CHINEDU UKWU v. ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA & ORS. (2012)

CHINEDU UKWU v. ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA & ORS.

(2012)LCN/5701(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of December, 2012

CA/C/04/2009

RATIO

JURISDICTION: IMPORTANCE OF JURISDICTION

Jurisdiction is the cornerstone of any suit in court. A court that has no jurisdiction to hear a matter is wasting the precious time of the court and of the parties to the suit. However, a court whose jurisdiction has been challenged is entitled under Section 6 of the 1999 Constitution to consider the plaintiff’s claim before it, in order to decide whether it has the jurisdiction to entertain it. See Adeleke v. O.S.A.A (2006) 16 NWLR pt 1006 page 608, Egbebu v. I.G.P (2006) 5 NWLR pt 972 page 146.

Where proceedings are commenced on originating summons or by affidavits like in this case, and, an objection is taken to the jurisdiction of the court, it is always neater, tidier better and advisable that arguments be taken on the objection together with the substantive matter. Dapialong v. Dariye (2007) 8 NWLR pt 1036 page 332, Adeleke v. OSHA (supra) Senate President v. Nzeribe (supra) Amadi v. NNPC (2000) 10 NWLR pt 674 page 76. PER UZO I. NDUKWE-ANYANWU, J.C.A.

PROCEDURE: EFFECT OF WHEN PRELIMINARY OBJECTION HAS MERIT

If the Preliminary Objection has merit then the suit will be dismissed in limine. If not, the trial Judge would proceed with the substantive motions already filed. PER UZO I. NDUKWE-ANYANWU, J.C.A.

JURISDICTION: WHEN CAN AN OBJECTION TO THE ISSUE OF JURISDICTION CAN BE RAISED

The law is well settled that objection to the jurisdiction of a Court to entertain a suit, matter or proceeding can be raised at any stage of the proceedings.

In Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 Nnamani, JSC put it as follows:

“It is necessary to point out at this stage that the issue of jurisdiction was never taken before the High Court and the Court of Appeal. There really can be no objection to this since it is well settled that jurisdiction can be raised at any stage of the proceedings. See Nunaka Udenta & Ors. v. Ani Chukwunta & Ors. (1959) 111 ENLR 45.”

See also Katto v. CBN (1991) 12 SCNJ 1 at 19-20; Oloriode v. Oyebi (1984) 5 SC 1 at 32 and Oloba v. Akereja (1988) 3 NWLR (pt.84) 508 at 520. PER JOSEPH TINE TUR, J.C.A.

PROCEDURE: WHETHER ADJOURNMENT IS AT THE DISCRETION OF JUDGES

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

CHINEDU UKWU – Appellant(s)

AND

ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA & ORS. – Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court sitting in Calabar delivered on 31st November, 2008. The Appellant was dissatisfied hence this appeal. In brief, the 2nd Respondent’s counsel had filed a Preliminary Objection challenging the jurisdiction of the Federal High Court Calabar, to hear the motion on Notice as the suit was brought outside, the mandatory period of 14 days. See Order 1 Rule 1 (2) of the Fundamental Rights (Enforcement) Procedure Rules 1979. Counsel had sought to argue the Preliminary Objection before the motion on notice. However the trial Judge ordered the parties to file their various arguments, in respect of the motion on notice so that all the arguments would be taken together.

The 2nd Respondent was aggrieved and filed his notice and 2 grounds of appeal on 7th November, 2008.

The Appellant filed his brief on 29th January, 2009 and articulated 2 issues for determination as follows:

“1. Whether the Federal High Court, Calabar was right in not hearing and deciding the Preliminary Objection filed by the 2nd Respondent challenging its jurisdiction before proceeding to order the 2nd Respondent to file his Counter Affidavit in the suit and his Written Address to the Applicant’s Motion Ex-Parte dated 29th September, 2008 and the Applicant’s counsel to file his Written Address in respect of his Motion on Notice?

2. Whether the Order of the Federal High Court, Calabar on 3rd November, 2008 that the 2nd Respondent should file and serve his Counter Affidavit and Written Address to the Applicant’s Motion Ex-Parte are valid in view of the fact that the Applicant’s suit is ex-facie a nullity?”

