CENTRAL BANK OF NIGERIA V. IFEANYICHUKWU OKONKWO (2012)

CENTRAL BANK OF NIGERIA V. IFEANYICHUKWU OKONKWO

(2012)LCN/5586(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of July, 2012

CA/E/161/2006

RATIO

JURISDICTION: IMPORTANCE OF JURISDICTION

The law is settled concerning the fundamentality and importance of jurisdiction/competence of a court, to its adjudication over cases or matters before it. In this regard, the law reports are replete with decisions to the effect that the question of jurisdiction goes to the root or foundation or any cause or matter, and consequently raises the issue of the competence of the court to adjudicate in particular proceedings. Therefore, that any defect in jurisdiction/competence, is fatal and such proceeding is rendered null and void no matter how well conducted and decided. See ADATAYO V. ADEMOLA (2010) ALL FWLR (Pt.533) 1806 and MOBIL PRODUCING NIGERIA UNLIMITED V. LSEPA (2003) FWLR (Pt.137) 1029.

(i) Where on the face of the proceedings a superior court is competent, incompetence should not be presumed;

(ii) Where on the face of the proceedings, the court is incompetent, the court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings;

(iii) Where the competence of the court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of fact, the court should regard such incompetence as arising ex facie;

(iv) When the competence of the court is to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on the ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the court should be tried first before the court makes a pronouncement on its own competence;

(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for the party who alleges the court’s incompetence to raise the issue in his statement of defence in proceedings commenced by writ of summons or by affidavit in cases commenced by originating summons:

(vi) A judgment given in proceedings which appear ex facie regular is valid. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

PROCEDURE: NATURE OF A PRELIMINARY OBJECTION

It would also appear to be settled law that when a preliminary objection is raised to a process of court, all that the objector is saying is that the process in question is incompetent and/or defective such that the court cannot entertain the process on the merit. Hence a preliminary objection to an appeal is to contend that the appeal is defective or incompetent. Accordingly, if the preliminary objection is sustained, the appeal would no longer be heard and if already heard, the appeal will not be considered on the merit. In other words, a successful preliminary objection to an appeal terminates or aborts the consideration of the appeal on the merit. See OKONKWO V. UBA PLC. (2011) 16 NWLR (Pt. 1274) 614; and HON. CHUKWUKA (CHUCHU) ONYEMA V. MR. AFAM OGENE (2012) 1 WRN 94.

“………A preliminary objection is an objection against the regularity of a court process, that is a suit, motion, etc. The primary objective of such an objection is to terminate the proceedings at the stage the objection was raised. The objection must be preliminary in the sense that no other proceeding which may have the effect of waiver on the part of the objector shall have taken place in the entire proceedings. Matters which are more than an irregularity may be raised at any stage by way of objection if the effect is to nullify the proceedings. An objection must be based on the documents already before the court and no evidence whether oral or by affidavit shall be allowed in support or in reply. Subject or statutory provisions, a preliminary objection may be made formally or informally….” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

APPEAL: WHAT CONSTITUTES AN APPEAL

An appeal is the process by which a higher court is invited to review the decision of a lower court in order to find out whether on a proper consideration of the facts placed before it and the applicable law, the lower court arrived at a correct decision. See OREDOYIN V. AROWOLO (1989) (Pt.114) 172.

Thus, an appellate court can never be in a position to determine or properly decide on the correctness or otherwise of an issue not decided by the lower court unless such issue is placed before it in the proper manner or by the proper process. See ADEOSUN V. GOVERNOR OF EKITI STATE (2012) All FWLR (Pt.619) 1044.

