Jacob Ugbu & Anor. V. Albert Ikerechi & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the ruling of the High court of Justice, Rivers State holding at Port Harcourt in its appellate jurisdiction, Coram A.W. Jumbo (J) delivered on the 21/02/2006 refusing to re-list a suit which was struck out for about two years before the application to re-list same was brought in the lower Court.
By a Notice of Preliminary Objection dated 10/09/2004, the Plaintiffs/Respondents/Applicants herein expressed their intention of raising objections to the re-listing of the struck out appeal and/or amendment of the same based on the grounds of jurisdiction and irregular procedure adopted thereby on the following grounds:
“(a) The Honourable Court lacks jurisdiction to entertain the said relistment/amendment application as the Appellants in this case lack the locus standi to prosecute the appeal in suit No. OHC/1A/2000.
(b) The said Appeal No. OHC/1A/2000 sought to be relisted is incompetent and ought to be dismissed.
(c) The application for relistment is embarrassing and caught by undue delay and so ought to be refused.
(d) The filing of the amended Notice of Appeal Exhibit F without leave and the striking out of the 3rd Appellant Clifford Ossai from the suit and deeming it as properly filed as done by the Appellants is prejudicial, overreaching with a suggestion of malafides to enable Appellants create a new suit out of OHC/1A/2000 and should be refused and the application dismissed.
(e) The filing of the application for relistment simultaneously with the amended Notice of Appeal on the same subject matter is an irregularity that amounts to an abuse of the process of Court.
(f) The refusal of the Appellants to serve the Respondents with the appeal until it was struck out in the year 2000 renders the appeal a nullity ousting the jurisdiction of the Honourable Court to re-list same.”
The facts of the case as can be gathered from the records of the lower Court are that: The Appellants were Defendants in a consolidated suit No. ACC/66/93 with the parties as on records. The claims of the Plaintiffs from the Defendants/Applicant were:
“(a) Joint declaration of title and ownership of farmlands mention in the suit.
(b) N5,000.00 being damages for trespass.
At the end of the trial, the Customary Court, Omoku, delivered judgment in favour of the Plaintiffs/Respondents with cost assessed at N1,020.00, customary tenancy and N3,520.00 as damages and inconveniences suffered by the Respondents. The judgment was delivered on 14th day of February, 1997.
On the 24th day of February, 1997, the Defendants/Appellants/Appellants filed a notice of appeal. On the 18th day of Decernber, 2000, the appeal was struck out for the absence of both parties in Court.
On the 7th day of October, 2002, the Appellants filed a motion to re-list the struck out appeal. The said motion was withdrawn including some other subsequent motions.
On the 1st day of July, 2004, the Appellants filed a motion in place of the withdrawn motion, seeking the reliefs as couched on the motion paper. On the 10th day of September, 2004, the Respondents filed a preliminary objection challenging the jurisdiction of the Honourable Court to entertain the Appellants motion for relistment among other reliefs. The Appellants filed a counter affidavit in opposition to the preliminary objection on the 5th day of October,2004.
In reaction to the counter affidavit of the Appellants, the Respondents filed a further affidavit in support of the preliminary objection in opposition to the counter affidavit.
Consequently, arguments were advanced by Counsel for and against the position taken by each. The learned trial Judge in his own wisdom formulated one issue for determination arising out of the preliminary objection as follows:
“Whether the Defendants/Appellants/Respondents have satisfied the conditions for the relistment of a struck out appeal.”
It is instructive to state that after given ample consideration to the affidavit evidence and the submissions of learned Counsel, the learned trial Judge held thus:
“In view of the foregoing, I have come to the conclusion that the Defendants/Respondents are guilty of undue delay in bringing the application to re-list. They have therefore not satisfied the conditions for the relistment of a struck out appeal. Having so held, I deem it unnecessary to consider the several other issues raised by the Plaintiffs/Applicants’ Counsel such as the validity of the struck out appeal.
Consequently, this application succeeds and the motion on Notice for relistment of suit No. OHC/1A/2000 is hereby struck out.”
Dissatisfied with the ruling of the lower Court, the Appellant approached this Court and filed four grounds of appeal. The ground of appeal shorn of their particulars are:
“(i) The learned appellate Judge erred in law for not deciding the issue of jurisdiction first, before deciding the issue of embarrassment and undue delay for bringing a motion for relistment.
