YAKUBU & ANOR v. ODUKOYA & ORS
(2021)LCN/15898(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, November 30, 2021
CA/L/294/2018
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1. ALHAJA SAFURAT OLUFUNKE YAKUBU 2. ALHAJI MOMODU KARIMU OWODINA (Suing As Administratrix Of Estate Of JAIYEOLA YAKUBU & Administrator Of KARIMU DUROJAIYE OWODINA (Joined As Appellants By Order Of Court Dated 15/2/2018) APPELANT(S)
And
1. GABRIEL OLATAYO ODUKOYA 2. OBA MORUFU OJOOLA (The Oba Of Ejigbo, Lagos State) 3. ISIAKA IJAOSAN AYANWALE (For Themselves And As Representatives Of The Totowu Ejigbo Claiming Land In Ejigbo In Ijon, Alimosho Local Government Area Of Lagos State) RESPONDENT(S)
RATIO:
A PRELIMINARY OBJECTION THAT IS SUSTAINED BY THE COURT WILL RENDER FURTHER PROCEEDINGS UNCECESSARY
There is no gainsaying the fact that the second and third respondents (the objectors) greeted the appellants’ appeal with a stiff opposition as encapsulated and buried in their preliminary objection. A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. UniIlorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225. OBANDE FESTUS OGBUINYA, J.C.A.
THE CONTAMINATION OF THE COMPETENCY OF AN APPEAL
Thus, it occupies a kingly position in the appellate adjudication. Given this olympian status, where a notice of appeal is defective, for whatever reason, it contaminates the competence of an appeal, which it ought to breathe life into, and, de jure, impinges on the jurisdiction of the Court to entertain the appeal, see Agu v. Odofin (1992) 3 SCNJ 161; Adelekan v. Ecu-Line NV (2006) 2 NWLR (Pt. 993) 33; Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397; Aderibigbe v. Abidoye(2009) 10 NWLR (Pt. 1150) 592; Odunze v. Nwosu (2007) 13 NWLR (Pt. 105) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) 596; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Ikuepenikan v. State (2016) 9 NWLR (Pt. 1465) 518; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1509) 1; Japhet v. State (2016) 6 NWLR (Pt. 1509) 602; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd. (2016) 9 NWLR (Pt. 1516) 126; Fasuyi v. PDP (supra); FRN v. Dairo (supra); SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agwu v. Julius. OBANDE FESTUS OGBUINYA, J.C.A.
THE INGREDIENTS THAT MUST CO-EXIST BEFORE INFUSING JURISDICTION INTO A COURT
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 208 (1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J.,Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455;Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a Court. OBANDE FESTUS OGBUINYA, J.C.A.
THE EFFECT OF THE COURT NOT HAVING A JURISDICTION TO ENTERTAIN A MATTER
Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable nest of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). It will smell of stupendous waste of the scarce juridical time to hear the appeal when this Court is not equipped with the necessary vires to do so. No Court relishes in its orders/proceedings being mired in the quicksand of nullity. I have no choice than to resolve the first ground against the appellants and in favour of the objectors. OBANDE FESTUS OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of High Court of Lagos, Lagos Division (hereinafter addressed as “the lower Court”), coram judice: B. A. Oke-Lawal, J., in Suit No. ID/1416/2005, delivered on 15th June, 2016. Before the lower Court, the first respondent was the claimant while the second and third respondents were the defendants.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The land in dispute is lying and being at Igbo Ilogbo Ishefun via Ayobo in Alimosho Local Government Area of Lagos State. The first respondent alleged that he purchased it from Olalore family of Ishefun village Igbo Ilogbo Ayobo in 1976. The purchase was documented in a receipt, deed of conveyance and deed of rectification. The receipt and conveyance were registered at the Lands Registry Ikeja, Lagos. After the purchase, the first respondent exercised various acts of possession and ownership over the disputed land. In 1994 and 2004, the second and third respondents unlawfully entered into the disputed land and started exercising acts of possession and ownership thereon. The first respondent claimed that the second and third respondents used the instrumentality of the police force to dispossess him of the property. The first respondent asserted that the unlawful acts/conduct of the second and third respondents deprived him of income, properties and subjected him to untold hardship physically, mentally and financially. Sequel to that, the first respondent beseeched the lower Court, via an amended writ of summons filed on 22nd April, 2006, and tabled against the respondents, jointly and severally, the following reliefs:
a. A declaration that the claimant is the owner and the person entitled to the right of occupancy over the land situate, lying and being at Igbo Ilogbo Ishefun via Ayobo in Alimosho Local Government Area of Lagos State and particularly described in the deed of conveyance dated 27th day of September, 1976 and in survey plan No. LAT/578/77A/77 attached to Deed of Rectification dated 22/02/80.