JUSTICES:

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

CENTRAL BANK OF NIGERIA – Appellant(s)

AND

IFEANYICHUKWU OKONKWO – Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Lead Ruling): This ruling is in respect of the preliminary objection raised in the instant appeal by the Respondent (hereafter simply referred to as “the Objector”), The preliminary objection has been raised by a process titled “Notice by Judgment Creditor/Respondent of his intention to rely upon preliminary objection” dated 8/4/2011 and filed on the same date (hereafter simply referred to as “Notice of P.O.”), brought pursuant to Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter simply referred to as “the Constitution”), and Order 10 Rule 1 of the Court of Appeal Rules, 2011 (hereafter simply referred to as “the Rules of the Court”), In the Notice of P.O., the Objector gave notice that at the hearing of the instant appeal, or any other application by the Appellant, he shall rely upon the following Preliminary Objection:-
“Praying the Honourable Court of Appeal for an Order striking out this Appeal initiated by a Notice of Appeal dated and filed on 3rd day of August, 2006, against the decision of the Federal High Court Enugu presided over by Honourable Justice .I. Allagoa J., dated 2nd day of August 2006. And Appellant’s Brief of Argument (purportedly) dated 21st August, 2008 and filed on 22nd August 2008; FOR WANT OF COMPETENCE AND JURISDICTION.”
The ground of the preliminary objection is that this Court lacks the jurisdiction to entertain the present appeal on ground of nullity to wit:
“1. The appeal initiated by Notice and Grounds of appeal dated and filed on 3/8/2006 against the decision of the trial court (Federal High Court, Enugu Division) delivered on 2/8/2006 dismissing the Garnishee/Appellant’s Motion for “setting aside the order absolute made in this case on 19th day of July, 2006 is a nullity, and the Court of Appeal lacks the jurisdiction to hear and determine same.
PROCESS IN THE RECORD RELIED UPON:
(i) Page 86-88 of the record, is the Motion on Notice by the Garnishee/Applicant dated and fired on 28/7/2006 praying for:
“Setting aside the Order Absolute made in this case on 19th day of July, 2006.”
(ii) Pages 207 – 219 of the record, is the Judgment of the trial court dated 2nd day of August, 2006 whereat at page 219, the learned trial Judge concluded thus:
“In the circumstances, the Motion filed by the Garnishee on the 28/7/2006 asking the court to set aside its Order Nisi fails and is hereby dismissed.”
(iii) Pages 89 – 94 of the record, is the incompetent Notice of Appeal dated and filed on 3/8/2006 against the trial court’s decision dated 2nd day of August 2006, a judgment given after the Honourable Court had become funtu (sic) officio having made the Garnishee Order Nisi absolute on 19/7/2006.
PARTICULARS:
(a) The decision dated 2/8/2006 (see: pages 207 – 219 of the record) appeared against, is made without jurisdiction therefore, is a nullity. Thus where the court has no jurisdiction, having become functus officio’ it’s (sic) judgment is null and void ‘ab initio’
(b) A court lacking the jurisdiction to entertain an action cannot dismiss it, but can only strike same out.
(c) The instant appeal (See: pages 89 – 94 of the record) arising from incompetent proceeding in the trial court, (sic) a nullity. The Court of Appeal lacks jurisdiction to entertain appeal No. CA/E/161/2008 or CA/E/343/2006
(d) The Court of Appeal being an appellate court, cannot exercise jurisdiction over a matter where the trial Judge is without jurisdiction.
(e) The appeal filed on 3/8/2006 being incompetent/void, and under the legal doctrine – EX-NIHILO NIHIL FIT, the Appellant’s Brief of Argument dated 2/8/2008 and filed on 22/8/2008 is “ab initio” null and void”
When the appeal came up before the Court on 22/2/2012; and learned counsel for the Appellant having indicated that he will be contesting the preliminary objection raised by the Objector, parties were ordered to file written addresses, In accordance with the order of the Court, the Objector by himself settled his written address dated 23/2/2012 and filed on the same date. Appellant’s written address in opposition to the Objector’s preliminary objection dated 28/2/2012, and filed on the same date was settled by Tochukwu Maduka. The preliminary objection was entertained on 23/5/2012, and the Respondent and the Appellant respectively, adopted and relied on the written addresses as hereinbefore identified, in support of their different positions.