(ii) The learned appellate Judge erred in law when it struck out the Applicants’ motion for relistment, on the grounds that it will prejudice and embarrass the Respondents, to re-list same.
(iii) The Honourable Appellate Judge erred in law when it struck out the Applicants’ motion for enlistment, filed on the 1st day of July, 2004, without hearing the same.
(iv) The entire ruling or decision is against the weight of evidence.”
The parties, incompliance with the rules of this Court duly filed and exchanged briefs of argument. The Appellants’ brief dated 4th day of May, 2007 was filed the same date. The Respondents’ brief undated was filed on 30th August, 2007.
From the four grounds of appeal stated (supra) the Appellants distilled four issues for determination as follows: “3.2 Whether the Honourable (lower) Court was justified in law not deciding first, the issues of jurisdiction to entertain Appellants’ appeal, as raised by the Respondents in their belief (sic) (a) (b) and (f) of their preliminary objection, dated the 10th day of September, 2004, as being incompetent, before striking out Appellants’ motion for relistment.
3.3 Whether the Honourable Court was not in error for striking out the Applicants’ motion for relistment, on ground of prejudice and embarrassment on the respondents, without appreciating what constitute prejudice and embarrassment, as stated in the case of Odutola v Kayode (1994) 2 SCNJ 21.
3.4 Whether the Honourable court was justified in law for striking out the Appellants’ motion for enlistment, without hearing the said motion.
3.5 Whether in the entire evidence and arguments, of learned counsel for the Respondents there was anything capable of convincing and intimidating for the lower court to uphold the objection and striking out the Appellants’ motion for relistment.”
For their part, the Respondents formulated three issues for determination to wit:
“(i) Whether the learned Judge of the High Court had jurisdiction to strike out an incompetent appeal.
(ii) Whether the learned Judge of the High Court was right in striking out the application to re-list the struck out appeal of the Appellants on the ground of embarrassment and undue delay.
(iii) Whether the Appellants followed the due process to re-list and amend the struck out appeal.”
On the 26/01/09 when the appeal came before us for hearing, learned Counsel for the Appellants adopted his brief and urged us to allow the appeal. Learned Counsel for the Respondents too adopted his brief and urged us to dismiss the appeal for lacking in merit.
Issue No. 1 is whether the lower Court was justified in law not deciding first, the issues of jurisdiction to entertain Appellants’ appeal, as raised by the Respondents in their belief (sic) (a) (b) and (f) of their preliminary objection, dated the 10th day of September, 2004 as being incompetent, before striking out Appellants’ motion for relistment.
It is the contention of the learned Counsel that from the brief of the learned Counsel for the Respondents in respect of the Notice of Preliminary Objection, it is very clear that the jurisdiction of the Court to hear the Appellants appeal and the appeal itself have been called into question. In other words, there are serious allegations or complaints of incompetence and/or lack of jurisdiction to hear and determine the Appellants appeal for being incompetent.
Learned Counsel further contended that instead of dealing with the issue of jurisdiction or incompetence of the appeal first, the learned trial Judge erroneously in his view went ahead to rule on the issue of prejudice and embarrassment that would result if the appeal was relisted.
It is the submission of the learned Counsel that once the issue of jurisdiction is raised, the Court is duty bound to resolve same first and foremost before proceeding with the matter or other issues. He relied on the cases of Jerik v U.B.N. (2001) 7 WRN 1 at 9 – 10, paras 4 – 5, Olutayo v Unilorin (2005) 3 MJSC 151 at 165 – 169 and Ebhodaghe v Okoye (2005) I MJSC, 156 at 167 Ratio 1.
Learned Counsel further submitted that, for the Court decide on the substantive motion, without determining competency, as raised by the Respondent is in congruous to known laws and principles. The jurisdiction raised in the preliminary objection, learned Counsel went on, challenged the powers of the lower Court to entertain the motion for relistment and the entire appeal and the Court ought to have ruled on that first before going into the merit of the matter and having failed to do so, despite submissions of both Counsel on the issue, the lower Court erred in law gravely.
Learned Counsel argued that the 2nd ambit of the argument of learned Counsel for the Respondents on the issue of jurisdiction was the non-service of the appeal, prior to it being struck out on the 18th day of December, 2000. He referred to relief (f) of the preliminary objection and paragraphs 26 and 27 of the supporting affidavit to buttress his argument on this point. Learned Counsel then submitted that, service of a process on the other party to a suit or matter, where service is required, is of a fundamental nature and failure to serve the process goes to the root of the case.
