OVH ENERGY MARKETING LIMITED v. VIRGIN FIELDS NIGERIA LIMITED & ANOR (2019)

OVH ENERGY MARKETING LIMITED v. VIRGIN FIELDS NIGERIA LIMITED & ANOR

(2019)LCN/13279(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of May, 2019

CA/MK/42/2018

RATIO

JURISDICTION: IMPORTANCE

It has rightly been submitted that the issue of jurisdiction is a threshold issue. The jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. The jurisdiction or authority of the Court is controlled or circumscribed by the statute creating the Court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. These touch on the legal authority of the Court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508, (1988) 7 SC (Pt.1) 11-12, (1988) LPELR-2583(SC); Aremo II v. Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd. & 2 Ors. v. Trans International Bank Ltd (2008) 12 S.C. (PT.II) 240; Julius Berger (Nig) Plc v. Anizzeal Eng. Projects Ltd (2013) LPELR-20694(CA).PER ONYEKACHI AJA OTISI, J.C.A.

JURISDICTION: FACTORS THAT DETERMINE WHETHER A COURT HAS JURISDICTION OR NOT
In the task of determining if a Court has jurisdiction and is competent to hear and determine a matter, the following established principles must be considered diligently:
1. Whether the Court is properly constituted as regards numbers and qualifications of the members of the bench, and no number is disqualified for one reason or another, and,
2. Whether the subject matter of the case is within its jurisdiction, and no feature in the case which prevents the Court from exercising its jurisdiction and,
3. Whether the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu & Ors v. Nkemdilim (supra), 1962 2 NSCC 374; Dangana & Anor v. Usman & Ors (supra), (2012) LPELR-25012(SC); Opara & Anor v. Amadi & Anor (2013) LPELR-20747(SC). Drexel Energy and Natural Resources Ltd. & 2 Ors. v. Trans International Bank Ltd (supra); Isaac Obiuweubi v. CBN (2011) 7 NWLR (Pt.1247) 465. These conditions, which must co-exist conjunctively, must be present to confer the Court with jurisdiction over a matter.PER ONYEKACHI AJA OTISI, J.C.A.

JURISDICTION: WHERE DO COURTS DERIVE THEIR JURISDICTION
Jurisdiction is usually conferred on the Court by the Constitution or Statute. It is only when a Court is conferred with the necessary jurisdiction by the Constitution or Statute that it will have the requisite judicial power and authority to entertain or adjudicate over any cause or matter brought before it. The absence of jurisdiction would render any proceedings conducted by such a Court an exercise in futility, null, void and of no legal effect whatsoever, no matter how well conducted; A.G Federation v. A.G Anambra State (2017) LPELR-43491 (SC); NNPC v. Clifco Nig. Ltd (2011) LPELR-2022 (SC); Esabunor & Anor v. Faweya & Ors (2019) LPELR-46961 (SC); Oloba v. Akereja (supra).PER ONYEKACHI AJA OTISI, J.C.A.

JURISDICTION: THE CLAIM OF THE PLAINTIFF DETERMINES THE COURT’S JURISDICTION
It is the claim of the plaintiff that determines the jurisdiction of the Court; Wambai v. Donatus & Ors (2014) LPELR-23303(SC) Anyanwu v. Ogunewe & Ors (2014) LPELR-22184(SC) Attorney General Kwara State v Adeyemo (supra), (2016) LPELR-41147(SC). The plaintiffs claim must therefore fall within the parameters of the jurisdiction of the Court before the Court can exercise jurisdiction.PER ONYEKACHI AJA OTISI, J.C.A.

WAIVER: DEFINITION
Waiver is defined as the intentional and voluntary surrender, relinquishment or abandonment of a known privilege or right by a party entitled to the same which at his option he could have insisted upon;Fasade & Ors v. Babalola & Anor (2003) LPELR-1243(SC). Where a person has any right accruable to him and for his benefit and he, showing by words or conduct not to insist on the said right, he is in law, said to have abandoned or waived the right; Roba Investments Ltd v. Arewa Metal Containers Ltd (2010) LPELR-4900(CA). In Ariori & Ors v. Elemo & Ors (1983) LPELR-552(SC), the Supreme Court, per Eso, JSC further elucidated, pages 20-21 of the E-Report:
“what is waiver” Rather than define the word, it is probably appropriate just to describe its concept. For as Pollock said, Waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both – see Vyvyan v. Vyvyan 30 Beav 65 as per Sir John Romilly M.R. at p.74 (reported also in 54 E.R. 817). The exercise has to be a voluntary act.PER ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

OVH ENERGY MARKETING LIMITED Appellant(s)

AND

1. VIRGIN FIELDS NIGERIA LIMITED
2. ESTATE OF LATE ALHAJI MUSA MOHAMMODU DADDARE
(Suing by the Administrator Yunusa Adamu Marafan Daddare) Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the decision of the High Court of Nasarawa State, sitting in its appellate jurisdiction, in Appeal No. NSD/LF25A/2016 Coram Hon. Justice Viko, J., and Hon. Justice S.A. Ayiwulu, J., (the Court below) delivered on 3/2/2017 wherein the Court below affirmed the decision of the Senior District Court of Nasarawa State sitting at Lafia Coram Patrick .D. Ekpu, Senior District Judge, (the trial Court) in Suit No. SDC1/103CV/2015: Virgin Fields Nigeria Limited, Estate of Late Alhaji Musa Mohammodu Daddare v Oando Nigeria Plc, delivered on 8/9/2016.