b. A declaration that the entry and or invasion of the claimant’s land by the defendant and remaining therein since the 7th day of December, 2004 till date and subsequent malicious damage and destruction of claimant’s property and his tenant’s property by the defendants and putting up illegal structure on the subject matter of this suit by the defendant and their privies is unlawful, illegal and unconstitutional.
c. Damages in the sum of N500,000,000.00 (Five Hundred Million Naira) only, jointly and severally against the defendant (the particular of damages were supplied).
d. An Order of perpetual injunction restraining the defendants either by themselves, their agents, servants, privies, representatives, heirs or anybody whatsoever, whoever or however claiming through or under their authority from further trespassing on the subject matter of the suit belonging to the claimant.
In reaction, the second and third respondents joined issue with the first respondent and denied liability by filing a statement of defence. Therein, the second and third respondents claimed that the disputed land belongs to them as it falls within and surrounded by their large portion of land that was founded by their forebears-Ijon. Consequently, they counter-claimed as follows:
a. A declaration that the Defendant/Counter-claimants are the person entitled to the right occupancy over all that parcel of land lying and being a IJON village in Alimosho Local Government Area of Lagos State which land is verged RED on the Survey Plan LAT/188/429/2011/M/LA dated 2nd December, 2011 and prepared by ADEMOLA ASHIPA Licensed Surveyor.
b. An Injunction restraining the Claimant his servants’ agents and/or privies from further trespassing or selling or leasing the said land.
Following the discordant claims, the lower Court had a full-scale determination of the case. In proof of the case, the first respondent called five witnesses: CW1 – CW5. In disproof of the case, the second and third respondents fielded seven witnesses: DW1 – DW7. The parties tendered loads of documentary evidence in proof and disproof of the case. At the closure of evidence, the parties addressed the lower Court in a manner required by law. In a considered judgment, delivered on 15th June, 2016, found at pages 1743 – 1773, volume 4, of the record, the lower Court dismissed the first respondent’s claim and granted the second and third respondents’ counter-claim.
The appellants, who were not parties to the suit, became aware of the judgment therein in September, 2016. Hence, the appellants filed an application on 15th November, 2016 which prayed this Court for leave and extension of time to appeal against the decision. This Court granted the application on 15th January, 2018. Sequel to that, the appellants, on 23rd February, 2018, filed a 2-ground notice of appeal which is found at pages 1820-1824, volume 4, of the record. Later on, the appellants filed an amended notice of appeal on 2nd July, 2020 but deemed properly filed on 22nd September, 2021, hosting two grounds, wherein they prayed this Court as follows:
1. An Order setting aside the Judgment of the lower Court dated 15th June, 2016 and also strike out the Statement of Defence dated the 4th day of July, 2005 and the subsequent Amended Statement of Defence & Counter claim dated 3rd February, 2012 and filed on the 9th day of February, 2012 and unsigned Further Amended Statement of Defence and Counterclaim dated the 4th March, 2013 and filed same day for being incompetent and robbed the lower Court of the requisite Jurisdiction to determine the Counterclaim in this Suit.
2. Alternatively, an Order allowing the Appeal.
Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 22nd September, 2021.
