UMAR FAROUQ MUSA v. SIKON SYNERGIES LIMITED & ORS (2016)

UMAR FAROUQ MUSA v. SIKON SYNERGIES LIMITED & ORS

(2016)LCN/8517(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of April, 2016

CA/K/343/2012

RATIO

JURISDICTION: IMPORTANCE OF JURISDICTION IN LITIGATION
Indeed the significance of jurisdiction in litigation cannot be over emphasized. Jurisdiction is a radical and fundamental question in adjudication of causes and matters before the Court. In UTIH v. ONOYIVBE (1991) 1 NWLR (Pt. 166) 166; BELLO, CJN stated at page 24I that “Moreso, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise”. Any proceedings conducted by a Court that lacks the jurisdiction to do so amounts to a nullity no matter how well conducted and determined it might have been. See ATT. GEN. LAGOS STATE v. DOSUNMU (1989) 4 SCNJ 134. PER ISAIAH OLUFEMI AKEJU, J.C.A.
COURT: CONDITIONS FOR A COURT TO BE COMPETENT TO EXERCISE JURISDICTION
It has become settled that a Court is competent to exercise jurisdiction in a cause or matter when and only when the following conditions have been fulfilled.
1. The Court is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or the other;
2. The subject matter of the action is within its jurisdiction and there is no feature therein that prevents the Court from exercising jurisdiction; and
3. The case comes before the Court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587; SKEN CONSULT (NIG.) LTD. v. UKEY (1981) 1 SC 6. PER ISAIAH OLUFEMI AKEJU, J.C.A.
ACTION: EFFECT OF AN ACTION NOT INSTITUTED BY THE PRESCRIBED MODE
The law is trite that once a statute or Rules are put in place for commencement or institution of an action or proceedings, such prescribed mode must be followed in commencing the action, otherwise the action will be incompetent. See AGIP NIGERIA LTD. v. AGIP PETRO INTERNATIONAL & ORS (2010) 5 NWLR (Pt. 187) 348.
An action cannot be competent under the rules, inter alia, unless it has come before the Court by due process of law and upon fulfillment of any condition precedent for the exercise of jurisdiction as held in MADUKOLU v. NKEMDILIM (SUPRA); see also PORBENI v. B.F. & INVESTMENT CO. (2002) 3 NWLR (Pt. 754) 452. Due to the incompetence of the action and its failure to activate the jurisdiction of the Court, the trial Court rightly struck out the action. PER ISAIAH OLUFEMI AKEJU, J.C.A.
ORDER: WHAT IS THE PROPER ORDER A COURT THAT LACKS JURISDICTION SHOULD MAKE
It is the law that the proper order a Court that lacks jurisdiction in any matter should make is to strike out the action. See OKOLO v. U.B.N. LTD. (2004) ALL FWLR (Pt. 197) 98; WACE v. ADEYANJU (2008) 9 NWLR (Pt. 1092) 270; SALEH v. MONGUNO (2003) 1 NWLR (Pt. 301) 221; OKAFOR v. NAIFE (1973) 1 ALL NLR (Pt. 1) 238; OJORA v. ODUNSI (1959) 4 FSC 189; OLORIODE v. OYEBI (1984) 5 SC 1. PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

UMAR FAROUQ MUSA Appellant(s)

AND

1. SIKON SYNERGIES LTD.
2. AMJEED MERCHANTS & CONST. NIG. LTD.
3. ALH. MUHAMMED JAMEEL
4. DEPUTY SHERIFF, HIGH COURT KADUNA STATE Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): By the writ of Summons and statement of claim filed at the High Court of Kaduna State, the 1st Respondent in this appeal as the plaintiff claimed jointly and severally against two defendants, now 2nd and 3rd Respondents an amount of N14,360,000.00 as debt which they (defendants) failed or neglected to pay despite repeated demands as well as the cost of the suit. In that suit No. KDH/KAD/414/2011 the defendants did not file any statement of defence and upon the application of the plaintiff for Summary judgment the trial Court delivered judgment on 12/5/11 granting the amount claimed by the plaintiff with costs of N20,000.00.