It is the submission of the learned Counsel that due service of process of a Court is a condition sine quo non to the hearing of the suit and as such failure to serve ousts the jurisdiction of the Court. He relied on the cases of, S.G.B. (Nig.) Ltd v Adewunmi (2003) 39 WRN 37 at 47, Odutola v Kayode (1994) SCNJ 21 at 29 – 30 and Mark v PRP (2004) 16 WRN (2004) 16 NRN 57 at pp 79 – 81.
Learned Counsel further submitted that, non-service of the appeal prior to its being struck out is a serious issue challenging the competency of the Court and the position of the law is for the Court to first address same before proceeding to other issues but the Court failed to address same despite arguments proffered by both Counsel on the issue. Learned Counsel went on to contend that in view of the challenge of competency of the appeal and lack of Court’s jurisdiction to entertain same and the arguments of both Counsel over the issues, the lower Court ought to have address and or determine same before taking further steps to resolve other issues.
Learned Counsel urged us to resolve this issue in their favour.
Learned Counsel for the Respondents on the other hand, contended that a Court may lack jurisdiction in several ways. It may the territorial jurisdiction where the subject matter before it may not be within the limits of its jurisdiction. The Court may also lack jurisdiction by its composition or by the fact that the matter was initiated by due process of law. He relied on the cases of Madukolu v Nkemdilim (1962) 1 All NLR 587 at p. 595, cited with approval in the case of Attorney-General of Lagos State v Dosumu (1989) 1 WLR (Pt. 1) p. 1 at p. 8.
Learned Counsel contended that the objection relating to the struck out appeal was based on the dual ground of jurisdiction and irregular procedure adopted. See paragraph 327 of the record of appeal. The second arm of the motion is to the effect “Further Take Notice that at the hearing of the objection if the Honourable Court insisted on assuming jurisdiction, the Applicant/Respondent will rely on the Affidavit and Annexure to this motion” learned Counsel contended that parties are bound by the case as presented in the motion paper and affidavit and are not at liberty to deviate therefrom without amendment duly sought and obtained. So too is the Court seized of the matter bound to adjudicate the case as formulated by the parties he further contended.
It is the submission of the learned Counsel that a Court must consider the claim ex facie before it as stated by the Plaintiff to see if it falls within its jurisdiction. Where there are different reliefs sought, the Court must consider what the principal claim is. He referred us to the cases of Egbuonu v Borno Radio (1997) 12 NWLR (Pt. 531) p. 29 and Tukur v Government of Gongola State.
It is his (Counsel) further submission that justice is not a game of hide and seek and so a party must be consistent in his/her case. He quoted our foremost erudite jurist Oputa, JSC In Aiide v Kelani (1985) 2 W.S.C.C p. 1298 at p. 1316 wherein the learned Justice pointedly held that:
“Justice is not in scoring debating points.”
The Defendant, he went on cannot make one case in its pleading and an entirely different and inconsisted case by his sworn testimony and hope to win an appeal. No he cannot, learned Counsel opined. Learned Counsel contended that he who alleges a contrary thing in the manner done shall not in the interest of justice be heard. He quoted the well known maxim thus:
“Allegans Contraria Non Est Audiendus.”
Learned Counsel further contended that although this maxim relates to doctrine of estoppel as applied to a matter contained in a sealed document, it nevertheless estops the Appellant from canvassing of a different view point in relation to the jurisdiction of the Court of Appeal.
Learned Counsel submitted that a preliminary objection is an objection against the regularity of a Court process, that is; a suit, motion, etc. The primary objective of such an objection is to terminate the proceeding at the stage the objection is raised. Learned Counsel further submitted that it is permissible for matters which are more than an irregularity to be raised at any stage by way of objection if the effect is to nullify the proceedings. In the instant case there are copious grounds in support of the motion for striking out the application for relistment and/or amendment of the struck our suit and such grounds as adumbrated above are capable of disposing the action and compel the Court to consent to hearing the preliminary issue even on a point of law before the action is heard on the merit. He referred us to the case Oroi v Ibiang (2002) 10 NWLR (Pt. 776) p. 445 Ratios 1 and 6 to buttress his submission on this point.