The preliminary objection of the objector had to be entertained at the stage the Appellant’s motion on notice dated 21/3/2011 and filed on 11/4/2011 for amendment of its Notice of Appeal became ripe for hearing, because the preliminary objection is attacking the very Notice of Appeal (the foundation of the instant appeal), which the Appellant seeks to amend. The Appellant’s by its motion on notice dated 21/3/2011 and filed on 11/4/2011 simply seeks to amend the relief it seeks in the instant appeal initiated by its Notice of Appeal dated 3/8/2006 and the Brief of Argument it had hitherto filed in the appeal’ This much is clear from the order being sought in the said motion as well as the grounds thereof. They read thus:-
“An order granting leave to the Appellant/Applicant to amend the Notice and grounds of Appeal dated the 3rd day of August, 2006 and filed on the same date; and Appellant’s Brief of Argument dated 21st day of August, 2006 and filed on 22nd August, 2006, in terms of the Schedule of Amendment attached to the supporting Affidavit as Exhibit ‘B’.”
The grounds of the application are as follows:-
i. Upon the instruction of the Appellant/Applicant. The Appellant/Applicant (sic) Solicitor on 3rd day of August, 2006 filed Notice and Grounds of Appeal dated 3rd August, 2006 which originated this Appeal.
ii. While preparing the Notice and Grounds of Appeal the Appellant/Applicant’s Counsel mistakenly included as a relief sought from this Court to “set aside the garnishee order absolute made on 19th day of July, 2006” instead of “to set aside the decision of the Court below dated the 2nd day of August, 2006″.
iii. The same mistake made in the Notice and Grounds of Appeal reflected in the Appellant’s Brief of Argument dated 21st August, 2008 and filed on 22nd August 2008.
iv. There is need to amend the Notice and Grounds of Appeal and the Appellant’s Brief of Argument to properly place before the Court the issues in controversy between the parties in the appeal.”
Both the Objector and the Appellant in their respective written addresses dwelled extensively on the background facts of the proceedings which led to or resulted in the institution of Suit No: FHC/EN/CS/129/2006. This is the suit in which the Appellant filed its motion on notice dated 28/7/2006, to which the decision appealed against relates. Indeed, the Objector in narrating the antecedent facts of Suit No. FHC/EN/CS/129/2006 dwelled extensively on the processes in some other proceedings exhibited therein. (See also Particular (c) in the Notice of P.O. wherein Appeal No. CA/E/343/2006 was mentioned).
Suffice it to say that on its face, Suit No. FHC/EN/CS/129/2006, relates to “Judgment Summons in a Judgment against the Garnishee” pursuant to Section 55 of the Sheriffs and Civil Process Act, Cap. S.6, Vol, 14 LFN 2004.The parties on record in the suit are – IFEANYICHUKWU OKONKWO (Judgment Creditor/Garnishor); AND (1) INEC & (2) THE RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE (Defendants/Judgment Debtors); AND CENTRAL BANK OF NIGERIA (Garnishee). Both parties having dwelled to their satisfaction on the antecedent facts of Suit No. FHC/EN/CS/129/2006 and the Appellant’s motion on notice dated 28/6/2006, eventually formulated the questions/issues arising for determination in the preliminary objection of the Objector. In this regard, the Objector formulated two Issues (with the first of the Issues being in the alternative). The issues read thus:
ISSUE NO. 1
Whether the appeal filed on 3/8/2006, by the Appellant is not incompetent, and the Court of Appeal lacks the jurisdiction to entertain same; not being appeal against Garnishee Order absolute dated 19/7/2006, but against a later ruling dismissing the motion by the Garnishee/Appellant which prayed the trial court to set aside the Garnishee Order absolute, after the court had become ‘functus officio’?
IF THE ANSWER TO THE ABOVE IS IN THE AFFIRMATIVE
Whether the letter/directive issued to the Appellant by Assistant Chief Registrar, Federal High Court, which is not a court order, the basis of depositing the Garnishee award of 22.5 Million Naira belonging to the Respondent into Diamond Bank PLC, Enugu is not unlawful and illegal?
ISSUE NO.2
Whether the Garnishee/Appellant who consented to the Order of Garnishee absolute dated 19/6/2006, and decides to appeal against the consent judgment can do so without first and foremost obtaining the leave of court in satisfaction of the combined provisions in Section 241(2)(c) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)?”