The plaintiff subsequently applied for order of Court to levy execution on the immovable property of the 2nd defendant, located at No. 21, Birni Gwari Road Rigasa Kaduna State for the purpose of satisfying the judgment. The application was by way of a motion on notice dated 25/11/11 and was supported by affidavit of five paragraphs and four annextures. In the brief ruling delivered on 8/12/11, the learned trial judge granted the plaintiffs prayer and the execution was

carried out whereby the immovable property attached was sold, and consequent upon which one Umar Farouq Musa commenced interpleader proceedings on 2nd March, 2012 claiming title to and ownership of the house attached and the consequential order setting aside the said attachment as well as the sale of the house No. B99 Birni Gwari Road, Rigasa Kaduna which the judgment creditor referred to as No.21 Birni Gwari Road Rigasa Kaduna. The applicant also prayed for the release of the property to him.

In the ruling on the interpleader application delivered on 21/9/12, the learned trial judge after making reference to the essence of the interpleader summons held at pages 140 – 141 of the record of appeal that;
“The judgment creditor contested the issue and presented two issues of competency of the application, One of the issues was that the sale had already become absolute before the Sheriff was made aware of this Summons and the second being that this interpleader was issued by Counsel and not Court and so is not competent, and the 3rd being absence of the buyer as a necessary party?
On the issue of issuance of the interpleader summons, I have

seen the said document titled interpleader summons and it is clear that the summons was not issued by this Court. The summons was rather signed by the learned Counsel.
In the circumstance, this proceeding cannot be competent and it would be a waste of time to proceed to determine a matter where the summons has been issued by the Court and consequently the Court lacks jurisdiction.
In the circumstance this application is struck out for being incompetent.”

Against the foregoing ruling of the High Court of Kaduna State, the Appellant who felt dissatisfied gave Notice of Appeal dated 21st September, 2012 with seven grounds of appeal, and in pursuance thereof, the Appellant’s Brief of Argument prepared by M. T. Mohammed, Esq. of Counsel was filed on 4/12/12 while the 1st Respondent’s Brief of Argument settled by Ikechukwu Anyalewechi, Esq. filed on 13/8/15 was deemed properly filed on 5/11/15. The sole issue formulated by the learned Counsel for the Appellant from the seven grounds of appeal is;
Whether the learned trial judge was right in law to have declined jurisdiction and struck out the Appellant’s interpleader on the ground that same was

not issued by the Court and whether such decision serves the interest of justice in the circumstances of this case.

The 1st Respondent formulated two issues for determination thus;
1. Whether the interpleader summons before the Lower Court dated 2nd March, 2012 issued and or signed by the Appellant Counsel was competent.
2. Whether the Lower Court was not right in declining jurisdiction to entertain the interpleader proceedings when same was incompetent.

Before going into the arguments of the foregoing issues, it is pertinent to make reference to what the 1st Respondent’s Counsel stated as “Legal Argument in support of 1st Respondent’s preliminary objection” at page 7 of the 1st Respondent’s Brief with the arguments on pages 8 – 14 being as stated by the learned Counsel for the 1st Respondent, submission as a preliminary point. It is however observed that there is nothing on record in this appeal that shows or suggests that the 1st Respondent had raised a preliminary objection in the manner recognized by law. For a preliminary objection to be in conformity with the provisions of Order 10 of the Court of Appeal Rules 2011 which by Rule 1, a

Respondent who intends to rely upon a preliminary objection to the hearing of an appeal shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time; the consequence of non-compliance with this provision is that the Court may refuse to entertain the objection. See I.G.P. v. A.N.P.P. (2007) 18 NWLR (Pt. 1066) 457; ONWUKA v. ONONUJU (2009) 11 NWLR (Pt. 1151) 174.
I also need to state that at the hearing of this appeal, I. K. Anyalewechi Esq. adopted his brief of argument and placed reliance thereon to urge Court to dismiss the appeal without any allusion to any preliminary objection, the implication of which in law is that any such preliminary objection has been waived or abandoned. See O.S.H.C. v. OGUNSOLA (2000) 14 NWLR (Pt. 687) 481. Without much ado. I find the preliminary objection purportedly raised and argued by the 1st Respondent to be incompetent and it is accordingly discountenanced.