The 2nd Respondent filed his brief on 8th June, 2009 and articulated only one issue for determination namely:

“Whether in the circumstances of this case there was a decision of the lower court to warrant or sustain this Appeal.”

The two issues articulated by the Appellant would be treated together. The Appellant’s Learned Counsel submitted that where the jurisdiction of the court is challenged, the court is duty bound to determine that issue first before proceeding to hear the substantive suit. See Olutola v. UNILORIN (2005) 3 WRN page 22 where the Supreme Court held:

There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the court and to the parties so to do. See also Arence v. Nwofia (2000) 4 NWLR pt 653 page 464 where the Court of Appeal held:

“… A party who thinks that a Court Process is brought without jurisdiction has the remedy to file an objection with a view of terminating the process in limine. The Court must hear listen to him and rule one way or the other”

Counsel submitted that the order of the Federal High Court on 3rd November, 2008 amounted to a refusal of the Preliminary Objection of the Appellant to its jurisdiction. See Owerri Municipal Council & Ors. v. Innocent Onuoho & Ors. (2010) All FWLR pt 538 page 896. See also Attorney General Lagos State v. Dosunmu (1988) TWLR pt 1 page 1 where the Supreme Court held:

“… jurisdiction is a radical and crucial question of competence. Either the court has jurisdiction to hear the case or it has not. If it has no jurisdiction, the proceedings are and remain a nullity however well conducted and brilliantly decided they might otherwise have been”.

See Olutola v. UNILORIN (Supra) where it was further held as follows:

“… if a Court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter.”

Ijebu Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 9 SCNJ page 1.

“Where the court has no jurisdiction with respect to the matter before it, the active support or ignorance of the parties to the fact cannot vest the court with the requisite jurisdiction which is essential pre-condition to the exercise of judicial powers”

Counsel submitted that under Order 2 Rule 1(2) of the Fundamental Rights Enforcement Procedure Rules 1979 which provides as follows:

“The Motion or Summons must be entered for hearing within fourteen (14) days after such leave has been granted”

Counsel argued that the 2nd Respondent’s suit in the court below was a nullity as the 14 days envisaged had elapsed. This is because, the 2nd Respondent’s suit was not fixed within 14 days provided under the rules. The leave granted had expired by effluxion of time. See Ogwuche & Ors. v. Mba & Ors. 1994 5 NWLR pt 336 page 75.

Counsel submitted that, time having expired, no valid proceeding in law can be founded upon it, including the order of 3rd November, 2008 See Odu’a Investment Co. Ltd v. Joseph T. Talabi (1997) 52 LRCN 2107 where the court held:

“Now it is clear that a court is not only entitled but bound to put an end to proceedings, if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative”. Attorney General Lagos State v. Dosunmi (supra) Macfoy v. UAC 1962 Q. C. page 529″.

Counsel submitted finally that time having expired, the court lacked jurisdiction to proceed to consider the 2nd Respondent’s case on the merit. Counsel urged the court to resolve these 2 issues in favour of the Appellant.

The 2nd Respondent’s Learned Counsel submitted that, the trial court had not reached any decision that the Appellant can appeal on.

See Saraki v. Kotoye (1992) 9 NWLR pt 264 page 184, Attorney General Oyo State v. Fair Lakes Hotels Ltd. (1989) NWLR pt 121 page 255 Ngige v. Obi (2006) 16 NWLR pt 999 page 1, Onugbo v. Unah (2002) 16 NWLR pt 792 page 175.

Counsel submitted that the procedure adopted by the Appellant in not allowing, the 1st Respondent to file a response to his written argument to the preliminary objection as ordered by the trial was hasty. The court should have been allowed to decide one way or the other before, the Appellant may file an appeal. This the learned counsel stated is an abuse of court’s process. This would have been a denial of fair hearing if the 2nd Respondent was not allowed to respond to the Preliminary Objection before a decision is reached one way or the order. Moreover, the trial court had ordered for arguments from both parties. See Senate President v. Nzeribe (2004) 9 NWLR pt 878 page 251 where Oguntade JCA as he then was held this.

