CHIEF TONY NWANKWO V. WEMA BANK PLC & ORS
(2012)LCN/5457(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of June, 2012
CA/C/6/2010
RATIO
“Since the ruling is interlocutory, the Appellant has 14 days to file a notice and grounds of appeal if he wishes to appeal against the Ruling. See S. 24 (1) & (2) (a) of the Court of Appeal Act Cap 36 LFN 2004.” Per NDUKWE-ANYANWU, J.C.A.
“It is settled that a court is competent when the court is properly constituted as regards number and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is not feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. Umanah V. Attah (2006) 17 NWLR (pt. 1009) 503, Madukolu V. Nkemdilim (1962) 1 All NLR 587, Skenconsult v. Ukey (1981) 1, Benin Rubber Producers Ltd V. Ojo (1997) 9 NWLR (pt 521) 388.”Per NDUKWE-ANYANWU, J.C.A.
“A final judgment is defined as ?A Court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fees) and enforcement of the judgment? whereas an ?interlocutory Judgment is An intermediate judgment that determines a preliminary or subordinate point or plea but does not finally decide the case.? Furthermore, A judgment or order given on a provisional or accessory claim or contention is generally interlocutory.? See Blacks Law Dictionary 8th edition, page 859; Falola vs. UBN Plc (2005) 7 NWLR (pt.924) 405; Omonua v. Oshodin (1985) 2 NWLR (Pt.10) 924 and Ogolo vs. Ogolo (2006) 5 NWLR (Pt.972) 163.” Per TUR, J.C.A.
“The question of jurisdiction is very fundamental that it should be determined first by the court before starting any proceedings. Thus, if the court proceeds without jurisdiction, all proceedings, however well conducted, amount to a nullity. Ukwu v. Bunge (1997) 8 NWLR pt 518 pg 527, Messrs N.V Scheap v. M.V ?S Araz? (2000) 12 SC pt 1 pg 164, A.G. Lagos State v. Dosunmu (1989) 3 NWLR pt 111 Pg 552, Nonye V. Anyichue (2005) 2 NWLR pt 910 pg 623.” Per NDUKWE-ANYANWU, J.C.A.
“Once a court lacks jurisdiction, a party cannot use any statutory provision or Common Law principle to impose it, because lack of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out. Umanah vs. Attah (2006) 17 NWLR pt 1009 pg 503.” Per NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
CHIEF TONY NWANKWO Appellant(s)
AND
1. WEMA BANK PLC
2. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE CRS
3. REGISTRAR OF DEEDS CRS
4. MAZI SOMMUMALU PUTAUWA EDDAY NWANKWO Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Cross River State sitting in Calabar delivered on 4th November, 2008.
The Appellant being dissatisfied filed a Notice and one Ground of Appeal on 30th January, 2009. The Appellant filed his Appellant’s brief on 16th February, 2010 and articulated one issue for determination as follows:
Whether the parties and subject matter involved in third party proceeding in HC/415/2005 are the same with parties involved in HC/MSC.161/2005 as it relates to both the Appellant and first respondent.
The 1st Respondent’s brief was filed on 18th March, 2010. In it, he gave a notice of his preliminary Objection which he argued on paragraph 2.0-2.17. The 1st Respondent also adopted the lone issue articulated by the Appellant.
Briefly, the facts of this case are that the Appellants had sued the 1st Respondent, Wema Bank plc, Assistant Inspector General of Police Zone 2, Lagos and Commissioner of police, cross River state and sought the following reliefs.
i. A declaration that the arrest and detention of the Applicants and later taken to Lagos for further detention by 2nd Respondents at the instance of the 1st Respondent for a business that took place in Calabar is Purely illegal.
ii. That the detention of the Applicant’s Vehicle in order to force the Applicants to pay the alleged money owed to the 1st Respondent is illegal.
iii. That the use of Police to recover the alleged sum of money not disclosed to Mr. S. P. Nwankwo by the 1st applicant is illegal as same should be recovered by civil action if at all.
iv. Perpetual injunction restraining the Respondents from further arrest, detention, harassment of the Applicant by virtue of the transaction involved in the land Housing Wema Bank Plc, Calabar Branch.
v. Released the Vehicle of the Applicants unlawfully detained.
4th Respondent took out a writ of summons against the 1st – 3rd Respondent in Suit No. HC/415/2005 and claimed as follows:-
(a) A declaration that he is the owner of all those two pieces or parcels of land lying and situate on Murtala Mohammed Highway, Calabar measuring approximately 1306.080 and 1309 square meters and covered by Certificates of occupancy No. CA/658/81; CA/657/81 and registered as No. 96 at page 96 in volume 186 and No. 97 in volume 186 of the Land Registry, Calabar, respectively.