The facts leading to this appeal, as can be gleaned from the processes before this Court are as follows: By a Plaint dated 1/12/2015, the Respondents as plaintiffs filed Suit No. SDC1/103CV/2015: Virgin Fields Nigeria Limited, Estate of Late Alhaji Musa Mohammodu Daddare v Oando Nigeria Plc before the trial Court, against the Appellant (formerly Oando Nigeria Plc) as defendant seeking the following orders:
a. An Order that the Defendant delivers possession of Plot 4906 measuring about 82 hectares, 98m by

85m and 74m by 87m situated near Lafia – Makurdi, Awe roundabout, Mararaban Akunza, Lafia, Nasarawa State forthwith.
b. An Order that the Plaintiff should take immediate effective possession of Plot 4906 measuring about .82 hectares, 98m by 85m and 74m by 87m situated near Lafia – Makurdi, Awe roundabout, Mararaban Akunza, Lafia, Nasarawa State.
c. An Order that the defendant pays the sum of N 10,208.00k (Ten Thousand, Two Hundred and Eight Naira only) being arrears of rent from 1st January, 2013 to 28th November, 2015.
d. Mesne profit at the new rate of N2, 000,000.00k (Two Million Naira only) per annum until possession is delivered and final liquidation of the Judgment.
e. Cost of this action in the sum of N500, 000.00k (five hundred thousand naira only).

The dispute between the parties, as presented by the Appellant, arose from the Appellant’s use and occupation of a piece of land which Agip Nigeria Plc, the predecessor of the Appellant, leased from the Late Alhaji Musa Mohammodu Daddare and developed thereon a Petrol Station during the tenure of the lease. The said Petrol Station was to be relinquished to the lessor in the agreed

manner at the expiration of the lease. At the hearing, the sole witness for the Respondents testified as PW1. At the conclusion of his testimony, the Respondents closed their case. The Appellant through its Counsel, applied to the trial Court for a date to enable its Counsel address the trial Court or to call evidence in their defence in the matter. At this point, Counsel to the Respondents, applied to withdraw the monetary claim against the Appellant and that it be struck out on the basis that the monetary claim was beyond the jurisdiction of the trial Court. In response to this application, Counsel for the Appellant, inter alia, urged the trial Court to rather dismiss the monetary claim as well as the suit filed by the Respondents, considering the circumstances of the case and the time when the application was made. The Appellant further submitted that the Respondents had waived the excess claim by submitting to the jurisdiction of the trial Court despite being aware of the stated excess. The Respondents in response argued that parties cannot by consent confer jurisdiction upon the trial Court and that jurisdiction is an issue that can be raised at anytime.

The trial Court in its ruling delivered on 8/9/2016, struck out the monetary claim made by the Respondents. Dissatisfied by the said ruling, the Appellant lodged an appeal to the Court below. The Court below heard the appeal and dismissed it on 3/2/2017. Once more dissatisfied with the decision of the Court below, the Appellant, upon leave granted by this Court on 12/2/2018, further appealed to this Court. The Appellant thereafter took over the downstream business of Oando Nigeria Plc (assets and liabilities inclusive) and applied for the leave of this Court to be substituted for Oando Nigeria Plc., which application was granted on 5/3/2019.
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The Appellant?s Notice of Appeal was filed on 13/2/2018. An Amended Notice of Appeal was filed on 17/9/2018 but deemed properly filed and served on 5/3/2019, on three grounds of appeal. The parties exchanged Briefs of Argument, pursuant to the Rules of this Court. At the hearing of this appeal on 8/4/2019, the Amended Appellant?s Brief filed on 17/9/2018 but deemed properly filed and served on 5/3/2019, was adopted by Ogechi Ogbonna, Esq. The Amended Respondent?s Brief, settled by John Abum, Esq.

and filed on 17/3/2019 but deemed properly filed and served on 8/4/2019, was adopted by F.T. Akwacha, Esq., with Otache Bako, Esq. The Amended Appellant?s Reply Brief, filed on 17/9/2018 but deemed properly filed and served on 8/4/2019, was also adopted by Mr. Ogbonna. The Court was urged to allow the appeal by Mr. Ogbonna, while Mr. Akwacha urged the Court to dismiss the appeal.

I note that the Respondents in their Brief had argued a Preliminary Objection. However, during the oral hearing of the instant appeal on 8/4/2019, the learned counsel for the Respondents did not say one word about the said objection. It was never raised. Judicial authorities are replete on the consequence of a respondent to an appeal who has raised in his respondent?s brief a preliminary objection but who failed or neglected to seek the leave of the court to move the objection before the hearing of the substantive appeal. The consequence is that the said preliminary objection is deemed to have been abandoned and the Court will ignore or discountenance it; Attorney General of Rivers State v. Ude & Ors (2006) LPELR-626(SC); APGA v. Anyanwu & Ors (2014)

LPELR-22182(SC); Minister of Works & Housing v. Shittu (2007) 16 NWLR (Pt. 1060) 351, (2007) LPELR-8751(CA); Awhangwu & Ors v. Awhangwu & Anor (2016) LPELR-41158(CA). I shall therefore discountenance the said preliminary objection as it was abandoned.

