VINCHEM INTERNATIONAL LTD V. ELEME PETROCHEMICALS COMPANY LTD.
(2010)LCN/4095(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of December, 2010
CA/PH/178/2007
RATIO
WHEN IS A COURT COMPETENT TO ENTERTAIN A MATTER BEFORE IT
It is settled that a court is competent when: (a) the court is properly constituted as regards number(s) and qualification(s) of the member(s) of the bench none of its member(s) is for any reason disqualified; (b) subject matter of the case is within the court’s jurisdiction and there is no feature in the case which prevents, the court from exercising its jurisdiction and (c) the case has come before the court initiated by due process of law and upon the fulfillment of any condition precedent to for exercise of jurisdiction. All these requirements must conjunctively co-exist before the court exercises jurisdiction. See Madukolu v. Nkemdilim (1962)1 All NLR 587 SC; Skenconsult v. Ukey (1981) 1 SC 6, Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99, Lufthansa Airline v. Ochese (2006) 7 NWLR (Pt. 978) 39 CA and Umanah v. Attah (2006) 17 NWLR (Pt. 1009) 503 SC. PER HON JUSTICE M. DATTIJO MUHAMMED, OFR J.C.A.
EFFECT OF AN ACTION THAT IS STATUTE BARRED
In the case of Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1, the Supreme Court per Aniagolu JSC held: —if the action was barred by statute, no amount of resort to the merit of Appellant’s contention will keep the action in being. The same Apex court in the case of Alhaja Ajibona v. Alhaji Kolewie & anor. (1996) 10 NWLR (Pt.476) 22 at 36 held regarding the effect of Lagos State limitation law thus:- “- – They do no merely deny the right of action, they completely extinguish an existing right at the expiration of twelve years from the accrual of the right of action.” In Eboigbe v. NNPC (1994) 5 WLR (Pt. 347) 649 at 659, the same Supreme Court had earlier stated the law thus:- “Where action is statute barred a Plaintiff who might have had a cause of action loses the right to enforce by judicial process because the period of time lay down by the limitation Law for instituting such action has elapsed. See Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 631. An action commenced after the expiration of the period within which an action must be brought as stipulated in the statute of limitation is not maintainable’ See Ekeogu v. Ahri (1991) 3 NWLR (Pt. 179) 258. In short, when the statute of limitation in question prescribes a period within which an action must be brought’ legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See Sanda v. Kukawa L.G. (1991) 2 NWLR (Pt.174) PER HON JUSTICE M. DATTIJO MUHAMMED, OFR J.C.A.
PRE-ACTION NOTICE: EFFECT OF THE FAILURE TO SERVE PRE-ACTION NOTICE
On the effect of failure to serve pre-action Notice, the court of Appeal in the case of Governor of Ebonyi State v. Isuama (2003) FWLR (Pt. 169) 1210 at 1220, a decision relied upon by the lower court, held as follows:- “A pre-action notice confers jurisdiction where it is prescribed in order to do so in such a case the court seized with such proceedings cannot competently assume jurisdiction without satisfying itself that the pre-requisite pre-action notice has been given.” PER HON JUSTICE M. DATTIJO MUHAMMED, OFR J.C.A.
CONSEQUENCE OF THE FAILURE TO SERVE PROCESS WHERE SERVICE OF PROCESS IS REQUIRED
The Supreme court in Society – Generale Bank (Nig) Ltd. v. John Adebayo Adewunmi (2003) FWLR (Pt.158) 1181, at 1192 held as follows:- “Failure to serve process where service of process is required is a fundamental. It deprives the trial court of the necessary competence at jurisdiction to hear the suit.” PER HON JUSTICE M. DATTIJO MUHAMMED, OFR J.C.A.
