PANALPINA WORLD TRANSPORT HOLDING AG. v. JEIDOC LIMITED & ANOR
(2011)LCN/4887(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of November, 2011
CA/L/522/2009
RATIO
PRELIMINARY OBJECTION: DUTY OF THE COURT TO CONSIDER FIRST THE ISSUE OF THE PRELIMINARY OBJECTION RAISED BY THE RESPONDENT IN HIS BRIEF OF ARGUMENT
In considering this appeal it is pertinent to first address the issue of the Preliminary Objection raised by the Respondent in his Brief of Argument. Decidedly, a Respondent can raise a Preliminary Objection in his brief – See OKUAGBALA VS. IKUEME & ORS. 2010. 12 S.C Pt. 4 Pg. 1(a) 3; SANNI VS. ADEMILUYI 2003, 3 NWLR. Pt. 807 @381. PER RITA NOSAKHARE PEMU, J.C.A
RULES OF THE COURT: EFFECT OF NON-COMPLIANCE WITH THE PROVISIONS OF THE RULES OF THE COURT IN CONDUCTING PROCEEDINGS
It must be emphasized that Courts are creations of Statute, and proceedings begun other than as provided by the Rules of Court are incompetent and once there is defect in competence, it is fatal to the proceedings thereof. SALEH VS. MUGONU 2003. 1 NWLR. Pt. 801 at 22. PER RITA NOSAKHARE PEMU, J.C.A.
PRELIMINARY OBJECTION: EFFECT OF THE SUCCESS OF A PRELIMINARY OBJECTION
Where in particular, a preliminary objection to an appeal succeeds and is upheld by the Court, that would bring the proceedings in which it was raised to an end as there could no longer be any other competent live issue in the case. There would, indeed be no need to consider the issues raised for determination in the main Appeal in view of the success of the Preliminary Objection. HASSAN VS. ALIYU 2010 17 NWLR. Pt. 1223. 547 @626 (Per Adekeye JSC. PER RITA NOSAKHARE PEMU, J.C.A.
ACADEMIC QUESTIONS: DUTY OF THE APPELLATE COURTS NOT TO ENTERTAIN ACADEMIC ISSUES
…appellate courts do not entertain issues which will amount to embarking on an academic voyage – See OLORI MOTORS CO. LTD VS. UNION BANK OF NIG. PLC. 2006. 10 NWLR Pt. 989; Page 586 @606. PER RITA NOSAKHARE PEMU, J.C.A.
DISCRETION OF THE COURT: WHETHER A TRIAL COURT IS AT LIBERTY TO EXERCISE ITS DISCRETION IN ACCORDANCE WITH THE CIRCUMSTANCES OF THE MATTER BEFORE IT; WHETHER LEAVE MUST FIRST BE SOUGHT AND OBTAINED BEFORE THE DISCRETION OF A TRIAL COURT IS CHALLENGED
The law presupposes that the trial Judge is in charge of his court and in dispensing Justice he must be allowed to exercise discretion judicially and judiciously. Thus courts are entitled to exercise their judicial discretion in accordance with the circumstances of the matter before them. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the case. See: OWNERS OF M.V.LUPEX V. N.O.C. & S. LIMITED (2003) 15 NWLR (Pt. 844) Page 469. That is why the superior courts have held that where the discretion of a trial court is challenged leave must first be sought and obtained before that court or the Appellate court before it can be countenanced by an appellate court. See: DIAPIANLONG V. DARIYE (2007) 8 NWLR (Pt. 1036) Page 239 U.B.N PLC V. SOGUNRO (2006) 16 NWLR (Pt.1006) Page 505. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
Justice
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
Justice
PANALPINA WORLD TRANSPORT HOLDING AG.Appellant(s)
AND
JEIDOC LIMITED
2. PANALPINA WORLD TRANSPORT (NIG) LTD.Respondent(s)
RITA NOSAKHARE PEMU, J.C.A.(Delivering the Leading Judgment): This is an interlocutory appeal emanating from the decision of Hon. Justice P.I. Ajoku of the Federal High Court Annex, Ikoyi, Lagos, delivered on the 25th day of February 2009, wherein the Learned Trial Judge ordered simpliciter that he would take adjournment on priority of the applications before him.
