GBENGA BODUNDE & ANOR v. STAFF CO-OPERATIVE INVESTMENT AND CREDIT SOCIETY LIMITED & ANOR
(2012)LCN/5724(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2012
CA/I/231/08
RATIO
APPEAL: WHETHER LEAVE OF COURT IS REQUIRED TO RAISE ISSUES TOUCHING ON JURISDICTION
The present state of the law is that a party does not need to seek and obtain the leave of the court before raising any new issue on appeal when the fresh issue touches on jurisdiction. See Eluebe v. Omokafe (2004)18 NWLR (Pt. 905) 319 at 334 per Katsina-Alu JSC (as he then was):
“It is generally the law that fresh matters cannot be raised on appeal without the leave or the court. But the issue of jurisdiction has always been considered exceptional. Therefore, the Court of Appeal was in error not to have allowed the parties to fully address it on the question of jurisdiction raised before it.”
See also Moses v. State (2006) 11 NWLR (Pt 992) 458 at 503 per Ogbuagu JSC:
“The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court, without the leave of the court having been had and obtained … the only exceptions are where the issue of jurisdiction is raised as afresh point, leave is not necessary.”
The case of Oshatoba v. Olujitan (2002) 2 SCNJ 159 at 172 and other authorities relied on by the respondent are earlier decisions of the Supreme Court. The Supreme Court in the more recent cases has since moved away from the earlier stance. It is not necessary therefore that the appellant should have obtained the leave of the court before raising the issue of jurisdiction in the appeal even if it was a fresh issue. See also the cases of I.B.W.A. v Saseebon (2007) 16 NWLR (Pt. 1059) 195; Aderibiebe v. Abidoye (2009) 10 NWLR (Pt 1150) 592. In Agbiti v. The Nigerian Navy (2011) LPELR – 2944 (SC) the Supreme Court per Adekeye JSC observed:-
“Where an appellant in his issues for determination raked questions of jurisdiction, they are undisputably questions of law. An appellant can raise such issues afresh in an appellate court. Such questions are not only competent but are also expedient in the interest of justice for an appellate court to entertain the questions. Adeyemi v. Opeyomi (1970) 9-10 SC 31; Fadiora v. Gbadebo (1978) 3 SC 219. An appellant is allowed to raise the question of jurisdiction on appeal without the leave of the court whereas ordinarily afresh issue can only be raised on appeal with the leave of the court sought and obtained hence the issue becomes incompetent and liable to be struck out, I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner…”
Further, as a jurisdictional issue, the question of whether the relevant grounds of appeal and the issue formulated from them are complaints arising from the ratio decedendi of the judgment of the lower court do not arise. Issue of jurisdiction can be raised at any point in time. The preliminary objection is consequently misconceived and is hereby dismissed. PER CHINWE EUGENIA IYIZOBA, J.C.A
JURISDICTION: FUNDAMENTAL NATURE OF JURISDICTION
It is not in contention that the issue of jurisdiction is fundamental in adjudication.
As a result of its nature, it can be raised at any stage of the proceedings even on appeal before the Supreme Court. In Agbiti v. The Nigerian Navy (2011) 4 NWLR 175; (2011) LPELR-2944 (SC) the Supreme Court observed:
“… Numerous decisions of this court referred to jurisdiction of a court as the basis, foundation and life wire of access to court in adjudication under Nigerian civil process. Jurisdiction has been defined as a term of comprehensive import embracing every kind of judicial action. It has different meanings in different cons. It is therefore a radical and crucial question of competence, for if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well-conducted and brilliantly decided they might Otherwise have been, as a defect in competence is not intrinsic but rather extrinsic to the adjudication. Therefore a court is competent to entertain a case when (a) it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other, and (b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction (c) The case comes before the court initiated by due process of the law and upon the fulfilment of any condition precedent to the exercise of jurisdiction. Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348.” PER CHINWE EUGENIA IYIZOBA, J.C.A
ACTION: EFFECT OF INSTITUTING AN ACTION WITHOUT COMPLYING WITH THE CONDITION PRECEDENT
The law has created a condition precedent to the institution of action in court. Where an action is instituted without first complying with the condition precedent, the court is deprived of jurisdiction to entertain the case. PER CHINWE EUGENIA IYIZOBA, J.C.A
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. GBENGA BODUNDE
2. ISIAKA ADENIYI ADETUNJI Appellant(s)
AND
1. STAFF CO-OPERATIVE INVESTMENT AND CREDIT SOCIETY LIMITED
2. OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITALS COMPLEX Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A (Delivering the Leading Judgment): The Respondent herein as plaintiff took out a summons in the undefended list against the appellants herein as 3rd and 4th defendants and three others in suit no HIL/109/06 at the High Court of Osun State, Ilesa claiming against them jointly and or severally as follows:
‘1. AN ORDER OF COURT directing the immediate payment to the Plaintiff of the sum (N5,807,600.00K) FIVE MILLION, EIGHT HUNDRED AND SEVEN THOUSSAND, SIX HUNDRED NAIRA ONLY being outstanding debt, owed the plaintiff by the Defendants which transaction took place at Ilesa, within the jurisdiction of this Honourable Court as shown in the acknowledgment of debt and undertaking to liquidate same dated 28th day of September,2006.