During the hearing of the appeal, learned appellants’ counsel, Olanrewaju Balogun, Esq., adopted the amended appellants’ brief of argument, filed on 2nd July, 2020, and appellants’ reply brief, filed on 7th September, 2020, but deemed properly filed on 22nd September, 2021, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the second and third respondents, Prof. Imran Oluwole Smith, SAN, adopted their brief of argument, filed on 3rd July, 2020 but deemed properly filed on 22nd September, 2021, as forming his reactions against the appeal. He urged the Court to dismiss it. Learned counsel for the first respondent, O. Ohwovoriole, Esq., informed the Court that he filed no brief of argument. Second and third respondents’ preliminary objection.
On 3rd July, 2020, the second and third respondents (the objectors) filed a notice of preliminary objection, replicated in their brief of argument, which prayed this Court for:
1. AN ORDER DISMISSING THIS APPEAL FOR APPELLANTS’ NON-COMPLIANCE WITH THE CONDITION PRECEDENT PRESCRIBED BY LAW FOR THIS HONOURABLE COURT TO GRANT LEAVE TO APPEAL.
2. AN ORDER STRIKING OUT ISSUE NO. 1 CANVASSED BY THE APPELLANTS FOR FAILURE OF THE APPELLANTS TO DISTILL THE SAID ISSUE FROM A GROUND OF APPEAL IN THE NOTICE OF APPEAL.
3. AN ORDER STRIKING OUT ISSUE NO.1 CANVASSED BY THE APPELLANT FOR FAILURE TO COMPLY WITH THE LAW AS IT RELATES TO RAISING FRESH ISSUES ON APPEAL NOT CANVASSED AT THE LOWER COURT.
4. AND FOR SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstance of this case.
Each prayer is predicated on certain grounds in support thereof.
Submissions on the preliminary objection.
Learned objectors’ senior counsel submitted that by Section 243 (a) of the Constitution, as amended, that an application for leave to appeal must be made within three months from the date of a final decision as provided in Section 24 (2) of the Court of Appeal Act, 2010. He asserted that this Court’s grant of the appellants’ application, filed on 15th November, 2016, for leave to appeal was made without jurisdiction as the condition laid down by law was not fulfilled. He explained that the application was not based on trinity prayers as required by law. He relied on Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467; Incar (Nig.) Plc v. Bolex Ent. (Nig.) Ltd. (1997) 10 NWLR (Pt. 526) 530; Odofin v. Agu (1992) 3 NWLR (Pt.229) 350; Premier Breweries Ltd. v. Awere Construction Co. Ltd. (1987) 3 NWLR (Pt. 62) 688. He observed that the order was a nullity because of lack of prayer for extension of time to seek leave to appeal. He reasoned a Court has inherent power or jurisdiction to set aside an order that is a nullity. He cited Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314; Chevron (Nig.) Ltd. v. Warri North LGC. (2003) 5 NWLR (Pt. 812) 28; Fidelity Bank Plc v. M.T. Tabor (2009) 8 NWLR (Pt.1142) 83. He maintained that this Court has the power to set aside the order.
Learned Silk contended that an issue must be related/arise from the ratio decidendi or it will be incompetent. He referred to Fawehinmi v. GMH (Nig.) Ltd. (2018) 12 NWLR (Pt. 1663) 197; Awojobi v. INEC (2012) 8 NWLR (Pt. 1303) 528; FRN v. Martins (2012) 14 NWLR (Pt. 1320) 287; Conoil Plc v. Vitol S.A (2012) 2 NWLR (Pt. 1283) 50; Odusote v. Odusote (2012) 3 NWLR (Pt. 1288) 478. He claimed that the appellants’ issue one did not arise from the grounds of appeal and should be struck out.
Learned Senior Advocate of Nigeria argued that the appellants’ issue one is a fresh issue raised without leave of Court and so incompetent. He cited Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290; Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 271; Obioha v. Duru (1994) 9 NWLR (Pt. 365) 631; Ikedigwe v. Fai (2012) 10 NWLR (Pt. 1308) 375. He urged the Court to strike out the issue for being incompetent.