The said decision of the Learned Trial Judge is reflected at pages 490-492 of the Record of Appeal. I deem it pertinent to reproduce verbatim the proceedings of the Court of the 25th day of February 2009 for a better appreciation of the matter leading to the Ruling, the subject matter of this Appeal.
“Parties representatives of Jeido Ltd
Representation: Prof. Yemi Osibajo SAN with V.O.M. Alonge (Mrs), Babatunde Irukera Esq. and Fideh Albert Esq. for Petitioner/Applicant.
Yemi: According to order of court on 15/8/08, the Applicant has served notice of petition as Exhibited in the 13 paragraph of counter affidavit of the application dated 20/2/09 as Exhibit JD1 sworn to by Victor Adedoyin.
The document shows that there is an acknowledgment from the Federal Department of Justice and Police FDJP Federal Office of Justice FOJ.
The 2nd document shows proof of service on Panalpina World Transport Holding AG. Dated 27/11/08.
He submitted that is proof of service in accordance to the order of court on 15/6/09 wherein the court granted leave to serve petition on the 2nd respondent.
Fajalu: They filed a motion dated 17/1/09 with additional ground to support the motion dated 24/2/09 with further affidavit motion to set aside the purported service as they have not been served in compliance with the law.
Court: Will take adjournment on priority of the applications.
Fajalu: The 1st respondent has been served of the petition and thus he had challenged the jurisdiction of this Court by filing preliminary objection dated 24/8/08 and also preliminary objection dated 1/9/08 and the one dated 5/11/08 and a counter affidavit to petition filed 12/8/08. Also motion on notice dated 19/1/09 and additional grounds dated 24/2/09 but the 2nd respondent is still not served with the Originating process today.
In EIMSKIP LTD VS ESQUISITE INDUSTRIAL LTD (2003) 4 NWLR PT. 809 PP.93,97-99. SKIN CONSULT VS UKEYI
Fajalu: He insists that the 2nd respondent has not been served in accordance with the Law and his application to set aside service should be taken 1st by the court refer EIMSKIP LTD VS ESQUISITE LTD SUPRA. He submits that non service jobs this court of requisite jurisdiction.
Prof: He wants all the application be taken together including the substantive matter. But the court can rule on jurisdiction first.
Court: The court will take other submissions on all the applications before the court but will rule first on the issue of jurisdiction being a fundamental issue.
Court: This matter is further adjourned to 22/4/08 for hearing on the various applications.
(SGD) P. I. AJOKU, JUDGE, 25/2/09.”
FACTS CULMINATING IN THE BRINGING OF THIS APPEAL.
The Appellant (2nd Respondent in the court below) had on the 12th of August 2008, filed a Petition of minority shareholder (pursuant to Rule 4(1) of the Companies Proceedings Rules 1992, Cap C20, Sections 300, 310, 311 and 312 of the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria 2004 and under the Inherent Jurisdiction of the Honourable Court), in the Federal High Court Lagos against the Respondents – Refers to pages 1-12 of the Record of Appeal.
The Respondents on record at the lower court are: PANALPINA WORLD TRANSPORT (NIGERIA) LIMITED as 1st Respondent and PANALPINA WORLD TRANSPORT HOLDING PG as 2nd Respondent.
In the said petition, the Petitioner had averred in paragraphs 1 and 2 thus:
Paragraph 1 “The 1st Respondent is a limited liability company incorporated under the Companies and Allied Matters Act Chapter C20 Laws of the Federation of Nigeria, 2004 (“CAMA”) and has its registered office at 4, Creek Road, Apapa, Lagos, Nigeria”. Paragraph 2 “The 2nd Respondent is a company registered and regulated under the Laws of Switzerland and is based in Basel, Switzerland with its registered office at Viadukstrasse 42, CH-4002 Basel, Switzerland.
The Petitioner had sought seven (7) reliefs which are reflected at pages 10-12 of the Record of Appeal.