The Appellant distilled three issues for determination of this appeal as follows:
1. Whether the Honurable Court below erred in law when the Honourable Court held ?we have scrutinized the claims of the Respondent filed at the trial Court and the evidence of pull(sic) adviced(sic) at the trial Court as well as the submission of the learned trial counsel for the respondent contained in the records of appeal before us. We find no evidence or submission of waiver by the respondents of nay(sic) excess monetary claims from the records of appeal and we so hold? rather, it is our considered view that the concepts of waiver abandonment and estoppels are not known to the issue of jurisdiction? where a Court lacks jurisdiction to entertain a matter such lack of jurisdiction cannot be waived or abandoned by the Court of parties in the litigation…the proper order to have been mar

(sic) by the trial Court is an order striking out the abandoned or excess or waived sum of money which is above the jurisdiction of the Court.” (Ground 1).
2. Whether the Honourable Court below erred in law when the Honourable Court held “for all we have said above we are in agreement with the learned Senior District Judge when he held in his ruling as follows: the claim before me is for possession of premises, which both parties conceded have been delivered and if the Plaintiff is not ready to proceed with the other claim the order for the Court is to strike out same and not dismiss same. Even if the Plaintiff and Defendant leads evidence in support of same. It would be an exercise in futility no matter how beautifully made. I discountenance the objection by the defence counsel as none of the authorities cited or any bars me from striking out the action if the claim is above my jurisdiction. I strike out the monetary claim.” (Ground 2).
3. Whether the affirmation of the Judgment of the learned trial Court by the Honourable Court below was against the weight of evidence adduced in this matter and also the Record of the Honourable Court.

The Respondents adopted the issues as distilled by the Appellant for determination of this appeal. I shall also be guided by the said issues. The parties argued Issues 1 and 2 together.

Issues 1 and 2
It was submitted for the Appellant that where there is a Court of law with jurisdiction to determine all the issues in controversy as stated by a claimant and grant all the reliefs sought by the claimant in his originating process, and another Court with jurisdiction to determine some or part of the claims in controversy as stated by a claimant and can only grant some of the reliefs sought in the matter, the preferred court for the claimant to commence action is the former Court that has jurisdiction over all the claims. Reliance was placed on Dagazau v Bokir International Company Limited, Dipo Onifade Esq [2011] 14 NWLR (Part 1267) 261 at 318. It was further argued, however, that the choice of Court is that of the claimant who is bound by the incidence of his choice. It was submitted that where the litigant files an action before a Court with jurisdiction over part of the claims and persists in conducting proceedings before such improper

forum, such litigant cannot be allowed to benefit from his wrong by claiming lack of jurisdiction, after getting benefits from such adjudication before the said Court. In the instant case, costs were awarded against the Appellant by the trial Court, and, possession was also delivered in the course of the same matter, which orders the trial Court had jurisdiction to grant. It was submitted that a party is not allowed to benefit from his wrong doing, relying on Vinz International Nigeria Limited v Morohundiya [2009] 11 NWLR (Part 1153) 562 at 579; Ibrahim v Osunde [2009] 6 NWLR (Part 1137) 382 at 404. It was submitted that parties before any Court of law have the constitutional right to directly or indirectly waive any rights available to them either by themselves or by their counsel. Such waiver is binding and for appropriate consequential orders to be made. The cases of Bello Akanbi v Mamudu Alao [1989] ANLR 424 at 442, [1989] 3 NWLR (PART 108) 118; Mosheshe General Merchant Ltd v Nigerian Steel Products Ltd [1987] 2 NWLR (Part 55) 110 at 122 were cited and relied upon. It was argued that the Court below was in error to have affirmed the decision of the trial

Court. In determining jurisdiction of a Court, it is the claims brought before the Court by a claimant that are considered, citing Olagunju v PHCN Plc [2011] 10 NWLR (Part 1254) 113 at 126. It was argued that four of the reliefs sought by the Respondents before the trial Court were for possession; N10,208.00k as mesne profit from January, 2013 to 28/11/2015; and N500, 000.00k as costs, which were all within the jurisdiction of the trial Court. The relief alleged to be beyond the jurisdiction of the trial Court was the speculative claim of “mesne profit at the new rate of N2,000,000.00k (Two Million Naira only) per annum until possession is deliver and final liquidation of Judgment”. Counsel for the Appellant argued that the action and the monetary claims made by the Respondents at the trial Court were competent in the circumstances in which they were made, and that the Court below in the exercise of its appellate jurisdiction erred in law to hold otherwise and to affirm the decision of the trial Court. The reason for this submission was that the Respondents upon filing the action at the forum where they did, abandoned and waived any excess claim alleged above

the monetary jurisdiction of the trial Court. By filing a claim above the monetary jurisdiction of the trial Court together with several claims within the monetary and other jurisdiction of the trial Court, the Respondents abandoned and waived the right to make any allegation or issue about any monetary claim beyond the jurisdiction of the learned trial Court below including the claim for N2,000,000.00 per annum as the new rate of mesne profit until possession is delivered and final liquidation of the Judgment sum, which was submitted to be a speculative claim. It was contended that the waiver of any alleged excess by the Respondents was in line with Section 169 Evidence Act, 2011 which among other things, estopped the Respondents from denying waiver. Learned Counsel for the Appellant defined waiver as the intentional surrender of a known right, relying on Anyawoko v Okoye [2010] 5 NWLR (Part 1188) 497 at 519. Having submitted to the trial Court claims for possession, and monetary claims that were within the competence and jurisdiction of the Court together with a monetary claim exceeding the monetary jurisdiction of the same trial Court, it was argued that

the Respondents had waived the excess amount in issue, and, cannot oust the jurisdiction of the trial Court by alleging that the monetary claim was beyond the jurisdiction of the same Court. Still on the issue of waiver, the Appellant submitted that the beneficiary of certain rights in law can waive such rights, citing the case of Ariori & Ors v Elemo & Ors (1983) 1 SCNLR 1 (1983) 1 S.C 1 at 13.