On its part’ the Appellant formulated a sole Issue for the determination of the Objector’s preliminary objection. The sole issue reads thus:-
“Whether the trial Court had the jurisdiction to entertain the Appellant’s Motion to set aside the Garnishee order Nisi and Garnishee Order absolute?
In its written address, the Appellant made submissions to the effect that the alternative Issue 1 and Issue 2 as formulated by the Objector, do not arise or have no place in the determination of the preliminary objection before the court. I cannot agree more with the Appellant in the light of the ground of the preliminary objection; process in the record relied upon; and particulars; as set out in the Notice of P.O. and which have been hereinbefore re-produced in this ruling. In the circumstances, it is only the main Issue 1, as formulated by the objector (and which Issue in my considered view is the same in tenor or purport with the sole issue formulated by the Appellant), that I will concern myself with, in this ruling. This is particularly so, as its resolution one way or the other would totally dispose of the preliminary objection.
The stance of the Objector that the appeal lodged by the Appellant against the decision of the lower court delivered on 2/8/2006 in the motion dated 28/7/2006, is incompetent, in the main is predicated or premised the fact that the lower court lacked the jurisdiction/competence to have entertained the Appellant’s motion dated 27/7/2006, after its ruling on 19/7/2006, in which a garnishee order absolute was made in his (Objector’s) favour, This is because, the lower court having made the garnishee order absolute on 19/7/2006, thereby became functus officio the garnishee proceedings, he (Objector) initiated; hence the lower court lacked the jurisdiction to have entertained the Appellant’s motion dated 28/7/2006, seeking to set aside the garnishee order absolute made to it after having initially granted the garnishee order absolute. The Objector not only submitted to the effect that the lower court inadvertently made a dismissal order in respect of the Appellant’s motion dated 28/7/2006, which it lacked the jurisdiction to have entertained in the first place, but also that the Appellant’s appeal founded upon the motion which the lower court had no jurisdiction/competence to have entertained having become functus officio, the garnishee proceedings it sought to set aside by the said motion on notice, is a nullity and a fortiori, that the Appellant’s appeal founded on the decision in the motion, is null and void. The cases of UBN Plc v. Boney Marcus Industries Ltd (2005) 13 NWLR (Pt. 943) 654 at 666 – 667; Dingyadi v. INEC (No. 2) (2011) 18 NWLR (Pt.1224) 154 at 186; Jika v Akuson (2006) All FWLR (Pt. 293) 276 at 287 and WAEC v. ADEYANJU (2008) 9 NWLR (Pt. 1092) 270 at 296, were cited in aid of the submissions.
The Objector having contended that the issue confronting the Court in the instant appeal is not a question touching on the rights of the Garnishee/Appellant in the subject matter of the litigation or dispute, but the jurisdiction of the Court of Appeal to entertain the instant appeal filed on 3/8/2006, commended to the Court many more cases dealing with the issue of jurisdiction, The cases include, Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617; Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt. 167) 270; Okedion v. Federal Airport Authority of Nigeria (2008) All FWLR (Pt. 441) 914 at page 933; Ekwerekwu v. Egboche (2010) 14 NWLR (Pt. 1213) 194., and Lakanmi v. Adene (2003) 10 NWLR (Pt. 828) 353 at 367. Also having made submissions about the Appellant’s Notice of Appeal not being a process that has been used “bona fide” and that it is an abuse of the process of court, the Objector urged the Court to hold that it cannot entertain the Appellant’s motion dated 2/3/2011 and filed on 11/4/2011 (which seeks for the amendment of Appellant’s Notice of Appeal and Brief of Argument), for want of jurisdiction.