From records, the Appellant had filed a Notice of Preliminary Objection on the 1st of September 2008 to the Petitioner’s motion dated 29th August 2008, challenging the trial court’s jurisdiction, on grounds inter alia, that the proper parties are not before the Court. The Preliminary Objection was supported by an Affidavit of Urgency (pages 248-264 of the Record of Appeal).
On the 6th of October 2008, the Appellant filed a Preliminary Objection and in its paragraph 1 averred that the Petitioner has refused to comply with the order of this Court to serve the petition on the 2nd Respondent and as such the Court cannot exercise jurisdiction over Panalpina World Transport Holdings AG.
It is on record that on the 5th of November 2008, the Appellant had filed another Preliminary Objection to motion on notice, dated 31st October 2008, among other things, saying that they are challenging the jurisdiction of the Court (i.e. the Federal High Court, Lagos), to hear this case and that the Preliminary Objection is still pending, due to failure of the Petitioner to serve the petition on the 2nd Respondent (in the lower court), as ordered by the Court. Pages 421-424 of the Record.
And that the 2nd Respondent has not been served with the Originating Process/Petition in this case in line with the court order; Rules of Court and the Sheriff and Civil Process Act.
It also alleged that the proper name of the 2nd Defendant is not on the petition (page 421 of the Record of Appeal.)
By Motion on Notice filed on the 19th of January 2009, learned counsel for the 2nd Respondent in the court below i.e. Panalpina World Transport Holding PG, sought an order setting aside the service of the Originating Court Process in this case on the 2nd Respondent.
The grounds upon which the motion was filed is worthy of reproduction.
A. “The process served on the 2nd Respondent is different from the process filed in this case. The petition in this suit is against Panalpina World Transport Holdings PG whilst the process served on the 2nd Respondent reads Panalpina World Transport Holdings AG.”
B. “No court order to amend the court process was granted before the petition was served on the 2nd Respondent even though an Application of the petitioner to rectify same was filed on the 20th day of August, 2008 but same was not moved nor any order rectifying or amending the 2nd Respondent as a party was granted.”
C. “That the leave to serve the 2nd respondent outside jurisdiction was obtained on a wrong party.”
D. “That the Petitioner unilaterally altered the party sued as 2nd Respondent between when leave to serve it was granted and when the petition was served on the Panalpina World Transport Holding AG.”
E. “That the process served on Panalpina World Transport Holding AG were not original documents filed in this suit as required under Order 13 Rule 20(A) of the Federal High Court Civil Procedure Rules.”
2. “That the 2nd Respondent is not a necessary party to this suit hence we pray that its name be struck out of this suit.” (Pages 430-431 of the Record of Appeal.)
GROUNDS
A. Panalpina Transport Holding AG, is only a shareholder like the order nine shareholder of the 1st Respondent.”
At page 486 of the Record of Appeal can be found an application by the Appellant challenging the jurisdiction of the lower court to hear the case because inter alia “that the Court Process filed in this suit have not been served on the 2nd Respondent in accordance with the provision of the rules of this Honourable Court” and in prayer 1 that “the Originating Processes filed in this case has not been served on the 2nd Respondent.”
These motley of applications are what culminated in the Ruling of the Learned Trial Judge of the 25th of February 2009, wherein he said he would take other submissions on all the applications before the Court, but will rule first on the issue of Jurisdiction.
Dissatisfied with the said Ruling, the Appellant has appealed the decision and on the 10th of March 2009, he filed a Notice of Appeal which was deemed filed on the 18/10/2010 having been out of time, pursuant to the Practice Directions of this Honourable Court (pages 545-547 of the Record of Appeal), with a sole Ground of Appeal which is that:
“The learned trial Judge erred in law when she held that all the pending applications on jurisdiction be taken together not considering the fact that the 2nd Respondent/Appellant had not been served with the Originating Petition and other processes filed in this case thereby denying the 2nd Respondent/Appellant the right to fair hearing of this case.”
PARTICULARS OF ERROR
(a) “That the 2nd Respondent/Appellant by motion dated 19th January 2009 and Additional Grounds in support of the motion dated 24th February 2009 sought to show that the service of the Originating Petition was not served according to the law on the 2nd Respondent/Appellant and hence has not been served.