CIRCUMSTANCES WHERE AN OBJECTION TO THE JURISDICTION OF A COURT OR COMPETENCE OF AN ACTION BEFORE THE COURT CAN BE RAISED
…an objection to the jurisdiction of a court or competence of an action before the court can be raised in any of the following situations:- (a) on the basis of a statement of Claim (b) on the basis of evidence received (c) By motion supported by affidavit setting our the facts relied on or (d) On the face of the writ of summons where appropriate as to the capacity in which the action was brought or against who the action was brought. See NPIC v. CBN (2002) 7 NWLR (Pt. 272) SC, Arjay Ltd. v. Airline Management support Ltd. (2003) 7 NWLR (Pt. 820) 577, Guaranty Trust Bank Plc v. Fadco Industries Ltd. (2005) All FWLR (Pt.287) 913 and Nnonye v. Anyichie (2005) 2 NWLR (Pt.910) 623. PER HON JUSTICE M. DATTIJO MUHAMMED, OFR J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
VINCHEM INTERNATIONAL LTD – Appellant(s)
AND
ELEME PETROCHEMICALS COMPANY LTD. – Respondent(s)
HON JUSTICE M. DATTIJO MUHAMMED, OFR J.C.A. (Delivering the Leading Judgment): At the Port Harcourt judicial Division of the Federal High Court hereinafter called the lower court, the Appellant in the instant appeal as plaintiff commenced suit No. PHC/PH/CS/1459/04 on 7th September, 2004 against the Respondent then being the defendant. The former’s claim against the latter is for the sum of Thirty Two Million, Six Hundred and Seventy-Two Thousand, Eight Hundred and Sixty-Two Naira, Forty Two Kobo (N32, 672, 862.42) for the breach of the contract in respect of goods procured for and delivered to the Respondent by the Appellant which sum the Respondent failed and/or refused to pay.
Having entered appearance, but without filing its statement of defence in answer to Appellant’s statement of claim, the Respondent by a motion on notice filed on 26th August, 2005 prayed the court below for:
“1. An order setting aside the writ of summons for non-service on the Defendant.
2. An order striking out the suit for being statute barred.
3. An order striking out the suit for lack of jurisdiction or, the basis of non-service of a pre-action notice on the Defendant/ Applicant.
4. And any further order or orders the Honourable court may deem fit to make in the circumstance.”
In paragraphs 8, 9, 1 0, 11 and 12 of the affidavit in support of the defendant’s objection to the lower court’s jurisdiction, it was averred as follows:
“8. That upon perusal of the processes, we saw that one Madu P.U. was served with the writ of Summons in the suit.
9. That the said Madu P.U. is neither the chairman nor The Managing Director of the NNPC or the Defendant/Applicant.
10. That the Plaintiff/Respondent did not serve the Defendant/Appellant with requisite statutory pre-action notice before instituting this action.
11. That the alleged transactions given rise to this suit were transacted between February, 1999 and August, 2000 when the Defendant/Applicant vide a letter dated 21/8/00 requested the Plaintiff/Applicant to discontinue its planned supplies of rigid couplings to it. The said letter is hereby annexed and marked EXHIBIT EPCL 1.
12. That the Plaintiff/Respondent filed this action on 7/9/04, that is, over three years after EXHIBI EPCL 1.”
Paragraphs 5 and 6 of the further affidavit in support of Respondent’s motion are hereunder also reproduced for their relevance:-
“5 That attached as Exhibit EPCL 2 is the said Certified True Copy of the Memorandum and Articles of Association of the Applicant.
6. That all the shares of the Applicant are owned by the NNPC hence it is wholly owned subsidiary.”
The Appellant as Respondent to the motion decision in respect of which gave rise to the instant appeal did not file any counter-affidavit to challenge or contradict the averment in support of the motion
Following the court’s order, parties filed and exchanged written addresses on Defendant/Respondent’s motion on notice and same were adopted and relied upon at the hearing as arguments for and against the application.
In a well considered ruling delivered on 17th May, 2006, the court found the defendant a wholly owned subsidiary of the Nigerian National Petroleum corporation which, by virtue of section 12, 13 and 22 of the NNPC Act, must be served with pre-action notice and that Plaintiffs failure to serve same had rendered the suit incompetent. Having decided that Appellant’s action is incompetent for all the reasons advanced by the Respondent the court struck out the action. Dissatisfied, the Plaintiff has by is Notice containing three against the decision. Parties have filed and exchanged their briefs of argument as arising for the determination of the appeal read:-
“2.1 Whether the learned trial judge was right when she held that the Respondent need not file a statement of defence before moving the court to strike out the suit for non compliance with sections 12 and 13 of the NNPC Act ((Ground 3).