The stance of the Appellant in its written address is that its appeal against the decision of the lower court delivered an 2/8/2006, initiated by the Notice of Appeal dated 2/8/2006, and filed on the same date, is competent. Having correctly identified the main thrust of the objector’s preliminary objection to its appeal, the Appellant submitted to the effect that the stance of the objector that the lower court lacked the jurisdiction to have entertained its motion dated 28/7/2006, and that the order dismissing the same was null and void, ran contrary to the correct position of the law relating to what a court of record can do in relation to judgments/orders it had made in proceedings. In this regard, the Appellant cited authorities that went to show that any court of record has the power to reopen proceedings in which it had delivered judgments/orders and the circumstances when this was permissible. In other words, the Appellant submitted to the effect that the general principle of law that “if a court has delivered a ruling or judgment in respect of the issue(s) in controversy between the parties before it, it becomes functus officio and would therefore not have the jurisdiction to re-open the issues litigated between the parties or to set aside or amend its ruling or judgment”, admits of exceptions and cited the cases of Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) at pages 85-86; and Mark v. Eke (2004) 5 NWLR (Pt.865) 54 at pages 76 – 77 , in this respect. The Appellant submitted that the basis of its motion dated 28/7/2006, is that the lower court lacked the jurisdiction to make the orders of garnishee nisi and garnishee absolute, for the reason that it (Appellant) being a public officer the consent of the Attorney-General of the Federation was not obtained by the Respondent before the garnishee order nisi or absolute, were made by the lower court. The Appellant submitted that since its motion dated 28/7/2006 sought for the setting aside of the orders of the lower court on the ground that the said court lacked the requite jurisdiction to have made the orders, the lower court had inherent jurisdiction to reopen proceedings, and that if the lower court found its proceedings, ruling or judgment to have been afflicted by a fundamental defect, such as one which went to its jurisdiction and competence, to set the same aside.
It is also the submission of the Appellant that there is a distinction between the powers or jurisdiction of a court to examine or conduct an inquiry as whether or not it has the jurisdiction over the subject matter before it; and the actual exercise of jurisdiction over the subject matter. That in the earlier situation, a court of law is immutable vested with the jurisdiction to determine its jurisdiction and in so doing, that court cannot be said to have acted without jurisdiction, That in the instant case, the lower court not only considered the application before it to set aside its orders on the ground that it lacked the requisite jurisdiction to have made the orders it had made, but declined to set aside its earlier decisions or orders (albeit erroneously). The Appellant submitted that the lower court has the jurisdiction to have looked into its motion urging it to set aside its garnishee orders on the ground that it lacked the jurisdiction to have made the orders in the first instant. The Appellant further submitted to the effect that as the lower court had the requisite jurisdiction to have entertained its motion dated 28/7/2006, praying it to set aside its previous orders on the ground that the court lacked the jurisdiction to make the orders, this court in turn, possesses the requisite jurisdiction to entertain the instant appeal against ruling of the lower court dismissing its (Appellant’s) motion to set aside its orders.
It is in my considered view, very clear from the basis of the preliminary objection to wit: nullity, and the grounds therefore, that the objector is questioning not only the jurisdictional competence of the lower court to have entertained the Appellant’s motion dated 28/7/2006, but also the validity of the order made by the lower court therein. The law is settled concerning the fundamentality and importance of jurisdiction/competence of a court, to its adjudication over cases or matters before it. In this regard, the law reports are replete with decisions to the effect that the question of jurisdiction goes to the root or foundation or any cause or matter, and consequently raises the issue of the competence of the court to adjudicate in particular proceedings. Therefore, that any defect in jurisdiction/competence, is fatal and such proceeding is rendered null and void no matter how well conducted and decided. See ADATAYO V. ADEMOLA (2010) ALL FWLR (Pt.533) 1806 and MOBIL PRODUCING NIGERIA UNLIMITED V. LSEPA (2003) FWLR (Pt.137) 1029.