(b) The learned trial Judge did not consider the fact that service of the Originating Petition and other processes on the 2nd Respondent/Appellant out of the jurisdiction of this court is a condition precedent to the hearing of any other application or the court assuming jurisdiction on the merits.
(c) The learned trial Judge failed to hear the said motion challenging service on the 2nd Respondent/Appellant before ordering hearing on the jurisdiction on the merits of the petition.
(d) That the 2nd Respondent/Appellant would be struck out and denied fair hearing if the application challenging jurisdiction on the merits and the one challenging service of the Originating Petition on the 2nd Respondent/Appellant are heard together…”
The Appellant seeks the following reliefs from this Honourable Court
(a) “An Order setting aside the order made by the Honourable Trial Court on the 25th day of February, 2009.
(b) An Order setting aside the service of the Originating Petition on the 2nd Respondent/Appellant as same was void and not in accordance with the law.
(c) An Order directing the learned trial Judge to give priority to the motion dated 19th day of January 2009 and the Additional Grounds in support of the motion dated 24th February 2009 as same ought to be determined first being a condition precedent to the Court having jurisdiction to determine the challenge of the jurisdiction on the merits…”
On the 22nd of February 2011, the Appellant’s Brief of Argument filed on the 20th of December 2010 was deemed filed and served on the Respondent on the 22nd of February 2011, having been granted extension of time by this Court, within which to file same, out of time.
The Respondent on his part on the 25th of February 2011 filed the Respondents’ Brief of Argument, with a Preliminary Objection to the competence of the Appeal.
The Appellant on the 11th of March 2011, filed Appellants’ Reply Brief and Reply to Respondents’ objection.
Noteworthy is that the Appellant had on the 9th of December 2009 filed a motion for an order striking out the name of the 2nd Respondent i.e. PANALPINA WORLD TRANSPORT (NIG) LTD from the Appeal, which application was granted on the 13th of October, 2010 by this Honourable Court.
In the Court of Appeal, the application to strike out the 2nd Respondent on record is as regards PANALPINA WORLD TRANSPORT (NIG) LTD who was the 1st Respondent in the lower court.
On the 15th of September 2011, learned counsel for the respective parties adopted their respective Briefs of Argument.
Distilled from the Appellant’s sole Ground of Appeal were two issues for determination as reflected in paragraph 3 in his Brief of Argument. They are:
1. Whether leave granted to the Respondent to file and serve the petition on Panalpina World Transport Holding PG can effectively operate as leave to file and serve Panalpina World Transport Holding AG.
2. Whether the filling of the petition along the Preliminary Objection will not occasion hardship on the Appellant which has not been served with the petition thereby denying it fair hearing.
Before the Respondent filed his Brief of Argument, he had filed a Notice of Intention to rely on a Preliminary Objection on the 5th of January 2011 which is encapsulated in his Brief of Argument as shown at page 5 (paragraph c) of the said Brief of Argument.
At page 17 of the Respondent’s Brief of Argument, he did contend that, in the unlikely event that the appeal is considered competent, the Respondent formulates the following issue for determination from the sole ground of appeal and that is:
“Did the lower court properly exercise its discretion when it directed that all pending application should be heard together and that Ruling would be delivered first or the issue of jurisdiction being fundamental?”
The Appellant on the 17th of March 2011, filed a reply Brief and reply to Respondents’ objection.
In considering this appeal it is pertinent to first address the issue of the Preliminary Objection raised by the Respondent in his Brief of Argument. Decidedly, a Respondent can raise a Preliminary Objection in his brief – See OKUAGBALA VS. IKUEME & ORS. 2010. 12 S.C Pt. 4 Pg. 1(a) 3; SANNI VS. ADEMILUYI 2003, 3 NWLR. Pt. 807 @381.The fulcrum of the Respondents Preliminary Objection are, first, whether this appeal is not rendered incompetent by the Appellant’s failure to obtain leave to appeal against the exercise of lower courts’ discretion, and secondly failure to formulate an issue for determination from the sole ground of appeal?