2.2. Whether the learned trial judge was right when she held that the defendant proved that it was wholly owned subsidiary of NNPC at the time suit was instituted on 7th September, 2004 (Grounds 1 & 2)”
The Respondent’s two similar issues read:-
“1.1 whether the learned trial judge erred in law by holding that the Defendant/Respondent need not file a statement of Defence before challenging the jurisdiction of the lower court to entertain Plaintiff/Applicant’s Claim vide a notice of motion (Distilled from Ground 3).
1.2 whether the learned trial judge erred by holding that the Respondent is a wholly owned subsidiary of the Nigerian National Petroleum Corporation (NNPC) and therefore entitled to the benefits of the provisions of S.12 and 13 of the NNPC Act Cap. N123 Laws of the Federation of Nigeria, 2004 and accordingly declined jurisdiction to entertain plaintiff/Appellant’s action (Distilled from grounds 1 and 2).”
In arguing their first issue for the determination of the appeal, learned Appellant counsel contends that Respondent’s objection at the lower court did not strictly relate to the court’s jurisdiction to hear the subject matter of the strictly relate to the court’s jurisdiction absence of the proper and necessary parties or lack of territorial jurisdiction. Were it to be on any of these grounds, counsel concedes, the objection could have correctly been taken even on Appellant’s writ of summons. Instead, learned counsel contends, Respondent’s objection had proceeded by virtue of S. 12 and 13 of the NNPC Act which avail to wholly owned subsidiaries of the N.N.P.C. as provided for by S.22 of the Act. Even though the Appellant had averred in paragraph 2 of its statement of claim that Respondent is a subsidiary of the NNPC, the Respondent unto whom the burden to prove its being wholly owned by the parent company shifted was yet to file its statement of defence to provide such facts on the basis of which the necessary inference could be drawn.
At best, learned counsel further argues’ Respondent’s purported objection are statutory defences which could only be rightfully raised in the manner provided by order 25 rules 2 of the Federal High Court (Civil Procedure) Rules 2000 applicable to the lower court. Having not raised the objection in its pleadings and in breach of the applicable rules of court, the lower court was without the vires of considering the illegal contraption. The lower court’s determination of Respondent’s defective objection, learned counsel submits, should be interfered with. Relying inter -alia on N.D.I.C. V. CBN (2002) 7 NWLR (Pt.766)272; Arjay Limited v. A.M.S. Limited (2003) 7 NWLR (Pt. 820) 577; Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 and more particularly Owoseni v. Fabye (2005) 14 NWLR (Pt. 946) 719 at 758; Barclays Bank of Nigeria Ltd. V. Central Bank of Nigeria (1976) 6 SC 115 at 126 – 727 and Adeyemi v. Opeyor (1976) 9 – 10 SC 18 at 31 – 32, learned counsel urges that we hold that Respondent’s objection is premature, resolve the first issue in Appellant’s favour and allow the appeal.
Learned Respondent’s counsel, in arguing the 1st issue, insists and indeed rightly too, that Respondent’s objection being against the lower court’s assumption of jurisdiction is validly raised without necessarily filing its statement of defence first. It is sufficient that the objection is raised through a notice of motion supported by affidavit giving the full facts upon which the objection rests. Counsel emphasizes that the jurisdictional issues the Respondent raises, as rightly found by the lower court, are not by way of demurrer and having been validly raised is rightly taken Inspite of Order 25 of the Federal High Court (Civil Procedure) Rules 2000. Counsel relies, in addition to the cases cited by learned Appellant counsel, on Madukolu v. Nkemdilim (1962) 2 SC NLR 341, and Nnonye v. Ayichie & 2 ors (2005) 2 NWLR (Pt. 910) 623.
