CHINDA v. OZIGBU
(2022)LCN/16271(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Monday, February 14, 2022
CA/PH/241/2020
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
DR. SONNY W. CHINDA APPELANT(S)
And
JOHNBOSCO OZIGBU RESPONDENT(S)
RATIO:
A DEFECT IN COMPETENCE IS FATAL TO THE PROCEEDINGS
A Court can only be competent to exercise jurisdiction in respect of any matter if the case comes before it by due process of law and upon condition precedent to the exercise of jurisdiction. As such a defect in competence is fatal to the proceedings. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Skenconsult (Nig.) Ltd V. Ukey (1981) 1 SC 6; NNPC V. Klifco (Nig.) Ltd (2011) NWLR (Pt.1255)209 and Odua V. Okadigbo (2019) 3 NWLR (Pt.1660) 433. TANI YUSUF HASSAN, J.C.A.
WAIVER IS THE INTENTIONAL AND VOLUNTARY ABADONMENT OF A RIGHT
The case of Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1 decided that waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile, and complain of what he has waived. In other words, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. It is only when objection is made at the earliest opportunity can it be said that the right was not waived. See also Ariori v. Elemo (1983) 1 SCNLR 1; Eze v. Okechukwu(2002) 18 NWLR (Pt. 799) 348;Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) 625; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521;F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444. TANI YUSUF HASSAN, J.C.A.
AN APPLICATION INVOLVES THE TAKING AND ASSESSMENT OF EVIDENCE
Again, this application involves the taking and assessment of evidence, An application that a suit is caught up by estoppel per rem judicatam involves a comparison of the issues raised in the previous suit with that of the present suit. It is my firm belief that it would not be possible to do that where the defendant/applicant fails to file a defence as in the present suit. As it stands now, the facts as pleaded in the statement of claim in the present suit have not been denied by the defendant. The facts in the statement of claim cannot on their own, raise any issue or issues. It is only where the facts are disputed that they are said to be in issue.” TANI YUSUF HASSAN, J.C.A.
THE JUDICIAL PROCESS MUST BE GUARDED FROM BEING RIDICULED AND SCANDALIZED
The Court must jealously guard the judicial process from being ridiculed and scandalized. Once a Court is satisfied that processes before it are an abuse of its processes and orders, which in effect is a direct challenge to its integrity, it should with all urgency exercise its inherent jurisdiction and dismiss the abusive action or process. See Ezenwo v. Festus (No. 1)[2020] 16 NWLR (Pt. 1750) 324 at 341 and Agoin v. Ajoko (2021) 17 NWLR (Pt. 1804) 90. TANI YUSUF HASSAN, J.C.A.
THE DINSTINCTION BETWEEN OBJECTION TO JURISDICTION AND DEMURRER
In the case of Ajayi v. Adebiyi [2012] 11 NWLR (Pt. 1310) 137 at 180-182, the Supreme Court stated, in reiterating its firm position, on the issue:
In the case of National Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (Pt. 766) pg. 272 pages 296-297, this Court identified the difference between demurrer and objection to jurisdiction by holding that:
“There is distinction between objection to jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action or where appropriate no locus standi. The issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the relief he seeks. What it involves is what will enable the plaintiff to seek a hearing in Court over his grievance and get it resolved because he is able to show that the Court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.” TANI YUSUF HASSAN, J.C.A.
THE EFFECT OF THE THE ISSUES OF JURISDICTION RAISED IN A SUIT
It is trite that once an issue of jurisdiction is raised in any suit, the Court must not give an order in the suit affecting the defendant until the issue of jurisdiction is settled. The trial Court obviously made a wrong order in dismissing the application of the appellant based on issues of jurisdiction – locus standi of the plaintiff/respondent and Limitation Law. TANI YUSUF HASSAN, J.C.A.
JURISDICTION IS THE LIFETIME OF ALL TRIALS AND A TRIAL WITHOUT JURISDICTION IS A NULLITY
In the case of Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) pg. 675 at page 693 paras E-F, it was held that
“Jurisdiction is the very basis on which any tribunal tries a case; It is the lifeline of all trials. A trial without jurisdiction is a nullity … This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at trial, on appeal to the Court of Appeal or to this Court (Supreme Court) a fortiori the Court can suo motu raise it. TANI YUSUF HASSAN, J.C.A.
PRELIMINARY OBJECTION SHOULD BE RAISED EARLY ON THE ISSUE OF JURISDICTION
It is desirable that preliminary objection be raised early on the issue of jurisdiction but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise the issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”
Western Steel Works Ltd. v. Iron & Steel Workers Union (1986)3 NWLR (Pt. 30) pg. 617.
Oloba v. Akereja (1988) 3 NWLR (Pt. 84) pg. 508.
Odofin v. Agu (1992) 3 NWLR (Pt. 229) pg. 350. TANI YUSUF HASSAN, J.C.A.
THERE IS NO CHALLENGE TO STATEMENTS ON OATH FRONTLOADED
The point must also be made that there is no law or principle of law, which prescribes that judgment in a land dispute cannot be entered in default of appearance of a defendant or default of pleadings, on the part of the person sued by a plaintiff. A writ of summons warns of such a consequence, when it is issued and served, in any event. (See for example page 1 of the record of appeal). In the case of Aborisade v. Abolarin (2000) 10 NWLR (Pt. 674) 41, where this Court stated- A judgment obtained in default of appearance, if not set aside, is a final judgment and is res judicata. See Ekpe v. Aniba (1940) 10 WACA 19 and Odu v. John Holt & Co. (1950) 19 NLR 127. What the law prescribes is that if a declaration is sought as to title to land, some proof is required, of the title to be proclaimed. Even then, the law is now firm that where there is no challenge to statements on oath frontloaded, oral evidence may not be required, to enter judgment, as those statements on oath constitute evidence on which the trial Court may act. See GE International Operations (Nig.) Ltd. v. Q-Oil Gas Services Ltd. [2015] 1 NWLR (Pt. 1440) 244 at 270-272 and GE International Operations (Nig.) Ltd. v. Q-Oil Gas Services Ltd. [2016] 10 NWLR (Pt. 1520) 304 at 330-331. TANI YUSUF HASSAN, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The Respondent as claimant at the Court below, the High Court of Rivers State, Port Harcourt instituted an action by Writ of Summons and Statement of Claim dated 15th April, 2014 and filed on the 28th of April 2014 against the appellant as defendant therein claiming as follows:
1. A Declaration that the claimant is entitled to the statutory right of occupancy in and over all that piece of land known as and called OHIA MINI RUMUADOLU AND OHIA MINI MATI RUMUADOLU situate, lying and being at Obio/Akpor Local Government Area, Rivers State.
2. N500,000.00 (Five Hundred Thousand Naira) damages for trespass in that sometime in January, 2013, the defendant broke and entered into the said claimant’s land known as and called OHIA MINI RUMUADOLU AND OHIA MINI MATI RUMUADOLU situate, lying and being at Obio/Akpor Local Government Area, Rivers State, without the prior authority, consent, permission or license of the claimant who is in exclusive possession of the land.
3. An order of perpetual injunction restraining the defendant by himself his servants, workers, contractors, agents, and/or privies from further entry into the said claimant’s land known as and called OHIA MINI RUMUADOLU AND OHIA MINI MATI RUMUADOLU situate, lying and being at Obio/Akpor Local Government Area, Rivers State without the prior authority, consent, permission or first had and obtained.
The defendant/appellant upon being served with the writ filed a motion on notice on the 6th of November, 2015 for dismissal of the suit on the ground of being incompetent which deprived the Court of jurisdiction to determine the suit. The claimant/respondent filed an affidavit in opposition to the defendant/appellant’s motion on notice, on the 15th of December, 2015 with leave of the Court. The defendant/appellant filed a further Affidavit in support of the motion on notice raising a preliminary objection dated 10th March, 2016 and filed on the same day.