Learned Counsel for the Appellant conceded that parties cannot by consent or acquiesce confer jurisdiction on a Court which lacks jurisdiction over a dispute where a Court has no jurisdiction, but submitted that this statement of our law is only applicable where there is total lack of jurisdiction. That the exception to the general rule is that the general rule does not apply in circumstances which do not involve total lack of jurisdiction by a trial Court. The facts and circumstances of the instant case do not disclose a total lack of jurisdiction by the trial Court.
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It was further argued that the Respondents’ monetary claim especially for N2, 000,000 was for money payable for an indeterminate period and was determinate on a contingency which may

or may not occur. The claim was therefore speculative. Speculative claims cannot oust jurisdiction of a Court, neither can they found an action nor be the basis of any judicial relief since no Court is allowed to act on speculation, citing the case of Agip Nigeria Limited v. Agip Petroli International and Ors [2010] 5 NWLR (Part 1187) 348 at 413. A speculative relief cannot be the basis for a Court declining jurisdiction, especially where the Court has jurisdiction over some of the other issues in controversy before it.

It was contended that the decision of the Court below was inconsistent with the decision of the Supreme Court in Attorney General Kwara State v Adeyemo [2017] 1 NWLR (Part 1546) 210 at 240. By the doctrine of stare decisis, the decision of the Supreme Court setting forth the law as applicable to any legal issue binds every other Court in the hierarchy of courts in Nigeria, relying on Abegunde v Ondo State House of Assembly [2015] 8 NWLR (Part 1461) 314 at 349.

Learned Counsel for the Appellant was of the view that the decision of the Court below to strike out the monetary claims instead of dismissing same would promote forum shopping

and abuse of Court processes by exposing a litigant to litigation in several Courts over the same issue. He brought to the attention of the Court the fact that while the Appellant?s appeal to the Court below was pending, the Respondents at the same time commenced against the Appellant a fresh action: Suit No. NSD/LF63/2016: Virgin Fields Nigeria Limited, Estate of Late Alhaji Musa Mohammodu Daddare v Oando Nigeria Plc, at the same Court below. In the said suit, which was still pending, the Respondents sought the heads of monetary reliefs previously sought by them in the trial Court in Suit No. SDC/103CV/2015. It was submitted that even where a right of action exists, the manner of exercising the same right can be an abuse of Court process which should lead to the dismissal and not striking out of the suit and the entire claims. The decisions in Dingyadi v Independent National Electoral Commission (No. 2) [2010] 18 NWLR (Part 1224) 154 at 201; James v Independent National Electoral Commission [2015] 12 NWLR (Part 1474) 538 at 602 were cited and relied upon. The appropriate order to make upon an application to withdraw a part heard matter is an order

dismissing the suit and not striking out such a suit as was done by the trial Court, which decision was upheld by the Court below, relying on Egbukohia v Onyegbule [2015] 8 NWLR (Part 1461) 377 at 393; Young Shall Grow Motors Limited v Okonkwo [2010] 15 NWLR (Part 1217) 524 at 543. By applying to strike out the monetary claims, and thereafter the trial Court proceeding to enter judgment for possession, which was no longer an issue, the Respondents were allowed to approbate and reprobate, relying on Suberu v State [2010] 8 NWLR (Part 1197) 586 at 612 and 613.

It was submitted that a litigant is not to be punished for a mistake made by a Court, placing reliance on Fidelity Bank v Monye [2012] 10 NWLR (Part 1307) 1 at 35. Although it is not every mistake of Court that may lead to the reversal of a judgment of a Court by a higher Court, where the mistake is grievous and causes injustice to the complaining party, such a decision shall be set-aside on appeal, relying on First Bank Nigeria Plc v Mmeka [2015] 6 NWLR (Part 1456) 507 at 521 ? 522. It was submitted that the decision of the trial Court and of the Court below were induced by mistake in applying

the law to the peculiar facts and circumstances of this suit, which resulted in grave injustice and injury to the Appellant, and suffices to set aside the decision of the Court below. The Court was urged to allow this appeal, set aside the judgment of the Court below in Appeal No. NSD/LF25A/2016: Oando Nigeria Plc v Virgin Fields Nigeria Limited, Estate of Late Alhaji Musa Mohammodu Daddare (suing By the Administrator Yunusa Adamu Marafan Daddare), delivered on 3/2/2017 and to substitute same with an order dismissing Suit No. SDC1/103CV/2015: Virgin Fields Nigeria Limited, Estate of Late Alhaji Musa Mohammodu Daddare (suing by the Administrator Yunusa Adamu Marafan Daddare) v. Oando Nigeria Plc. in place of the order striking out same made by the trial Court on 8/9/2016.