Learned counsel for the Respondents, Professor Yemi Oshinbajo SAN, had argued in the forefront of his argument, that an interlocutory appeal that includes grounds of facts, or mixed law and fact, can only be instituted after leave of court has been obtained, and that with failure of the Appellant to satisfy this Constitutional requirement, the Appeal becomes incompetent and this court is divested of jurisdiction to entertain this Appeal, citing MAIGORO V GARBA 1999. 10 NWLR Pt. 624 Pg. 535. I cannot agree with him more.
He argues that a Ground of Appeal which questions the exercise of discretion by a lower court is not a ground of law, as it involves the consideration of factual materials, upon which the judicial discretion is exercised. He urges this court to strike out the Appellant’s interlocutory appeal challenging the discretion of the lower court, as no leave has been obtained as required by the Rules of Court.
Learned counsel has also argued that the Appellant failed to formulate an issue for determination from the sole ground of Appeal, and that none of the two issues formulated in the Appellant’s Brief has any connection with the sole ground of Appeal.
This may be a contradiction in terms. This is because in one breath learned silk contends that the Appellant failed to formulate an issue for determination from the sole ground of appeal and in another breath that he formulated two issues from the sole ground of Appeal. However I find that the Appellant formulated two issues from the sole ground of Appeal. It is therefore not correct, as contended by learned silk that the Appellant failed to formulate any issue for determination from the sole Ground of Appeal.
Learned counsel also contends that the issues formulated do not have any relevance to the Ground of Appeal.
From record, the Appellant formulated two issues (as earlier adumbrated) from his sole Ground of Appeal.
Admittedly, and indeed decidedly, issues formulated for determination by an Appellate Court must be related to the Grounds of Appeal before it. There should however not be proliferation of issues. In other words, not more than one issue should be formulated from a Ground of Appeal. Indeed, although the Supreme Court frowns at formulation of issues for determination, in excess of the number of Grounds of Appeal filed, as it leads to proliferation, however it may not be the case, where another issue is a product of one. I find Issue No. 2 on the Appellant’s Issues for determination as a product of his Issue No 1. They both bear relevant to the sole Ground of Appeal.
The Appellant’s formulation of two issues from his sole Ground of Appeal falls short of the standard required of him, in principle, but he can argue an issue as a sub-issue under a main issue – See CHARLES C. ODEDO VS. INEC 2008. 17. NWLR Part 1117, Page 630 per Muntaka Coomasie JSC.
However, this Court, can in the exercise of its discretion, take one of the issues as it deems fit and entertain the appeal on that.
In his Reply to Respondents’ objection filed on the 11th of March 2011, learned counsel for the Appellant, Daniel Ozoma Esq argues at Paragraph 3 of his Reply Brief that the sole Ground of Appeal complain about a violation of the Respondents’ right to fair hearing which is a Constitutional Right and as such no leave of court is required in order to file the Appeal in the Court of Appeal.
He argues that the Appellant which had a Preliminary Objection on the ground of non-service of Courts’ process could not participate in the proceeding before the lower court until the issue of service is resolved, as doing otherwise would amount to his waiving his right to objection to the service, and had the Appellant’s objection to service been taken with the 1st Defendant’s objection to the petition, the Appellant will be denied the right to react to the petition on the merit. Citing M.D.P.D.T. V. OKONKWO 2001. 7 NWLR. Pt. 711 2006.
With respect, I am unable to agree with this line of argument. This is simply because the learned trial Judge only adjourned the hearing of the motley of applications before him, including that on the issue of service, to a later date for consideration. He had made no pronouncement on the merit of that issue of service.
All he did was to exercise his discretion in adjoining the applications which were pending before him.
I had earlier reproduced the proceedings of the 25th of February 2009. At page 492 of the Record of Appeal (which is the second page of the Proceedings of the 25th of February 2009) before Hon. Justice P. I. Ajoku. The learned trial Judge had simply declared thus:
Court: “The Court will take other submissions on all the applications before the Court but will rule first on the issue of jurisdiction being a fundamental issue.
This matter is further adjourned to 22/4/08 for hearing on the various applications. SGD. P. I. AJOKU JUDGE 22/2/09”
This pronouncement speaks for itself, for it connotes that the learned trial Judge was going to “in futuro” consider the applications before him including that on service of processes. He had made no pronouncement on any of the applications. I find the argument of learned counsel for the Respondents a misconception and I so hold.
