draw the attention of Court on issue 1 and 5 because they are issues that touches jurisdiction of the Court. We urged the Court to dismiss the suit of the claimant and grant the defendant counter claims.
Claimant Counsel: Upon the receipt of the 3rd to 19th defendants final written address, the claimant has filed its own final address dated 21st June, 2019. And filed same date. We adopt it as our argument to proof of the claimant claims. By virtue of Order 33 Rule 4 of the Rules of Court 2018, I wish to chair some silence issues.
Adumbration: We

submit that the 3rd to 19th defendants are all illegal occupant who drove their titled from the first respondent.
Issue of jurisdiction – raised by the defendants counsel – on issue of swing or representative capacity that was been dealt with before the trial. We urged the Court to refuse it.
I urge the Court to grant their all reliefs claim by the claimant; and dismiss the counter claim of the defendant as it lacking in law.
Court: case adjourned for Judgment to be communicated.”

The written address filed by the Appellants herein before the trial Court and the records clearly shows that the jurisdiction of the Court was challenged by the Appellants herein.
Did the Court determine these issues in its judgment? I have read the entirety of the judgment of the learned trial judge which can be found at pages 1122 – 1145 of Volume 2 of the record of appeal and I cannot see where he dealt with or determined those jurisdictional issues raised. This is clearly wrong. On being aware of its jurisdiction being called to question by way of challenging the competence of the suit, the Court below ought to have proceeded to

exercise the only jurisdiction it had in the matter at the initial point in time, that is, the jurisdiction to determine whether it has jurisdiction over the matter. Since judgment or ruling delivered, or any proceedings filed or conducted without jurisdiction is a nullity, the Court should have disposed of the issues challenging the competence of the suit before taking any step in the matter. The Court should have first expressed its views on jurisdiction before considering the merit. In the instant case no views were expressed by the trial Court on the jurisdictional issues raised. This cannot stand. See BOGBAN VS. DIWHRE (2005) 16 NWLR (PT. 951) 274; SENATE PRESIDENT VS. NZERIBE (2004) 9 NWLR (PT. 878) 251; DAPIANLONG VS. DARIYE (2007) 8 NWLR (PT. 1036) 332; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427; NIWA VS. STB PLC (2008) 2 NWLR (PT. 1072) 483.
The 1st Respondent has argued that the issue of jurisdiction was not properly raised or placed before the trial Court. How?
It must be understood that the issue of jurisdiction being a fundamental issue, can be raised at any stage of the proceedings in the Court of first instance or in the appeal

Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record suggesting or establishing want of competence or jurisdiction in the Court, it is even the duty of the judge or justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it. It is never too late to raise the issue of jurisdiction. See STATE VS. ONAGORUWA (1992) 2 SCNJ (PT. 1) 1; IWUAGOLU VS. AZYKA (2007) 5 NWLR (PT. 1028) 613; UBWA VS. BASHI (2008) 4 NWLR (PT. 1077) 303; OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508; P. E. LTD VS. LEVENTIS TRAD. CO. LTD (1992) 5 NWLR (PT. 244) 675.
Let me just add at this juncture that a challenge to a Court’s jurisdiction is pivotally fundamental and can pass sui generis in terms of the procedure adopted to raise it. No Court should treat the issue of jurisdiction with levity. SeeGALADIMA VS. TAMBAI (2000) 11 NWLR (PT. 677) 1; KURKA VS. SAUWA (2019) 3 NWLR (PT. 1659) 247.
In the instant appeal, the trial judge simply refused or failed to determine the issue of jurisdiction raised before him. The judgment cannot in the circumstances

stand. It is a complete nullity.
The appeal therefore succeeds on this issue, and in the circumstances there will be no need considering the remaining issues formulated for the determination of this Court.
The appeal is allowed. The judgment of the learned trial judge in Suit No. FCT/HC/CV/2022/14 delivered on the 30th day of September, 2019 is hereby set aside. The matter is hereby sent back to the trial Court for retrial before another judge.
STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother HON. JUSTICE MOHAMMED BABA IDRIS, JCA

I am in agreement with the reasoning and the conclusion that this appeal be allowed. I do allow the appeal and I abide by the consequential Order therein made.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and am in complete agreement with the reasoning and resolution of the burning question of jurisdiction raised but not determined by the trial Court.

Let me just add my voice to the fundamental nature of jurisdiction and the

bounden duty of the Court at any level to determine the issue of jurisdiction once raised. A Court is powerless without jurisdiction. It will lack a voice to speak and no teeth to bite as an institution with authority to compel obedience. The trial court erred in failing to address the issue of jurisdiction raised at the address stage of the proceedings.
I too allow the appeal and abide by the other orders made in the lead judgment.

Appearances:

OBIENU, ESQ., with him, O. V. NWATU, ESQ.For Appellant(s)

D. ESUWE ESQ., with him, I. NRIALIKE, ESQ. – for 1st Respondent For Respondent(s)

Appearances:

OBIENU, ESQ., with him, O. V. NWATU, ESQ.For Appellant(s)

D. ESUWE ESQ., with him, I. NRIALIKE, ESQ. – for 1st Respondent For Respondent(s)