The defendant/appellant did not file a statement of defence to the claimant/respondent’s claim. The trial Court after considering the submissions of counsel on the application dismissed the application in its Ruling delivered on the 29th day of September, 2016.
Dissatisfied with the Ruling, the appellant appealed to this Court on three grounds of appeal with their particulars and reliefs sought.
The appellant’s brief dated and filed on the 19th of August, 2020, settled by E.O. Princewill Esq., has three issues distilled for determination thus:
1. “Whether having heard evidence of plaintiff in suit No PHC/287/2002: DR. SONNY W. CHINDA VS MR FINE NWAGWU & ORS, and determined same, the judgment amounts to default judgment?” (Ground 3).
2. “Whether this case is an abuse of Court process?” (Ground 2)
3. “Whether the trial Court has the jurisdiction to entertain the claims set out in paragraph 26(1) to (3) of the statement of claim which seeks to re-litigate issues already decided?” (Ground 1).
Learned counsel for the appellant adopted the brief and urged the Court to allow the appeal.
The respondent’s brief settled by George Ogara Esq. was dated 4th October, 2021 and filed on 5th October, 2021. In the brief two issues were formulated which read:
1. “Whether the lower Court was right in dismissing the Appellant’s demurrer motion on Notice filed on 6/11/2015.”
2. “Whether the lower Court was right that the Respondent’s suit is not caught by the Doctrine of Res Judicata.”
It is important to point out at this stage that the Notice of Appeal filed by the appellant was filed at the Registry of the Court of Appeal Port Harcourt Division contrary to Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 which is now Order 7 Rule 2(1) of the Court of Appeal Rules 2021.
Order 7 Rule 2 (1)reads:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed physically or electronically in the Registry of the lower Court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on such parties.”
From the foregoing, the Rule provides for filing of the Notice of Appeal at the Registry of the Court below, the decision of which is appealed against. The use of the word “shall” in Order 7 Rule 2(1) of the Court of Appeal Rules is mandatory. In other words the provision gives no room for conjecture or speculation. The Notice of Appeal must be filed at the registry of the Court below the decision of which is complained against. See Umah V. A.P.C. (2019) 5 NWLR (Pt.1666) 427. The word “shall” used in Order 7 Rules 2(1) of the Court of Appeal connotes mandatoriness and does not leave room for permissiveness. Where the word “shall” is used in a statute, there is no room for adjustment.
It must be done and obeyed. In the instant case the filing of the Notice of Appeal at the registry of the Court of Appeal, Port Harcourt Division is a Clear breach of Order 7 Rule 2(1) of the Court of Appeal Rules. See Ugwu v. Ararume(2007) 12 NWLR (Pt. 1048) 367 and Ecobank (Nig.) Ltd V. Honey Well Flour Mills PLC(2019) 2 NWLR (Pt. 1655) 55.
The Supreme Court in Okpe V Fan Milk PLC (2017) 2 NWLR (Pt.1549) 2 NWLR (Pt.1549) 282 at 285, held that an appeal is deemed to have been brought upon filing of the Notice of appeal in the registry of the lower Court or the Court from which the appeal emanated. See also I.B.W.A V. Pavex Int’l Co (Nig.) Ltd (2000) 7 NWLR (Pt.663) 105; N.B.C. PLC V. Suleiman (2019) 18 NWLR (Pt.1703) 80.
The Supreme Court also in SPDCN Ltd V. Agbara(2016) 2 NWLR (Pt. 1496) 353 held that the Notice of Appeal is filed in the registry of the Court below and not in that of the appellate Court. See also Okotie V. Olughur (1995) 5 SCNJ 217 and Harriman V. Harriman (1987) 3 NWLR (Pt. 60) 224.
An appeal in our adversarial system is initiated by filing a notice of appeal. The Notice of Appeal is the foundation of a proper and valid appeal. In the instant case where the notice of appeal is not proper before the Court, there can be no valid appeal pending before the appellate Court. The Notice of Appeal being incompetent, it remains so, and the Court no longer has jurisdiction to hear the appeal. The appeal will be struck out for being incompetent. See Onwuzulike V. State(2020) 10 NWLR (Pt. 1731) 179 and Adeleke V. Oyetola(2020) 6 NWLR (Pt. 172) 440.
The appeal is accordingly struck out for being incompetent.
A Court can only be competent to exercise jurisdiction in respect of any matter if the case comes before it by due process of law and upon condition precedent to the exercise of jurisdiction. As such a defect in competence is fatal to the proceedings. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Skenconsult (Nig.) Ltd V. Ukey(1981) 1 SC 6; NNPC V. Klifco (Nig.) Ltd (2011) NWLR (Pt.1255)209 and Odua V. Okadigbo (2019) 3 NWLR (Pt.1660) 433.
However for what it is worth even if the notice of appeal is valid and the appeal is to be determined on the merit, it may not see the light of the day. This is because the suit No. PHC/287/2002 cannot operate as estoppel against the suit No. 234/2014, because it was not a judgment decided on merit. It was a default judgment delivered in the absence of defence in respect of a land. It is settled law that judgment cannot be given in default of defence in land matters. Since it is not a judgment delivered in accordance with the law, the institution of the suit No. PHC/234/2014 cannot be said to constitute an abuse of Court process.
The appeal being an interlocutory appeal challenging the discretion of the lower Court for refusing the application, the grounds of appeal are at best of mixed law and facts which require leave by virtue of Section 242 (1) of the Constitution of the Federal Republic of Nigeria (as amended).
An appeal against refusal of an application is an appeal against how the Court exercised its discretion. A failure to obtain leave in such circumstances renders such appeal incompetent.
The appellant’s three grounds of appeal are grounds mixed law and fact. Such grounds require leave.
By virtue of Section 242(1) of the Constitution of the 1999 (as amended) when a ground of appeal is based on mixed law and fact, the jurisdiction of the Court of Appeal is ousted unless leave had been sought and obtained. In this case the Appellant’s grounds of appeal are of mixed law and fact but the appellant did not obtain leave of the Court before filing the grounds of appeal. Therefore the grounds are incompetent and liable to be struck out. The Court of Appeal is deprived of jurisdiction for non compliance with Section 242(1) of the Nigerian Constitution 1999 (as amended). See Chief of Air Staff V. Edward (2019) 1 NWLR (Pt. 1691) 183;ENL Consortium Ltd V. D.B.N. Ltd. (2020) 8 NWLR (Pt. 1725) 179; Destra Inv. Ltd. FRN (2018) 8 NWLR (Pt. 1621) 335 at 338;Anachebe V. Ijeoma (2014) 14 NWLR (Pt. 1626) 168;Allanah V. Kpolokwu (2016) 6 NWLR (Pt. 1507) 1 and UBA V. Stahlbau GMBH(1989) 3 NWLR (Pt. 110) 374.
The appeal would be liable to be struck out and it is accordingly struck out.
The appeal is struck out. Parties to bear their respective costs.
PAUL OBI ELECHI, J.C.A.: I have read before now the judgment just delivered by my learned brother Tani Yusuf Hassan, JCA.
I agree with the reasoning and conclusion arrived at in striking out the appeal for being incompetent. I also hold that the appeal for being incompetent is hereby struck-out.
Appeal struck-out.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (DISSENTING JUDGMENT): I had the privilege of reading in draft the judgment delivered by his Lordship, Tani Yusuf Hassan JCA., this morning, in this appeal. I am unable to agree with all stated and determined in the said judgment. It is therefore considered apt that I should record my own views directly as stated below as my own judgment.
REFUSAL TO STRIKE OUT THE NOTICE OF APPEAL
The first point of my divorce from the lead judgment is where it held that the appeal should be struck out, because it was filed in the registry of this Court, instead of in the registry of the lower Court, as prescribed by Order 7 Rule 2(1) of the Court of Appeal Rules, 2016, which provides thus:
“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names of and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties.”