2. Interest on the said (N5, 807,600.00K) FIVE MILLION, EIGHT HUNDRED AND SEVEN THOUSAND,SIX HUNDRED NAIRA ONLY, at the rate of 10% per annum with effect from 1st November 2006 until judgment and final liquidation of the whole debt-
3. AN ORDER OF COURT for the payment of the sum (N200,000.00K) TWO HUNDRED THOUSAND NAIRA ONLY by the Defendants to the plaintiff being professional fees paid by the Plaintiff to its Solicitors in respect of this action for the recovery of the said debt of (N5,807,600.00K) FIVE MILLION, EIGHT HUNDRED AND SEVEN THOUSAND, SIX HUNDRED NAIRA ONLY
The Plaintiff filed an Affidavit in Support of the Summons and to this affidavit; she attached a document entitled “Acknowledgment of Debt and Undertaking to Liquidate Same”.
All the defendants entered a single memorandum of appearance and also filed ‘affidavit disclosing a defence on the merit’.
The affidavit explained the circumstances under which the respondent’s Lawyer (O.C. Ogbewe, Esq.) had brought an already prepared agreement in the presence of men of the Monitoring Unit Oke-Fia, Osogbo and had forced them to sign on the threat that none of them would be released until the agreement was signed. The appellants contended further in the affidavit that the attestation done by the magistrate, E. O. Akintayo was a fraud.
They denied applying for any loan from the Plaintiff and gave details of credit advancement procedures applicable in the Plaintiffs organization. The affidavit explained further that the various documents allegedly used as collaterals in the attached undertaking exhibited to the Plaintiff s affidavit in support of the summons which had been fraudulently obtained with force; do not actually belong to any of the defendants.
The learned trial judge after considering the arguments transferred the suit to the general cause list and a date was fixed for hearing without pleadings. After the oral hearing of the parties and their witnesses, the court found that Exhibit E (the Acknowledgment of debt and undertaking to liquidate same) was fraudulently obtained. The court held further that:
“… the contents of Exhibit I-J which are Certified True Copies of entries made in the Police diary under the evidence of 1st DW Inspector Gregory Kwewe, show clearly that as at 28th September, 2006 when it was said to have been made in lawyer’s chambers at Ilesa by the Defendants, the Defendants were actually in Police Custody at various Police Stations in Osogbo. The conduct of all those who contributed to the preparations of Exhibit E which is produced to pervert the cause of Justice is condemnable…”
The court further observed:
“The plaintiff is relying on Exhibits C1 to C8 being cheques of the plaintiff allegedly cashed by the defendants. Out of the I cheques, 4th defendant agreed in his evidence to have fraudulently cashed Exhibit C4 which is to the sum of N554,500.00. The 3rd defendant also agreed to have fraudulently cashed two of the cheques Exhibits C5 and C6 which is to the tune of N1,970, 500.00. The meaning of this is that the plaintiff has clearly proved the loss of N2,525,000.00. This leaves a balance of N3,282,600.00 to be proved. There is no evidence linking either the 1st defendant or the 2nd defendant to the remaining five cheques. There is no evidence before me linking them to exhibits G5, G7 and G8 which are cheques proved to have been fraudulently cashed.”
At page 83 of the record, the learned trial judge held:
“In the circumstances, I hereby enter judgment in favour of the plaintiff but against each of the 3rd and 4th defendants in the sum of N2, 525, 000.00k being the indebtedness to the plaintiff’ other legs of the claim are dismissed.”
It is against this judgment that the 3rd and 4th Defendants have appealed to this court. The original grounds of appeal consist of six grounds and are dated 24th December 2007 while with leave of the Court dated 4th May 2009; the defendant filed seven additional grounds of appeal. Out of the thirteen grounds of appeal, the defendant now appellant formulated three issues for determination. They are:
“1. Whether the learned trial judge was right in giving judgment against the 3rd and 4th Defendants/Appellants in this suit when the court below lacks jurisdiction? – Grounds 1, 5 and 7.
2. Was the learned trial judge right in law in not dismissing this action from the time uncontradicted state of evidence revealed that parties were both in pari delicto? Grounds 2, 9 & 12.
3. Whether on the state of affidavit, oral and documentary evidence advanced at the court below the Plaintiffs action ought not to have been dismissed? Grounds 3, 4, 6, 8, 10, 11, & 13.”
At the hearing of the appeal, O.C. Ogbewe Esq. for the respondent informed the court that he has a preliminary objection incorporated in the respondent’s brief of argument at pages 5 -7. He adopted and relied on the submissions and authorities cited and urged the court to uphold the preliminary objection and dismiss the appeal.