(b) An Order of perpetual injunction restraining the 1st Defendant from continuing with its trespass on the Plaintiff’s Properties.
(c) An order evicting the 1st Defendant from the land of the Plaintiff forthwith.
(d) The sum of N100, 000,000.00 being special and general damages for trespass, loss of use and destruction of plaintiff’s properties found on the land from the 1st Defendant.
(e) A Declaration that the 2nd Plaintiff has no right to place a caveat on the plaintiff’s properties.
(f) An order directing the 3rd Defendant to cancel or annul the caveat placed on the Plaintiff’s land by the 2nd Defendant.
The 1st Respondent thereafter, in a motion Exparte, applied that the Appellant be joined as third party in suit No HC/415/2005 and he was so joined. Thereafter, the Appellant on 1st May 2006 filed a motion on notice praying the lower court for an order to dismiss Suit No HC/415/2005 on the ground that it constitutes an abuse of court process.
The trial Judge delivered his considered ruling on 4th November, 2008 and dismissed the appellant’s application and held inter alia,
“From all the foregoing, the sole issue arising for determination in this instant proceedings, is whether or not, Suit Nos. HC/415/2005 and HC/MSC.161/2005 are
(a) between the same parties and (b) in respect of the same subject matter.
(a) PARTIES:-
In the 1st Suit, the one and only Plaintiff is one Mazi Somumalu Putauna EEdat Nwankwo, while in the 2nd suit they are 3 different separate and distinct Plaintiffs i.e. Tony Nwankwo, Ernest Inyang and one Valentine C. Asonye.
Secondly, in the 1st suit, the defendants are Wema Bank Plc., Attorney-General & Commissioner for Justice, cross River State and Registrar of Deeds, Cross River State, whilst in the 2nd suit the defendants are Wema Bank Plc., Assistant Inspector General of Police Zone 2, Lagos and Commissioner of Police Cross River State.
In my humble opinion, and I so find and hold, for Purposes of this instant application, that both suits are initiated by entirely different persons or parties.
Secondly, it is also self-evident that entirely different set of defendants predominate. Though the 1st defendant appears to be the same. I think that the fact that there is no nexus whatsoever between the rest of the defendants, is both material and decisive of the issue in question.
(b) SUBJECT MATTER
Here, in the 1st suit, the claims concern and relate to title to land, possession, damages for trespass to land and the issue of caveat on the land in dispute. As between the 1st defendant and the 3rd party, the sole question Concerns the issue or contingency of indemnity, at the termination of the substantive trial on the merits.
In the 2nd suit however, the substance of the claim concerns alleged unlawful arrest/detention of the Person or moveable property which is a fundamental human right matter.
In my humble opinion and I so find and hold, the subject matter(s) involved in the two suits clearly are different and unrelated.
Consequent on the foregoing, I do not consider it necessary to still embark on a review of the legal s cited in arguments by learned counsel, as its efficiency will be merely academic.
In the event, the application to dismiss filed on 1st June, 2006 hereby fails for lack of merit. It is accordingly dismissed with N5, 000.00 costs.
It is ordered accordingly.
It is against this ruling that this appeal is anchored on. The 1st Respondent gave his notice of Preliminary objection which he argued. The learned counsel for the 1st Respondent argued that the ruling appealed against was delivered on 4th November, 2008. The notice and grounds of appeal was filed on 30th January, 2009. The Appellant did not seek leave to file his notice and grounds of appeal 77 days hence. Under S. 24 (1) & (2) A of the Court of Appeal Act Cap C36 Laws of the Federation of Nigeria 2004 provides thus:
“24. Time for appealing
(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
The learned counsel to the 1st Respondent argued further that after 14 days provided by the law, the appellant needs leave to file his appeal out of time. Any appeal initiated without due process or a condition precedent is, therefore, incompetent. See Olowokere vs. African Newspapers (1993) 5 NWLR pt 295 at 599. The learned counsel urged the court to hold that the appeal is incompetent and, therefore, robs the court of the necessary jurisdiction to hear it.
In response to this Preliminary Objection, the learned counsel to the Appellant submitted thus:-
My Lords, my learned friend raised the issue of filing the appeal out of time because the appeal was not filed within fourteen (14) days.
My Lords, the issue is jurisdiction which is a complete defence to any action particularly in this action of third party proceeding.
The issue jurisdiction which is a complete defence and I submit with respect that a decision therefrom is a full decision and not interlocutory decision.