First, I have examined the notice of appeal and there is nothing written on the document to suggest that it was filed in the registry of this Court. The notice of appeal, deriving from the prescribed Form in the First Schedule to the Court of Appeal Rules, either of 2016 or 2021 (Forms 3 and 5, respectively), has the Court of Appeal as its heading, though expected to be filed in the lower Court. There is stamp on it which pronounces that it is “CERTIFIED TRUE COPY APPEALS REGISTRY H/CT PH”, which I understand as High Court Port Harcourt. See Order 8 Rule 9 of the Court of Appeal Rules, 2016.
Secondly, the parties to this appeal did not raise the issue and they did not make comments or submissions on it before us, in order to afford them opportunity to confirm where it was filed, if it is indeed an issue, which I do not consider it as one. Having not raised the issue, which is procedural issue, it is important to point out that Courts have over the years advised that such issue should be treated mildly. Even, if the notice of appeal, which is at pages 322-325 of the record of appeal, was filed in the registry of this Court, it would still not have affected the jurisdiction of this Court.
Thirdly, even where an application is brought, which is not the case here, by any of the parties to strike out the notice of appeal, this Court would have been guided by Order 21 Rule 5(1) and (2) of the Court of Appeal Rules, 2016, which provides:
“5.-(1) An application to strike out or set aside for noncompliance with these Rules, or any other irregularity arising from the Rules of Practice and Procedure in this Court, any proceedings or any document, judgment or order therein shall only be entertained by the Court if it is made within a reasonable time and before any party applying has taken any step after becoming aware of the irregularity.
(2) An application under this Rule may be made by motion on notice and the grounds of objection must be stated therein.”
No one has complained in this appeal about the notice of appeal. Even if there was a complaint, it could not have succeeded where parties argued the appeal, based on the processes filed and went away from Court only to await judgment. Parties saw no evil in the notice of appeal.
In keeping with the direction of the provision quoted above, the Court has over the years insisted that procedural jurisdiction should not be allowed to foreshadow the exercise of the appellate rights of parties in our Courts.
In the case of Ajibode v. Gbadamosi [2021] 7 NWLR (Pt. 1776) 475, the Supreme Court stated that there are two types of jurisdiction – procedural and substantive. The latter is a matter of substantive law; while the former is a matter of procedural law regulating the practice and procedure guiding the manner suits are initiated, tried, etc. The distinction between the two is that substantive jurisdiction is vested in the Court by the enabling statute or the Constitution. It is not conferred by any litigant and cannot be waived by any litigant. On the other hand, a litigant may submit to the procedural jurisdiction of the Court or waive any defect in the procedural jurisdiction of Court by acquiescing in the defect. In the case cited, the Court held that it was too late in the day for the appellants to complain about any defect in the writ of summons to which they unconditionally entered appearance, filed pleadings, and called evidence, and in respect of which the trial Court gave them judgment. See A.-G., Kwara State v. Adeyemo(2017) 1 NWLR (Pt. 1546) 210; Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187; and Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420.
In the case of Odom v PDP [2015] 6 NWLR (Pt. 1456) 527 at … M. D. Mohammad, JSC. stated, in respect of filing notice of appeal in a wrong registry:-
“In arguing their preliminary objection to the cross-appeal, learned appellants/cross-respondents counsel submits that the notice of cross-appeal filed on 25-04-2014 at the Supreme Court’s Registry instead of the Registry of the Court of Appeal, on the authority of Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483 at 496 is incompetent inspite of this Court’s order of 26-05-2014 deeming the notice as duly filed. The notice having been filed in contravention of Order 2 Rule 30 of the Supreme Court’s Rules remains incompetent. It follows also that the cross-appellant’s brief that is filed pursuit to the incompetent notice of appeal is also incompetent. Further relying on Ogbechie v. Onochie (No.2) (1988)1 NWLR (Pt. 70) 370 at 402, learned appellants/cross-respondents’ counsel submits that the cross-appeal be struck out.
Replying, learned cross-appellant’s counsel contends that the appellants/cross-respondents’ preliminary objection to the competence of the cross-appeal is misconceived. The objection, it is submitted, having failed to take account of Order 6 rule 4, Order 8 rule 11 and Order 10 rule 1 sub-rules (1) and (2) of the Supreme Court Rules cannot be taken seriously. Supporting his submission with the decision in Obi v. I.N.E.C. In Re: Dr Andy Uba(2008) 7 NWLR (Pt. 1085) 68 at 78 learned counsel urges that the objection be overruled.
It must outrightly be stressed that a party’s right of appeal is constitutionally guaranteed. Learned appellants’/cross-respondents’ counsel must be reminded that though it is of utmost importance to comply with rules of Court, the fact remains that being Rules of Procedure, they do not themselves and of themselves alone confer jurisdiction on a Court. They merely regulate the exercise of the jurisdiction the constitution or the statute vests in the Court. Unless it is expressly stated that non compliance with the rules particularly renders a cause incompetent, the Court’s pre-occupation must be the doing of substantial justice between the parties in respect of the dispute the Court is asked to resolve.
In the case at hand, appellants’/cross-respondents’ preliminary objection, given the fundamentality of the cross-appellant’s right of appeal as guaranteed by the Constitution; cannot be given the effect the appellants/cross-respondents urge on us. The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross-appellants’ right of appeal. After all, Rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross-appellant’s non-compliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise the jurisdiction the constitution confers on it. These rules should not provide the means of compromising the appellant’s right of appeal as conferred by the constitution. See Ogunremi v. Dada (1962) 1All NLR 663 at 671; (1962) 2 SCNLR 417.”
In the case of Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503, the Supreme Court insisted that there is a distinction between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or statute or any provision of the common law states a Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court, such as where a writ has been served outside jurisdiction without leave. See also Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187.
The case of Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1 decided that waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile, and complain of what he has waived. In other words, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. It is only when objection is made at the earliest opportunity can it be said that the right was not waived. See also Ariori v. Elemo (1983) 1 SCNLR 1; Eze v. Okechukwu(2002) 18 NWLR (Pt. 799) 348;Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) 625; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521;F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444.
Returning to the issue of venue of filing a notice of appeal, in the case of Poroye v. Makarfi [2018] 1 NWLR (Pt. 1599) 91 at 146-147, the Supreme Court stated:
“Furthermore, on the issue of filing of the notice of appeal at the Court below instead of the trial Court, which meant non compliance with the rules of the Court, I am of the firm view that, that should not prevent this Court from ensuring that justice is seen to be manifestly done. The rules of Court are no doubt, meant to be obeyed by all parties concerned and at all times, including the Courts. See: U.T.C (Nig.) Ltd. v. Chief Pamotei(1989) 2 NWLR (Pt.103) 244 at 296 paras. F-G where this Court, per Belgore, JSC (as he then was, later the CJN) opined as follows:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court… For Court to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the Rules. This clearly is not the reasons of the rules of Courts.”
See also, Olufeagba & Ors v. Abdur-Raheem & Ors(2009) 18NWLR (Pt. 1173) 384; (2009) 11-12 (Pt.1) SCM 125; (2009) LPELR-2613 (SC). Where strict compliance will also lead to injustice and unbearable delay, the Court is enjoined to waive strict compliance. In Obadiam v. Grae Uyigule & Anor(1986) 3 SC 39 at 40 this Court per Irikefe, CJN opined as follows:-
“However, in the interest of justice and in order to save such time as would have been wasted by striking this appeal out hereby, we have decided to deem this as an application for leave to file the notice and grounds again out of time and this time before us so that this appeal may be properly pending before us. We have accordingly waived the requirement that the notice be filed in the Court below, that is, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us.”