Learned Counsel posed this question that of what use will be the amended appeal filed in the High Court Registry, Omoku for a matter which arose from the Customary Court, Omoku without due process and at the same time yanking off the 3rd Appellant from the appeal in suit OHC/1A/2000 without leave thus creating a new suit out of it. Learned Counsel then contended that it is trite that if a party has no locus standi; the Court has no jurisdiction to entertain the matter and it must be struck out. See the case of Nwankwo v Nwankwo (1992) 4 NWLR (Pt. 238) p. 693 at 698 Ratio 6.
A good starting point on this issue is the case of Saude v Abdullai (1939) 4 NWLR (Pt. 116) p.387 wherein it was held that issues bordering on jurisdiction are threshold issues that ought to determined first. It is instructive to state from the onset that the preliminary objection raised by the Respondents at the lower Court was basically and fundamentally predicated on the jurisdiction of the Court to entertain the said application and the competence of the struck out suit itself.
It is now settled beyond peradventure and indeed there are avalanche of decided cases that the competence of a Court to adjudicate over a matter depends on the followings:
“(1) It is properly constituted as regards numbers and qualifications of the 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;
(3) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. See the case of Madukolu v Nkedilim (1962) 1 All NLR 587 at 595, Shell Petroleum Dev. v Isan (1997) 6 NWLR (Pt. 508) 236 at 246 per Katsina-Alu, JCA (as he then was); PDP v INEC (1999) 11 NWLR (Pt. 626) 2000 at p. 24.”
The question that must be asked and answered is this, can it be said that the learned trial Judge had tackled and resolved the issue of jurisdiction and competence of the struck out suit before dishing out his verdict which is the subject matter of this appeal? To answer this question, recourse had to be made to the judgment of the learned trial Judge contained therein. His Lordship stated inter-alia thus:
” … I have come to the conclusion that the Defendants/Respondents are guilty of undue delay in bringing the application to re-list.”
He went on to hold that:
” … Having so held, I deem it unnecessary to consider the several other issues raised by the Plaintiffs/Applicants’ Counsel such as the validity of the struck out appeal.”
It is pertinent to pause at this juncture and observe that despite the issue of jurisdiction and competency of the said (struck out) suit copiously raised and canvassed by the Applicants, his Lordship did not deem it necessary to consider them before arriving at his verdict reproduced (supra). That being the case, I am of the considered view, to say the least that the trial Judge was manifestly in error and had abdicated his judicial responsibility by considering only the issue of delay in bringing the application to re-list the struck out suit out of the many grounds upon which the application was brought including the issue of jurisdiction at the risk of being repetitive a thresh hold issue.
For the reasons given above, this issue must be and it is resolved in favour of the Appellants and against the Respondents.
I am tempted, having resolved this issue (one) in favour of the Appellants to draw the curtains in this appeal. But this Court being a penultimate Court and lest I fall into the same error as the trial Court, I will proceed to consider the remaining issues formulated by the parties.
The 2nd issue for determination, is whether the Honourable Court was not in error for striking out the Applicants’ motion for relistment on the ground of prejudice and embarrassment on the Respondents, without appreciating what constitute prejudice and embarrassment as stated in the case of Odutolu v Kayode (1994) 2 SCNJ, 21.
On this issue, learned Counsel for the Appellants contended that it was premature for the trial Court to strike out their suit at the time it did. It is the submission of the learned Counsel that the Appellants had not moved their motion for relistment as to enable Respondents to reply or oppose it.
Learned Counsel for the Appellants further submitted that looking at their supporting affidavit and the further affidavit in support of the motion for preliminary objection, there is no paragraph disclosing a third party’s intervention in the disputed pieces of land located in various locations in Ogbo Community of Ahoada and the particulars of the said third party, to warrant the lower Court envisage and upheld embarrassment and prejudice in this case.
It is the submission of the learned Counsel that reliance was rather placed by the lower Court on the supporting affidavit of 2002, in total disregard to the affidavit evidence of the current motion. Learned Counsel further submitted that it is trite that judicial discretions are to be exercised in accordance with common sense principle and sound appreciation of facts and relevant matters. He referred us to the case of Odutola v Kayode (1994) 2 SCNJ 21 at 23. Learned submitted that the lower Court was in error for not making reference to our affidavit and counter affidavit evidence that are applicable in this case. Learned Counsel relied on the cases of Odutola v Kuyode (supra), Wuruola Abeo & ors v Toye Ogunyemi & ors (Ex parte Bintu Ejide (1990) 3 NWLR (Pt. 141) 758 and 763 -764.