Having said this, I think this Court can safely consider the Preliminary Objection raised by the Respondent in this Appeal. Learned counsel for the Appellant cites MDPDT VS. OKONKWO 2001 7 NWLR 206 at 237, in support of his argument in his brief.
Decidedly, when a party objects to a Ground of Appeal on the ground that it raises a question of fact or mixed facts and law, and that the requisite leave has not been obtained, the Court will determine the question on a reasonable understanding of the nature of the Ground of Appeal and not on what the party raising the objection may have misconceived to be the question involved on the Ground. The important consideration in the determination of the nature of the Ground of Appeal is not the form of the Ground but the question it raises.Admitted, the question which the sole of Ground of Appeal raises is one that touches on the exercise of the Lower Court’s discretion and the issue of service of process. But an Appeal can only be entertained in respect of a “Decision”. And the word “Decision” has been interpreted in Section 318 of the Constitution of the Federal Republic of Nigeria 1999 to mean “in relation to a Court, any determination of that Court and individuals Judgment, decree, conviction, sentence or recommendation”.
The order made by the learned trial Judge did not amount to a Judgment but it amounted to an exercise of his discretion in adjourning the hearing of applications to a later date for determination.
Learned counsel concedes that the two issues formulated are from the sole Ground of Appeal but that this court has to properly understand the said Ground of Appeal in resolving this issue.
He contends that assuming, but without conceding that both issues do not arise from the ground, this Honourable Court has the power to decide this appeal under Order 6 Rule 5 of the Court of Appeal Rules 2002.
Again, perhaps in entertaining this Notice of Preliminary Objection, a look at the relevant law would guide this Court.
Now by the Provisions of the Court of Appeal Act 2004 (Section 14(1) to be precise) it has this to say:
“Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court, or of the Court of Appeal, be to the Court of Appeal;…….”
Learned counsel for the respondent had based his argument in support of the Preliminary Objection on the premise that the interlocutory appeal, being one of ground of facts, or mixed law and facts, (because it has to do with the exercise of the learned trial Judge’s discretion) can only be instituted, after leave of court has been obtained.
The Appellant’s grouse is premised on the issue of lack of service and/or inadequacy of same. The issue of service is in my view unarguably that of law. But the question is, does this remove from the Appellants the mandatory duty of obtaining the relevant leave of Court before filing their Appeal? This is because the bane of the Appeal has to do with the exercise of the Courts’ discretion.
With respect, learned counsel for the Respondents’ argument citing section 233 of the Constitution of Nigeria 1999 is misconceived as that Section of the 1999 Constitution has to do with Appeals from the Court of Appeal to the Supreme Court and not from High Courts or Federal High Courts to the Court of Appeal. That argument is therefore hereby discountenanced.
Notably is that the provisions of Section 14(1) of the Court of Appeal Act 2011 do not talk about the issue of law or mix law and fact. For purposes of clarity, I shall at the expense of repetition reproduce the provisions of that Rule.
Section 14(1) “Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its Original Jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court, or of the Court of Appeal, lie to the Court of Appeal…….”
There is nothing to suggest that the Appellant has sought or obtained such leave either from the Court below, or from this Court. The Provisions of this rule is mandatory.
It must be emphasized that Courts are creations of Statute, and proceedings begun other than as provided by the Rules of Court are incompetent and once there is defect in competence, it is fatal to the proceedings thereof. SALEH VS. MUGONU 2003. 1 NWLR. Pt. 801 at 22.
An act that is to be performed before some right, dependent thereon accrues, connotes a condition precedent.
Procedural jurisdiction of the court is statutory in the main. The Court of Appeal Act is a STATUTE in law, and its provisions are sacrosanct. It is imperative that Rules of Court must be obeyed. See OGBU VS. URUM 1981. 4 S.C. 1@ 212; JOHN VS. BLAKE 1988, 4 NWLR Pt. 90 at 539.
This matter has to do with an appeal against an interlocutory decision of the Federal High Court which smacks of the exercise of the learned trial Judge’s discretion. It is trite that the Court must put an end to its proceedings on discovery that it lacks jurisdiction.