In Odom & Ors v. PDP & Ors(2015) 2 SCN 209 at 226,(2015) 6 NWLR (Pt. 1456) 527 at 555, para. B-D this Court, per Dattijo Muhammad, JSC, in considering similar situation of non compliance with the rules in filing the notice of appeal in the Court from where appeal lies, opined thus:
“The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross appellants’ right of appeal. After all, rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross appellant’s noncompliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise of the jurisdiction the Constitution confers on it.”
However,Order 20 rule 5 of the 2016 Court of Appeal Rules, formerly of 2011, provides that, an appeal will not be struck out for non compliance with the rules or for any other irregularity unless the objection to the procedure is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. In the instant case, I agree with the respondents that both parties had taken fresh steps, in particular, the appellants, after becoming aware of the non compliance with the filing of the notice of appeal at the trial Court. The objection is not being raised promptly and timeously as required.
Furtherstill, it should be noted that this non compliance with the rules did not affect the substantive law in relation to the jurisdiction of the Court. At best, it concerns the procedural law on jurisdiction, hence it can be waived. See: Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 219; Ibeanu v. Ogbeide (1994) 7 NWLR (Pt. 359) 697 at 716.
In the circumstance, this issue is resolved against the appellants but in favour of the respondents. The deeming order of the Court below on the notice of appeal was properly made and renders the notice of appeal which was filed at the Court below, instead of the trial Court valid.”
In the case of In Re: Uba[2008] 7 NWLR (Pt. 1085) 68 at 77-79, the Supreme Court had the following to say about filing a notice of appeal in a wrong registry:
“It needs be said however that these applications would appear to be one of no ado about nothing. The presentation before us and the array of counsel involved notwithstanding, the simple question for resolution is simply whether a notice of appeal filed in the Court of Appeal instead of the Federal High Court is void or voidable. Order 3 rule 2(1) of Rules of the Court of Appeal provides that a notice of appeal shall be deemed filed when filed at the registry of the Court of trial. It does further prescribe that a notice of appeal shall be void if filed in the Court of Appeal rather than the High Court. Further, Order 7 rule 3 of the Court of Appeal Rules provides:
“The Court may in an exceptional circumstance, and where it considers in the interest of justices to do, waive compliance by the parties with these Rules or any part thereof.”
I have no doubt that Order 7 rule 3above is a saving provision for non-compliance with the provisions of the Court of Appeal Rules. Most Rules of Court in Nigeria have similar provisions. These proceedings were commenced in the Federal High Court. The rules of the High Court have similar provision in Order 3 rule 1. In my view, the non-compliance with Order 3 rule 2(1)as to the venue to file an appeal would at the highest only confer on the adversary the right to ask the Court of Appeal to pronounce the notice of appeal in question void. It is not by itself self-executing.
Remarkably, the 5th respondent/applicant had known of the irregularity in the filing of the notice of appeal whilst proceedings were pending in that Court. He never objected or raised issue about the irregularity. The Court below was led into giving the judgment in favour of the 5th respondent/applicant with the knowledge that the notice of appeal was filed not at the High Court but in the Court of Appeal. The 8th respondent Ifeanyi Okonkwo had raised the point. If the Court below had not at the time struck out the appeal or penalized the appellant/ respondent it would be because it thought little of the non-compliance. The 5th respondent who had not then complained cannot now be allowed to complain of an occurrence he had previously thought little of. It would amount to allowing him to approbate and reprobate at the same time. The mistake of applicant’s counsel is to have assumed that the mere filing of the appeal at the registry of the Court below renders the appeal void without more. He believes he has a joker he can raise at any stage. This is a wrong assumption. Litigation premised on such approach would amount to or lead to injustice. I am also to state that at the time the alleged notice of appeal was filed in the Court of Appeal on 18/4/07, the records of appeal were all before the Court of Appeal, which situation completely removed the possibility of the Court below asking the appellant/respondent to go back to file his appeal at the trial High Court. See Order 1 rule 22 of the Court of Appeal Rules. The case SC.161/2001 -The Honda Place Ltd. v. Globe Motors Holding Nig. Ltd. (2005) 14 NWLR (Pt. 945) 273 relied upon in counsel’s address only related to an order made by this Court upon an application heard in chambers. The order made in chambers was overruled by this Court sitting in open Court. This is quite a regular situation unlike the situation on hand.
In the case of CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488 at 512-513, this Court stated thus:
The question of whether or not a proper notice of appeal has been filed in the Court below is a question which touches on the jurisdiction of this Court. If no proper notice of appeal has been filed then there is no appeal for this Court to entertain. See Kano Plastics Ltd. v. Century Merchant Bank (1998) 3 NWLR (Pt. 543) 567 at 572-573; Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313; Olanrewaju v. B.O.N. Ltd.(1994) 8 NWLR (Pt. 364) 622. From the wording ofOrder 3 rule 2 (1) the notice of appeal shall be filed in the registry of the lower Court. However, I find the contention of the respondent in this appeal baseless in law. On examination of the records of proceedings it shows at pages 8-10 that 1st and 2nd appellants were 1st and 2nd defendants at the Court below, whereas the 3rd-7th appellants were 3rd-7th defendants respectively. The 1st and 2nd appellants were represented by counsel at the trial and filed their statement of defence. The 3rd-7th defendants were not represented and did not file any defence. All through the trial and proceedings at the Court below the 3rd-7th appellants did not participate. Written addresses were ordered. The respondent and 1st and 2nd appellants filed addresses and judgment was entered in favour of the respondent.
The 1st and 2nd appellants being dissatisfied with the said judgment appealed against it. In the appeal filed by the 1st and 2nd appellants, the present 3rd-7th appellants were 2nd-6th respondents. See page 81A of Volume 1 of the record of appeal and all the cover pages of Volumes 1 and 11 of the records. The 1st and 2nd appellants caused the appeal record to be compiled and thereafter transmitted by the Registrar of the Court below to the Registry of this Court in line with the rules of this Court. The 1st and 2nd appellants later filed their brief of argument. The 3rd-7th appellants later filed an application filed on 8/9/99 for extension of time within which to seek leave to appeal against the same judgment. The essence of that application was to allow the 3rd-7th appellants participate in the appeal and not as respondents. When time was extended to the 3rd-7th respondents to appeal was granted and the record of appeal had been transmitted from the Court below, and the appeal entered in the Court of Appeal list, in line with the provisions of Order 3 r. 13(1)and (2) of the Court of Appeal Rules, the appeal is said to be properly filed because, the Registrar of the Court below became “functus officio”. The notice of appeal filed by the 3rd-7th respondents was pursuant to leave granted by this Court. Besides, when this Court granted application of the 3rd-7th appellants, it ordered that fresh notice and grounds of appeal be comprehensively filed. All these were filed in this Court not in the Court below. I agree with the learned counsel for the 3rd-7th appellants that since the record of appeal had been properly transmitted and served on all the parties, and appeal entered, it will amount to duplicity of effort, resources and ultimately lead to delay of these appellants, pursuant to the leave granted, to file the notice and ground of appeal at the Registry of Court below. It is not the practice in this Court that where the record of appeal had been properly transmitted and served on all parties and appeal entered in the cause list with appeal number as contemplated by Order 3 Rule 5 of this Court, for the appellant to go to the lower Court to file the notice and grounds of appeal at the Court below. It would have been different if the record had not been transmitted and appeal not duly entered in the cause list.
It is on this basis I dismiss the respondent’s preliminary objection as unmeritorious and baseless.”
I therefore refuse to agree to strike out the notice of appeal and this appeal, solely on the basis of where it was filed, apart from the fact that I have held that the notice of appeal was filed in the registry of the lower Court, where it was certified as a true copy. It is good that this Court should err on the side of hearing the appeal on the merit.