For the Respondents, it was submitted that a Court of law has the jurisdiction to strike out all the claims of a litigant or some of the claims of a litigant where it discovered that such Court has no jurisdiction to proceed with aspects of the claim or all the claims as contained in the writ of summons. The decision of the trial Court which the Court below affirmed was that the proper

order where the Court lacks jurisdiction to entertain a particular claim is to strike out the claim but not to dismiss the claim of the Respondent for mesne profit of N2,000,000.00 which is above the jurisdiction of the trial Court. The Court below held that the trial court was right to have struck out the claim of the Respondent for lack of jurisdiction as the issues of waiver and abandonment of the N2,000,000.00 were not supported by the record of the trial Court. Since these issues of waiver and abandonment were not canvassed at the trial Court, the Appellant cannot properly argue the said issues of waiver and abandonment before this Court. Relying on the definition of waiver in Akindele v. Abiodun (2010) All FWLR (pt.518) pg. 894 at 921-922, it was submitted that the Respondent never waived his right at the trial court and that the Court below correctly found that the Respondent did not waive his right but rather the trial Court lacked jurisdiction to entertain the claim of the respondent and accordingly struck out part of the claim of the Respondent. Jurisdiction is a threshold matter and can be raised at any stage of the proceeding; even the Court can

suo motu raise the issue of jurisdiction, citing Ibrahim v Lawal (2015) 17 NWLR (pt 1489) 490 at 525. The argument of the Appellant?s Counsel that at the stage the trial Court discovered it had no jurisdiction, it ought to have dismissed the Respondent?s claim is of no moment as the trial Court cannot dismiss a claim it has no jurisdiction to entertain; the entire proceedings would have been a nullity having determined the subject matter without jurisdiction. The monetary claim of the Respondent, which was above the jurisdiction of the trial Court, debarred the trial Court from proceeding and determining the claim of the plaintiff at the trial Court. One pre-condition that must be present before a Court assume jurisdiction in any case is that the subject matter of the case is within the jurisdiction of the Court and no feature in the case which prevents the Court from exercising jurisdiction, relying on Madukolu v Nkemdilim (1962) 2 SCNLR at 34. In the instant case, the Respondent as plaintiff at the trial Court claimed the sum of N2, 000,000.00 per annum against the Appellant as per the claim in the particulars of claim. The sum of N2,000,000.00

in three years as per the claim will add up to N6, 000,000.00, being an amount which is far above the jurisdiction of monetary claim of the trial Court. Courts are creations of statutes and no Court can assume jurisdiction over a claim except the enabling statute so permits. Neither the parties nor the Court cannot confer jurisdiction where the Court has none. Further reliance was placed on Ibrahim v Lawal (supra) at 525. It was also submitted that the rules of the trial Senior District Court, Lafia only permit the Court to entertain the monetary claim of an amount not more than N500, 000.00. Any amount more than N500, 000.00 allowed by the rules of that trial Court would automatically oust the jurisdiction of the trial Court. It was submitted that where a Court has no jurisdiction to hear and determine a case, it has no jurisdiction to dismiss same. The decision in Ikechukwu v FRN (2015) 7 NWLR (pt 1457) 1 at 22 was cited and relied upon. The Appellant’s counsel contention that by filing the plaint at the trial Court, the Respondent has by conduct abandoned the excess of the monetary claim and conferred jurisdiction on the trial Court is of no moment

considering the fact that parties cannot by agreement or conduct confer jurisdiction on a Court of law where there is none. It was further submitted that an abandonment of excess of the money claimed at the trial Court is not inferred by mere conduct, it must be expressly applied by the Respondent that he is abandoning the excess of the amount claimed. The Court was finally urged to affirm the findings of the lower Court in which the ruling of the learned trial Senior District Judge was upheld and to dismiss this appeal.

In the Reply Brief, the Appellant?s Counsel mainly rehashed his earlier arguments and concluded by once more urging the Court to allow the appeal.

Resolution
The facts leading to this appeal, as have earlier been set out, are pretty straightforward. At the conclusion of the evidence of PW1, Counsel for the Respondents made the following application to the trial Court, page 22 of the Record of Appeal:
we apply that the monetary claim be struck out. That Defendant has agreed to possession, the monetary claim against Defendant be withdrawn as it is not within the powers of Court to try it. It is beyond the

Court jurisdiction.?

Mr. Ogbonna for the Appellant opposed this application. He argued, inter alia, that the claim should rather be dismissed, that the Respondents had waived the excess claim by bringing the matter before the trial Court, with the knowledge that it had no jurisdiction to try the claim. Having submitted to the jurisdiction of the trial Court, they cannot simply have the claim struck out but dismissed. In its ruling, the trial Court held, inter alia, pages 25 – 26 of the Record of Appeal:
“The claim before me is for possession of premises which both parties conceded have been delivered and if the Plaintiff is not ready to proceed with the other claim the order for the Court is to strike out same and not to dismiss same. Even if the Plaintiff and Defendant leads evidence in support of same. It will be an exercise in futility no matter how beautifully made. I therefore discountenance the objection by the defence counsel as none of the authorities cited or any bars me striking out the claim. Striking out the action if the claim is above my jurisdiction. I strike out the monetary claim.”

The Appellant appealed to the Court below, which affirmed the decision of the trial Court and dismissed the appeal.