“The procedural requirement that an issue of jurisdiction should be resolved first does not mean that it must be separately (sic). It can be taken along with arguments on the merits of a case. The important thing is that the court should first express it’s views on the issue of jurisdiction before considering the merits of the case. The advantage of such proceedings is that in the event of an appeal by any party it is easy for the Appellate court to express its view on the decision of the lower court as to jurisdiction and the merit of the case, and thereby remove the necessity for two Appeals. The one as to jurisdiction of the court and the other as to the merit of the case”.

Counsel therefore urged the court to resolve these two issues against the Appellant.

This appeal was entered in this court challenging the jurisdiction of the trial court to hear the suit before it. The appellant herein had filed a Preliminary Objection challenging the jurisdiction of the court to hear the suit before it on the premise that the leave to hear the Respondent’s motion filed outside the 14 days envisaged by the court had expired. The court in its wisdom ordered for arguments from both parties on the motion. The appellant felt that the court lacked jurisdiction because of the effluxion of time to hear the Respondent’s motion so it cannot do any other thing in furtherance of this suit.

The trial court was right when it ordered the parties to file their arguments. The purpose was to deal with the Preliminary Objection as well as the substantive motion together. If the Preliminary Objection has merit then the suit will be dismissed in limine. If not, the trial Judge would proceed with the substantive motions already filed.

Sometimes it is necessary where the jurisdiction of the court is challenged for the court to even hear some evidence first for the purpose of determining the issue of jurisdiction. Onuorah v. KRPC (2005) 6 NWLR, Attorney General Kwara State v. Olowale (1993) 1 NWLR Pt 272 page 645, Izenkwe v. Nndoze (1953) 14 WACA 361.

The trial court was in order when it ordered the parties to file their written addresses. Senate President v. Nzeribe (supra). The two issues formulated by the Appellant are resolved against him. The appeal is unmeritorious and therefore dismissed. The parties are to go back to the trial court and continue with the trial as the issue between the parties has not been addressed and resolved.

Cost to the Respondent is assessed at N50,000.00 against the Appellant.

MOHAMMED LAWAL GARBA, J.C.A.: I agree entirely.

JOSEPH TINE TUR, J.C.A.: I have read the judgment delivered by my Lord, Uzo I. Ndukwe-Anyanwu, J.C.A. and I concur.

The law is well settled that objection to the jurisdiction of a Court to entertain a suit, matter or proceeding can be raised at any stage of the proceedings.

In Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 Nnamani, JSC put it as follows:

See also Katto v. CBN (1991) 12 SCNJ 1 at 19-20; Oloriode v. Oyebi (1984) 5 SC 1 at 32 and Oloba v. Akereja (1988) 3 NWLR (pt.84) 508 at 520. The law is further settled that where the jurisdiction of a Court is challenged the issue must first be determined before the court proceeds to trial. See Onyema v. Oput (1987) 6 SCNJ 176. But there arises occasions when to determine if the Court had jurisdiction the parties have to adduce evidence. In Anthony Aburime v. The Secretary, Assemblies of God Mission, Ewu Ishan & Anor (1952) 14 WACA 185 the plaintiffs founded their action in trespass coupled with damages and injunction. The 1st defendant alleged he had entered the land under a lease. The second defendant laid claim of title to the land. The learned trial Judge on his own motion raised the point that the jurisdiction of the then Supreme Court was ousted though this was opposed by learned Counsel to the plaintiff. Learned trial Judge relied on section 12 of the Supreme Court Ordinance Cap 211 to arrive at the decision that his jurisdiction had been ousted; that the suit was within the jurisdiction of a Native Court. The matter went to the West African court of Appeal. Having quoted the proviso to Section 12 of the Supreme Court ordinance verity, C.J., delivering the judgment of the West African Court of Appeal held at pages 185-196 as follows:

“Now there are two things upon which the learned Judge should have decided before he came to the conclusion that the jurisdiction of the Supreme Court was ousted. First, that the suit raised an issue as to title to land or to interest in land and secondly, that the land was within the jurisdiction of a Native Court. Both of these things require either admission or proof. There was no admission that title to land was raised by this suit for damages for trespass and there was no evidence of that fact. There was no admission that there was a Native Court having jurisdiction and there is no proof. Reference to the Laws of Nigeria may disclose that there is a Native Court in that area and by the Governor’s warrant it may have jurisdiction in land cases. But the Court in rejecting jurisdiction cannot proceed on mere assumption. It is a very serious matter and the Court will not reject jurisdiction unless it is satisfied by admission or by proof that jurisdiction has realty by law been taken away from it.

In these circumstances I think that the learned Judge erred in coming to the conclusion that it had been demonstrated to him and established that the court had no jurisdiction or that jurisdiction was ousted and that he should have proceeded to take evidence satisfying himself on the necessary points to enable him to come rightly to the conclusion that the jurisdiction was ousted. I would therefore allow the appeal and remit the case to the Court below for determination.”

The ratio decidendi in the case is that a Court of law in rejecting or declining jurisdiction is not to proceed on mere assumptions unless satisfied by admission or by proof that jurisdiction had really by law been taken away from it. The party raising the issue of the court’s jurisdiction has the onus of demonstrating that truly the Court has no jurisdiction. There may arise the necessity to take evidence for the Court to arrive at a just decision. The fact that the issue of jurisdiction can be raised at any stage of the proceedings has recognized exceptions. See also Chiekwe v. Obiora & Ors. (1960) 5 FSC 258 at 261; Dweye v. Iyomahan (1983) 8 SC 76 and Adetiye v. Amodu (1969) 1 NMLR 62.

Claims brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 are to be dealt with expeditiously or with dispatch. In that wise to save time and cost of litigation there was wisdom in the directive of his Lordship that the Notice of Preliminary Objection and motion on Notice be taken together after all the processes had been filed and exchanged. The learned trial Federal Judge did not refuse to entertain the preliminary objection. All that his Lordship sought to do was to hear the parties or their respective Counsel on a day certain.

Ground 1 of the Notice of Appeal reads thus:

“1. ERROR IN LAW:

The learned trial Judge erred in law when he refused and/or failed to hear the preliminary objection of the 2nd Defendant challenging the jurisdiction of the lower Court to hear the suit on the ground that the suit is a nullity in law.

PARTICULARS OF ERRORS:

1. The preliminary objection is one that can be raised in limine as it is on non-compliance with a mandatory provision of the Fundamental Rights Enforcement (Procedure Rules 1979 – Order 2 rule 1(2) Fundamental Rights Enforcement (Procedure Rules) 1979.

2. The preliminary objection was filed and served on all the parties before 3rd November, 2008 when the parties in the suit were to appear before the lower Court for the first time based on its order granting leave to the Applicant to enforce its fundamental rights.

3. A Court is bound to consider a preliminary objection once raised timeously.

4. A Court is bound to put an end a (sic) suit if by any means it becomes manifest that the suit is incompetent.”

The above complaints do not reflect what transpired in Court on 3rd November, 2008. The learned Federal Judge did not refuse to entertain the preliminary objection as the proceeding of that day which I hereby reproduce shows:

PARTIES: R. Asuzu, Deputy National president, for the Applicant.

C. Ukwu, for 2nd Respondent present, other respondents absent.

APPEARANCE: C. Agor Esq. for the Applicant

I. Udozie: for the 2nd Respondent.

No Legal representation for the other respondents.

I. Udozie: We have Preliminary Objection dated 25/10/2008 and filed on 27/10/2008 duly served on the Respondents.

C. Agor: We have been served the Preliminary Objection dated 25/10/2008 and ask the Court to take all issues together.

Court: 2nd Respondent’s Counsel is given 3 days to file and serve her counter affidavit in this suit (ii) 2nd Respondent’s Counsel is given 7 days to file and serve their written arguments in respect of the motion on Notice dated 29/09/2008. The applicant’s Counsel is also given 7 days to file and serve its written argument in respect of the motion on Notice dated 21/10/2008 (iii) Suit adjourned to 27/11/2008 for Applicant addresses by Counsels.