Otunba Olayinka Bolanle Esq. for the appellant replied to the preliminary objection at pages l- g of his reply brief. Learned counsel adopted and relied on his brief and reply brief. In addition to the cases cited in his briefs he referred the court to the case of Chief Omotafe & Ors vs. The Military Administrator of Edo State & Ors (2004) 11 – 12 SC 60 at 67. Counsel urged the court to dismiss the preliminary objection and allow the appeal. Mr. Ogbewe then adopted and relied on his respondent’s brief of argument and urged us to dismiss the appeal and uphold the judgment of the lower court.
RESPONDENT’S ARGUMENT
ON PRELIMINARY OBJECTION
The contention of the Respondent on the preliminary objection is that the complaint of the Appellants under Grounds 1,5 and 7 of the separately filed Notices of Appeal respectively dated 24th December 2007 and 29th April 2009 as well as the issue formulated from them did not arise from the Judgment appealed against.
Learned counsel submitted that the position of the Law with regard to the filing of Appeal is that every ground of appeal as well as issue distilled there from to be relevant must be a complaint against the ratio decidendi of the Judgment appealed against. Counsel further submitted that the issue of Jurisdiction as now being raised for the very first time on appeal by the appellants is certainly a new issue or point which was not canvassed during trial. Counsel submitted that it is trite Law that before an Appellant can validly file any ground(s) of appeal or new points on matters not canvassed at the Court below such an appellant must seek and obtain the leave of the Appellate Court. Counsel contended that it is settled Law that the issue of jurisdiction could be raised at any stage of the proceedings even for the first time at the Supreme Court, but such jurisdictional issue being a new point or issue not canvassed at the Court below and upon which no decision was made by the trial court,same must be raised in absolute compliance with the procedural law, Otherwise such grounds of appeal and issue emanating from same will be incompetent and liable to be struck out. Counsel submitted that it is settled law that a party to an appeal that intends to raise a new issue or introduce a novel matter into an appeal even where it touches on the issue of jurisdiction must seek leave to do so.
Learned Counsel referred to the case of Oshatoba v. Olujitan (2002) 2 SCNJ 159 at 172-173 where Iguh J.S.C. held thus:
“In the Present case, it is evident that the issue of jurisdiction now sought to be argued by the Appellants was neither raised nor covered by any of the Three Grounds of Appeal filed before this Court.
In the Second place, the same issue of Jurisdiction not having been raised by the Appellants in the Court Below, it is plain that it cannot now be canvassed in this Court without leave. I think that Learned Counsel for the Appellants was quite right when he conceded that the issue of jurisdiction could not now be raised before this court in this Appeal without leave. The leave was neither sought nor obtained by the Appellants.
His Lordship held further that;
“It is trite Law that failure to obtain the leave of Court, where necessary to file a particular ground(s) of appeal upon which on issue is raised for the resolution of the court renders both such ground of appeal and the issue so formulated there from in competent”.
Counsel also cited the following cases:
(a) AJIBADE V. PEDRO (1992) 5 NWLR (Pt. 241) 257 at 262.
(b) AROWOLO V. ADIMULA (1991) 8 NWLR (Pt.212) 753.
(c) METAL CONSTRUCTION V. MIGLIORE (1990) 1 NWLR (Pt. 126) at 299.
Learned counsel urged the court to strike out grounds 1, 5 and 7 and the first issue distilled from those grounds.
APPELLANTS REPLY TO THE ARGUMENTS
ON PRELIMINARY OBJECTION
In reply, learned counsel for the appellant submitted that the preliminary objection raised by the Respondent to grounds 1, 5 and 7 of the Notices of Appeal and the issue distilled there from (i.e. issue No. 1 in the Appellants’ brief) is totally misconceived. Counsel submitted that in the said grounds, they had raised issues bothering on the jurisdiction of the learned trial judge to adjudicate over the proceedings at the court below. Counsel argued that the Respondent had contended in her brief that the issue of jurisdiction raised was a new issue or point which was not purportedly canvassed at the court below. This contention by the Respondent, counsel argued is a deliberate ploy to mislead this honourable court. In other to show that the issue of jurisdiction had been raised at the court below and same resolved one way or the other by the said court, counsel referred the court to pages 79 lines 150 – 155 and pages 83, lines 289-298 of the record. Counsel submitted that from the records, the court would see that parties had joined issues on jurisdiction. Counsel contended that the Respondent had opportunity at the court below to address the said court, and that she did address extensively the said court on the vexed issue of jurisdiction. Counsel submitted that at Page 61 lines 3-33 of the record the Respondent had “… urged the court to hold that the action of the Respondent is competent before the court and that this honourable court has jurisdiction to entertain and determine same”.