International Bank Ltd (2008) 12 S.C. (PT.II) 240; Julius Berger (Nig) Plc v. Anizzeal Eng. Projects Ltd (2013) LPELR-20694(CA).
In the task of determining if a Court has jurisdiction and is competent to hear and determine a matter, the following established principles must be considered diligently:
1. Whether the Court is properly constituted as regards numbers and qualifications of the members of the bench, and no number is disqualified for one reason or another, and,
2. Whether the subject matter of the case is within its jurisdiction, and no feature in the case which prevents the Court from exercising its jurisdiction and,
3. Whether the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu & Ors v. Nkemdilim (supra), 1962 2 NSCC 374; Dangana & Anor v. Usman & Ors (supra), (2012) LPELR-25012(SC); Opara & Anor v. Amadi & Anor (2013) LPELR-20747(SC). Drexel Energy and Natural Resources Ltd. & 2 Ors. v. Trans International Bank Ltd (supra); Isaac Obiuweubi v. CBN (2011) 7 NWLR (Pt.1247) 465. These conditions,

which must co-exist conjunctively, must be present to confer the Court with jurisdiction over a matter.
Jurisdiction is usually conferred on the Court by the Constitution or Statute. It is only when a Court is conferred with the necessary jurisdiction by the Constitution or Statute that it will have the requisite judicial power and authority to entertain or adjudicate over any cause or matter brought before it. The absence of jurisdiction would render any proceedings conducted by such a Court an exercise in futility, null, void and of no legal effect whatsoever, no matter how well conducted; A.G Federation v. A.G Anambra State (2017) LPELR-43491 (SC); NNPC v. Clifco Nig. Ltd (2011) LPELR-2022 (SC); Esabunor & Anor v. Faweya & Ors (2019) LPELR-46961 (SC); Oloba v. Akereja (supra).
It is the claim of the plaintiff that determines the jurisdiction of the Court; Wambai v. Donatus & Ors (2014) LPELR-23303(SC) Anyanwu v. Ogunewe & Ors (2014) LPELR-22184(SC) Attorney General Kwara State v Adeyemo (supra), (2016) LPELR-41147(SC). The plaintiff?s claim must therefore fall within the parameters of the jurisdiction of the Court before the

Court can exercise jurisdiction.
It is not in issue herein that by virtue of the then extant rules and practice direction of the District Courts of Nasarawa State, the trial Court had no jurisdiction to entertain a monetary claim above N500,000.00. Clearly therefore, the monetary claim of the Respondents fell outside the parameters of the jurisdiction of the trial Court. In the instant case, the main claim submitted to the trial Court for adjudication was the issue of recovery of premises. The monetary claim for mesne profit was ancillary to it. The trial Court had jurisdiction to entertain the main claim but the ancillary claim was outside its jurisdiction. There is no doubt that it is proper to file action in a Court which has jurisdiction to entertain all the claims of the plaintiff. However, where a plaintiff has taken his claim to a Court where the main claim may be entertained by the Court and the ancillary claim fall outside the parameters of its jurisdiction, the Court cannot by reason of the action entertain the ancillary claim outside its jurisdictional competence. The trial Court rightly said, page 25 of the Record of Appeal:

?And no matter the number of witnesses and the lengthy submissions and authorities how many deposited or cited a Court cannot confer on itself jurisdiction if it has none.?
The trial Court, which had no jurisdiction to entertain the ancillary monetary claim could not have bestowed jurisdiction on itself to enable it embark on such futile exercise.
The Appellant argued that the Respondents, by conduct, had waived their rights to the monetary claim by instituting their action in the trial Court with full knowledge of the fact that the trial Court had no jurisdiction to entertain all their claims. Waiver is defined as the intentional and voluntary surrender, relinquishment or abandonment of a known privilege or right by a party entitled to the same which at his option he could have insisted upon;Fasade & Ors v. Babalola & Anor (2003) LPELR-1243(SC). Where a person has any right accruable to him and for his benefit and he, showing by words or conduct not to insist on the said right, he is in law, said to have abandoned or waived the right; Roba Investments Ltd v. Arewa Metal Containers Ltd (2010) LPELR-4900(CA). In Ariori & Ors v. Elemo

& Ors (1983) LPELR-552(SC), the Supreme Court, per Eso, JSC further elucidated, pages 20-21 of the E-Report:
“what is waiver” Rather than define the word, it is probably appropriate just to describe its concept. For as Pollock said, Waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both – see Vyvyan v. Vyvyan 30 Beav 65 as per Sir John Romilly M.R. at p.74 (reported also in 54 E.R. 817). The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability, should be the best judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of

them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights. He is, to put it in another way, estopped from raising the issue. See also Halsbury Laws of England 3rd Edition Vol. 14 paragraph 1175.
In the light of the above pronouncements, it cannot be said that, in the instant case where the Respondents Counsel unambiguously and expressly withdrew the monetary claims for the reason that they were outside the jurisdiction of the trial Court, the Respondents had waived their rights simply for the reason that they ab initio submitted before the trial Court a monetary claim beyond its jurisdiction. That argument is just not tenable. There cannot be an imagined waiver or a deemed abandonment of claim in this circumstance. I am fortified in this position by the decision in Attorney General Kwara State v Adeyemo (supra) principally relied upon by the Appellants Counsel. In that case, the Supreme Court, per Rhodes-Vivour, J.S.C at pages 14 16 of the E-report clarified the position

of the law on whether jurisdiction could be waived, thus:
Jurisdiction is a question of law. There are two types of jurisdiction:
1. Jurisdiction as a matter of procedural Law
2. Jurisdiction as matter of substantive Law.
A litigant may waive the former. For example a litigant may submit to a procedural jurisdiction of the Court where a writ of Summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant of pre-action notice. No litigant can confer jurisdiction on the Court where the Constitution or Statute says that the Court does not have jurisdiction. Why is jurisdiction as a matter of procedural law allowed to be waived but not allowed in the case of substantive law.
I gave two examples earlier on when jurisdiction in the former can be waived. I now explain. Section 99 of the Sheriffs and Civil Process Law , provides for 30 days to serve process if the defendant is outside the jurisdiction of the Court. The purpose of a pre-action notice is to give the defendant, usually an agency of Government enough time to negotiate and reach settlement with the