I also refuse to strike out the appeal because the appellant failed to seek and obtain leave before filing the appeal. The parties were not given the opportunity to address us on the issue, as they did not raise the issue when the appeal was argued. Taking a decision on such a peculiarly fluid or uncertain issue, in the circumstances of this appeal, may amount to denial of the right of parties to fair hearing. And we must be seen as looking for all means to kick out the appeal, without actually determining it.
And, for the purpose of completeness, the ruling of the lower Court dismissing the appellant’s application complaining about the jurisdiction of that Court, finally determined the issue of the jurisdiction of that Court, thus, making the decision a final decision. An appeal against the decision being a final decision on jurisdiction does not require leave of Court and may be raised in this Court for the first time.
Being an issue of jurisdiction, it can be raised in this Court, for the first time and without leave of Court. In the case of Sakati v. Bako 2015) 14 NWLR (Pt. 1480) 531, the Supreme Court stated that the rules of Court require a party raising an issue on appeal for the first time to do so by leave of Court. However, the issue of jurisdiction is radical and at the foundation of adjudication and if a Court acts without jurisdiction, the entire process is a nullity. Thus, the Court cannot decline to deal with an issue of jurisdiction raised for the first time on appeal without leave. The issue of jurisdiction cannot be defeated by any provision of the Rules of Court. See also Osadebay v. A.-G., Bendel State (1991) 1 NWLR (Pt. 169) 525; Akegbejo v. Ataga (1998) 1 NWLR (Pt. 534) 459; British Airways v. Amadi(2012) 2 NWLR (Pt. 1283) 21; H. R. Ltd. v. F. Investment Ltd. (2007) 5 NWLR (Pt. 1027) 326; Alims Nigeria Limited v. Uba [2013] LPELR – 19768(SC) and Oni v. Fayemi & Ors. [2019] LPELR – 49929(SC).
THE APPEAL
The respondent in this appeal commenced a suit before the lower Court by the force of a writ of summons on 28/04/2014. He claimed declaration of title to land called Ohia Mini, Rumuadolu and Ohia Mini Mati Rumuadolu, situate at Obio/Akpor Local Government Area of Rivers State, as well as, damages for trespass and order of perpetual injunction against the appellant. The respondent filed a statement of claim and both the writ of summons and statement of claim are to found at pages 1-11 of the record of appeal.
On 06/11/2015, the appellant filed a motion on notice, by which he requested the lower Court to make an order dismissing the suit of the respondent “in limine” for incompetence and lack of jurisdiction. The grounds stated for the request are:
“(a) The Claimants action is caught up by the doctrine of estoppel per rem judicatam, the issues raised in the suit having been litigated upon and conclusively decided by a Court of competent jurisdiction between same parties Re: Suit No. PHC/287/2002 DR. SONNY W. CHINDA VS MR. FYNE NWAGWU & 2 OTHERS.
(b) The suit as presently constituted is an abuse of judicial process, the subject matter therein being the same as the subject matter in Suit No. PHC/287/2002 DR. SONNY W. CHINDA VS FYNE NWAGWU & 2 OTHERS heard and determined by HON. JUSTICE AKPUGHUNUM of the High Court of Rivers State.”
The application quoted above was supported by an affidavit deposed to by one Vivian Iwuoha Esq., a legal practitioner, with exhibits attached thereto. (See pages 185-192 of the record of appeal). The respondent filed a counter-affidavit, which was he deposed to and a written address, which lies at pages 193-201 of the record of appeal. At pages 209-308 of the record of appeal, the further-affidavit and exhibits attached thereto, filed by the appellant will be found. Vivian Iwuoha is the deponent. The lower Court heard parties, in argument of the application, on 15/02/2016.
The lower Court delivered its ruling and dismissed the application. The appellant was unhappy with the stance of the lower Court and filed this appeal, vide a notice of appeal, filed in the Registry of the High Court of Rivers State in Port Harcourt and not in the Registry of this Court, on 27/03/2020. This is an appeal against the ruling of the Rivers State High Court, sitting in its Port Harcourt Division, in suit no. PHC/234/2014, dated 29/09/2016, signed by Justice E. S. Nyesom-Wike. The ruling is at pages 312-321 of the record of appeal.
ISSUES FOR DETERMINATION
The appellant raised three grounds of appeal against the ruling of the lower Court.
The appeal was argued on 18/01/2022. E. O. Princewill Esq. appeared for the appellant. He adopted appellant’s brief of argument, filed on 19/08/2020, as argument of the appeal. He urged the Court to allow the appeal. He directed the attention of the Court to the notice of appeal filed on 27/03/2020, which is at pages 322-325.
G. O. Agbo Esq. appeared for the respondent. He adopted the brief of argument filed on behalf of the respondent on 05/10/2021, as argument of opposition to the appeal. He requested this Court to dismiss the appeal.
In the appellant’s brief filed on 19/08/2020, deemed properly filed and served on 18/01/2022, appellant’s counsel – E. O. Princewill Esq. – set three issues for determination before this Court, as follows:
“1. Whether having heard evidence of Plaintiff in Suit No. PHC/287/2002: DR. SONNY W. CHINDA V. MR FYNE UNWAGWU & ORS., and determined same, the Judgment amounts to default Judgment? See ground 3 of the Notice of Appeal.
2. Whether this case is an abuse of Court process? See ground 2 of the Notice of Appeal.
3. Whether the trial Court has the jurisdiction to entertain the claims set out in paragraph 26(1) to (3) of the Statement of Claim which seeks to re-litigate issues already decided? See ground 1 of the Notice of Appeal.
The respondent’s counsel – George Ogara Esq. – came up with two issues for determination, in the respondent’s brief of argument, filed on 05/10/2021, but deemed as properly filed on 18/01/2022 and these are:
“1. Whether the lower Court was right in dismissing the Appellant’s demurrer Motion on Notice filed on 6/11/2015.
2. Whether the lower Court was right that the Respondent’s Suit is not caught up by the Doctrine of Res Judicata.
In view of the fact that the appellant brought the appeal and the issues raised by him aggregate his complaint, the appeal will be determined on the basis of issues submitted by the appellant.
APPELLANT’S ARGUMENT
In arguing his first issue, learned counsel for the appellant, cited the case of Mohammed Ndejiko Mohammed & Ors. v. Mohammed Husseni & Anor. [1998] 14 NWLR (Pt. 584) 108 at 144 on the meaning of default judgment, as distinguished from judgment on the merit. He pointed out that in the suit PHC/287/2002: Dr. Sonny W. Chinda v. Mr. Fyne Nwagwu & Ors., judgment was given after evidence was led. Learned counsel referred to the decision of the lower Court, recorded at page 321 of the record of appeal, where it held that the judgment in suit no. PHC/287/2002 was a default judgment and not on the merit, which fact thus excluded the applicability of estoppel per rem judicatam, between that suit and the suit before the lower Court. He cited the case of Okpala Ezeokonkwo & Ors. v. Nwafor Okeke & Ors. [2002] 11 NWLR (Pt. 777) 1 at 29.
He advised that this Court is called upon to reverse the findings of the lower Court and to state that the judgment of the Court in PHC/287/2002: Dr. Sonny W. Chinda v. Mr. Fyne Nwagwu & Ors. He submitted that the judgment is not a default judgment, but a judgment on the merit.
On the second issue, learned counsel defined the meaning of abuse of process of Court, with the aid of the case of African Reinsurance Corporation v. JDP Construction Nigeria Limited [2003] 12 NWLR (Pt. 838) 609 at 635.