It is clearly a misconception for the learned Appellant counsel to insist that Respondent’s objection does not touch on the lower court’s jurisdiction. It is settled that a court is competent when: (a) the court is properly constituted as regards number(s) and qualification(s) of the member(s) of the bench none of its member(s) is for any reason disqualified; (b) subject matter of the case is within the court’s jurisdiction and there is no feature in the case which prevents, the court from exercising its jurisdiction and (c) the case has come before the court initiated by due process of law and upon the fulfillment of any condition precedent to for exercise of jurisdiction. All these requirements must conjunctively co-exist before the court exercises jurisdiction. See Madukolu v. Nkemdilim (1962)1 All NLR 587 SC; Skenconsult v. Ukey (1981) 1 SC 6, Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99, Lufthansa Airline v. Ochese (2006) 7 NWLR (Pt. 978) 39 CA and Umanah v. Attah (2006) 17 NWLR (Pt. 1009) 503 SC.
In the instant case, the Respondent by his motion on notice and the unchallenged facts averred to in the affidavits in support is saying firstly, that Appellant’s action that ought to be commenced within twelve months from the time the cause of action accrued, was commenced well over three years thereafter. It is being contended that by virtue of section 12(1) of the NNPC’ Act, the action is statute barred. Appellant’s failure to serve the Respondent a pre-action notice as required by S.12 (2) of the NNPC Act constitutes another ground upon which Respondent’s objection is based.
Lastly, the Respondent further contends that S.13 of the NNPC Act provides that writs, notices and other processes pertaining it are to be served either through its chairman or Managing Director. Instead, the writ taken against the Respondent purports to have been served through one Madu P.U.’ who is neither Respondent’s chairman nor Managing Director Authorities abound on all the three grounds touching on the jurisdiction of the court.
In the case of Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1, the Supreme Court per Aniagolu JSC held:
—if the action was barred by statute, no amount of resort to the merit of Appellant’s contention will keep the action in being.
The same Apex court in the case of Alhaja Ajibona v. Alhaji Kolewie & anor. (1996) 10 NWLR (Pt.476) 22 at 36 held regarding the effect of Lagos State limitation law thus:-
“- – They do no merely deny the right of action, they completely extinguish an existing right at the expiration of twelve years from the accrual of the right of action.”
In Eboigbe v. NNPC (1994) 5 WLR (Pt. 347) 649 at 659, the same Supreme Court had earlier stated the law thus:-
“Where action is statute barred a Plaintiff who might have had a cause of action loses the right to enforce by judicial process because the period of time lay down by the limitation Law for instituting such action has elapsed. See Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 631. An action commenced after the expiration of the period within which an action must be brought as stipulated in the statute of limitation is not maintainable’ See Ekeogu v. Ahri (1991) 3 NWLR (Pt. 179) 258. In short, when the statute of limitation in question prescribes a period within which an action must be brought’ legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See Sanda v. Kukawa L.G. (1991) 2 NWLR (Pt.174)
On the effect of failure to serve pre-action Notice, the court of Appeal in the case of Governor of Ebonyi State v. Isuama (2003) FWLR (Pt. 169) 1210 at 1220, a decision relied upon by the lower court, held as follows:-
“A pre-action notice confers jurisdiction where it is prescribed in order to do so in such a case the court seized with such proceedings cannot competently assume jurisdiction without satisfying itself that the pre-requisite pre-action notice has been given.”
The Supreme court in Society – Generale Bank (Nig) Ltd. v. John Adebayo Adewunmi (2003) FWLR (Pt.158) 1181, at 1192 held as follows:-
“Failure to serve process where service of process is required is a fundamental. It deprives the trial court of the necessary competence at jurisdiction to hear the suit.”
The grounds, on which the Respondent pursued its objection at the lower court, as argued by learned Appellant counsel, might indeed be statutory defences which by the rules of pleadings should be pleaded. Because the grounds of the objection touch on the jurisdiction of the court however they are so crucial and fundamental making a timeous decision on the objection desirous and necessary.
An action such as that of the Appellant herein that is commenced either outside the time a statute, the NNPC Act, prescribes it should be brought and without the service of a pre-action notice or with the initiating process irregularly served, can neither be said to have been initiated “by due process of the law” nor upon the fulfillment of the condition precedent to the exercise of the trial court’s jurisdiction. See Madukolu v. Nkemdilim (supra) and Skenconsuit v. Ukey (supra).
