N.P.A. v. NMEJE & ORS (2020)

N.P.A. v. NMEJE & ORS

(2020)LCN/14825(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/C/269/2018

RATIO

APPEAL: WHERE SHOULD A GROUND OF APPEAL AND THE ISSUE DISTILLED FROM IT MUST RELATE TO

The law is settled that a ground of appeal as well as the issue distilled from it for the determination of an appeal must relate to the decision being appealed against. In other words, only an issue pronounced upon by a lower Court is subject of a competent appeal. See NYAKO V. ADAMAWA STATE HOUSE OF ASSEMBLY (2017) 6 NWLR (prt 1562) 347 and AJAOKUTA STEEL CO. LTD V. G.I. & S. LTD (2019) 8 NWLR (prt 1674) 213 at 226. The grounds of appeal are therefore the reasons why the decision is considered by the aggrieved party to be wrong. PER SHUAIBU, J.C.A.

APPEAL: PURPOSE OF THE GROUNDS OF APPEAL ALLEGED

Thus, the purpose of the grounds alleged is to isolate and accentuate for attack the basis of the reasoning of the decision challenged. See AQUA LTD V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (prt 91) 622 and SARAKI V. KOTOYE (1992) 9 NWLR (prt 264) 156 at 1983 – 184. PER SHUAIBU, J.C.A.
APPEAL: DISTINCTION BETWEEN A GROUND OF LAW AND A GROUND OF FACT OR MIXED LAW AND FACT

To differentiate between a ground of law and a ground of fact or mixed law and fact has been stubborn and perennial judicial exercise. A ground of appeal does not translate into a ground of law or fact or mixed law and facts because it is so couched by the appellant. To deciper whether a ground of appeal is of law or fact or mixed law and fact a Court has the duty to thoroughly and assiduously examine the ground with its accompanying particulars. See EHINLANWO V. OKE (2008)16 NWLR (prt 1113) 357, and GENERAL ELECTRIC CO. V. AKANDE (2010) 18 NWLR (prt 1225) 596. In ORAEKWE V. CHUKWUKA (Supra) per AUGIE, JCA (as he then was) at page 189 paras F – H:
“It is always difficult to distinguish a ground of law from a ground of fact or mixed law and fact, however, in making the distinction, an appellate Court must examine the grounds thoroughly to see whether it reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, in which case it would be a question of law or one that will require questioning the evaluation of the fact before the application of the law in which case it would amount to a question of mixed law and fact.”
Also the Supreme Court in plethora of judicial decisions has evolved certain principles that would assist the Courts. A question of law connotes one of the three meanings, to wit;
(a) A question a Court is bound to answer in accordance with a rule of law;
(b) A question which explains what the law is, and
(c) A question which normally answers questions of law only and invariably falls within the judicial power of a judex to answer.
Contrariwise, a question of facts denotes one of the three meanings, thus:
(a) A question which is determined by a rule of law;
(b) Any question except one as to what the law is, and
(c) Any question which is to be answered by the jury and not the judge. See N.N.P.C. V. FAMFA OIL LTD (2012) 17 NWLR (prt 1328) 148 and ATAGO V. NWUCHE (2013)3 NWLR (prt 1341) 337. PER SHUAIBU, J.C.A.

JURISDICTION: AT WHAT POINT CAN THE ISSUE OF JURISDICTION BE RAISED

The issue of jurisdiction can be raised at any time even before an appellate Court even where it was not raised or determined at the trial provided the procedure of raising it was properly followed by the party choosing to raise it. PER SHUAIBU, J.C.A.