In the opinion of learned counsel, there is an abuse of legal procedure, when the claimant (respondent in this appeal) having applied to be joined as an intervener, sought some orders, which were refused and he turned round to file the suit before the lower Court. There was abuse of process of Court, when the respondent, sought the same prayers of declaration of title to land, injunction and damages in suit no. PHC/287/2002 and in the suit before the lower Court, over the same parcel of land in the earlier suit, described as Ohia Mini Rumuadolu and Ohia Mini Mati Rumuadolu. Since the claims had been granted earlier, in PHC/284/2014, the claims, in the view of learned counsel, cannot be re-litigated, as done by the respondent (as claimed) in PHC/234/2014. He is of the view that the fact that the respondent elected to call the land by a different name is immaterial.
On what would amount to abuse of process of Court, learned counsel relied on the case of Ashley Agwasim & Anor. v. David Ojichie & Anor. [2004] 10 NWLR (Pt. 882) 613 at 622-625. He insisted that the judgment in the earlier suit is a final decision against the background of which the respondent filed another suit over the same subject matter, same issue and same parties.
The attention of the Court was drawn to page 321 of the record of appeal, where the lower Court held that the application necessitated taking and assessment of evidence etc., which does not represent the position of the law. He relied on the case of Ashley Agwasim & Anor. v. David Ojichie (supra) at page 624-625 on how the lower Court should have proceeded with the application. He submitted that the earlier suit was caught up by the doctrine of estoppel per rem judicatam and what the lower Court ought have dwelt upon was examine the writ of summons in the earlier suit vis-à-vis the writ of summons in the suit before it and not to be concerned with the absence of a statement of defence, which had not been filed. He cited the case of Mr. Popoola Elabanjo & Anor. v. Chief (Mrs.) Ganiat Dawodu [2006] 15 NWLR (Pt. 1001) 76 at 117.
He submitted that the case of Senator Heineken Lokpobiri v. Hon. Foster Ogola & 2 Ors. [2016] 3 NWLR (Pt. 1499) 328 at 388 directs that a case constituting abuse of process of Court should be dismissed.
On the third issue, learned counsel recalled the prayers brought before the lower Court in the suit before it and made the point that the earlier suit, the appellant had the same prayers, led evidence and obtained judgment on 28/07/2005 and when the judgment was executed, it was found that the respondent was building on the land in dispute. He insisted that the “respondent, his privies and agents were ordered out of the site and the gate of the site was locked and the keys handed over to the appellant. Reference was made to page 181 of the record of appeal. The respondent filed an application as an intervener, pursuant to the Judgment (Enforcement) Rules. Which was dismissed on 20/04/2014 and thereby became bound by the judgment of the Court. Reference was made to pages 100-176 of the record of appeal and Order 11 Rule 10 of the Judgment (Enforcement) Rules.
In the opinion of learned counsel, all needed ingredients of the estoppel per rem judiciatam are present in the suit before the lower Court. He submitted that the soundness of the judgment in the earlier suit is not material. He cited the case of Nnah George Onyeabuch v. INEC & Ors. [2002] 8 NWLR (Pt. 769) 417 at 435-436 on the proposition.
The attention of this Court was directed to pages 319-310 of the record of appeal where he quoted a portion of the lower Court’s decision from and which he disagreed with. He submitted that the issue of jurisdiction can be raised even orally and a trial Court merely looking at the statement of claim and the facts/issues raised in the objection can quickly determine whether it has jurisdiction or not. He relied on the cases of Petrojessica Enterprises Ltd. & Anor. v. Leventis Technical Company Limited [1992] 5 NWLR (Pt. 244) 675 and Nigeria Deposit Insurance Corporation v. CBN & Anor. [2002] 7 NWLR (Pt. 766) 272 at 295. He submitted that the issue of jurisdiction is not a matter for demurrer and that insisted that it is wrong to equated jurisdiction with demurrer.
The issue of jurisdiction cannot be defeated by the rules of Court, which even not contemplated by Order 22 Rules 1 and 2 of the High Court of Rivers State (Civil Procedure) Rules, 2010. He is of the opinion that the rules cannot dictate how an issue of jurisdiction can be raised.
He submitted that the lower Court was wrong to dismiss the preliminary objection from the appellant, on the ground that no statement of defence was filed, as it is not necessary that such should be filed before the issue of jurisdiction may be raised.
The issue of jurisdiction would be determined on what the claimant claims and not the defence of the defendant. He reasoned that at page 320 of the record of appeal, the lower Court appeared to have held that there is/are no statutory provisions on the issue of res judicatam, whereas Sections 169 and 174(1) and (2) of the Evidence Act. Makes provision for estoppel.
He urged the Court to allow the appeal.
RESPONDENT’S ARGUMENT
On behalf of the respondent, learned counsel reminded this Court that the appellant failed to file any statement of defence before the lower Court. Reference was made to Order 22 Rule 1 of the Rivers State High Court (Civil Procedure) Rules, 2010, which abolished demurrer, which implies that the appellant could not raise issue of law without filing a statement of defence. He referred to the decision in Mr. Bode Akinyemi & Anor. v. Prince M. O. Banjoko [2017] LPELR – 42377 (CA). The issue of estoppels cannot be raised, without the filing of statement of defence, first. He also relied on the cases of Taofik Disu & Ors. v. Alhaja Silifai Ajilowura [2006] LPELR – 955 (SC) and Mr. Sam Amuka Pemu v. Nigerian Deposit Insurance Corporation [2014] LPELR – 24627 (CA).
As the affidavit filed in support of the appellant’s motion supplied fact and evidence, the application cannot be described as a question of law in demurrer. The Court was directed to the case of Chief Gabriel Iwuoha & Anor. v. Chief Jonathan Kezie & Anor. [2016] LPELR – 40078 (CA)
It was submitted that the issue of estoppel per rem judicatam is not a question of law or jurisdiction, but one of fact, to be decided as such. He pointed out that the appellant’s application was premature and incompetent. He referred to the case of Chairman Zaria Local Government & Ors. v. Alhaji Dehiru Adamu & Ors. [2015] LPELR – 25934 (CA) and Ketu v. Onikoro [1984] 10 SC 265.
He insisted that the appellant is not allowed protection of the law, having not pleaded res judiciata in the statement of claim. He cited the case of Mr. Sam Amuka Pemu v. NDIC [2016] 6 NWLR (Pt. 1507) 175.
Pointing at page 321 of the record of appeal, learned counsel identified the decision of the lower Court. He also cited the case of Dr. Taiwo Oloruntoba-Oju & Ors. v. Professor Shuab O. Abdul-Raheem & Ors. [2009] FWLR (Pt. 497) 1 at 32 and Adone v. Ikebudu [2001] FWLR (Pt. 72) 1893 and Iga v. Amakiri [1976] 11 SC 1 on conditions for the plea of res judicata. It was submitted that the conditions were not met in the appellant’s application.
He pointed out that the parties are different in the two cases. He cited the case of Mrs Ronke Omiyale v. Mobolaji Macaulay & Ors. [2009] All FWLR (Pt. 479) 399 at 418 on the meaning of party. He advised that the respondent was not a party in the earlier suit, with the respondent claiming not to know anyone by the name Mr. Fyne Nwagwu.
Learned counsel also pointed out that the subject matter of the two disputes are different. He directed the attention of the Court to pages 177-183 of the record of appeal.
In the view of learned counsel, the earlier judgment is a default judgment, which may be set aside, as it is not a contested case. He referred to the case of Alhaji Ardullahi Atanda Kolawole v. Alhaji Salami Adisa Olori [2010] All FWLR (Pt. 514) 35 at 115 (which relied on the case of Kossen (Nig.) Ltd. v. Savannah Bank (Nig.) Ltd. [1995] 12 SCNJ 29; [1995] 9 NWLR (Pt. 420) 439, which decided that a judgment or ruling, which is not on the merit may not ground a plea of “estoppel res judicatam”. He explained that the judgment in the earlier suit relied upon was not contested by defendants in the suit, who did not file any process. He cited the case of Chief Saka Atuyeye & Ors. v. Mrs. Bola Ashamu & Ors. [2009] All FWLR (Pt. 455) 1770 at 1778 on constituents of abuse of process of Court.