It is the submission of the learned Counsel that there is nothing in the supporting affidavit of the Respondents disclosing 3rd party’s intervention that would warrant the Court to grant the application. The lower Court, the learned Counsel further submitted erred in law in arriving at its decision without taking into consideration the principles and the law governing this. We were urged to set aside the ruling of the lower Court and grant their application for relistment.
Learned counsel for the Respondents on the other hand, submitted that the principles governing the re-listing of a struck out appeal are as stated in the case of Dangardi v Juhril (1997) 4 NWLR (Pt. 501) p. 590 and they as follows:
“(a) The reason for the Appellants failure to appear when the appeal came up for hearing.
(b) whether there had been delay in making the application so as to prejudice the Respondent.
(c) whether the Respondent would be prejudiced or embarrassed upon an order for rehearing the appeal being made so as to render it inequitable to permit the appeal to be reopened.
(d) Whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides.
It is the contention of the learned Counsel that reading the affidavit in support of the Notice of Preliminary Objection dated 17/06/2004 filed by the plaintiffs/Respondents/Applicants, it is crystal clear that granting the application to re-list will prejudice and embarrass the Plaintiffs/Applicants and that the Defendants/Respondents are guilty of undue delay.
Learned counsel argued that inordinate delay in seeking leave to appeal has been considered a ground for refusing leave. He referred us to the case of Re-Alase (2002) 10 NWLR, p. 553 (Pt 399) p. 90 – 126. Learned Counsel further argued that in their counter affidavit it was averred that their people being farmers they shared the land for farming and leased out some part of the land to some other members of the Community whose names were written in Exhibit AJ7. He referred the court to the cases of Re-Alase (2002) 10 NWLR p. 553 (pt. 776) and, Ex-parte Bintu Ejide (supra).
It is the contention of the learned Counsel that injustice will result from re-listing the struck out appeal since as aforesaid it is already incompetent. In the instant case, he went on, the issue of locus standi raised in the appeal was not raised or argued at the trial Court and leave of Court was not sought and obtained to raise a fresh issue before the appellant Court. In the circumstance the ground of appeal and other related issues are incompetent. He relied on the case of Kadzi International Ltd v Kano Tannery Co. Ltd (2004) 4 NWLR (Pt. 862) p. 545 at 552. We were urged to resolve this issue in favour of the Appellants.
Let me begin my consideration of this issue by stating that there are procedures that ought to be followed while moving an application such as the one we have in hand. The procedural law, needless to say allows an Applicant to move his application and the opposing party to reply thereafter, lastly the reply on points of law if need be by an Applicant whose motion is being considered is made after which the application is then adjourned for ruling.
The question that readily comes to mind is whether in the appeal under consideration the above enunciated procedure was followed by the trial court before same was struck out. A careful and meticulous perusal of records of the trial Court would reveal the fact the procedure stated (supra) was not followed in the case we have in hand. The learned trial Judge erroneously concentrated in the arguments that to re-list the struck out appeal would be embarrassing and caught by undue delay as canvassed by the learned Counsel for the Respondents. Let me say straight a way that it was premature and least expected of Counsel to canvass the aforesaid argument since the Appellants had not moved their motion for relistment as to enable the Respondents to reply or oppose it.
I am of the considered view that all the points made by the learned Counsel for the Respondents pertaining to embarrassment and the interest of a third party are neither here nor there. Similarly, the cases of Odutolu v Kayode and Ex parte Bintu Ejide (supra) heavily relied upon by the Respondents are not apposite to the facts of the case in hand and are therefore not applicable in the circumstance of the appeal under consideration.
This issue like the previous one is therefore resolved in favour of the Appellants and against the Respondents.
The third issue for determination is whether the lower Court struck out the Appellants’ motion for relistment without entertaining and hearing the same. This issue needless to say is anchored on the fairness of the trial. In other words were the Respondents given a fair hearing before striking out their application for relistment?