PRELIMINARY OBJECTION: DUTY OF COURT WHERE PRELIMINARY OBJECTION IS RAISED BY A PARTY

Also preliminary objection where raised by a party should firstly be determined before determining the substantive suit if the need to do so arises. See OKOROCHA V. UBA PLC (2018)17 NWLR (prt 1649) 441. PER SHUAIBU, J.C.A.
PROCEEDING: DISTINCTION BETWEEN CHALLENGE TO JURISDICTION AND DEMURRER PROCEEDING

In N.D.I.C. V. CBN (2002)7 NWLR (prt 766) 272 at 296 – 297 paras F – A the Supreme Court per Uwaifo, JSC made a clear distinction between challenge to jurisdiction and demurrer proceeding in the following words:-
“The tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded all the facts pleaded to be true, the plaintiff has no cause of action, or where appropriate no locus standi.” See Federal Capital Development Authority V. Naibi (1990)3 NWLR (prt 138) 276 Williams V. Williams (1995)2 NWLR (prt 375)1 Akpan V. Utin (1996)7 NWLR (prt. 463) 634, Brawal Shipping (NIG) Ltd V. F.I. Onwadike CO. Ltd (2000)1 NWLR (prt 678) 387. But as already shown, 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 reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in Court over this 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.” PER SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

NIGERIAN PORT AUTHORITY APPELANT(S)

And

MR. SAM NMEJE 2. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA 3. THE ATTORNEY-GENERAL OF THE FEDERATION OF NIGERIA 4. THE MINISTER OF TRANSPORT 5. BUREAU OF PUBLIC PROCUREMENT 6. CALABAR CHANNEL MANAGEMENT LIMITED 7. NIGER GLOBAL ENGINEERING & TECHNICAL COMPANY LIMITED (FOR ITSELF AND ON BEHALF OF THE OTHER MEMBERS OF THE CONSORTIUM) RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory ruling of the Federal High Court sitting at Calabar delivered on 6th June, 2018 wherein the Court ordered that the preliminary objection of the appellant challenging the competence of the 7th respondent’s counter-claim be taken at the end of the trial.

By a notice of preliminary objection filed on 14/6/2018 and brought pursuant to Section 6(6) of the 1999 Constitution (as amended) the appellant as 4th defendant prayed the lower Court for the dismissal of the 7th defendant/respondent’s counter-claim on the following grounds:-
(i) The 7th defendant’s counter-claim against the 4th defendant is in law not enforceable because the action is statute-barred by virtue of Section 2(a) of the Public Officers Protection Act Cap. 41 Laws of the Federation of Nigeria, 2010.
(ii) The 7th defendant did not serve on the 4th defendant any pre-action notice as required by Section 93 of the Nigerian Ports Authority Act Cap N126 Laws of the Federation of Nigeria, 2010 before commencement of this action against the 4th defendant.

(iii) The purported pre-action notice dated 16th May, 2017 issued by the 7th defendant’s solicitors, Martin Aguda & Co. was not served in accordance with the provision of Section 93 of the Nigerian Ports Authority Act which requires that a pre-action notice issued pursuant to Section 92 of the Act be served by delivering it to the Managing Director, or sending it by registered post addressed to the managing director at the head office of the Authority.
(iv) The said purported pre-action notice issued by the 7th defendant’s solicitors was not delivered to the Managing Director of the 4th defendant.

At the resumed sitting of the lower Court on 6th June, 2018 when the appellant’s counsel informed the Court of her readiness to move the said notice of preliminary objection challenging the competence of the 7th respondent’s counter-claim, learned trial judge ruled at page 955 of the record of appeal thus:-
“Court: Mr. Egwuasi, you can see that your objection is made pursuant to Order 16 of the Federal High Court (Civil Procedure) Rules, 2009. That is why the Court ordered that you raise the point of law therein in your

pleadings.
Now that you have filed your pleadings and raised the points of law, I make an order pursuant to Order 16 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009 that the objection shall be taken at the conclusion of hearing.
This is the order of this Court in that respect.”

Dissatisfied with the above ruling, appellant appealed to this Court through a notice of appeal filed on 11/6/2016. The said notice of appeal which is located at pages 957 – 961 of the record of appeal contains two grounds of appeal.

Appellant and the 6th and 7th respondents filed and exchanged their briefs, including the appellant’s reply briefs to the 6th and 7th respondents which, at the hearing of the appeal were adopted and relied upon as their respective arguments. In the appellant’s briefs settled by Ifeanyi Egwuasi, Esq. a lone issue was nominated as arising for the determination of the appeal as follows:-
Whether in the circumstances of this case, the learned trial judge was right in ruling that he would consider the appellant’s objection at the end of the counter-claim.