He urged the Court to dismiss the appeal.
RESOLUTION OF THE ISSUES
The three issues raised by the appellant will, essentially, be resolved together in once stream of thought, because they are inter-related.
I have read and given consideration to the ruling against which the appeal was filed, the grounds of appeal and given consideration to the issues raised by the parties and their argument of same. At page 321 of the record of appeal, the lower Court concluded its ruling thus:
“In the circumstances of the foregoing therefore, I hold that the defendant/applicant has failed to persuade this Court by any convincing evidence that the instant suit has been caught up by the doctrine of estoppels per rem judicatam and should be dismissed in limine. The application is accordingly dismissed.”
The lower Court refused the application of the appellant on. The basis of two factors: These are:
a. That the application was a demurrer which offends against the provisions of the Rules of the lower Court. A capsule of the thought of the lower Court is located at page 319-321 of the record of appeal, where the lower Court, stated:
“Counsel to the defendant/applicant had argued that where the defendant has a good ground of law which if raised will determine an action in limine, he may raise such a ground of law without filing a statement of defence seeking to strike out or dismiss the action of the claimant for disclosing no cause of action. With respect to Learned Counsel to the applicant, this is no longer the position of the law as demurrer has been abolished by our Rules. By Order 15 Rule 17 of the Rules of this Court, all grounds of defence or reply which make an action or counterclaim not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the preceding pleadings shall be specifically pleaded. Again, by Order 22 Rules 1 and 2, no demurrer shall be allowed, but any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial.
…
In the instant case, the objection of the defendant/applicant is not based on any statutory provision and the defendant/applicant is therefore obliged by the rules of Court to first file his defence and raise this point of law in his statement of defence. I hold that any applicant who either purposefully or mistakenly flouts any of the Rules of Court must do so with the full consequences in mind. This is so because although it is not every non-compliance with the Rules that attract sanction or penalty of either dismissal or striking out of the process, where the Court comes to the conclusion, as in the instant case, that the non-compliance affects the root, foundation or props of the case, the Court will not treat it as irregularity but as nullifying the proceedings.
…
Again, this application involves the taking and assessment of evidence, An application that a suit is caught up by estoppel per rem judicatam involves a comparison of the issues raised in the previous suit with that of the present suit. It is my firm belief that it would not be possible to do that where the defendant/applicant fails to file a defence as in the present suit. As it stands now, the facts as pleaded in the statement of claim in the present suit have not been denied by the defendant. The facts in the statement of claim cannot on their own, raise any issue or issues. It is only where the facts are disputed that they are said to be in issue.”
b. The second reason is found on page 321 of the record of appeal and it is that the previous suit was not determined on the merit and cannot ground a plea of estoppel per rem judicatam. The lower Court relied on the case of Kolawole v. Olori [2010] All FWLR (Pt. 514) 35 for taking the position it took. It reasoned that the judgment in suit no. PHC/87/2002 is a default judgment, not determined on the merit of the suit.
Regarding the first reason given by the lower Court, highlighted above, the issue of abuse of the process of Court has been crucially identified as an issue of jurisdiction. See the case of Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347.
Abuse of process of Court simply means that the process of Court has not been used bona-fide and properly. For an action to be declared frivolous, vexatious, oppressive and an abuse of the process of Court, it must be shown quite clearly that there are two or more actions between the same parties in respect of the same subject matter in one or more Courts at the same time. See Ikine v. Edjerode [2001] 18 NWLR (Pt. 745) 446 at 479. It is an abuse of Court process for a party to re-litigate an identical issue which had been decided against him by a Court of competent jurisdiction. Abuse of Court’s process simply connotes the misuse of the Court’s process to invoke the jurisdiction of Court. It includes the act of a litigant embarking on a frolic of forum-shopping. That is, by seeking a friendly and favourable Court to entertain his matter. See Yar’adua v. Abubakar (2008) 18 NWLR (Pt. 1120) 236; and Dingyadi v. INEC (No. 1.) (2010) 18 NWLR (Pt. 1224) 1.
The Court must jealously guard the judicial process from being ridiculed and scandalized. Once a Court is satisfied that processes before it are an abuse of its processes and orders, which in effect is a direct challenge to its integrity, it should with all urgency exercise its inherent jurisdiction and dismiss the abusive action or process. See Ezenwo v. Festus (No. 1)[2020] 16 NWLR (Pt. 1750) 324 at 341 and Agoin v. Ajoko (2021) 17 NWLR (Pt. 1804) 90.
With respect to the first issue given by the lower Court, it is important to note that the application brought before that Court was challenge to its jurisdiction, being one accusing the suit of the respondent as an abuse of the process of that Court. The allegation was that the parties had been involved in a previous litigation, which ended in a judgment, in suit no. PHC/287/2002. In that circumstance, it was incumbent on the lower Court to proceed with alacrity to determine the issue, based on materials available to it. It was not an issue where the principles regarding demurrer or need to plead such material facts, will become applicable and a priority. In the case of Ajayi v. Adebiyi [2012] 11 NWLR (Pt. 1310) 137 at 180-182, the Supreme Court stated, in reiterating its firm position, on the issue:
In the case of National Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (Pt. 766) pg. 272 pages 296-297, this Court identified the difference between demurrer and objection to jurisdiction by holding that:
“There is distinction between objection to jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action or where appropriate no locus standi. The issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the relief he seeks. What it involves is what will enable the plaintiff to seek a hearing in Court over his grievance and get it resolved because he is able to show that the Court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”
It is trite that once an issue of jurisdiction is raised in any suit, the Court must not give an order in the suit affecting the defendant until the issue of jurisdiction is settled. The trial Court obviously made a wrong order in dismissing the application of the appellant based on issues of jurisdiction – locus standi of the plaintiff/respondent and Limitation Law.
In the case of Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) pg. 675 at page 693 paras E-F, it was held that
“Jurisdiction is the very basis on which any tribunal tries a case; It is the lifeline of all trials. A trial without jurisdiction is a nullity … This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at trial, on appeal to the Court of Appeal or to this Court (Supreme Court) a fortiori the Court can suo motu raise it.
It is desirable that preliminary objection be raised early on the issue of jurisdiction but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise the issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”
Western Steel Works Ltd. v. Iron & Steel Workers Union (1986)3 NWLR (Pt. 30) pg. 617.
Oloba v. Akereja (1988) 3 NWLR (Pt. 84) pg. 508.
Odofin v. Agu (1992) 3 NWLR (Pt. 229) pg. 350.
Furthermore, an objection to jurisdiction can be taken at any time depending on what materials are available. It would be taken in the following situations –
a. On the basis of the statement of claim; or
b. On the basis of the evidence received; or
c. By a motion supported by affidavit giving full facts upon which reliance is placed; or
d. On the face of the writ of summons, where appropriate as to the capacity in which action was brought or against whom action is brought.
A.-G., Kwara State v. Olawale(1993) 1 NWLR (Pt.272) pg.645.
Izenkwe v. Nnadozie (1953) 14 WACA 361. Adeyemi v. Opeyori (1976) 9-10 SC pg. 31.
Kasikwu Farms Ltd. v. A.-G., Bendel State (1986) 1 NWLR(Pt.19) pg. 695.
Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All NLR (Pt. 1) 409.
National Bank (Nig.) Ltd. v. Shoyoye (1977) 5 SC 181.
The objection of the appellant dated the 2nd of August 1996 as to the Limitation Law in respect of the acquisition of the disputed land by the Lagos State Government and the issue of the locus standi of the plaintiff/respondent ought to have been entertained by the lower Court as threshold issues.”