In this particular case there is nothing to decide between the Claimants as there is no claim against the Appellant by the Claimant.
Urge my Lords to hold that the appeal was filed within three (5) months after the ruling.
It is a final ruling.
These are the submissions of both counsel to the Preliminary Objection.
In HC/415/2005, the parties are:-
MAZI SOMMULALU PUTAUWA EEDDAY-NWANKWO
V.
1. WEMA BANK PLC MURTALA MOHAMMED HIGHWAY CALABAR BRANCH
2. ATTORNEY-GENERAL & COMMISIONER FOR JUSTICE, CRS MINISTRY OF JUSTICE CATABAR
3. REGISTRAR OF DEEDS CROSS RIVER STATE MINISTRY OF LANDS CALABAR
In HC/MSC/161/2005 the parties:-
1. TONY NWANKWO
2. ERNEST INYANG
3. VALENTINE C. ASONYE
V.
1. WEMA BANK PLC
2. ASSISTANT INSPECTOR GENERAL OF POLICE, ZONE 2, LAGOS.
3. COMMISSIONER OF POLICE, CROSS RIVER STATE
It is obvious that the parties are different. The Appellant in this case was only joined as a 3rd party in suit No. HC/415/2005.
The subject and reliefs claimed by the plaintiff in HC/415/2005 are as follows:
(a) A declaration that he is the owner of all those two pieces or parcels of land lying and situate on Murtala Mohammed Highway, Calabar measuring approximately 1306.080 and 1509 square meters and covered by Certificates of Occupancy No. CA/658/81; CA/657/81 and registered as No. 96 at page 96 in volume 186 and No. 97 in volume 186 of the Land Registry, Calabar, respectively.
(b) An Order of perpetual injunction restraining the 1st Defendant from continuing with its trespass on the Plaintiff’s properties.
(c) An order evicting the 1st Defendant from the land of the Plaintiff forthwith.
(d) The sum of N100, 000,000.00 being special and general damages for trespass, loss of use and destruction of plaintiff’s properties found on the land from the 1st Defendant.
(e) A Declaration that the 2nd plaintiff has no right to place a caveat on the plaintiff’s properties.
(f) An order directing the 3rd Defendant to cancel or annul the Caveat placed on the Plaintiff’s land by the 2nd Defendant.
Whereas the reliefs sought in HC/MSC/16/2005 are as follows:
i. A declaration that the arrest and detention of the Applicant’s and later taken to Lagos for further detention by 2nd Respondents at the instance of the 1st Respondent for a business that took place in Calabar is purely illegal.
ii. That the detention of the Applicant’s Vehicle in order to force the Applicants to pay the alleged money owed to the 1st Respondent is illegal.
iii. That the use of Police to recover the alleged sum of money not disclosed to Mr. S. P. Nwankwo by the 1st Applicant is illegal as same should be recovered by civil action if at all.
iv. Perpetual injunction restraining the Respondents from further arrest detention, harassment of the applicant by virtue of the transaction involved in the land Housing Wema Bank Plc, Calabar Branch.
Released the Vehicle of the Applicants unlawfully detained.
Whereas HC/415/2005 is seeking for a declaration of title amongst other reliefs, HC/MSC/161/2005 is seeking the recovery of vehicles and a perpetual injunction against the 2nd & 3rd defendant from arresting the plaintiffs. The Reliefs in both cases are diametrically opposite. The parties are different and so also are the subject matter. The trial Judge was, therefore, right in holding in his Ruling that HC/415/2005 was not the same as suit No HC/MSC/161/2005. I also affirm that the ruling is not a final judgment but an interlocutory one.
Since the ruling is interlocutory, the Appellant has 14 days to file a notice and grounds of appeal if he wishes to appeal against the Ruling. See S. 24 (1) & (2) (a) of the Court of Appeal Act Cap 36 LFN 2004.
The notice of Appeal is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent and the Appellate court will lack the requisite jurisdiction to entertain it or any interlocutory application based on the said appeal Uwazurike v. AG Fed (2007) 8 NWLR pt 1035 pg 1.
Once a notice of appeal is defective and, therefore, incompetent there would be nothing left for the Court to consider in the Appeal other than to strike out the Appeal in its entirety.
Uwazurike vs. Attorney General Federation (supra), Attorney General of the Federation vs. Guardian Newspapers Ltd (1999) 9 NWLR pt 618 page 187.
Where a notice is filed out of time, it will require a prayer for enlargement of time within which to file such notice of Appeal. It is only after that is granted that the court may deem the notice of appeal already filed as duly and properly filed. See Idris v. Audu (2005) 1 NWLR pt 908 pg 612.