Learned counsel also referred to the records page 55 lines 15-31 where he claimed both parties marshalled out their various arguments on jurisdiction. Counsel contended that part of the issues raised is the juristic status of the Respondent Counsel submitted that the expanded issue of jurisdiction as raised in the Notice of Appeal and argued in issue No. 1 in the Appellants’ brief are substantial points of law which raise important adjectival and substantive jurisdictional issues. Since no new issues of facts by way of evidence are required, they can be competently raised and allowed.
Counsel argued that this submission is anchored on the settled position of the law that where a ground of appeal raises a question of law alone, that ground can be filed and argued without any leave of court first sought and obtained-
Learned counsel urged the court to hold that issue No.1 in the Appellants’ brief had been validly raised and that the grounds from which they were distilled were competent grounds.
RESOLUTION
It seems to me that learned counsel for the appellant is labouring under some misconceptions as regards the points raised by the respondent in the preliminary objection. The issue here is not whether the appellant can competently raise the jurisdictional issue being a substantial point of law. It is not in doubt that the issue can be raised, even on the basis that it is trite that an issue of jurisdiction can be raised at any stage of the proceedings, even at the Supreme Court. The issues here are two-fold: (1) whether grounds 1, 5 and 7 and the 1st issue formulated from the grounds are based on the ratio decedendi of the judgment of the trial judge and (2) whether they are new issues not raised in the lower court and which require the leave of the court to be raised at the appeal stage, Learned counsel for the appellant went to a great deal of trouble trying to show that the issue of jurisdiction was not a new issue but was canvassed at the lower court but not pronounced upon by the learned trial judge.
The present state of the law is that a party does not need to seek and obtain the leave of the court before raising any new issue on appeal when the fresh issue touches on jurisdiction. See Eluebe v. Omokafe (2004)18 NWLR (Pt. 905) 319 at 334 per Katsina-Alu JSC (as he then was):
“It is generally the law that fresh matters cannot be raised on appeal without the leave or the court. But the issue of jurisdiction has always been considered exceptional. Therefore, the Court of Appeal was in error not to have allowed the parties to fully address it on the question of jurisdiction raised before it.”
See also Moses v. State (2006) 11 NWLR (Pt 992) 458 at 503 per Ogbuagu JSC:
“The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court, without the leave of the court having been had and obtained … the only exceptions are where the issue of jurisdiction is raised as afresh point, leave is not necessary.”
The case of Oshatoba v. Olujitan (2002) 2 SCNJ 159 at 172 and other authorities relied on by the respondent are earlier decisions of the Supreme Court. The Supreme Court in the more recent cases has since moved away from the earlier stance. It is not necessary therefore that the appellant should have obtained the leave of the court before raising the issue of jurisdiction in the appeal even if it was a fresh issue. See also the cases of I.B.W.A. v Saseebon (2007) 16 NWLR (Pt. 1059) 195; Aderibiebe v. Abidoye (2009) 10 NWLR (Pt 1150) 592. In Agbiti v. The Nigerian Navy (2011) LPELR – 2944 (SC) the Supreme Court per Adekeye JSC observed:-
“Where an appellant in his issues for determination raked questions of jurisdiction, they are undisputably questions of law. An appellant can raise such issues afresh in an appellate court. Such questions are not only competent but are also expedient in the interest of justice for an appellate court to entertain the questions. Adeyemi v. Opeyomi (1970) 9-10 SC 31; Fadiora v. Gbadebo (1978) 3 SC 219. An appellant is allowed to raise the question of jurisdiction on appeal without the leave of the court whereas ordinarily afresh issue can only be raised on appeal with the leave of the court sought and obtained hence the issue becomes incompetent and liable to be struck out, I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner…”
Further, as a jurisdictional issue, the question of whether the relevant grounds of appeal and the issue formulated from them are complaints arising from the ratio decedendi of the judgment of the lower court do not arise. Issue of jurisdiction can be raised at any point in time. The preliminary objection is consequently misconceived and is hereby dismissed.
ISSUB ONE
Whether the learned trial judge was right in giving judgment against the 3rd and 4th Defendants/Appellants in this suit when the court below lacks jurisdiction? – Grounds 1, 5 and 7.
