Abbnny Educational Publishers & Anor. V. The Comm. For Education C.r.s. & Ors. (2005)
LawGlobal-Hub Lead Judgment Report
THOMAS, J.C.A.
This ruling is on the motion on notice dated and filed 23rd September, 2005 by the respondents/applicants. The motion was brought under Order 1 rule 20(1), (3), (4) and (5) of the Court of Appeal Rules.
The applicants are seeking two reliefs namely:-
- To grant leave to the applicants to argue a point or an issue which was not brought for consideration in the lower Court, i.e. the applicability or otherwise of the High Court (Civil Procedure) Rules of Akwa Ibom State in the determination of territorial jurisdiction of the State High Court; and
- Permitting the respondents/applicants to present to the Court of Appeal as further evidence in support of their case, i.e. A document from the Union Bank Plc – Calabar Branch dated 9-8-2005 written to the applicants in connection with the matter under consideration in the appeal.
The motion is supported by a 14 paragraph affidavit in support thereof. The respondents objected to the reliefs sought by the applicants and after moving, parties were allowed and they argued vehemently their respective issues.
There is no doubt that the Hon. Attorney-General, learned Counsel for the respondents did not file their counter-affidavit to the motion on notice, but this court allowed learned Attorney-General to reply on points of law.
Applicants’ argument is that none of the counsel to the parties raised the issue of the applicability or non-applicability of the provisions of Order 10 rules 3 of the (Civil Procedure) Rules of Akwa Ibom State to the issue of territorial jurisdiction in their arguments at the lower Court.
The learned Attorney-General on the other hand, however referred to their preliminary objection at the lower Court as shown on page 30 of the record of appeal as well as pages 68 lines 21 – 26 and page 74 line 8, where the respondent actually raised the issue of lack of jurisdiction of Akwa Ibom State High court in accordance with the High court (Civil Procedure) Rules under Order 10 rule 3 thereof.The respondents/applicants can raise and argue the issue of the jurisdiction of a trial court and can be accepted because the issue of jurisdiction is fundamental to adjudication. See Eze v. A.-G., Rivers State (2001) 18 NWLR (Pt.746) 524.
But it is important to know that the appellant had earlier on at the lower court, raised the issue of jurisdiction of Akwa Ibom High Court. The basis was made in the preliminary objection to the claim, which was on undefended list. The appellant’s infact filed the motion provided under Order 10 rule 3 of the Akwa Ibom High Court (Civil Procedure) Rules, 1987.
It is very surprising that the present respondents/applicants have brought their motion as if such an issue was not raised in the lower Court.careful perusal of paragraphs 10 and 12 affidavits will of the applicants show flagrant abuse and a clear contradiction that the issue of jurisdiction of the court was not raised at the lower Court.
Paragraph 10 provides:-
“10. That none of the counsel to the parties … raised the issue of the applicability or non-applicability of the provisions of Order 10 rule 3 of … Akwa Ibom State to the issues of territorial jurisdiction …”
The above is thus contradictory to paragraph 12 thereof which states as follows:-
- That the appellants/respondents based their objection to the jurisdiction of the lower court in the matter on the said provisions of the High Court (Civil Procedure) Rules of Akwa Ibom State.
I am of the considered view that, the preliminary objection raised by the appellants/respondents at the lower court, was properly argued by both counsel. In other words, it is not a fresh issue, worthy to be granted by the applicants because the issue of territorial jurisdiction of court was argued and considered by the lower court. It cannot be regarded as a fresh issue or point, which was not brought up for consideration in the lower court. See the concession made by the applicants in paragraph 12.11 of their brief pages 4 – 5. The true fact remains, that it was considered in the lower court, and what the appeal court will do in the substantive appeal is to accept or reject the decision of the lower Court, as to its territorial jurisdiction to hear the writ of summons on the undefended list. Relief one in the motion paper is hereby refused.
The second relief is to permit the applicants to present to this court as further evidence in support of their case.
It is to be noted that the applicant’s motion on notice is badly headed “Motion on Notice brought pursuant to Order 1 rule 20(1), (3), (4) and (5) of the Rule of the Court of Appeal Rules.” It is bad and incompetent because the year of the Court of Appeal Rules is not stated. Can this court assume that the rules of this court referred to in this application is for the Court of Appeal, 2002, which is applicable to this court? Certainly not so, because Order 1 rule 20(1), (3), (4) and (5) of the Court of Appeal, 2002 is contrary to the rules of this court in Order 1 rule 20(1), (3), (4) and (5), 1981.
In my considered opinion, the second relief appears to be an after thought. The document sought to be admitted, as further evidence could not have just emanated from the blues as the applicants would want this court to believe. If the purported documents was just served on the applicants, before commencement of the suit and after they had filed their respondents’ brief as stated in their paragraph 4 of the affidavit in support, Union Bank Plc, Calabar could not have just written a letter to support their evidence. The obvious fact is that the applicants, had probably, seen the weakness of their case in relation to the jurisdiction where to institute their case vis-a’-vis the citation of their Bank namely Union Bank Plc, and therefore asked the bank to write to them.
The heading and the words are clear, showing that the applicants tele-guided their bank thus:-
ABBNNY EDUCATIONAL PUBLISHERS REMITTANCE …”
…
Was opened to remit
…”
I cannot believe that a learned counsel who filed the writ of summons in June, 2004, was not aware of the remittance of his client’s bank from one bank to the other, until a letter was just served on his clients on 9th August, 2005, thus, after the suit as the lower court had been closed and the matter had reached this court. In fact, the purported letter was created due to the appellants/respondents brief of argument already filed and served. For the above reasons, relief 2 is refused.
In the final analysis, the motion on notice dated and filed 23rd September, 2005 is hereby refused and is accordingly struck out with no costs to any party.
Other Citations: (2005)LCN/1846(CA)