In the MOBIL PRODUCING NIGERIA UNLIMITED case (supra), the Supreme Court per Ayoola, JSC; who delivered the lead judgment dwelling on “jurisdiction” stated to the effect that the tendency to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on the ascertainment of facts, leads to error. His Lordship then fashioned out the following guidelines:-
(i) Where on the face of the proceedings a superior court is competent, incompetence should not be presumed;
(ii) Where on the face of the proceedings, the court is incompetent, the court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings;
(iii) Where the competence of the court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of fact, the court should regard such incompetence as arising ex facie;
(iv) When the competence of the court is to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on the ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the court should be tried first before the court makes a pronouncement on its own competence;
(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for the party who alleges the court’s incompetence to raise the issue in his statement of defence in proceedings commenced by writ of summons or by affidavit in cases commenced by originating summons:
(vi) A judgment given in proceedings which appear ex facie regular is valid.

I must however hasten to add that a preliminary objection given its nature and purpose must necessarily be determined in the right of process being objected to, against the backdrop of the proceedings in which the objection has been raised. In this regard see the case of OKOI V. IBIANG (2002) 20 WRN 146, where this Court in dwelling on preliminary objection per Edozie, JCA; (as he then was), stated thus:-
“………A preliminary objection is an objection against the regularity of a court process, that is a suit, motion, etc. The primary objective of such an objection is to terminate the proceedings at the stage the objection was raised. The objection must be preliminary in the sense that no other proceeding which may have the effect of waiver on the part of the objector shall have taken place in the entire proceedings. Matters which are more than an irregularity may be raised at any stage by way of objection if the effect is to nullify the proceedings. An objection must be based on the documents already before the court and no evidence whether oral or by affidavit shall be allowed in support or in reply. Subject or statutory provisions, a preliminary objection may be made formally or informally….”