I had already set out the issues formulated for determination by both parties which I do not need to

repeat here, save to state that the two issues formulated by the 1st Respondent (hereinafter called the Respondent) are within the sole issue by the Appellant and I find it more expedient to determine this appeal upon the sole issue by the Appellant.

The learned Counsel for Appellant set out the procedure for filing and determining interpleader summons in Kaduna State based on the provisions of both the Sheriff and Civil Process Act and Sheriff and Civil Process Law and contended that to declare the Appellant’s interpleader incompetent because the law requires the Hon. Judge to sign it is to sacrifice justice at the altar of technicality.

It was submitted that a litigant is not to suffer for the omission, mistake action, or negligence of either the Court its registry or Counsel; MIN. FED. CAPITAL TERRITORY v. ABDULLAHI (2010) ALL FWLR (Pt. 507) 179; BROAD BANK (NIG.) LTD. v. ALHAJI S. OLAYIWOLA & SONS LTD. (2005) ALL FWLR (Pt. 251) 336; FAMCA OIL LTD. v. ATT. GEN. OF FEDERATION (2003) FWLR (Pt. 184) 195. It was contended that the decision of the trial Court has foreclosed the chances of the Appellant to pursue the interpleader because he could

only do so within 21 days allowed by law which period cannot be extended. It was submitted that the onus is on the 1st Respondent as to the ownership of the property; W.A. COTTON LTD v. HARUNA (2008) ALL FWLR (Pt. 416) 1942.

The learned Counsel submitted that none of the parties raised the issues in the written addresses and this amounts to a waiver on the part of the 1st Respondent; ADEOGUN v. FASOGBON (2011) ALL FWLR (Pt. 576) 485. He submitted that the defect in this matter relates to procedure only and not to competency of the action; IDRIS v. ABUBAKAR (2011) ALL FWLR (Pt. 557) 733. It was contended that the trial Court did not determine the Appellant’s right on its merit; the paramount duty of the Court is to look for justice and do justice, not to allow technicality; AGBOOLA v. AGBODEMU (2010) ALL FWLR (Pt. 529) 111; NGERE v. ENEYO (2010) ALL FWELR (Pt. 550) 1375; R.M.A.F.C. v. ONWUEKWEIKPE (2010) ALL FWLR (Pt. 528) 947; ANYANWOKO v. OKOYE (2010) ALL FWLR (Pt. 515) 214.

The learned Counsel contended that the failure to sign the summons was that of the Court and the litigant ought not to be visited on the litigant and the 1st Respondent waived

the right to complain on such procedural irregularity.

On the two issues formulated by the 1st Respondent, the learned Counsel submitted that Order VI of the Judgments (Enforcement) Rules made pursuant to Section 94 of Sheriffs And Civil Process Act provides for issuance of interpleader summons by the Court and the interpleader summons in the instant case was not issued by the Court as required by the law, it is thereby incompetent; WEST AFRICAN EXAMINATION COUNCIL v. AKINWUMI (2008) ALL FWLR (Pt. 427) 28; MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341. It was submitted that the due issuance of the summons is material to the competence of the proceedings before the Court and the non issuance by the Court has rendered the summons incompetent; A.G. FEDERATION v. ABACHA (2011) ALL FWLR (Pt. 566) 467.

The learned Counsel argued further that having found that the summons was incompetent, the only thing the learned trial judge could do was to strike it out;TANKO v. UBA PLC (2011) ALL FWLR (Pt. 556) 408.

The 2nd, 3rd and 4th Respondent did not file brief(s) of argument.
?
It thus becomes clear that the instant appeal is consequent upon the decision of

the learned trial judge that the Appellant’s interpleader summons was incompetent having not been issued by the Court because same was signed by the learned Counsel, consequent upon which the learned trial judge declined jurisdiction and struck out the interpleader summons for being incompetent.