It is thus not surprising that the lower court at page 83 of the record of appeal has hell as follows:-
“I hold that the present application touches on issue of competence and jurisdiction and having been raised by way of motion on notice is in substantial compliance. Therefore, the defendant needs not plead the issues first in the statement of defence. He can raise them at any state of the proceedings to avert delay timeously.”
I cannot agree more. If not for anything, the same judicial authorities the lower court submitted to bind this court as well and cannot, therefore, be deviated from.
By these very decisions, an objection to the jurisdiction of a court or competence of an action before the court can be raised in any of the following situations:-
(a) on the basis of a statement of Claim (b) on the basis of evidence received (c) By motion supported by affidavit setting our the facts relied on or (d) On the face of the writ of summons where appropriate as to the capacity in which the action was brought or against who the action was brought. See NPIC v. CBN (2002) 7 NWLR (Pt. 272) SC, Arjay Ltd. v. Airline Management support Ltd. (2003) 7 NWLR (Pt. 820) 577, Guaranty Trust Bank Plc v. Fadco Industries Ltd. (2005) All FWLR (Pt.287) 913 and Nnonye v. Anyichie (2005) 2 NWLR (Pt.910) 623. For our purpose, it is clearly out of place to suggest that Respondent’s objection to the lower court’s jurisdiction through a formal application supported by affidavits and annexure has been improperly raised. Appellant’s insistence that the procedure is incompetent, given extant judicial authorities is palpably wrong.
Learned Appellant counsel’s vehemence as to the incompetence of Respondent’s motion on notice is anchored on the understanding that since rules of court have not been made for fun, a party must not draw from his disobedience of these rules. The point of law that stands in clear breach of order 25 rules 2 and 3 of High Court (Civil Procedure) Rules 2000 should not have been entertained by the lower court. Learned Appellant counsel’s postulation is not totally idle. It has some measure of support in the judicial circle. It will unfold anon that the support is perhaps so feeble and manifestly inadequate to pull the learned counsel through the day Onnoghen JSC in Elabanjo v. Dawodu (2006) 15 NWLR (PT. 1001) 76 appears to render learned Appellant counsel the support he seems to crave for. The facts of that case are on all forms with ours.
The Appellant’s in Elabanjo v. Dawodu had served their statement of claim on the Respondents. Just like in the instant case, the Respondent without filing their statement of defence to raise points of law in her defence to the action filed a notice of preliminary objection seeking an order dismissing the suit for lack of jurisdiction. The ground of the preliminary objection, like one of the grounds in the instant matter, was that the action was statute- barred having been brought in 1996, more than twelve years after the cause of action accrued and outside the prescribed period of limitation.
The trial court struck out the objection as being incompetent on the ground that the preliminary objection was based on statute of limitation and in the absence of statement of defence. The court relied on order 23 of the High Court of Lagos State (Civil Procedure Rules) 1994.
The Respondent appealed to the court of Appeal whereat the appeal was allowed, the court having found that the action was statute-barred and accordingly dismissed the action.
On a further appeal to the Supreme Court by the Appellant, the apex court in a majority decision of 4-1, dismissed the appeal. Dissenting, Onnoghen JSC however found the objection incompetent. His lordship reasoned at page 152 of the report firstly thus:
“It is very clear that the period of limitation or limitation law affects the cause of action or validity of cause of action instituted outside the limitation period. It deals with the competence of the action so instituted, and has nothing to do with the greatest respect, with the jurisdiction or competence of the court to decide or determine the matter. That is why the statute of limitation is regarded as a defence to an action and by the provisions of the relevant rules of court, it must be specifically pleaded. This court has held that:-
‘Matters that can be raised on the pleading which can ‘be taken up in proceedings in lieu of demurrer are matters which go to the merits and include matters relating to cause of action, ground of defence, statutory provisions or defence, illegality, and damages. They do not include maters of those pleas, such as pleas to the jurisdiction, stay or suspension of the action or in abatement which are classified as dilatory Pleas. Per Nnaemaka-Agu, JSC in Okoye V. Nigeria Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 540.”