APPELLANTS ARGUMENT
Learned counsel for the appellant on this issue questioned the jurisdiction of the trial court to entertain the suit. Counsel relying on the case of Madukolu v Nkemdilim (supra) and several other authorities argued that the case was not initiated by due process of law in that a condition precedent to the exercise of the court’s jurisdiction was not fulfilled. Learned counsel submitted that Section 51(1) of the Co-operative Society Laws of Osun State requires a dispute such as the one the respondents claimed arose in the case to be first submitted to the Registrar for settlement or at the Registrar’s discretion to refer the matter to an arbitrator for disposal. Any party aggrieved by the order of the Registrar may appeal to the Commissioner within 21 days from the date of such order and the decision of the Commissioner shall be final. Counsel contended that all these steps must be taken before final recourse to the law court. Counsel argued that this is an aspect of the doctrine of exhaustion of administrative-remedies and had been judicially approved by the Apex Court and the Court of Appeal in several authorities. Learned counsel referred to the cases of Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212 at 231-232: Ajibi v Olaewe (2003) 3 WRN 54 at 79 & 83: Akintemi v. Onwumechili (1985) 1 NSCC 46: Eguamwense v Amaehizenwen (1993) 9 NWLR (Pt 315) 1. Learned counsel submitted that even though the Statute under consideration in the above cases is the Chieftaincy Law, that it applies equally in respect of the provision in Section 51 of the Cooperative Societies Law of Osun State. Learned counsel relying on the cases of Commerce Assurance Ltd v Alhaji Buraimo Alli (1992) 3 NWLR (Pt 232) 710 at 725: K.S.U.D.B. v Fanz Construction Co Ltd (1990) 4 NWLR (Pt. 142) 1 at 37; Ras Pal Gazi Construction Co Ltd v F.C.D.A. (2001) 5 SC (Pt. 2) 1 at 22 submitted that the reference made by the Co-operative Societies Laws of Osun State to the need to resort first to an arbitrator is to enable the arbitrator to produce an award and that it is this award that would then be enforced in line with the provisions of Arbitration and Conciliation Act Cap 19 Laws of the Federation of Nigeria 1990. Counsel on this point finally submitted that in so far as the respondent has not shown evidence of compliance with the doctrine of exhaustion of domestic administrative remedies before coming to court, the High Court of Ilesa lacked the original jurisdiction to adjudicate over the respondent’s claim in view of the provisions of Section 51 of the Co-operative Societies Laws of Osun State. Learned Counsel submitted that these issues were raised in paragraphs 56(b) & (c) of the defendants’ affidavit disclosing a defence on the merit but no pronouncement was made on the issue by the learned trial judge in his judgment.
Counsel on this same issue of jurisdiction criticized what they described as the failure on the part of the plaintiff to resolve the vexed issue of the exact description of its actual name. Counsel submitted that in the writ of summons, the plaintiff had initiated this action with the following name:-‘Staff Co-operative Investment and Credit Society Limited Obafemi Awolowo University Teaching Hospital Complex’. Under cross examination, the 2nd PW Samuel Kayode Dotun Olawale who claimed to be the President described the name of the plaintiff to be:- “Staff Co-operative Investment and Credit Society Limited, Obafemi Awolowo University Teaching Hospital Ile-Ife”. In the opening paragraph of the Affidavit in Support of Summons, the same President of the Plaintiff described the Plaintiff as “Staff Co-operative Investment and Credit Society Limited, Ilesa”. Counsel argued that the Plaintiff is obviously not a natural person but a juristic person that is obliged by law to sue only in its ‘juristic’ or ‘corporate’ name. From the above irreconcilable position, there is a doubt regarding the exact identity of the Plaintiff that initiated the action in court. Learned counsel submitted that in every adjudicatory process, it is the responsibility of the Plaintiff to establish her locus and that an action initiated and pursued to conclusion under: several irreconcilable juristic names of the Plaintiff raises a serious question of locus standi and by extension, the competency of the entire suit. Counsel argued that in the circumstance of this case the Plaintiff/Respondent had commenced an action under a name that was clearly different from the name given by her president both in the opening part of the documentary Affidavit Evidence on the one hand and the one he freely offered under cross examination under oath and in the same witness box on the other. Learned counsel submitted that this inconsistency coupled with the fact that same was not resolved implies the absence of locus standi on the part of the Plaintiff. Counsel relied on the following cases: The Registered Trustees of the Apostolic Church. Ilesa Area. Nigeria. West Africa v. The Attorney-General of the Mid-Western State of Nigeria & Ors (1972) 1 NWLR (pt. 1) 356 at 359: AJAO VS. SONOLA & ANOR (1973) 5 S. C. 119 OR 1973 NSCC (Vol.8) 304 at 306-307: QUO-VADIS HOTELS & RESTURANT LTD. VS. COMMISSIONER FOR LANDS (1973) 6 S.C 71 OR (1973) NSCC (Vol.8) 417 at 424: AMOS OKONKWO & 2 ORS. VS. ABA-NA-OHADU FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD (2002) 42 WRN.
Learned counsel submitted that the failure of the Plaintiff to establish its clear locus in this suit vis-a-vis the final resolution of its exact registered name by a production of her certificate of Registration duly issued by the Company Affairs commission or its predecessor in title in line with the provision of the Companies and Allied Matter Act, raises a fundamental question regarding the competence of the entire suit. Counsel urged the court to hold that the Respondent as Plaintiff in this case did not establish her clear locus by her indication of three different names both on the writ, in the opening part of the affidavit in support of the summons and under cross examination of her president.