SGD, JUDGE, 3/11/2008.”

The proceedings were adjourned to 27th November, 2008 for addresses. That did not constitute a refusal to hear Counsel on the preliminary objection.

Adjournment is usually at the discretion of judges. See Odusote v. Odusote (1971) NMLR 228; Solanke v. Ajibola (1969) NMLR 253. Judges adjourn proceedings to when it is most convenient to hear parties or Counsel. The uncontested fact was that all issues were to be heard on 27th November, 2008. The issues were to be determined on the written addresses of Counsel. It is not within the province of any learned Counsel to stampede a learned trial Judge into entertaining a preliminary objection or proceeding with hearing on a particular day. That is the prerogative of the learned trial Judge. The appellant had the legal right to file Notice of preliminary objection against the hearing of the pending proceedings but had no right to determine when that application should be heard by the learned trial Judge. The law presumes that the learned trial Judge, guided by the dictates of justice, taking into consideration the nature of the proceedings which requires urgency, would hear the applications without delay.

In Paul Iyorpuu Unongo v. Aper Aku & Ors. (1983) 11 SC 129 Bello, JSC (as he then was) held at pages 152-153 that:

“… One of the powers which has always been recognized as inherent in Courts has been the right to control their internal proceedings and to so conduct the same that the rights of all suitors before them may be safe-guarded in such a manner that parties are given ample opportunity to prosecute or defend the cases for or against them without let or hindrance. The old adage that delay of justice is denial of justice has the same force as the maxim that hasty or hurried justice is also a denial of justice.”

At page 165 of the judgment Obaseki, JSC stated that:

“I may observe that the 1979 Constitution, in conferring the jurisdiction on the competent High Court did not oust the jurisdiction so conferred if it was not completely exercised within a specified number of days on any matter validly before the Court.”

At pages 172 – 173 Obaseki, J.S.C. again held that:

“The Nigerian Courts, in my opinion, have been made by the 1979 Constitution to be the judge of how they can best expedite judicial business before them. The Court cannot be made or directed to sacrifice justice on the altar of speed. Justice is the end result of fair hearing and the length of time a fair hearing takes has to make allowance for the full and free exercise of the right of the parties to present their case through their witnesses and Counsel, and the obligation of the judges to give full and effective consideration to the evidence led and the addresses of Counsel, if any, in their decisions…”

The same posture is adopted by Courts in the United States of America. In Riglander v. Star Co. (1904) 98 App. Div. 101 appears the following statement of fact:

“One of the powers which has always been recognized as inherent in Courts, which are protected in their existence, their powers, and jurisdiction by Constitutional provisions has been the right to control its order of business and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a Court to enforce rights and redress wrongs.”

This case was quoted with approval by Obaseki, J.S.C. in Paul Iyorpuu Unongo’s case supra at page 186.

In my humble view, having filed a notice of preliminary objection against the hearing of the proceedings in the lower Court it was within the province of the learned trial Judge to conduct the business of the Court by fixing an appropriate date for hearing all the applications. It does not lie within the mouth of learned Counsel to the appellants to hold that he must be heard on 3rd November, 2008 when the matter came up in Court but on no other day. Neither could it be argued that the learned trial Judge was without powers to direct the Respondent to file all the processes they required so as to have the matters in controversy determined once and for all on 27th November, 2008. To hold otherwise will be clogging the judicial and discretionary powers of the learned trial Judge in the conduct of the business of his Court. It will not augur well for the independence of the learned trial Judge.

In my view, even if it was too obvious that the proceedings before the lower Court were a nullity, hasty justice is not justice at all. The parties must be given all the necessary facilities to put across their defences, to air their views before the Court determines their respective contentions. For these and the fuller reasons given by my Lord I also see no merit in this appeal which I hereby dismiss. I abide by the orders made in respect of costs in favour of the Respondents by my Lord.

Appearances

Uche Wisdom Durueke Esq.For Appellant

AND

Chidi Agor Esq.For Respondent