The 6th respondent also nominated

a lone issue in the brief settled by Martin Aguda Esq. thus:-
Whether the trial Court was right when it ordered the preliminary objection of the appellant to be taken at the end of the trial.

Also incorporated in the 6th respondent’s brief is a preliminary objection challenging the competence of the appellant’s notice of appeal.

The more apposite lone issue nominated in the 7th respondent settled by Taiwo Abe, Esq. reads:-
Whether in the circumstances of this case, the learned trial judge was right in ruling that he would consider the appellant’s objection at the end of the trial of the counter-claim.

The 7th respondent has also incorporated in its brief argument a preliminary objection, challenging the competence of the appellant’s notice of appeal.

It is submitted by the learned counsel to the appellant when an action such as the 7th respondent’s counter-claim is statute-barred, the right of action is removed, and thus the action becomes incompetent and the foundation of the action becomes incompetent and unenforceable. He contended that contrary to the ruling of the lower Court;

the appellant’s objection was predicated on the jurisdiction of the Court to entertains the matter which goes beyond the rules of any Court as such Order 16 of the Federal High Court (Civil Procedure) Rules 2009 was clearly incapable. Counsel cited MADUKOLU V. NKEMDILIM (1962)2 SCN NLR 341, ASOGWA V. CHUKWU (2003) NWLR (prt 811) 540, SKENCONSULT NIGERIA LTD. V. UKEY (1981)1 SC4 at 15, NDLEA V. OKORODUDU (1997)3 NWLR (prt 492) 421 at 422 and hosts of other cases to buttress the point that the issue of jurisdiction is so important that a Court is bound at any stage to put an end to the proceedings if it becomes manifest that they are incompetent.

Still in argument, learned counsel submitted that assuming without conceding that the appellant’s objection was even made pursuant to Order 16 of the Federal High Court (Civil Procedure) Rules 2009, the fact that parties consented to hearing of the said preliminary objection that touches on the jurisdiction of the lower Court to entertain the matter, the trial judge ought to have been persuaded to hear same before going into trial. He cited Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009

and the cases of DAPIANLONG V. DARIYE (2007)8 NWLR (prt 1036) 332 at 406 and A.G LAGOS STATE V. A.G., FEDERATION (2014) 9 NWLR (prt 1412) 217 in submitting that it is only in matters commenced by originating summons which do not involve the taking of oral evidence that the hearing of objection to jurisdiction can be combined with the substantive matter.

On behalf of the 6th respondent, it was contended that the appellant having simultaneously applied under Order 16, Rule 2 for the points of law to be heard before trial, the trial judge was therefore right when he in the exercise of discretion ordered that the objection be taken after trial. Counsel submitted that the appellant having not appealed against the aspect of the lower Court’s ruling that the objection was made pursuant to Order 16 of the Federal High Court (Civil Procedure) Rules 2009, her argument goes to no issue and is liable to be struck out. He cited N.B.C. PLC V. UBANI (2014) 4 NWLR (prt 1398) 421 at 467 and NNPC V. CLIFCO (NIG) LTD (2011) 10 NWLR (prt 1255) 209 at 233 to the effect that where a party has erroneously premised his case on an issue which by its clear ambit does

not cover his case, his argument under the said issue should be discountenanced.

He submitted that by virtue ofOrder 29 Rules 4 and 5 of the Federal High Court (Civil Procedure) Rules 2009 an application challenging the jurisdiction of the Court should be made within twenty-one days after service on the defendant of the originating process, failing which such application can only be taken at the conclusion of the trial and that the appellant’s preliminary objection was filed seventy (70) days after it was served with the counter-claim and thus, the trial judge was right when he ordered the preliminary objection to be taken at the conclusion of the trial.

Learned counsel for the 7th respondent, on the other hand, contended that apart from the fact that the appellant’s preliminary objection was filed outside the twenty-one mandatory period, the said objection if properly examined is such that could be conveniently be taken after the conclusion of the trial. Counsel submitted that a dispassionate examination of the appellant’s objection was a deliberate attempt to frustrate both the 7th respondent and the lower Court from hearing the

counter-claim.