Counsel finally urged the court to strike out this suit on the issue of want of locus standi as admonished by the Supreme Court in ADESOKAN VS. ADETUNJI (1994) 6 S.C.N.J. (1994) 6 S.C.N.J. (pt. 1) 123 at 146 where the court held in reaffirmation of her earlier decision in OLORIODE vs. OYEBI (1984) 5 S.C 1 that it is immaterial that pleading have been completed and full trial conducted. At whatever stage the finding is made that the plaintiff lacks locus standi to maintain the action, the jurisdiction of the court to entertain the action is affected and the course of action open is to put an end to it by striking it out and … if the court has no jurisdiction to adjudicate it cannot dismiss the action’. Counsel urged the court to resolve issue 1 in favour of the appellants.
RESPONDENTS’ ARGUMENT
ON ISSUE 1
In their brief of argument, the respondents on issue I submitted that the appellants herein cannot rely on the provisions of Section 50 of the Co-operatives Societies Law Cap 31 Vol 1 Laws of Osun State of Nigeria 2001 hereinafter referred to as C.S.L. Osun State (and not section 51 as canvassed by the appellants) because while the 1st and 2nd defendants against whom no decision was made were staff of the plaintiff, the 3rd and 4th defendants/appellants were never members and or staff of the plaintiff/respondent who is a registered co-operative society. Learned counsel in reliance on this contention referred to various depositions in the appellants’ affidavit in the lower court to the effect that they are not members of the respondent and as such had no right to apply for any loan from the respondent co-operative society. Counsel then postulated that since the appellants were not staff, agents and/or members of the respondent, the fraudulent conversion of the respondent’s funds does not translate to a “dispute” envisaged under the provision of Section 50 (a) – (d) of the C.S.L. of Osun State to warrant reference of same to the Registrar of Co-operatives. In other words counsel’s contention is that the case of the respondent as it affects the appellants is not a dispute under the express provision of section 50 C.S.L. of Osun State and therefore is not an issue contemplated and recognized under the doctrine or concept of domestic exhaustion of administrative remedies before an action can validly be filed at the High Court of Osun State. Counsel submitted that the lower court had original jurisdiction to adjudicate over the matter and urged the court to resolve the issue of want of jurisdiction on allegation of noncompliance with the provision in section 50 of the C.S.L of Osun State against the appellants and in favour of the respondent.
On the contention that the respondent did not sue in its registered name as a cooperative society, counsel submitted that the appellants admitted in their affidavit disclosing a defence on the merit that the respondent is a registered co-operative investment and credit society limited. Counsel argued that under Section 75 of the Evidence Act 2004, facts admitted need no further proof. He also called in aid the cases of Nwankwo v. Nwankwo (1995) 5 NWLR (Pt.894) 153 at 171; Owosho v. Dada (1984) 7 SC 149 at 163-164.
Further counsel submitted that the appellants by failing to cross-examine the respondent’s witnesses on the legal personality of the respondent or themselves adducing evidence that the respondent is not a registered co-operative society conceded that the respondent is indeed a registered o-operative society with legal capacity to sue and be sued. Counsel relied on Calabar East Co-operative Thrift & credit society Ltd & ors v. Etim Emmanuel Ikot (1999) 12 SCNJ 321; Ikuomola v. Oniwaya (1990) 7 SCNJ 147 at 151 Lines 40-45 and urged the court to resolve the issue in favour of the respondent.
RESOLUTION OF ISSUE I
It is not in contention that the issue of jurisdiction is fundamental in adjudication.
As a result of its nature, it can be raised at any stage of the proceedings even on appeal before the Supreme Court. In Agbiti v. The Nigerian Navy (2011) 4 NWLR 175; (2011) LPELR-2944 (SC) the Supreme Court observed:
“… Numerous decisions of this court referred to jurisdiction of a court as the basis, foundation and life wire of access to court in adjudication under Nigerian civil process. Jurisdiction has been defined as a term of comprehensive import embracing every kind of judicial action. It has different meanings in different cons. It is therefore a radical and crucial question of competence, for if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well-conducted and brilliantly decided they might Otherwise have been, as a defect in competence is not intrinsic but rather extrinsic to the adjudication. Therefore a court is competent to entertain a case when (a) it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other, and (b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction (c) The case comes before the court initiated by due process of the law and upon the fulfilment of any condition precedent to the exercise of jurisdiction. Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348.”
The respondent in his brief of argument and in reply to the points raised by the appellant on jurisdiction did not dispute the fact that section 50 of the Co-operative Societies Law of Osun State created a condition precedent the non-fulfilment of which will deprive a court of jurisdiction to entertain a case. The situation under the law is similar to that under the Traditional Rulers and chiefs Law.
In Eguamwense v Amaghizenwen (1993) 9 NWLR (Pt.315) 1 at 25, Belgore JSC (as he then was) observed:
“Where a statute prescribes a legal line of action for the determination of an issue, be that issue an administrative matter, chieftaincy matter or matter of taxation, the aggrieved party must exhaust all the remedies in that law before going to court. The provisions of Section 2 and section 22(1) – (6) of the Traditional Rulers and Chiefs Edict (No. 16) 1979 (Bendel State) are clear as to steps to take. The plaintiff seemed to have jumped the stile as he avoided all avenues that availed him and went to the High Court.