The filing of a valid Notice of Appeal (which may be amended at any time thereafter upon proper application made to the court) is a necessary prerequisite for the hearing of an appeal, See OKPALA V. IBEME (1989) 2 NWLR (Pt.102) 208.
The Notice of Appeal dated 3/8/2006, and filed on the same date by which the Appellant initiated the instant appeal (which the objector contends to be incompetent), is at pages 26 – 31 of the record of appeal. The preliminary objection of the Objector and ground therefore, as well as what the Objector labelled or titled particulars of the ground of the preliminary objection, as set out in the Notice of P.O., have hereinbefore been reproduced in this ruling. It is in my considered view undisputable that the Objector by his preliminary objection has not suggested that the Notice of Appeal lodged by the Appellant on 3/8/2006, on its face is defective in any manner, in that it was not filed within the time period permitted the Appellant by law to file it, or that a condition precedent for its filing, such as procurement of the leave of cour1, was not secured prior to its filing. Furthermore, it is equally clear from the details of the preliminary objection as hereinbefore re-produced that the objection of the Objector is not predicated on the grounds of appeal, not flowing from the decision appealed against.
The Objector has challenged the competence of the appeal founded on the Notice of Appeal lodged on 3/8/2006; on the ground that the proceeding (i.e. Appellant’s motion on notice dated 28/7/2006), in which the lower court made the decision the Appellant is attacking on appeal, is a nullity, in that the lower court had no jurisdiction to have entertained the proceeding in the first place, talk less of making any valid order therein, and even at that, that the order dismissing the proceeding made by the lower court was inadvertently made by it, as it was an order striking out the proceeding that lower court ought to have made, given its lack of jurisdiction to have entertained the proceeding.
It would appear incontestable having regard to all that has been said so far, that the Objector, by his preliminary objection is actually or directly challenging the jurisdiction of the lower court to have entertained the Appellant’s motion dated 28/7/2006 in the first place, and that it is the resolution of the challenge in this regard, in the positive or affirmative, that would deal a deathblow to the appeal of the Appellant by rendering the Notice of Appeal without any foundation and therefore incompetent. The Objector by his preliminary objection would appear to have invoked or to be relying on the principle of law to the effect that “one cannot put something on nothing and expect it to stand” as enunciated in the popular or notorious case of Macfoy v. UAC.
However, the pertinent question, in my considered view is whether or not the position of the law to the effect that something cannot be placed on nothing, can properly be invoked or relied upon in challenging the competence of the instant appeal, in the light of its peculiar facts. I am of the considered view that it cannot be properly invoked or relied upon. This amongst others is because, the objector being a party to the proceeding (i.e. motion dated 28/7/2006), if aggrieved by the entertainment of the motion by the lower court, when it had no jurisdiction to have done so, and/or the order made therein, can only properly ventilate such grievance by the process or lodging an appeal to this Court. The lower court patently in exercise of its perceived jurisdiction over the motion adjudicated on it and came to a decision that the motion was unmeritorious and dismissed the same. The part that brought the proceeding, (i.e. Appellant) clearly being displeased by the outcome before the lower court, has brought the same before this court for review by way of an appeal. The position of the law concerning the distinction between “jurisdictional incompetence which is evident on the face of the proceedings” and one which is dependent on the ascertainment of facts as enumerated in the MOBIL PRODUCING NIGERIA UNLIMITED case (supra) have been hereinbefore set out in this ruling. There is nothing on the face of the motion brought by the Appellant that remotely suggests that it is afflicted with any jurisdictional defect. The alleged lack of jurisdiction on the part of the lower court to entertain the Appellant’s motion was never raised before that court. It is by way of his preliminary objection that the Objector has not only now raised the issue that the lower court lacked the jurisdiction to have entertained the Appellant’s motion, but has also declared the proceeding in relation to the motion and the order of the lower court therein, a nullity. Hence, it is obvious that what the objector set out to do by his preliminary objection, is to have this Court to first declare the proceeding and decision of the lower court in the motion dated 28/7/2006 a nullity and consequently the Notice of Appeal against the said decision, without resorting to the proper procedure put in place by the Constitution for correcting or “undoing” whatever error the lower court, he (Objector) perceived the lower court to have committed by entertaining the motion in question in the first place. As fundamental as jurisdiction is to proper adjudication, the issue of jurisdiction by its very nature must be placed before the court for determination by processes that are regularly or properly before the court for that purpose. See OKONKWO V. CBN (2012) All FWLR (Pt.605) 293. It is my considered view that the objector cannot by his preliminary objection indirectly challenge the competence of the Appellant’s motion dated 28/7/2006 and also properly have this court make a valid pronouncement upon the status (nullity or otherwise) of the Appellant’s motion which the lower court entertained and subsequently ruled upon on 3/8/2006. Indeed, it is for this reason that I have totally avoided addressing the issue strenuously argued by the parties as to whether or not the lower court has the jurisdiction to entertain a motion to set aside its order after it has become functus officio the matter that is being sought to be bet aside. Given the basis/ground of the preliminary objection, it is my considered view that it is only by the process of appeal directed at or taken in the very proceeding in which the Appellant has appealed, (i.e. motion dated 28/7/2006) (i.e. a cross-appeal) that the objector can properly get this court to consider the issue as to whether or not the lower court had the jurisdiction over that matter and come to a decision on the issue. See OWNERS OF THE MV “ARABELLA” V. N.A.I.C. (2008) All FWLR (Pt. 443) 1208.
Flowing from the all that has been said is that the preliminary objection the Objector has raised is totally lacking in merit as the issue of nullity upon which it is premised or founded is not such that the Court can pronounce upon by the means of a preliminary objection. The said preliminary objection is hereby overruled and dismissed.
No order as to costs,
The coast is now clear for the Court to entertain the Appellant’s motion to amend its Notice of Appeal and Brief of Argument.

ADAMU JAURO, J.C.A: I have read before now the ruling just delivered by my learned brother, A.O. Lokulo-Sodipe, JCA. I am in complete agreement with the reasoning and conclusions contained therein, which I also adopt as mine.
The preliminary objection is lacking in both merit and substance and is hereby overruled and dismissed by me.
I abide by the consequential orders made in the said ruling.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I agree.

Appearances

Tochukwu Maduka For Appellant

AND

Respondent represents himself For Respondent