Where in particular, a preliminary objection to an appeal succeeds and is upheld by the Court, that would bring the proceedings in which it was raised to an end as there could no longer be any other competent live issue in the case.
There would, indeed be no need to consider the issues raised for determination in the main Appeal in view of the success of the Preliminary Objection. HASSAN VS. ALIYU 2010 17 NWLR. Pt. 1223. 547 @626 (Per Adekeye JSC.This is exactly the situation in this present appeal, as failure of the Appellant to comply with this fundamental procedural prerequisite is fatal to his Appeal, and I so hold. The sole Ground of Appeal has to do with the exercise of the Court’s discretion which is a matter of mixed law and facts.
Where a law provides for compliance with the law, and a party does otherwise, or complies in breach, a Court is entitled to hold that the party has not complied with the Law, and the Court has the jurisdiction to decide in the consequence, of the non-compliance of the party. This is demonstrated clearly in the interpretative jurisdiction of the Court.I dare say that the objection in the Preliminary Objection raised by the Respondent is upheld as I find same meritorious. The abysmal failure of the Appellant to comply with this fundamental procedural prerequisite is fatal to his appeal. The issue of whether there is proliferation of issues in his sole Ground of Appeal becomes acedemic at this threshold, and indeed every other issue. Decidedly, appellate courts do not entertain issues which will amount to embarking on an academic voyage – See OLORI MOTORS CO. LTD VS. UNION BANK OF NIG. PLC. 2006. 10 NWLR Pt. 989; Page 586 @606.
The result is that the Preliminary Objection succeeds and is hereby upheld and the Appeal is consequentially hereby struck out. I make no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned sister RITA NOSAKHARE PEMU, JCA. and I agree that this appeal be struck out. I will add a few words.
The facts which led to this appeal are as follows: At the trial court the 2nd Respondent had filed three notices of preliminary objection challenging the jurisdiction of the court. The first was filed on 1st September 2008 challenging the trial court’s jurisdiction to hear the petition because the proper parties were not before the court. This was supported by an affidavit of urgency. The second one filed on 6th October 2008 was on the basis that the petitioner did not serve the 2nd Respondent at the lower court the petition which was the originating processes in the suit.
On 5th November 2008 the 2nd Respondent also filed another notice preliminary objection alleging that the court lacks jurisdiction to hear the case because the first objection was still pending due to the failure of the petitioner to serve the petition on the 2nd Respondent as ordered by the trial court. It also alleged that the proper name of the 2nd Respondent is not on the petition. By a motion on notice filed on 19th January 2009, the 2nd Respondent – Panalpina World Transport Holdings P.G. sought an order setting aside the service of the originating court process in this case on the 2nd Respondent.
These sundry motions on notice of preliminary objection culminated in the directions of the learned trial Judge on 25th May 2009 when the trial court directed that further submissions on all the motions would be taken and the court would rule on the issue of jurisdiction first. Dissatisfied with that pronouncement of the trial court, the 2nd Respondent has now appealed against the exercise of the discretion of the trial Judge to take all the motions together and give a considered ruling wherein the issue of jurisdiction will be settled first.
I cannot see any basis for this appeal at all. That directions on procedure given by the learned Judge has not in my view affected the interest of the Appellant adversely. When we talk about quick dispensation of Justice, it is not a theoretic concept. The case management system adopted by the trial Judge is in my view an excellent way to decide in one fell swoop all the preliminary matters in controversy at that time between the parties particularly the issue of jurisdiction. I don’t find the argument of learned Appellant’s counsel that if the Appellant participated further in the proceedings it would be taken to have waived its rights at all persuasive.
A party who has filed a preliminary objection to the jurisdiction of the court but was thereafter directed by the court to take further steps by way of better submissions on the issue and other issues cannot be said to have waived his rights to protest. It would be a different case entirely if the party did not raise an objection and had participated in the process but woke up sometime along the line to protest.
In any event the lack of proper service of the originating process is a threshold issue of jurisdiction which the court ought to decide first and which the court clearly stated its intention to do. All other issues of jurisdiction where intrinsic to the adjudicatory powers of the court can be raised at any time or even on appeal.The challenge raised by the Appellant is against the discretion of the trial Judge and leave must first be sought and obtained. This is because it is not as if the court had actually considered any issue of fact or law in arriving at its decision to conduct the case as it deemed fit.