On behalf of the appellant, learned counsel submitted that the order was valid as the appellants needed no trinity prayers in their application. He relied on Majekodunmi v. Christlieb Plc (2009) NWLR (Pt. 1145) 127; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599). He concluded that the order is valid.
Learned counsel conceded that an issue must relate to a ground of appeal. He cited Okafor v. Effiong (2017) 11 NWLR (Pt. 1577) 535. He contended, in the alternative, that where the issue borders on jurisdiction, it must not be predicated on the ratio decidendi of a case. He referred to APC v. Nduul (2018) 2 NWLR (Pt. 1602) 20. He opined that the issue related to the lower Court’s jurisdiction to hear the counter-claim.
Learned counsel argued that issue of jurisdiction is an exception to the general rule that a fresh issue cannot be raised without leave of Court. He cited CGG (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1492) 592; A-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546). He urged the Court to dismiss the preliminary objection.
Resolution of the preliminary objection
There is no gainsaying the fact that the second and third respondents (the objectors) greeted the appellants’ appeal with a stiff opposition as encapsulated and buried in their preliminary objection. A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. UniIlorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225.
For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v Amadi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. md. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara(2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law. The objectors seek to terminate the appeal in limine on three vitriolic grounds catalogued earlier on.
Now, the plinth of the objectors’ chief grievance, indeed their trump card on the terminal objection, is that the appellants’ application, which parented their notice of appeal/appeal, was incompetent because it did not warehouse the trinity prayers which made its grant a nullity. Expectedly, the feuding parties are diametrically opposed on this stubborn point. While the appellants insisted that it was competent, the objectors disowned/disclaimed its competence. In due fidelity to the desire of the law, I will invite and employ the case-law to resolve the impasse. In Chukwu v. INEC (2014) 10 NWLR (Pt. 1415) 385 at 408 and 409, Muntaka-Coomassie, JSC, incisively, declared:
Now by Section 25(2) (a) of the Court of Appeal Act, No. 43 of 1976, an appellant or any person desirous of appealing shall give notice of his appeal within 3 months of the date of final decision, and by several decisions of this Court, a person applying for leave to appeal must do so within the statutory period of 3 months. If he is out of time he would need to apply for extension of time within which to apply for leave to appeal, otherwise, the leave sought will be refused.
…it is clear from the foregoing that the first prayer a person seeking leave to appeal as an interested party must seek is for leave to be made a party in the case, pursuant to the relevant section of the Constitution. So it is not just the trinity prayers that the applicant should seek. His first prayer should be for leave to be made a party in the case or it may be couched as prayer one in the above quotation i.e. for leave to appeal under Section 243(a) of the 1999 Constitution (as amended) as a person having an interest in the case.
The other three prayers in the above quotation will now follow, if the application is made outside the time prescribed for appealing under Section 24(2) of the Court of Act, 2004.
See, also, Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163); In Re: Madaki (1996) 7 NWLR (Pt. 459) 153; Poroye v. Makarfi (supra). I will deploy this inelastic position of law as the barometer to gauge the potency or otherwise of this ground of objection. Indeed, it will define its destiny.
At the cradle of this judgment, I had chronicled, in a précis form the facts of the case which mothered the appeal. It was an action initiated by the first respondent against the second and third respondents (the objectors) before the throne of justice of the lower Court. The lower Court delivered its final judgment on the matter on 12th June, 2016. By virtue of Section 24 (2) of the Court of Appeal Act, a party incensed with a final decision of the lower Court has 3 months to appeal. The appellants were not parties nor particepes in the proceeding/suit. The provision of Section 243 (a) of the Constitution, as amended, categorises them as “any other person having an interest in the matter” who must appeal with the leave of Court. In other words, the sacrosanct provision donates right of appeal to them albeit with the permission of the Court. Nota bene, neither the Constitution, the fons et origo of our corpus juris nor the Court of Appeal Act prescribes time-frame within which a person having an interest in a matter will appeal against a decision, see In Re: Madaki (supra); Bi-Courtney Ltd. v. A-G., Fed. (2019) 10 NWLR (Pt.1679) 112. The appellants, in due allegiance to their rights warehoused in Section 243 (a) of the Constitution, as amended, brought an application before this Court on 15th November, 2016. Incontestably, the application came months after the expiration of the three months period within which to appeal against the decision of the lower Court which was delivered on 12th June, 2016. The prayers in their application were for: an order granting leave to appeal and an order for extension of time within which to appeal against the said judgment.