In the case of NDIC v. CBN(2002) 7 NWLR (Pt. 766) 272 at 293-296, the Supreme Court stated:
In the present case, although pleadings had not been ordered and no statement of claim had been filed, the appellant filed a notice of preliminary objection after the respondent’s notice of motion praying for an interlocutory injunction had been filed and served.
The appellant in its notice said:
“Take Notice that counsel on behalf of the defendant intends at the hearing of this action – (or in particular the hearing of the plaintiffs motion on notice dated 12 July, 1995) – to raise a preliminary objection, vide licet:
– that the action be struck out.
And take notice that the grounds of this objection are that:
– the Honourable Court is coram non judice in respect of this action; and
– the plaintiff has no right of action.”
It was in respect of this notice of preliminary objection that Opene, JCA observed inter alia as follows:
“By virtue of Order 31 rule 1above it can be seen that it is mandatory that in all suits in the Federal High Court written pleadings shall be ordered by the trial Court unless the Court considers in any particular suit that written pleadings are unnecessary. No doubt, the learned trial Judge is clearly in breach of the mandatory provision of Order 31 rule 1 of the Federal High Court (Civil Procedure) Rules as she failed to order pleadings in this matter.
In the instant case, the provisions of Section 49 of the Decree is not an outright ouster of the Court’s jurisdiction where the Court can on the face of the writ of summons decline jurisdiction. Under this section of the law what a plaintiff needs to do is to plead and prove bad faith if the action is to be sustained.
I am therefore of the view that the preliminary objection was premature and that it could only be raised after the appellant has filed his statement of claim and that the preliminary objection can only succeed if the appellant failed to plead in his statement of claim that the Governor of Central Bank ‘acted in bad faith’.”
I am afraid I cannot quite agree with these observations. It is now beyond argument that the issue of jurisdiction can be raised at any stage of the proceedings even on appeal. …
…
To say, therefore, as did the Court below and as canvassed by the plaintiff/respondent before us in its brief of argument that objection to jurisdiction should only be taken after the statement of claim has been filed is a misconception. It depends on what materials are available. It could be taken on the basis of the statement of claim: see Izenkwe v. Nnadozie(1953) 14 WACA 361 at 363; Adeyemi v. Opeyori (1976) 9-10 SC 31; Kasikwu Farms Ltd. v. Attorney-General of Bendel State (1986) 1 NWLR (Pt. 19) 695. It could be taken on the basis of the evidence received: see Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All NLR 409; or by a motion supported by affidavit giving the facts upon which reliance is placed: see National Bank (Nigeria) Ltd. v. Shoyoye (1977) 5 SC 181 at 194 per Obaseki, JSC. But certainly it could be taken on the face of the writ of summons where appropriate …”
In the case of Felshade International (Nig.) Ltd. v. T. B. (BV) Amsterdam[2020] 14 NWLR (Pt. 1743) 107 at 138, this Court held, pointedly, that an application by a defendant seeking the striking out of a suit on the ground of lack of jurisdiction is not a demurrer.
The lower Court was therefore in grave error when it conflated the issue raised in the appellant’s application, which is one of jurisdiction, with being one of demurrer. It was an error. The lower Court should have determined the application on its merit, instead of sidestepping it, with demurrer as its excuse. The fact that the application was brought before it before the appellant filed a statement of defence was of no importance to its duty to determine the issue. It is allowed to file a motion to raise the issue of jurisdiction, even without filing pleadings.
The lower Court also determined that a decision of the Court in suit no. PHC/287/2002 was a default decision, which would not serve as predicate for a plea of res judicata. First, an examination of the enrolled order of the judgment dated 28/07/2005, in suit no. PHC/287/2002, which is at page 92 of the record of appeal, it will not noticed that it claimed that the trial Court in that case gave judgment “AFTER HEARING evidence of Plaintiff and address by Plaintiff’s Counsel”. If that holds, as fact, in the circumstances of this appeal, the judgment of that Court is not a default judgment.
In the case of Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342 at 389-390, the Supreme Court stated that a default judgment is a judgment given in default of appearance or pleadings against a defendant or a plaintiff in a cross-action whose names appear as such defendant or plaintiff in the record of the trial Court. In the case of Adeloye v. Olona Motors Nig. Ltd. (2002) 8 NWLR (Pt. 769) 445, this Court explained that a default judgment for a plaintiff means one obtained by the defendant’s failure to comply with any of the rules of procedure. Such a judgment, based solely on default of pleadings or non-compliance with the rules of procedure, is not one on merits and can, on good grounds being shown by the defendant, be set aside. Where, however, such a judgment, though obtained in default of pleadings is based on the legal rights of the parties, it is one on the merits and would be as good as any judgment obtained after full hearing.
Furthermore, for a party to claim benefit from the rule that a default judgment, which is not found in this appeal, such a party should first admit, as matter of fact, that he is the person affected by the judgment, which he seeks to challenge. In this appeal, the respondent disowns participation in or being a party to the suit no. PHC/287/2002, and cannot be claiming that the said judgment cannot constitute the basis of the plea of res judicata. The types of default judgment being referred to in the authorities, are not capable of sustaining a plea of res judicata, are those ending with dismissal of a suit for want of diligent prosecution, where the suit was not heard. A plea of res judicata cannot be founded on a previous judgment which was dismissed for want of prosecution. See Okoronkwo v. Chuwueke (1992) 1 NWLR (Pt. 216) 175.
There is nothing on the face of exhibit A attached to the affidavit in support of the application of the appellant (see page 92 of the record of appeal), before the lower Court, to suggest that the judgment in suit no. PHC/287/2002 was obtained by default, especially, where evidence was led before that Court, according to the enrolment of the judgment at page 92 of the record of appeal. As it is shown on the face of the ruling of the lower Court, there is no indication of how the lower Court found facts, with which it determined that the judgment in suit no. PHC/287/2002 is a judgment obtained by default. The lower Court was therefore in error when it arrived at that conclusion. The fact that a party sued, failed to attend Court to give evidence or defend a suit, where there is no suggestion that such a party was not served with processes of Court or summoned to Court, duly, is not tantamount to the judgment emanating from such a judicial process being described as default judgment where evidence was led by the party present. It will be a judgment on the merit.
The point must also be made that there is no law or principle of law, which prescribes that judgment in a land dispute cannot be entered in default of appearance of a defendant or default of pleadings, on the part of the person sued by a plaintiff. A writ of summons warns of such a consequence, when it is issued and served, in any event. (See for example page 1 of the record of appeal). In the case of Aborisade v. Abolarin (2000) 10 NWLR (Pt. 674) 41, where this Court stated- A judgment obtained in default of appearance, if not set aside, is a final judgment and is res judicata. See Ekpe v. Aniba (1940) 10 WACA 19 and Odu v. John Holt & Co. (1950) 19 NLR 127. What the law prescribes is that if a declaration is sought as to title to land, some proof is required, of the title to be proclaimed. Even then, the law is now firm that where there is no challenge to statements on oath frontloaded, oral evidence may not be required, to enter judgment, as those statements on oath constitute evidence on which the trial Court may act. See GE International Operations (Nig.) Ltd. v. Q-Oil Gas Services Ltd. [2015] 1 NWLR (Pt. 1440) 244 at 270-272 and GE International Operations (Nig.) Ltd. v. Q-Oil Gas Services Ltd. [2016] 10 NWLR (Pt. 1520) 304 at 330-331.
The lower Court failed to consider the appellant’s application on its merit. That was a decision which was made in error and has occasioned miscarriage of justice to the interest of the appellant. The ruling of the lower Court is hereby set aside. The suit is hereby remitted back to the lower Court for the appellant’s application to be determined by another Judge of the Rivers State High Court, different from the Judge who determined the ruling on appeal before us.
Appearances:
E.O. Princewill, Esq. For Appellant(s)
G.O. Agbo, Esq. For Respondent(s)