Before proceeding to consider the above submissions, let me first consider the preliminary objection respectively filed by the 6th and 7th respondents challenging the competence of the appellant’s notice of appeal. The preliminary objection contemplated by Order 10 of the Court of Appeal Rules, 2016 is one that terminates an appeal in limine. In this case the preliminary objection is against whole appeal because it is an attack on all the grounds of appeal which if successful, there would be no any other ground upon which the appeal can be predicated upon.

Arguing the 6th respondent’s preliminary objection, learned counsel submitted that ground 1 of the appellant’s notice of appeal is not related to the ruling of the lower Court and that any ground of appeal from which no issue has been distilled and upon which no argument has been canvassed, is deemed abandoned by the appellant. Counsel cited DANIEL V. F.R.N. (2015) 13 NWLR (prt 14250 119 at 131 and F.R.N. V. DAIRO (2015)6 NWLR (prt. 1454) 141 at 165.

He submitted further that ground 2 is a ground of mixed law and facts which also challenge an interlocutory

decision of a Court on the exercise of the lower Court’s discretion and thus the leave of Court ought to have been sought and obtained. He referred to Section 242 (1) of the 1999 Constitution (as amended) and the cases ofF.B.N. PLC. V. ABRAHAM (2008) 18 NWLR (prt 1118) 172 at 189 GARUBA V. OMOKHODION (2011) 14 NWLR (prt 269) 145 and IDRIS V. AGUMAGU (2015) 13 NWLR (prt 1477) 441 at 474 – 475 to the effect that since the appellant did not obtain leave ground 2 is incompetent.

In response, the appellant relied on the authority in the case ofLABIYI V. ANRETIOLA (1992) 8 NWLR (prt 258) 139 to submit that a number of grounds could where appropriate be formulated into a single congruous issue and that the single issue for determination was distilled from the two grounds of appeal.

On ground 2, counsel submitted that once an appeal is as of right whether interlocutory or final, the appellant does not require the leave of the relevant lower Court or the Court of Appeal to appeal. He cited Section 241 (1) (b) of the 1999 Constitution (as amended) and the cases of KULAK TRADE & INDUSTRIES PLC. V. THE TUG BOAT M/V JAPAUL B. & ANOR (2011) 9

NWLR (prt 1251) 133 at 149 and ORAEKWE V. CHUKWUKA (2012) 1 NWLR (prt 1280) 169 to buttress that a ground of appeal against a decision of the High Court whether final or interlocutory which involves question of law alone and it is filed within time does not require leave to appeal.

He submitted further that where the ground complains of the lower Court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore one of law alone.

Learned counsel for 7th respondent also argued that the appellant’s grounds of appeal are grounds of facts or at most grounds of mixed law and facts of which leave of Court is mandatory.

Reacting to the above, learned counsel for the appellant contended that the complaints in the appellant’s grounds of appeal and their particulars are about the misunderstanding of the lower Court or misapplication of the law, namely Order 16, Rule 2 (1) of the Federal High Court (Civil procedure) Rules, 2009 and therefore grounds of law which

requires no leave of Court to appeal. He submitted that in his order to hear the appellant’s objection at the conclusion of hearing, the learned trial judge did not need to resolve any dispute on any issue of facts because the facts were not in dispute and thus, the appellant did not need to obtain leave to file the appeal.