The law presupposes that the trial Judge is in charge of his court and in dispensing Justice he must be allowed to exercise discretion judicially and judiciously. Thus courts are entitled to exercise their judicial discretion in accordance with the circumstances of the matter before them. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the case. See: OWNERS OF M.V.LUPEX V. N.O.C. & S. LIMITED (2003) 15 NWLR (Pt. 844) Page 469. That is why the superior courts have held that where the discretion of a trial court is challenged leave must first be sought and obtained before that court or the Appellate court before it can be countenanced by an appellate court. See: DIAPIANLONG V. DARIYE (2007) 8 NWLR (Pt. 1036) Page 239 U.B.N PLC V. SOGUNRO (2006) 16 NWLR (Pt.1006) Page 505. I am strongly of the view that failure by the Appellant to seek leave to appeal is fatal to our jurisdiction to hear this appeal. I must say I am dismayed by this appeal. If counsel were to appeal against every exercise of discretion by the learned trial Judge then the administration of Justice in Nigeria would be in jeopardy indeed. The work of adjudication is complex. The Judge must balance the scales of Justice and mete out the law as speedily as possible. The present trend whereby counsel indulge in henpecking Judges in the performance of routine duties is highly deprecated. This is a useless appeal and is a waste of the precious judicial time of this court. It has achieved nothing but to delay the course of Justice. It is hereby struck out. I abide by all the orders in the lead judgment.
JOHN INYANG OKORO, J.C.A.: I had the privilege of reading before now the lead Judgment of my learned brother, Pemu, JCA, just delivered and I am satisfied and do agree that the preliminary objection ought to be upheld and the appeal struck out. I shall add a few words in support of the Judgment.
On page 492 of the record of appeal is found the decision of the lower court appealed against and it states:-
“Court: The court will take other submissions on all the applications before the court but will rule first on the issue of Jurisdiction being on fundamental issue.
Court:This matter is further adjourned to 22/4/08 for hearing on the various applications
Signed: P. I. Ajoku, Judge, 25/2/09”.
Clearly, the above decision of the learned trial Judge on the procedure he would adopt in determining the various applications filed before the court is an exercise of his discretion. The court even went ahead to assure parties that the Ruling on the issue of Jurisdiction would be taken first. This is the basis for this appeal.
The Supreme Court has held in Central Bank of Nigeria v. Okojie (2002) 8 N.W.L.R. (pt.768) that where an appeal is against the exercise of the discretionary power of the court below, it is a question of mixed law and fact which the only ground of appeal filed in this matter clearly shows. Thus, a party seeking to appeal against an exercise of discretion of the court must seek and obtain the leave of the lower court or the Court of Appeal before filing his Notice of Appeal. Failure to obtain the requisite leave renders the appeal incompetent and liable to be struck out. see Section 14(1) of the Court of Appeal Act, 2004; Ogechie v. Onochie (1986) 3 SC 54 at 56.
I am piqued that a harmless exercise of discretion by the learned trial Judge on the order or manner which all the myriads of applications filed before the lower court would be heard and determined could give birth to an appeal. I need to emphasis here that after a suit has been filed, the trial Judge becomes the dominis litis (the master of the proceedings) and has the duty and responsibility of ensuring that the proceedings accord with Justice, equity and fair play. In the exercise of these onerous duties, he has wide powers and discretion to achieve Justice for all. I do not think it is fair to hold up the proceedings on flimsy matters as I have found in this appeal. The failure of the Appellant herein to seek and obtain leave before filing his notice of appeal is fatal to this appeal. It is on this note that I agree with my learned brother that the preliminary objection has merit and ought to be upheld. I also uphold the preliminary objection and strike out the appeal accordingly. I also make no order as to costs.
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Appearances
D.O. OZOMAFor Appellant
AND
E. A. OYEBANJI WITH HIM PROF. OLUYEMI OSHINBAJO (SAN) AND ABIMBOLA OJENIKE (MISS)For Respondent