Learned counsel contended that the position of the law is clear and unequivocal in this regard that it is the general rule that Courts are duty bound to entertain and decide on the merit of an application brought before it notwithstanding the perceived strength or weakness of the application. Learned Counsel referred us to the cases of Mobil producing Nigeria Ltd v Monokpo (2004) 9 WRN 1 at pp. 46 – 47 and Eriohunu v Obioru (1999) 8 NWLR (Pt. 616) 622 at 642 to buttress his contention on this point.
It is the submission of the learned Counsel that the lower Court’s refusal to entertain their application had caused injustice and hardship having denied them of fair hearing. It is his further submission that the Appellants do not fall under the exception to the general rule of fair hearing to warrant the lower Court not to entertain their application as stated in the case of Mobil Prod. (Nig.) Ltd v Monokpa (supra) at p. 80, lines 25 – 30.
Learned counsel submitted that relief (s) of the Respondents’ Preliminary objection, as it stands cannot be properly qualified as the basis for the preliminary objection to be decided first before proceeding with the main motion for relistment by the lower court. The proper position for the relief (s) is their reply in opposing to their motion and not otherwise. The lower Court having based its decision solely on the said relief (s) caused a miscarriage of justice and radical departure from our known rules and the law.
In the light of the foregoing, learned counsel urged us to declare that the lower Court erred in law for failing to entertain and decide on the motion of relistment and predicating the rule on embarrassment and prejudice only and on the platform of a preliminary objection. We were urged to resolve this issue in their favour.
For their part, learned counsel for the Respondents submitted that inordinate delay in seeking leave to appeal may be a ground for refusing leave. The customary court of Appeal Edict No. 3 of 1988 gives 30 days to appeal against a final judgment in Rivers State. In the case under consideration, learned counsel went on the Appellants’ counsel without following due process proceeded to re-list the struck out suit deeming it to have been properly filed. He also proceeded to amend the struck out suit without following due process.
It is the contention of the learned counsel that the 3rd Appellant Clifford Ossai was not a parry to the proceeding in the customary court up to judgment. He appealed against the judgment jointly with the 1st and 2nd Applicants in OHC/1A/2000. That according to the learned Counsel was the suit known to the Court and the solicitor in trying to re-list the suit without leave amended the suit striking our the name of the 3rd Appellant thus denying the lower Court the jurisdiction to entertain the same suit. He relied on the case of Kadzi International Ltd v Kano Tannery Co. Ltd. (supra).
Now, the law is trite that a Judge whether of a court of law or Tribunal has no jurisdiction to come to the conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. The learned trial Judge was clearly in error to have ruled on only one aspect of the Applicants’ application and neglected other aspects. More importantly is the fact that the application filed by the Appellants to have the struck out appeal re-listed was not heard when the learned trial Judge dished out his verdict dismissing the application to have the appeal re-listed for hearing. This clearly offends Section 36(6) of the Constitution of the Federal Republic of Nigeria and the well known maxim of audi alteram partem.
In the case of Eriobuna v. Obiorah (supra) this Court beautifully held thus:
“A court of law or Tribunal has a legal duty in our adjectival law to hear any court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of court process. The court must hear the party or parties and rule one or the other. A Judge, whether of a court of law or Tribunal has no jurisdiction to come to the conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a Judge in our adversary system of adjudication. The failure on the part of the learned Tribunal to hear the motion of the 1st Appellant filed on the 1st May, 1999 is against the provisions of Section 33(1) of the 1979 constitution on fair hearing and particularly the natural justice rule of audi ulteram partem.”
In the light of the foregoing, this issue too is resolved in favour of the Appellants and against the Respondents.
Issue No. 4, the last but not the least issue for determination is whether in the entire evidence and arguments of learned Counsel for the Respondents there was anything capable of convincing and intimidating for the lower court to uphold the objection and striking out the Appellants’ motion for relistment.
Learned Counsel for the Appellants submitted that the ruling of the lower court was against the weight of evidence. The lower Court learned Counsel further submitted failed to evaluate properly the affidavit evidence of both parties by juxtaposing one with the other. The affidavit evidence dated 1st day of July, 2004 and the counter affidavit in opposition to the preliminary objection which was in all respect made in opposition to the preliminary objection.
It is instructive to state at this stage that failure to evaluate evidence be it documentary, oral or affidavit evidence by a trial court, may lead to an appeal being allowed. See the cases of Sele v The State (1993) 1 NWLR (pt. 267) p. 276 at p. 282 and Sunday Nwachukwu v Benson Egbuchu (1990) 3 NWLR (Pt. 136) 435 at 437.