claimant, or decide whether it makes sense to submit to jurisdiction and go through a full bloom trial at great expense to resolve the issue in controversy.
In both cases, 30 days for service of processes out of jurisdiction and the pre-action notice are for the benefit of the defendant. The position of the law is that where a statute gives a party a benefit he may waive it, thereby conferring jurisdiction on the Court to hear the matter. Put in another way, conditions contained in a statute for the benefit of a person or class of persons can be waived by the person/s to benefit from it. See; Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) p. 255, Ezomo v. Oyakhire (1985) 1 SC p. 6, Nwabueze v. Okoye (1985) 1 NWLR (Pt. 2) p. 195.
On the other hand where the right conferred by the Constitution or Statute involves an element of public policy, i.e. of interest to the public, such a right cannot be waived. See Ariori v. Elemo (1983) 14 NSCC p. 1?
(Emphasis mine)
In the case of Nagogo v. Congress for Progressive Change & Ors (2012) LPELR-15521(SC), the Supreme Court also emphasized that while procedural jurisdiction can be

waived by a litigant, there cannot be a waiver where it is a contention against jurisdiction as a matter of substantive law.
The issue raised in the trial Court was a matter of the substantive jurisdiction of the trial Court. The trial Court had no jurisdiction to entertain the monetary claim of the Respondents. Contrary to the submissions of Mr. Ogbonna for the Appellant, the issue of jurisdiction of a Court to entertain a matter was not a personal right or benefit accruing to the Respondents that could be waived. The substantive jurisdiction of the trial Court therefore could not have been waived by the Respondents. For that reason, the Court below rightly held, page 66 of the Record of Appeal, that:
where a Court lacks jurisdiction to entertain a matter such lack of jurisdiction cannot be waived or abandoned by the Court of the parties in litigation.?
The case of Attorney General Kwara State v Adeyemo (supra) therefore does not at all advance the case of the Appellant.
?The point must be made that the issue of jurisdiction can be raised by any of the parties or by the Court itself suo motu. When there are

sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court, it is the duty of the Judge or Justices to raise the issue suo motu, if the parties fail to draw the Court’s attention to it; Oloba v. Akereja (supra). Therefore, even when the parties have failed to raise the issue of jurisdiction and ex facie the record the claim of the plaintiff reveals that the Court has no jurisdiction to entertain it, the Court is entitled to raise the issue of jurisdiction suo motu; Alims Nigeria Ltd v. UBA (2013) LPELR-19768(SC); Olutola v. Unilorin (2004) LPELR-2632(SC).
In the circumstance of the instant case, what this simply implies is that if the Respondents had not withdrawn the monetary claim on grounds of jurisdiction, the trial Court would have been in order if it had raised the issue suo motu; Ijebu-Ode Local Government v. Adedeji Balogun & Company Limited (1991) LPELR-1463(SC). The reason for this is, as has been given earlier, that no Court can assume jurisdiction, except it is statutorily endowed. Jurisdiction can neither be implied nor conferred by agreement of the parties; Oni v. Cadbury (Nig) Plc (2016)

LPELR-26061(SC); APGA v. Anyanwu & Ors (2014) LPELR-22182(SC); Dongtoe v. Civil Service Commission, Plateau State & Ors (2001) LPELR-959(SC); Agbule v. Warri Refinery & Petrochemical Co Ltd (2012) LPELR-20625(SC).
The Appellant had repeatedly emphasized the fact that the issue of jurisdiction was raised after PW1 closed his case and matter was at the stage of address or for Appellant as defendant to open its defence. However, the time at which the issue of jurisdiction is raised is not material. The issue of jurisdiction can be raised at any time, even on appeal. Restating this position of the law, Tobi, JSC in Owie v. Ighiwi (2005) LPELR-2846(SC) at page 28 of the E-Report said:
It is trite law that the issue of jurisdiction being a threshold issue affecting the competence of the Court to adjudicate, can be raised at any time in the proceedings of the Court. It can even be raised for the first time in the Supreme Court before judgment is given. Because of the significant role it plays in the judicial process, jurisdiction can be raised suo motu by the Court, without any charge of bias from any of the parties.

See also: Oloba v. Akereja (supra); Esabunor & Anor v. Faweya & Ors (supra); Oliyide & Sons Ltd v. OAU, Ile-Ife (2018) LPELR-43711(SC); Attorney General Kwara State v Adeyemo (supra).
The Appellants Counsel had relied on the cases of Egbukohia v Onyegbule (supra); Young Shall Grow Motors Limited v Okonkwo (supra) to submit that an order of striking out upon the withdrawal of the monetary claim was not the appropriate order to make in a part heard matter. While an order of dismissal, rather than a striking out of same may in certain circumstances be the just recompense for withdrawing a part heard matter, this was not merely the case in the instant appeal. The monetary claim was expressly withdrawn by the Respondents and then struck out by the trial Court on the basis of lack of jurisdiction, which is a fundamental defect. The cases relied upon by Mr. Ogbonna are therefore not applicable herein.
As rightly affirmed by the Court below, when an issue of jurisdiction is successfully raised, the suit or claim can only be terminated by a striking out order, not by a dismissal. This position of the law was affirmed by the Supreme Court in

Okoye v. Nigeria Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501, (1991) LPELR-2509(SC) at page 41 of the E-Report thus:
where a Court holds that it has no jurisdiction to entertain an action, it does not dismiss the action but merely strikes it out. Striking it out will enable the plaintiff in certain cases to file his action in the appropriate Court with jurisdiction.?
See also:Ibrahim v. Lawal & Ors (supra), (2015) LPELR-24736(SC); Okolo & Anor v. UBN Ltd (2004) LPELR-2465(SC); Lakanmi v. Adene & Ors (2003) LPELR-1750(SC); Inakoju & Ors v. Adeleke & Ors (2007) LPELR-1510(SC). The argument that striking out a claim for want of jurisdiction rather than an outright dismissal of the claim would lead to forum shopping does not therefore hold water.
The order of the trial Court striking out the Respondents? monetary claim, which had been withdrawn, for want of jurisdiction of the trial Court to entertain same, was therefore rightly made and affirmed by the Court below. Issues 1 and 2 are accordingly resolved against the Appellant.