I have stated that the respondents’ preliminary objection to the hearing of this appeal are capable of terminating the whole appeal because they attacked the entire grounds of appeal. The respondents’ objections are of two folds namely, ground 1 of the notice of appeal does not relate to the ruling on appeal and that ground 2 thereof is of mixed law and facts and thereby requiring leave of Court. The appellant’s notice of appeal is hereunder reproduced as follows:-
“GROUNDS OF APPEAL
(i) The learned trial judge erred in law when he relied on Order 16 Rule 2 (1) of the Federal High Court (Civil Procedure) Rules, 2009 to suo motu rule to combine the hearing of the 7th respondent/counter/claimant’s substantive suit which involves the taking of oral evidence with the appellant’s objection

challenging the jurisdiction of the Court to hear the said 7th respondent’s counterclaim on grounds of abuse of judicial process, statutes of limitation and lack of proper service of pre-action notice contrary to the clear provisions of Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009.
PARTICULARS OF ERRORS IN LAW
(a) Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rule, 2009 provides that when a defendant is disputing the jurisdiction of the Court to entertain a claim the Court may take such objection and the substantive matter together only if the substantive suit does not involve the taking of oral evidence.
(b) This suit was commenced by Writ of Summons which involves the taking of oral evidence.
(c) The law is settled by the Supreme Court that it is only matters commenced by originating summons which do not involve the taking of oral evidence that the hearing of objection to jurisdiction can be combined with the substantive matter.
(ii) The learned trial judge erred in law when he ruled to hear the objection raised by the appellant against the competence of the 7th respondent’s

counter-claim at the end of the trial.
PARTICULARS OF ERRORS IN LAW
(a) The 1st leg of the objection deals with the effect of the limitation law on the counterclaims of the 7th respondent against the appellant.
(b) The second objection raises the issue whether the 7th respondent should be allowed to raise for decision in the lower Court the same claim that he is prosecuting against the appellant in two other Courts in Lagos.
(c) The 3rd leg of the objection relates to failure of the 7th respondent to serve pre-action notice on the appellant as prescribed by law.
(d) The Supreme Court has had it down that where a preliminary objection is fundamental, it should be disposed of as a threshold issue.”

The first issue to be resolve here is does the above grounds of appeal particularly ground 1 relate to the ruling of the trial Court now on appeal? I have right from the onset reproduced the said ruling which in effect questions the decision of the learned trial judge to postpone the hearing and consideration of the appellant’s preliminary objection to the 4th defendant’s counter-claim till at the conclusion

of the hearing of the substantive suit filed by the 1st respondent herein as plaintiff before the trial Court.
The law is settled that a ground of appeal as well as the issue distilled from it for the determination of an appeal must relate to the decision being appealed against. In other words, only an issue pronounced upon by a lower Court is subject of a competent appeal. See NYAKO V. ADAMAWA STATE HOUSE OF ASSEMBLY (2017) 6 NWLR (prt 1562) 347 and AJAOKUTA STEEL CO. LTD V. G.I. & S. LTD (2019) 8 NWLR (prt 1674) 213 at 226. The grounds of appeal are therefore the reasons why the decision is considered by the aggrieved party to be wrong. Thus, the purpose of the grounds alleged is to isolate and accentuate for attack the basis of the reasoning of the decision challenged. See AQUA LTD V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (prt 91) 622 and SARAKI V. KOTOYE (1992) 9 NWLR (prt 264) 156 at 1983 – 184.
A perusal of ground 1 of the appellant’s notice of appeal clearly attacks the basis of the learned trial judge’s reasoning of his decision to take the appellant’s preliminary objection at the conclusion of hearing of the substantive

suit. Thus ground 1 above is fixed and circumscribed within a particular issue in controversy in the ruling challenged.

Then, the next germane issue is whether or not ground 2 of the above grounds of appeal is of mixed law and facts wherein the leave of Court is required?
To differentiate between a ground of law and a ground of fact or mixed law and fact has been stubborn and perennial judicial exercise. A ground of appeal does not translate into a ground of law or fact or mixed law and facts because it is so couched by the appellant. To deciper whether a ground of appeal is of law or fact or mixed law and fact a Court has the duty to thoroughly and assiduously examine the ground with its accompanying particulars. See EHINLANWO V. OKE (2008)16 NWLR (prt 1113) 357, and GENERAL ELECTRIC CO. V. AKANDE (2010) 18 NWLR (prt 1225) 596. In ORAEKWE V. CHUKWUKA (Supra) per AUGIE, JCA (as he then was) at page 189 paras F – H:
“It is always difficult to distinguish a ground of law from a ground of fact or mixed law and fact, however, in making the distinction, an appellate Court must examine the grounds thoroughly to see whether it reveals a

misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, in which case it would be a question of law or one that will require questioning the evaluation of the fact before the application of the law in which case it would amount to a question of mixed law and fact.”
Also the Supreme Court in plethora of judicial decisions has evolved certain principles that would assist the Courts. A question of law connotes one of the three meanings, to wit;
(a) A question a Court is bound to answer in accordance with a rule of law;
(b) A question which explains what the law is, and
(c) A question which normally answers questions of law only and invariably falls within the judicial power of a judex to answer.
Contrariwise, a question of facts denotes one of the three meanings, thus:
(a) A question which is determined by a rule of law;
(b) Any question except one as to what the law is, and
(c) Any question which is to be answered by the jury and not the judge. See N.N.P.C. V. FAMFA OIL LTD (2012) 17 NWLR (prt 1328) 148 and ATAGO V. NWUCHE (2013)3 NWLR (prt 1341) 337.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel for the appellant has submitted and I agree with his submission that the complaint in ground 2 of the notice of appeal relates to misunderstanding and or misapplication of the provisions of Order 16 Rule 2 (1) and Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009 by the learned trial judge. Whereas in this case, a ground of appeal alleges a misapplication of the law to the facts already proved or admitted, it is a ground of law. See ARJAY LTD V. A.M. S. LTD (2003)7 NWLR (prt. 820) 577. A careful examination of the particulars to ground 2 above, reveals that the appellant’s complaint is predicated on a misapplication of the law which does not need any leave of Court.
It was however submitted by the respective counsel for the 6th and 7th respondents that where a ground of appeal challenges an interlocutory decision of a Court predicated on the exercise of discretion, it is a ground of mixed law and fact.
I have stated that where the ground of appeal raises an issue of law based on accepted undisputed or accepted facts as found by the lower Court, it is a ground of law but where it is based on facts in

dispute or unascertained, it is one of mixed law and fact.
The main contention here is that since the ground of appeal challenges an interlocutory decision of the lower Court predicated on the exercise of discretion, leave of Court is mandatory. It is true that an appellant is required to obtain the leave of the lower Court or of this Court, to appeal against an interlocutory decision of the trial Court. See Sections 241 (1) and 242 (1) of the 1999 Constitution (as amended) as well as Section 14 (1) of the Court of Appeal Act 2004. However, the above principle of the law fails to apply whereas in this case, the ground(s) of appeal by the appellant in the interlocutory appeal is purely a question of law alone. See EZUMA & ANOR V. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR – 43382 (CA). Thus, ground 2 of the appellant’s grounds of appeal which complained that the rules of law were applied wrongly to the established facts being a ground of law, same can be raised without leave of Court. In essence, the respective preliminary objections are devoid of any merit and they are accordingly overruled.

Having dispensed with the preliminary objections, I

shall now focus on the substantive issue that is, whether the learned trial judge was right in his ruling that he would consider the appellant’s objection at the end of the trial of the substantive suit. The grouse of the appellant was that the 7th respondent’s counter-claim is statute-barred and the cause of action becomes incompetent. In the said preliminary objection, the appellant alleges that the 7th respondent’s counter-claim is an abuse of judicial process and that there was lack of service of pre-action notice in accordance with the extant law etc.
The issue of jurisdiction can be raised at any time even before an appellate Court even where it was not raised or determined at the trial provided the procedure of raising it was properly followed by the party choosing to raise it. Also preliminary objection where raised by a party should firstly be determined before determining the substantive suit if the need to do so arises. See OKOROCHA V. UBA PLC (2018)17 NWLR (prt 1649) 441.
The collective position of the 6th and 7th respondents is that the appellant having simultaneously applied under Order 16, Rule 2 for the point of law