He elaborated at page 153 of the report as follows:-
“In the instant case, the Rules of Court applicable to the facts specifically provide that the defence of limitation of limitation law or statute of limitation must be specifically pleaded while order 23 rule (2) supra provides also that such appoint of law must be first and foremost raised in the statement of defence before a motion by way of preliminary objection is brought for the determination of the said point of law.
In the instant case, the respondent is in effect saying that though the court has the jurisdiction to deal with the claim of the plaintiff as presented, it should not listen to him or grant him the reliefs because the time within which he would have been entitled to the reliefs if he had been vigilant has passed thereby rendering his cause of action unenforceable.
The question involved in the issue under consideration is not whether an issue of jurisdiction (if validly existing) cannot be raised at any stage in proceedings and by motion without first filing a the statement of defence, as learned counsel for the Respondent would want us believe but whether the procedure under which a defendant may raise a point of law by way of defence to the claim of the plaintiff under the provisions of Order 23 supra to wit, limitation law, is by filing a preliminary objection in which the points(s) of law is/are raised without first filing a statement of defence in which the point(s) of law is/are pleaded prior to the raising of same in the notice of preliminary objection, particularly where the point(s) of law do(es) not affect the jurisdiction of the court to entertain the matter.”
His lordship finally reasoned thus at page 153-154 as follows:
“Learned counsel for the Respondent submitted
By way of alternative that the non-compliance by the Respondent with the rules of the court be termed a mere irregularity which does not render the proceeding null and void. I do not agree with learned counsel for the Respondent on the matter. The no-compliance in the instant case, in my considered opinion is not a mere irregularity but affects substantially the rules of pleadings designed to ensure fair hearing to both parties and must be complied with so as not to defeat the aim it was designed to achieve.”
At this rung of the ladder, we seem to lack the vires to go beyond noticing his Lordship’s thorough and highly informed stance. It remains a dissenting voice. It is the majority decision of the Apex court that binds those of us below.
Order 23 rules 2 and 3 of the Lagos State High Court (Civil Procedure) Rules 1994 which application led to Onnoghen JSC’s dissent in Elabanjo v. Dawodu (supra) are in pari materia with order 25 rules 2 and 3 of the Federal High Court (Civil Procedure) Rules 2000 in respect of which the controversy in the instant appeal rages, The Order Provides:-
Order 23, rules 1, 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994 provides:-
“1. No demurrer shall be allowed.
2. Any party shall be entitled to rise by his pleading any point of law and, unless the court or a Judge in chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
3. It, in the opinion of the court or a Judge in chambers, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or Judge may thereupon dismiss the action or make such other order therein as may be just.”
Construing the above rules of Court in his concurring contribution to the leading judgment in the apex court’s decision, Ogbuagu JSC at pages 135 – 136 of the law report opined as follows:-
“…The words shall be entitled to raise by his pleading any point of law mean clearly no more than that any party shall not be prevented in any way or manner whatsoever, from raising by his pleading any point of law.
It does not mean, in my respectful view, that he must file a statement of defence before he can raise such Point of law.
…To suggest that for a party to raise such point of law he must have filed a statement of defence in which point of law must be raised, with profound and greatest respect’ is clearly absurd to me. I am sure that is certainly not the intention of the law makers. It could never be.”
I totally subscribe to his lordship’s erudite and pragmatic exposition of the law. Learned appellant counsels seem not to appreciate the fundamental and threshold nature of jurisdiction in the adjudication process. The concept includes the limits imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of the courts process by reference to the subject matter of issues or to the persons between whom the issues are joined or to the kind of relief sought. Jurisdiction is so radical and crucial to the competence of the court that it is likened to blood in the human system without which life or all activities on the basis of same must cease. A court without jurisdiction cannot adjudicate and, if it purports to embarks on a futile exercise. See Attorney General Lagos state v. Dosunmu (1989) 3 NWLR (Pt.111) 552 and Daplailong v. Dariye (2007) 6 NWLR (Pt.1036) 337. Over the years, the practice has grown for a party who feels strongly about a court’s lack of power to determine an issue, for whatever reason, to raise the point timeously for the court to determine the objection one way or the other to avoid waste of time of all the stake holders.