It is the notice of Appeal that gives an appellate court the necessary jurisdiction to hear an appeal. Any defect in the notice of appeal goes to the root of the Appeal, shell Int’l petroleum B v. FBIR (2004) 5 NWLR pt 859 pg 46, SBN Ltd. V. MPIE (2004) 6 NWLR pt 868 pg 146, Abiola v. Olawoye (2006) 13 NWLR pt 996 pg 1.
The Appellant is under the impression that the ruling is a final judgment which has 3 months within which an aggrieved party may file his notice and grounds of appeal. That is not the case here. The Ruling is an interlocutory one and the law provides for 14 days within which an aggrieved party may file his notice and grounds of appeal.
The appellant failed to file his notice and grounds of appeal within 14 days. This is a condition precedent to a competent appeal. Once an originating process is incompetent, it robs the court of jurisdiction to hear it.
The question of jurisdiction is very fundamental that it should be determined first by the court before starting any proceedings. Thus, if the court proceeds without jurisdiction, all proceedings, however well conducted, amount to a nullity. Ukwu v. Bunge (1997) 8 NWLR pt 518 pg 527, Messrs N.V Scheap v. M.V “S Araz” (2000) 12 SC pt 1 pg 164, A.G. Lagos State v. Dosunmu (1989) 3 NWLR pt 111 Pg 552, Nonye V. Anyichue (2005) 2 NWLR pt 910 pg 623.
It is settled that a court is competent when the court is properly constituted as regards number and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is not feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. Umanah V. Attah (2006) 17 NWLR (pt. 1009) 503, Madukolu V. Nkemdilim (1962) 1 All NLR 587, Skenconsult v. Ukey (1981) 1, Benin Rubber Producers Ltd V. Ojo (1997) 9 NWLR (pt 521) 388.
Once a court lacks jurisdiction, a party cannot use any statutory provision or Common Law principle to impose it, because lack of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out. Umanah vs. Attah (2006) 17 NWLR pt 1009 pg 503.
The appellant in this appeal appealed against the interlocutory ruling of the trial Judge outside the 14 days required by law thereby robbing the court of jurisdiction to hear this appeal.
I, therefore, hold that this Appeal is incompetent. The Preliminary Objection is therefore, upheld. The Appeal is hereby dismissed. The ruling of the trial Court is upheld. Cost of N30, 000.00 each to the 1st Respondent and 4th Respondent.
JOSEPH TINE TUR, J.C.A.: I have read in advance the judgment of my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur that the appeal should be dismissed and the ruling of the learned trial Judge be upheld. I adopt the facts summarized by my Lord and wish to add the following comments.
A final judgment is defined as “A Court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fees) and enforcement of the judgment” whereas an “interlocutory Judgment is “An intermediate judgment that determines a preliminary or subordinate point or plea but does not finally decide the case.” Furthermore, “A judgment or order given on a provisional or accessory claim or contention is generally interlocutory.” See Blacks Law Dictionary 8th edition, page 859; Falola vs. UBN Plc (2005) 7 NWLR (pt.924) 405; Omonua v. Oshodin (1985) 2 NWLR (Pt.10) 924 and Ogolo vs. Ogolo (2006) 5 NWLR (Pt.972) 163.
On 01.06.2006 the Third Party sought for the dismissal of the substantive suit on the ground it constituted an abuse of court process because there was pending in High Court No. 4 suit No. HC/MSC.161/2005 on the same subject matter and same parties.
The learned trial Judge heard argument before dismissing the preliminary objection on 4th day of November, 2008 to pave way for hearing of the substantive suit on the merit. The dismissal was not the last act to settle the rights of the parties and dispose of all the issues in controversy. It was an intermediate ruling that determined only the preliminary objection to the hearing of the substantive suit without finally deciding the rights of the Parties.
I hold that the dismissal was an interlocutory ruling; under section 24(2)(a) of the court of Appeal Act Cap C36 Laws of the Federation of Nigeria, 1990 the appellant had 14 days to have lodged his appeal in the Registry of the lower Court failing which he had to seek leave of this court. That was not done. The Notice of Appeal being incompetent is struckout and the appeal is dismissed.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Uzo I. Ndukwe-Anyanwu JCA gave me the privilege of reading before now the lead judgment just delivered. I agree that the appeal lacks merit and I dismiss it with costs as assessed in the lead judgment.
Appearances
CHIEF ONYEBUEKE, F. O. ESQ.For Appellant
AND
J. O. IDIEGE, ESQ.For Respondent