I am of the view that he did a wrong thing indeed…. The provisions of section 236 of the 1979 Constitution is not an open gate for all High Courts to assume jurisdiction in all subjects. All the local remedies in the statute on every subject must be exhausted before embarking on actual litigation in court.”
Section 50 (1) – (6) of C.S.L. Osun State provides: “If any dispute touching the business of a registered society arise:-
(a)Among members, past members and persons claiming through members, past members and deceased members or
(b)Between a member, past member or person claiming through member, past member or deceased member and the society, its committee or any officer, agent or servant of the society; or
(c) Between the society or its committee and any officer, agent or servant of the society; or
(d) Between the society and any other registered society;
Such dispute shall be referred to the registrar for decision. Without prejudice to the generality of the provisions of this subsection, a claim by a registered society for any debt or demand due to it from a member, past member, or the nominee, or legal personal representative of a deceased member, whether such debt or demand be admitted or not, shall be deemed to be a dispute touching the business of the society within the meaning of this subsection.”
By the above law, a dispute must first be referred to the registrar for decision. The law has created a condition precedent to the institution of action in court. Where an action is instituted without first complying with the condition precedent, the court is deprived of jurisdiction to entertain the case. As I have already stated, the respondent did not disagree with this position of the law. Their contention is that the appellants herein cannot take advantage of the law because they were never members or staff of the respondent. This contention with all due respect is misconceived because the 1st and 2nd defendants sued along with the appellants were staff of the respondent. I am in total agreement with the view of learned counsel for the appellants in his reply brief that although it was indicated in the opening part of the writ that the five defendants were sued “jointly and or severally”, the fact that the orders claimed were directed to all the defendants jointly without any apportionment in terms of which order goes for each set of defendant implies that they have been sued jointly. Since they were sued jointly and the respondent had admitted that the 1st and 2nd defendants were part of their members and the issue involved arose from purported failure to pay debts allegedly advanced to the defendants, the respondent is bound to comply with section 50 C.S.L. of Osun State. No matter what the situation eventually turned out to be, the fact is that the respondents instituted the action against the five defendants, two of whom are their members claiming that they had been advanced loans which they failed to repay. The facts are definitely caught by section 50 C.S.L. The respondent ought to have complied with the condition precedent to the institution of the action in order to clothe the court with the jurisdiction to entertain the case. The contention of the respondent that the appellants were not their members does not help the respondent’s case. In Kadzi Int. Ltd v. Kano Tannery Co Ltd. (2004) 4 NWLR (Pt. 864) 545 at 575 referred to by learned counsel for the appellant in his reply brief Salami JCA observed:
“… learned trial judge with respect cannot approbate and reprobate. He is not entitled in the circumstances of this suit, in which the parties are sued jointly to find that he has no jurisdiction to try the claim in respect of one of the parties and then turn round to say he is competent to entertain the same suit in respect of the second person. Generally, where there is a joint cause of persons a discharge as against one of them operates is a discharge of all. The cause of action being one, one person having been discharged all persons otherwise liable are consequently released…”
Having sued the appellants and the other defendants jointly, the appellants are entitled to take advantage of any defence available to the other defendants. To confound the situation of the respondent its president after deposing to an affidavit in support of the claim in the undefended list for debt owed, now filed a counter affidavit claiming that there was in actual fact no loan but that certain sums had been fraudulently misappropriated. If the appellants were not members of the respondent and had not obtained loans, how did they get the funds purportedly fraudulently misappropriated?
On the contention of the respondent that the appellants in their affidavit admitted that they are not members of the association, the short answer is that the issue is one of jurisdiction and cannot be settled by an admission or waiver by either party or mutual consent of both parties.
Five defendants were sued in the first instance. The issue of jurisdiction of the court to entertain the suit arose on the institution of the suit, even before any reaction by the defendants and further reaction by the plaintiffs with regard to the affidavit to show defence on the merit and counter-affidavit of the plaintiffs. Therefore in considering the matter, what the court should concern itself with is the originating process which is a claim on the undefended list for an order directing the immediate payment to the plaintiff of the sum of N5, 807,600.00k being outstanding debt owed the plaintiff by the defendants which transaction took place at Ilesa as shown in the acknowledgment of debt and undertaking to liquidate same dated 28/9/06, interest on the sum and professional fees of N200,000.00 for the recovery of the debt. The defendants having been sued jointly once it is shown that the defendants or any of them is a member or officer of the society, the claim being one by the society for a debt due to it, it is a dispute that must first be referred to the Registrar for decision as required by Section 50(1) – (6) of C.S.L. Osun State.