The question that must be asked and answered at this juncture is, whether the trial Court had evaluated the affidavit evidence adduced by both parties to the dispute which is the subject matter of this appeal. To answer this question, recourse had to be made to the ruling of the trial court again.
The learned trial Judge on page 426 of the records stated inter-alia thus:
I will now proceed to examine the affidavit evidence in this notice of preliminary objections. A thorough scrutiny of the processes filed shows that the customary court delivered judgment on 12.02.97. The Defendants/Applicants/Respondents filed a notice of appeal at the Omoku Customary court Registry on 24/02/97. On the 18/12/2000, the court, presided over by my brother Akpoghunum J. struck out the appear for want of diligent prosecution. After the appeal was struck out it took the Defendants/Appellants close to two years i.e. 07/10/2002 to file the first motion on notice to re-list the struck out appeal.
After filing other applications, the last one, which is the subject of the preliminary objection, was filed on the 01/07/2004. I have thoroughly and painstakingly considered the reasons adduced by the Defendants/Respondents in their affidavit evidence for failure to appeal to argue the appeal and also the reason for bringing the application to re-list about two years and I am of the view that the reasons are not cogent and compelling …”
It is clear from the foregoing that the learned trial Judge did not properly evaluate the evidence adduced by both parties, particularly that of the Appellants. I cannot but agree with the learned counsel for the Appellants that no comment was made with regards to the affidavit dated 1st day of July, 2004 and the counter affidavit in opposition to the preliminary objection. In the result, the question posed awhile ago must be answered in the negative. For avoidance of doubt, I am of the considered view that the trial Judge did not properly evaluate the evidence adumbrated above and I so find.
In the case of Sere v The State (supra) it was held thus:
“It is trite that an appellate Court will not interfere with the trial Court’s findings of fact where findings are borne out of evidence before the trial Court. an appellate Court will interfere with the findings of a trial Court only when such finding have been made on legally in admissible evidence or they are perverse or are not bared any evidence before the Court. See Iyaro v. The State (1998) 1 NWLR (Pt.69) p. 256.”
Let me pause a little at this stage to observe that though an appellate Court will not interfere with the finding of the trial Court, but where the trial Court failed completely to evaluate the evidence properly adduced before it, as in the case we have in hand as demonstrated above, the appellate Court will not hesitate to interfere with such finding. For all the reasons given aforesaid, this issue is also resolved in favour of the Appellants.
In the result, it is my finding that the appeal is pregnant with a lot of merit. It is allowed. The ruling of the lower Court is set aside. I order that the struck out appeal be re-listed for hearing before a different Judge of the Rivers State High Court of Justice other than A.W. Jumbo (J). N30,000.00 costs are awarded against the Respondents in favour of the Appellants.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Abdullahi, JCA just delivered. I agree entirely with his reasoning and the conclusion reached.
The Omoku Customary Court, Rivers State delivered judgment in consolidated suits Nos. ACC/66/93 and ACC/69/93 on 14/2/97 in favour of the respondents herein (who were plaintiffs) against the appellants (as respondents) in a claim for declaration of title injunction and damages for trespass. The appellants herein were dissatisfied with the judgment and appealed against it to the High court of Rivers state (the lower court) on 24/2/97. The appeal was however struck out for want of prosecution on 18/12/2000. From 7/10/02 the appellants filed several applications to relist the appeal, which were all subsequently withdrawn and struck out until 1st July 2004, seven years after the judgment was delivered, when they filed another motion to relist the appeal.
On 10th September 2004 the respondents filed a preliminary objection to the application on the ground that the court lacked jurisdiction to entertain it.
The grounds of the objection as set out on pages 327 – 328 of the records are as follows:
(a) The Honourable court lacks jurisdiction to entertain the said relistment/amendment application as the Appellants in lacks the locus standi to prosecute the appeal in suit No. OHC/1A/2000.
(b) The said appear No. OHC/1A/2000 sought to be relisted is incompetent and ought to be dismissed.
(c) The application for relistment is embarrassing and caught by undue delay and so ought to be refused.
(d) The filing of the amended Notice of Appeal Exhibit “F” without leave and the striking out of the 3rd Appellant Clifford Ossai from the suit and deeming it as properly filed as done by the Appellants is pre-judicial, overreaching with a suggestion of malafides to enable Appellants create a new suit out of OHC/1A/2000 should be refused and the application refused.