Issue 3
The contentions of the parties under

this issue reveal that the arguments canvassed under Issues 1 and 2 were mainly rehashed. These Issues 1 and 2 have been resolved above against the Appellant.
The Court below held, page 67 of the Record of Appeal:
For all we have said above we are in agreement with the learned Senior District Judge when he held in his ruling as follows:
The claim before me is for possession of premises which both parties conceded have(sic) been delivered and if the plaintiffs are not ready to proceed with the other claims the order for the Court is to strike out same and not to dismiss same. Even if the plaintiffs and the defendant led evidence in support of same, it will be an exercise in futility no matter how beautifully made. I therefore discountenance the objection by the defence counsel as none of the authorities cited or any bars me from striking out the claim striking out the action if the claim is above my jurisdiction. I strike out the monetary claim.?
We hold that the learned Senior District Judge was right when he struck out the total monetary claims of the Respondents in the sum of 2, 510,000.00 when he discovered that same

was beyond his jurisdiction and we so hold.?

The principal claim brought before the trial Court was for recovery of possession, which was resolved in that possession was delivered to the Respondents during the pendency of the matter. The ancillary claims were the monetary claims being:
c. An Order that the defendant pays the sum of N 10,208.00k (Ten Thousand, Two Hundred and Eight naira only) being arrears of rent from 1st January, 2013 to 28th November, 2015.
d. Mesne profit at the new rate of N2,000,000.00k (Two Million Naira only) per annum until possession is delivered and final liquidation of the Judgment.
e. Cost of this action in the sum of N500, 000.00k (Five Hundred Thousand Naira only).

One need not look too deeply to observe that the monetary claims in totality were interconnected and in sum were beyond the jurisdiction of the trial Court.
The point has been made above that the absence of requisite jurisdiction would render any proceedings conducted by such a Court an exercise in futility, null, void and of no legal effect whatsoever ab initio, no matter how well conducted; A.G Federation v. A.G Anambra

State (supra); NNPC v. Clifco Nig. Ltd (supra); Esabunor & Anor v. Faweya & Ors (supra); Oloba v. Akereja (supra). Reaffirming this settled principle of law, M. Dattijo Muhammad, J.S.C. in PDP & Ors v. Ezeonwuka & Anor (2017) LPELR-42563(SC) at page 92 of the E-Report said:
?It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity.?
It is never too late in law to raise the issue of jurisdiction of a Court to adjudicate over a case either by any of the parties or by the Court suo motu, due to its radical and crucial nature; Owie v. Ighiwi (supra); Ishor v. Ushie (2013) LPELR-21869(CA). Therefore, notwithstanding that evidence was led and hearing concluded before the trial Court declined jurisdiction and struck

out the matter, the proceedings amounted to a nullity and had no legal effect ab initio. Issue 3 is therefore resolved against the Appellant.

The issues for determination have all been resolved against the Appellant. This appeal is without merit. It fails and is hereby dismissed.

The Respondents are entitled to costs which are assessed at N100,000.00 against the Appellant.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the Judgment of my learned Lord, Otisi, J.C.A., just delivered.

It is trite law that a party cannot by acquiescence or waiver or submission or consent confer jurisdiction on a Court, a jurisdiction which it does not have. See:INEC V Ogbadibo LGC (2014) LPELR-22640(CA) 24; NDC Ltd V Adamawa State water Bd. (2008) LPELR-1997) (SC) 26; & Dung V Gyang (1994) LPELR-1462(CA) 29.

Therefore, I agree with the lead Judgment that the Respondents, by withdrawing the monetary part of the Claim on the ground that they were in excess of the jurisdiction of the trial Court, could not have waived their rights. The issue was one of substantive law of whether the trial Court had

jurisdiction to entertain that portion of the claim. It was not an issue of procedural law or the personal right of the Respondents which could have been waived.

Consequently, the Court below was right when it held that the trial Court rightly struck out the monetary claims, and not dismissed them, in the light of their withdrawal of same for being in excess of the jurisdiction of the trial Court. I see no reason to interfere with his finding.
It is therefore for this reason and for other reasons set out in the lead Judgment that I join in dismissing the Appeal for lacking in merit.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment which has just been delivered by my learned brother, Otisi, JCA. I agree with the reasoning and conclusion therein which I adopt as mine in dismissing the appeal.
?I abide by the order as to costs in the judgment of my learned brother.

Appearances:

Ogechi Ogbonna, Esq.For Appellant(s)

F.T Akwachas, Esq. with him,
Otache Bdko, Esq.For Respondent(s)

Appearances

Ogechi Ogbonna, Esq.For Appellant

AND

F.T Akwachas, Esq. with him,
Otache Bdko, Esq.For Respondent