In due loyalty to the dictate of the law, I have married the prayers in the appellants’ application with the magisterial inelastic position of the law, in ex cathedra authorities, displayed earlier. The raison d’etre for the juxtaposition is not far- fetched. It is to ascertain if the application respected or flouted the law. Indisputably, the application was deficient in salient prayers. In other words, the appellants starved this Court of the two prayers, videlicet: leave to appeal as a person having an interest and extension of time within which to apply for leave to appeal. It is a costly omission which occasioned caustic consequence on the application. Their absence tainted it with an indelible inconsequence. In essence, in the glaring presence of incomplete prayers, against the decree of the law, the application was incompetent. Its incompetence has far-reaching aftermath on the appellants’ notice of appeal which ignited the appeal. The incompetence rendered the grant, germinating from it, marooned in the murky ocean of nullity. It, amply, demonstrates that the original notice of appeal, filed on 23rd February, 2018, reflected at pages 1820-1824, volume 4 of the record, which sired the amended notice of appeal of 2nd July, 2020, was/is devoid of any legal parentage/substraction to stand and command any validity/viability.
In a spirited bid to castrate the ground of objection, the appellants erected the defence of the decision in Poroye v. Makarfi (supra) I have perused the succinct binding decision with the finery of a tooth comb. Interestingly, it is comprehension-friendly. Indubitably, the decision recognizes the principle of essentiality/desideratum of trinity prayers in application by a party interested in a matter. Thus, the decision, to all intents and purposes, is not available to them; a fortiori consolidating their defence. In effect, the defence is a weak-kneed one and disabled for its birth. It cannot fly!
A notice of appeal, usually located in the twilight of most records of appeals, is an originating process that initiates an appeal. It is the appellate version of originating process through which actions are commenced in Courts of first instance. It has been described as the nucleus, substratum, bedrock, linch pin, foundation and spinal cord of every appeal. It is sine qua non for the existence of an appeal in that it gives birth to the later. Thus, it occupies a kingly position in the appellate adjudication. Given this Olympian status, where a notice of appeal is defective, for whatever reason, it contaminates the competence of an appeal, which it ought to breathe life into, and, de jure, impinges on the jurisdiction of the Court to entertain the appeal, see Agu v. Odofin (1992) 3 SCNJ 161; Adelekan v. Ecu-Line NV (2006) 2 NWLR (Pt. 993) 33; Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397; Aderibigbe v. Abidoye(2009) 10 NWLR (Pt. 1150) 592; Odunze v. Nwosu (2007) 13 NWLR (Pt. 105) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) 596; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Ikuepenikan v. State (2016) 9 NWLR (Pt. 1465) 518; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1509) 1; Japhet v. State (2016) 6 NWLR (Pt. 1509) 602; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd. (2016) 9 NWLR (Pt. 1516) 126; Fasuyi v. PDP (supra); FRN v. Dairo (supra); SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agwu v. Julius Berger (Nig.) Plc (2019) 11 NWLR (Pt. 1682) 105.
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No.1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1;Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472;Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 208 (1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J.,Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455;Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a Court.