Learned Appellant counsel insists that Respondent’s motion raising a point or raw against the lower court’s jurisdiction hinges on the principle that it stands in breach of the applicable rules of Court who breaches his lordship Onnghen JSC considers so fundamental and incurable. The prevailing view as shown in the extract from the equally forceful and well informed contribution of Ogbuagu JSC is that order 25 rules 2 and 3 does not mandatorily require a point of law that disallow a court to assume jurisdiction so raised in the defendant’s pleading.
Onu JSC in his own calm and equally pragmatic contribution holds in very, good stead that even where the rules so state there is a further reason why such position must collapse. At page 127 of the Law report he states:-
” – – It is settled that even mandatory rules of court are not as sacrosanct as mandatory statute or an Act. See Kotto v. Central Bank of Nigeria (1991) 12 SCNJ 1 at 17 (1991) 9 NWLR (Pt.214) 126.
Also settled is that Rules cannot override statutory provisions of law. See Alhaji Edun v. Odan Community, Ado family etc (1980) 11 SC 103 at 124.”
I agree with his lordship that the essence of our justice delivery system is the provision of quick and cheap justice provided same is not hastened. Onu JSC also stressed the further point that in allowing this appeal purely because the point of court, we shall be deviating from several decisions of the supreme Court. This is a position that is hardly controvertible. In particular, the Supreme Court in Egbe v. Alhaji (supra) held that
“Under Order 22 rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1972 a defendant who knows that there is a point of law which can determine the action in his favour in limine can apply to the court by the way of motion or as a point of his pleading to dismiss the action without evidence having been taken.”
See also Alhaji Onibudo & anor (1974) NSCC 103 at 107. On the same issue, the Supreme Court pointedly held in Bambe & ors. V. Aderinole & ors. (1977) 1SC at 14 as follows: –
“In construing the provision of rule 1, it will be wrong to ignore the provisions of rules 2 to 4 Order 22 is similar to Order 25 of the Rules of the Supreme Court applicable to England in 1963. Order 22 not only abolishes demurrers but substitute a more summary process for getting rid of findings which show no reasonable cause of action (1963 the Annual Practice page 571). As the objection taken in the instant case could, if upheld dispose of the whole action’ we are of the view that it comes within the ambit of Order 22. We find ourselves unable to support the view expressed by the learned trial Judge that the objection was Premature.”
Finally, it must be stated that the court’s jurisdiction to determine whether it has jurisdiction or the competence to determine a case of action is not a procedural matter but a substantive one. It remains the principle that a court that embarks on a trial without the necessary jurisdiction does so in vain. See State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33 at 48. Were it even to be a procedural matter, and it is not, order 3 of the Federal High Court (civil procedure) rules allows the non-compliance by the Respondent in raising its objection without embedding same in its pleading as an irregularity. It should not be allowed to nullify proceeding it was considered and decision emanating from such a consideration. After all, it is either that the lower court has the jurisdiction or it does not. Since in the instant case that court lacks the competence to proceed on an action that is statute barred, it serves the dictates of justice to affirm the lower court’s decision given in the realization of the futility of any proceeding on an incompetent action.
Resultantly, the 1st issue in the appeal is resolved against the Appellant.
A preliminary objection has been raised by the Respondent against Appellant’s 2nd issue for the determination of the appeal. Learned counsel submits that the issue border on the validity or otherwise of the share holding in the Respondent which issue was neither canvassed by any of the parties nor did the lower court decide on same. Learned Respondent counsel cited the decisions in Ikeanyi v. ABC Ltd (1997) 2 SCNJ 9 and Adekja v. Alade (1999) 4 SCNJ 4 to support his submission that the 2nd issue being on a fresh point that was not considered and determined by the lower and without the leave of this court is incompetent. The issue should be ignored, learned counsel maintains.