Until this is done, it is premature to take the matter to the High Court. In other words a condition precedent to the assumption of jurisdiction by the High Court was not satisfied. Madukolu v. Nkemdilim (supra). On this basis the court lacked jurisdiction to entertain the case. See also Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212 at 231-232: Ajibi v Olaewe (2003) 3 WRN 54 at 79 & 83: Akintemi v. Onwumechili (1985) 1 NSCC 46; Eguamwense v Amaghizenwen (1993) 9 NWLR (Pt 315) 1
The other point on this issue 1 on jurisdiction relates to the exact description and identity of the respondent. In the three versions presented, one recurrent feature is that the respondent’s name is “Staff Co-operative Investment and Credit Society Limited. The writ of summons included “Obafemi Awolowo University Teaching Hospital complex”. 2nd PW, the president of the society under cross-examination said it is “Obafemi Awolowo University Teaching Hospital, Ile-Ife”. The version in the affidavit left out the university completely and simply added “Ilesa”. I do not think the description in the affidavit is material. What is important is the name on the writ. My view is that the discrepancy is minor and immaterial. The actual name of the society is complete in each of the three versions. The difference relates to address of the society. Most importantly, the appellants in their affidavits admitted that the name of the plaintiff/respondent is Co-operative Investment and Credit Society Limited and that the society is registered. See paragraph 56(b) of the affidavit disclosing a defence on the merit filed on 30/11/06 and in paragraph 31(ii) of the reply to the counter affidavit filed on 8/12/06. What is admitted need no further proof: Section 75 of the Evidence Act 2004. I hold therefore that there is no merit in the contention of the appellants on this point. Subject to this, issue 1 is resolved in favour of the appellants and against the respondents. The court lacked jurisdiction to entertain the suit due to non-compliance with the condition precedent in section 50 of the co-operative Societies Law of Osun State. Having arrived at this conclusion, it is unnecessary to consider issues 2 & 3. This appeal succeeds and is hereby allowed. The judgment of Awotoye J. in suit No HIL/109/06 delivered on the 29th day of November, 2007 at the High Court of Osun State Ilesha is hereby set aside. In its place the suit is struck out. I make no order as to costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the advantage of reading in draft the judgment just delivered of my learned brother, Iyizoba, JCA just delivered.
His Lordship has meticulously considered and ably resolved the main issue in contention in this appeal,
I agree with my learned brother that the lower court lacked jurisdiction to entertain the suit as it suffered a fundamental vice, namely a condition precedent to invoking the court’s jurisdiction was not fulfilled. The respondent instituted its action against the present appellants and other defendants at the trial court “jointly and severally.”
Once it was shown on the affidavit evidence before the court that some of the defendants were members of staff of the respondent, it was clear that for the suit to be competent there must have been compliance with the condition precedent laid down in Section 50 of the Co-operative Societies Law of Osun State i.e.the dispute ought to have been referred to the Registrar for resolution before having recourse to the court.
As held by this court in the case of Kadzi Int. Ltd. Vs. Kano Tannery Co. Ltd. & Ors. (2004) 4 NWLR (864) 545 at 525, where parties are sued jointly and severally, it is not for the court, having found that it lacked jurisdiction to entertain the claim in respect of some of the defendants,to turn around and determine that it is competent to adjudicate on the claim in respect of others.
They sink or swim together.
Since jurisdiction is a threshold issue, the failure to comply with the condition precedent in this case has robbed the court of jurisdiction to entertain the entire suit.
I therefore also allow the appeal and abide by the consequential orders as contained in the lead judgment.
CHIMA CENTUS NWEZE, J.C.A.: I had the benefit: of, perusing the draft of the leading judgement which my learned brother, Iyizoba JCA, just delivered now. I agree that the appeal is meritorious.
Case law has settled the position that where a plaintiff fails or neglects to exhaust the domestic remedies available to him before approaching the court, he would be greeted with the objection that, not having complied with the condition precedent for the invocation of the court’s jurisdiction, he would not be accorded any reception in the temple of justice. Put simply, the court would not assume jurisdiction to entertain his complaint because it cannot do so at that stage, Aribisala v Ogunyemi [2005] 6 NWLR (pt 921) 212; Eguamwense v Amaghizenwen [1993] 9 NWLR (pt 315) 1; Akintemi v Onwumechili [1985] 1 NSCC 46; Madukolu v Nkemdilim [1962] 2 SCNLR 341; Ajibi v Olaewe [2003] 3 WRN 54; Ras Pal Gazi Construction Co Ltd v FCDA [2001] 5 SC (pt 2) 1; Commerce Assurance Ltd v Alli [1992] 3 NWLR (pt 232) 710 K. S. U. D. Bv FCC Ltd [1990] 4 NWLR (pt 142) 1.
I agree with the leading judgement that the lower court lacked the jurisdiction to entertain the suit for non-compliance with the condition precedent in section 50 of the Co-operative Societies Law of Osun State.
I abide by the consequential orders in the leading judgment.
Appearances
OTUNBA OLAYINKA BOLANLEFor Appellant
AND
O. C. OGBEWE ESQFor Respondent