The bald fact that the notice of appeal was a progeny of an incompetent application implies that there is a feature in the case which undermined the jurisdiction of this Court to hear it. It is a clear illustration that the appeal was not initiated by due process of law upon fulfillment of a condition precedent for the exercise of this Court’s jurisdiction over the appeal. Indubitably, both are ample demonstrations that the appeal was not initiated by due process and upon the fulfillment of any condition precedent for the exercise of this Court’s jurisdiction over the appeal. In the eyes of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A. G. Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. The only way the appellants would have properly ignited the jurisdiction of this Court was contingent upon their satisfaction of the twin conditions-precedent. Their compliance is sine qua non for the activation of the Court’s jurisdiction. Alas, they did not act in due fidelity to the letter and spirit of the law. In sum, the notice of appeal, which is the appeal, fractured the second and third inviolable ingredients of jurisdiction. These infractions constitute a serious coup de grace to the competence of the appellants’ appeal.
Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable nest of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). It will smell of stupendous waste of the scarce juridical time to hear the appeal when this Court is not equipped with the necessary vires to do so. No Court relishes in its orders/proceedings being mired in the quicksand of nullity. I have no choice than to resolve the first ground against the appellants and in favour of the objectors.
Having found that this Court is disrobed of the jurisdiction to hear the appeal, predicated on incompetent notice of appeal, the law makes it idle to consider the issue canvassed by the contending parties in the appeal. In Ikechukwu v. FRN (2015) NWLR (Pt. 1457) 1 at 21, Nweze, JSC, incisively, declared:
It cannot be gainsaid that, as a general rule, an intermediate Court, like the lower Court, [Court of Appeal] has a duty to pronounce on all the issues before it…
However, there are some exceptions to the above broad rule that applies to the lower Court, as an intermediate Court. Thus, for example, where the said Court, as an intermediate Court, decides that it lacks jurisdiction in an appeal before it, it, then, becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction…It means, therefore, that where, as was the case at the lower Court, a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination distilled by the parties to the appeal…
See, also, Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80; Ukiri v. FRN (2018) 12 NWLR (Pt. 1632) 1; Umezinne v. FRN (2019) 3 NWLR (Pt. 1660) 532; Ekemezie v. Ifeanacho (2019) 6 NWLR (Pt. 1668) 356; APC v. Umar (2019) 8 NWLR (Pt. 1675) 564.
Where the jurisdiction of a Court to hear a matter is divested by law, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazurike v. A.G. Fed.(2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt.1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527. For the avoidance of doubt, since ground one of the preliminary objection is meritorious, the law does not grant me the license to treat the alternative grounds two and three. I will not irritate the law.
On the whole, having resolved the ground one of the preliminary objection against the appellants and in favour of the second and third respondents (the objectors), the preliminary objection, invented by the objectors to abort the appeal at its embryo stage, is imbued with merit. The preliminary objection succeeds. Consequently, I uphold the preliminary objection. Accordingly, I strike out the appeal for being incompetent. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful preliminary objection.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother OBANDE FESTUS OGBUINYA, JCA and I totally agree that the preliminary objection as it relates to the competence of the Notice of Appeal has merit. The Appellants not being parties at the lower Court, having approached the Court as parties interested in the matter, and also not having approached the appeal Court within the statutorily prescribed three months of the judgment of the lower Court, cannot approach the Court in a cavalier or lackadaisical manner by merely asking the Court for an order for leave to appeal and extension of time to appeal. That method of approach is grossly inappropriate. They cannot approach the Court with the Trinity prayer either. That too is inappropriate. Being parties seeking to appeal as interested parties in the matter in which they were not parties at the lower Court, they need a tetrad prayer in the manner stated in the case of CHUKWU V. INEC (2014) 10 NWLR (Pt.1415) at page 408-409 which my lord graciously referred to in the lead judgment. The appeal is therefore incompetent and is struck out.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft the judgment just delivered by my learned brother Obande Festus Ogbuinya, JCA. I agree entirely with the reasoning and conclusion therein that the Preliminary Objection raised by the Respondents is meritorious and is hereby upheld by me. The Appeal is accordingly struck out.
Appearances:
Olanrewaju Balogun, Esq. For Appellant(s)
P.O. Ohwovoriole Okpoli, Esq. – for first Respondent
Prof. Imran Oluwole Smith, SAN, with him, Kayode Bankole, Esq. – for second and third Respondents For Respondent(s)