The 2nd issue in the appeal seems to have evolved from the aspect of the lower court’s decision as to whether or not the Respondent is a wholly owned subsidiary of the NNPC which must be virtue of S. 12, and 13 of the NNPC from Act for it to benefit the statutory protections there under. Respondent has raised the facts of the non-service of a pre-action notice and commencement of the instant suit outside the time provided by the statute. The affidavits in support of Respondent’s motion earlier reproduced in this judgment averred to this facts. Appellant did not file any counter-affidavit to challenge the facts as averred to by the Respondent. They relied on points of law to reply to arguments of learned counsel to of law to reply to In the Respondent at the lower court. In deciding the share hording structure in the Respondent’s company, the lower court stated at page 84-85 of the record thus:
“It has been settled by appellate courts that the best prove (sic) of the status of an incorporated company is the Memorandum of Association and Article of Association. The Defendant by affidavit evidence has exhibited the Memorandum of Association of the Defendant in a further affidavit filed on 20th March, 2006. There is no affidavit filed by the plaintiff contradicting or challenging the authenticity of this document. The document a circumstance is deemed as admitted and the court can rely on same. Exh. RPCL 2 is the memorandum of Association it contains the list of-subscribers as the Group Managing Director, N.N.P.C., Secretary to the Corporation, N.N.P.C. and Group Deputy Managing Director Operation N.N.P.C. from this defendant it is clear and unequivocal that the defendant wholly owned subsidiary of N.N.P.C. The Defendant is entitled to a pre-action notice as stated in S. 12(2) of N.N.PC. Act. In the instant case the pre-action notice from all the facts presented was not served on the Defendant before this action was commenced. The Defendant averred to none service in paragraph 10 of the affidavit in support of the Motion and his averment was not controverter or challenged.”
Appellant’s 2nd issue for the determination attacks the foregoing finding of the lower court. It is distilled from Appellant’s third ground of appeal. The issue does not raise a new point. From the facts in support of Respondent’s motion as well as submissions of counsel for and against the motion, the issue whether or not the Respondent is entitled to the protection created under S.12 and 13 of the NNPC Act centred on whether or not the Respondent is wholly, owned by the NNPC. In the result, I find Respondent’s objection on Appellant’s 2nd issue misplaced. It is accordingly discountenanced. Appellant does not need the leave of this court to raise and argue such a point that the parties raised and addressed the lower court on and on which a decision is taken.
The central question under the 2nd issue is whether the lower court is right in its decision that the Respondent is a wholly owned subsidiary of the NNPC and thereby entitled as provide by S.12 and S.13 of the NNPC Act to be served with a pre-action Notice and to be sued within Twelve months of the accrual of a right of action against it. Whether or not the respondent is a person provided for by the particular statute is a question of fact. The lower court has acted on correct principles to arrive at its decision on the matter. It must act on the facts supplied to it in the Respondent’s affidavit in the absence of any facts from the appellant challenging and controverting those of the Respondent. See Ecoconsult Ltd v. Pancho villa Ltd. (2000) 3 NWLR (pt. 647) 141 and Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 SC.
Lower court’s decision queried under Appellant’s 2nd issue is unassailable. The 2nd issue as well and indeed the appeal as a whole lack merit. The 2nd issue is resolved against the Appellant and the Appeal dismissed. The lower court’s decision striking out Appellant’s action for incompetent is accordingly affirmed. Costs of the Appeal are put at N50, 000 hereby ordered in favour of the Respondent.
EJEMBI EKO, J.C.A: I read in draft the judgment just delivered in this appeal by my learned brother M.D. MUHAMMAD, JCA. The issues in this appeal have been previously settled by superior authorities coming from the Supreme Court.
I have nothing further to add to the lead judgment. I agree with the reasoning and conclusions of my learned brother therein. I am also in agreement with all consequential order made in the lead judgment.
T.O. AWOTOYE, J.C.A.: I have had the opportunity of reading before now the judgment delivered by my learned brother M.D. MUHAMMAD JCA, I agree with his reasoning and conclusions.
The appeal has no merit and it is hereby dismissed with costs as assessed.
Appearances
O.O. ORJIFor Appellant
AND
O.E. IMONIVWERHA (MRS.)For Respondent