(e) The filing of the application for relistment simultaneously with the amended Notice of Appeal on the same subject matter is an irregularity that amounts to an abuse of the process of the Court.
(f) The refusal of the Appellant to serve the Respondents with the appeal until it was struck out in the year 2000 renders the appeal a nullity ousting the jurisdiction of the Honourable court to relist same.
The preliminary objection was also supported by an affidavit. The appellants filed a counter affidavit to the preliminary objection to which the respondents filed a further affidavit in support of the preliminary objection.
On 8/3/05 when the matter came up before the lower court arguments were taken in respect of the preliminary objection. Unfortunately in the process of arguing the preliminary objection, learned counsel for the respondents/applicants delved into arguments relating to the substantive motion to relist, which was still pending. Learned counsel for the appellants/respondents also fell into the same error in their reply.
In a considered ruling delivered on 21/2/06 the learned trial Judge struck out the application to relist the appeal in the following terms at page 425 of the record:
“After-hearing the erudite submissions counsel, and thoroughly perusing the processes filed in this application, I have decided to formulate just one issue for the determination of this application. That issue is whether the Defendants/Appellants/Respondents has (sic) satisfied the conditions for the relistment of a struck out appeal.”
(Underlining mine for emphasis).
The learned trial Judge proceeded to consider decided cases on the principles governing the relisting of an appeal that had been struck out and the averments in the various affidavits filed on the issue.
He concluded thus at page 427 of the record:
“A thorough scrutiny of the affidavit in support of the notice of preliminary objection and the further affidavit of preliminary objection dated 17/6/10 and filed by the Plaintiffs/Appellants/Respondents are guilty of undue delay and granting the application to relist will prejudice and embarrass the Plaintiffs/Applicants Having so held I deem it unnecessary to consider the several other issues raised by the Plaintiffs/Applicants counsel such as the validity of the struck out appeal.
Consequently this application succeeds and the notice on notice for relistment of suit No. OHC/1A/2000 is hereby struck out.” (underlining mine).
The appellants were aggrieved by this decision, hence the present appeal.
I am of the respectful view that the appellants’ first issue for determination is the most germane to this appeal. The issue is:
“whether the Honourable (lower) court was justified in law in not deciding first the issues of jurisdiction to entertain the appellant’s appeal as raised by the Respondents in their relief (a), (b) and (f) of their preliminary objection dated the 10th day of September, 2004 as being incompetent before striking out the Appellants’ motion for relistment.”
The law is that the issue of jurisdiction being a fundamental and threshold issue, once raised must be resolved and disposed of before considering the merits of the case before the court. Lack of jurisdiction renders the entire proceedings no matter how well conducted, a nullity. See Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; A.D.H.L. vs. Amalgamated Trustees Ltd. (2006) 5 SCNJ 31 at 38 – 39; Oloba vs. Akereja (1988) 3 NWLR (84) 508 at 529; Mark vs. Eke (2004) 5 NWLR (865) 54; Oloriode vs. Oyebi (1984) 1 SCNLR 390; Obi vs. INEC (2007) 11 NWLR (1046) 436 at 482E, 543E.
There is no doubt that grounds (a), (b) and (f) of the notice of preliminary objection challenge the jurisdiction of the court to entertain the motion to relist. It was therefore incumbent upon the learned trial Judge to consider and determine those issues first. At the stage of hearing the preliminary objection, no order was made that it would be taken along with the substantive motion.
The learned trial Judge committed a manifest error by disregarding the issues pertaining to the jurisdiction of the court and restricting himself to the issue of undue delay, which involved a consideration of the substantive motion on its merits.
From the various extracts of the ruling reproduced earlier it is evidence that the learned trial Judge did not advert his mind at all to the issues raised in paragraphs (a), (b) and (f) of the preliminary objection.
The failure of the learned trial Judge to consider and rule on the preliminary objection and the striking out of the substantive motion to relist, which had not been heard on its merits amounted to a denial of fair hearing to the appellants and thereby occasioned a miscarriage of justice. The decision in the circumstances cannot be allowed to stand and this court has s duty to interfere therewith.
For these and the more detailed reasons contained in the lead judgment I also allow the appeal. I abide by the consequential orders therein including the order on costs.
Other Citations: (2009)LCN/3140(CA)