to be heard, the trial judge in the judicious exercise of his discretion can order that the objection be heard after trial.
The provision of Order 16 Rule 2 (1) and (2) of the Federal High Court (Civil Procedure) Rules 2009 provides that:-
(1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial.
(2) A point of law so raised may by consent of the parties or by order of the Court or a judge in chambers on the application of either party; be set down for hearing and disposed of at any time before the trial.
Order 29 Rule 1 of the Rules on the other hand provides –
“Where a defendant wishes to –
(a) Dispute the Court’s jurisdiction to try the claim or
(b) Argue that the Court should not exercise its jurisdiction,
He may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the plaintiff’s substantive suit in so far as the substantive suit does not

involve the taking of oral evidence.
From the above, even though demurrer proceedings are abolished under the provisions of the Federal High Court (Civil Procedure) Rule 2009, under Order 16 above an applicant must file pleadings before raising point of law but under Order 29, there is no need to file pleadings. In N.D.I.C. V. CBN (2002)7 NWLR (prt 766) 272 at 296 – 297 paras F – A the Supreme Court per Uwaifo, JSC made a clear distinction between challenge to jurisdiction and demurrer proceeding in the following words:-
“The tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded all the facts pleaded to be true, the plaintiff has no cause of action, or where appropriate no locus standi.” See Federal Capital Development Authority V. Naibi (1990)3 NWLR (prt 138) 276 Williams V. Williams (1995)2 NWLR (prt 375)1 Akpan V. Utin (1996)7 NWLR (prt. 463) 634, Brawal Shipping (NIG) Ltd V. F.I. Onwadike CO. Ltd (2000)1 NWLR (prt 678) 387. But as

already shown, 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 reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in Court over this 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 was also contended by the 6th respondent that by virtual of Order 29 Rules 4 and 5 of the Federal High Court (Civil Procedure) Rules 2009 an application challenging the jurisdiction of the Court must be made within 21 days after service on the defendant of the originating process failing which any such application can only be taken at the conclusion of trial.
It is pertinent to state that a point of law can be raised on a preliminary objection if the point of law will be decisive of the whole litigation. Whereas in this case, the appellant is alleging that the 7th respondent’s counter claim is caught up by the

limitation law, same will be decisive of the whole litigation which can only be determined at the initial stage by reference to the pleadings particularly the statement of claim. A preliminary question is a question that has to be settled before the Court goes into other things. See OROH V. BURAIMOH (1990)2 NWLR (prt 134) 64.
In the instant case, the appellant’s preliminary objection challenges the 7th respondent’s motion to join an already existing or pending originating process and therefore there is pending suit instituted by the 1st respondent. Thus, Order 29 Rule 5 of the extant rules is inapplicable. I also agree with the submission of the appellant that the rules of Court cannot regulate when and how issues of jurisdiction can be raised particularly where the issue involves jurisdiction as a matter of substantive law as opposed to jurisdiction as a matter of procedural law. See B.P.E. V. DANGOTE CEMENT PLC (2020) 5 NWLR (prt 1717) 322.
In the result, this appeal succeeds and same is hereby allowed. The ruling of the trial Court delivered on 6th June 2018 is hereby set aside. Accordingly, the case is hereby remitted to the Chief

Judge of the Federal High Court for hearing of the appellant’s preliminary objection which touches on the jurisdiction of the Court before hearing the 7th respondent’s counter claim should the need arises.

Parties shall bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother MUHAMMED LAWAL SHUAIBU, JCA, and I agree with the reasoning and conclusion of the issues nominated for the determination in the appeal.

I have nothing more to add.

I also allow the appeal and abide by the orders made therein.

HAMMA AKAWU BARKA, J.C.A.: The ruling of my learned brother Muhammed L. Shuaibu, JCA, has been made available to me before now.

It is trite that once a preliminary objection which questions the competence of the suit is raised, wisdom or common sense dictates that it be determined first in time. It is only in election petition issues that subjected the hearing of any preliminary issue to be determined at the judgment stage, but even then, it does not preclude the hearing of the objection before hearing.
I agree with the lead

judgment that the objection being one that challenged the competence of the hearing of the counterclaim ought to have been heard and their question determined before venturing to proceed should the need arise.

The appeal is meritorious and it is hereby allowed. I abide on any order made including that as to costs.

Appearances:

IFEANYI EQUASI, ESQ. For Appellant(s)

…For Respondent(s)