The ground upon which the trial Court struck out the interpleader summons is that it was signed by the learned Counsel and not issued by the Court whereby the proceedings became incompetent and the Court lacked the jurisdiction to hear the summons. Indeed the significance of jurisdiction in litigation cannot be over emphasized. Jurisdiction is a radical and fundamental question in adjudication of causes and matters before the Court. In UTIH v. ONOYIVBE (1991) 1 NWLR (Pt. 166) 166; BELLO, CJN stated at page 24I that “Moreso, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise”. Any proceedings conducted by a Court that

lacks the jurisdiction to do so amounts to a nullity no matter how well conducted and determined it might have been. See ATT. GEN. LAGOS STATE v. DOSUNMU (1989) 4 SCNJ 134.

It has become settled that a Court is competent to exercise jurisdiction in a cause or matter when and only when the following conditions have been fulfilled.
1. The Court is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or the other;
2. The subject matter of the action is within its jurisdiction and there is no feature therein that prevents the Court from exercising jurisdiction; and
3. The case comes before the Court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587; SKEN CONSULT (NIG.) LTD. v. UKEY (1981) 1 SC 6.

The interpleader summons in the instant case with the supporting affidavit is on pages 45 to 54 of record of appeal. It is mutually agreed by both parties and this is clear from page 48 of the record that the portion meant for the signature of the learned trial judge is

left unsigned which would have conveyed the command of the Court for parties to appear at the hearing. The gist of the appellant’s argument here is that this failure to sign the summons by the learned trial judge was not the error of the Appellant but an administrative irregularity which should not have been visited on the Appellant or allowed to vitiate the proceedings.

However, the Appellant who has eloquently set out the process to be followed in the commencement of the interpleader proceedings based on the combination of the Sheriff and Civil Process Act and the Sheriff and Civil Process Law conceded at page 3 of the Appellants’ Brief that; “6. Normally the Judge issues the interpleader by signing and causes the J/creditor to be served to appear in Court. The Hon. Judge or the Registrar fixes date for the hearing, see the relevant provision in Sheriff and Civil Process Act S. 34 thereof. See S. 33 of the Sheriff and Civil Process Law, Law of Kaduna State 1991”. The law is trite that once a statute or Rules are put in place for commencement or institution of an action or proceedings, such prescribed mode must be followed in commencing the action,

otherwise the action will be incompetent. See AGIP NIGERIA LTD. v. AGIP PETRO INTERNATIONAL & ORS (2010) 5 NWLR (Pt. 187) 348.
An action cannot be competent under the rules, inter alia, unless it has come before the Court by due process of law and upon fulfillment of any condition precedent for the exercise of jurisdiction as held in MADUKOLU v. NKEMDILIM (SUPRA); see also PORBENI v. B.F. & INVESTMENT CO. (2002) 3 NWLR (Pt. 754) 452. Due to the incompetence of the action and its failure to activate the jurisdiction of the Court, the trial Court rightly struck out the action.

It is the law that the proper order a Court that lacks jurisdiction in any matter should make is to strike out the action. See OKOLO v. U.B.N. LTD. (2004) ALL FWLR (Pt. 197) 98; WACE v. ADEYANJU (2008) 9 NWLR (Pt. 1092) 270; SALEH v. MONGUNO (2003) 1 NWLR (Pt. 301) 221; OKAFOR v. NAIFE (1973) 1 ALL NLR (Pt. 1) 238; OJORA v. ODUNSI (1959) 4 FSC 189; OLORIODE v. OYEBI (1984) 5 SC 1.

Upon my foregoing consideration of the lone issue in this appeal, I am of the view that since the Appellants process was incompetent, it was properly struck out by the trial Court, but

which order ordinarily gave the Appellant a second bite at the cherry by filing another application, but the Appellant instead chose the option of an appeal. I resolve the lone issue against the Appellant.
?
Consequently the appeal fails and it is dismissed accordingly with costs of N30,000.00 to the 1st Respondent only.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I agree.

AMINA AUDI WAMBAI, J.C.A.: I agree.

Appearances

M. T. Mohammed, Esq.For Appellant

AND

Ikechukwu Anyalewechi, Esq.For Respondent