Addax Petroleum Dev Co. Ltd. V. Nze Amakonze Ohaegbulem & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A,
This appeal is from the decision of the Imo State High Court contained in a ruling delivered on the 4th of November 2003 in suit No. HOG/32M/2002 commenced by the 1st – 8th Respondents herein under the Fundamental Rights Enforcement Procedure Rules, 1979, The Appellant herein had raised a preliminary objection challenging the jurisdiction of the High Court to hear the suit. While the preliminary objection was pending, the 1st – 8th Respondent filed an application to amend their originating processes which was granted by the High court. The Appellant felt aggrieved by the grant of the application for amendment before the preliminary objection raised by it was determined and so filed a Notice of Appeal against the decision on the 10th of November 2003 on four (4) grounds. On the 17th of January 2007, the Appellant was granted leave to amend the said grounds of appeal by the addition of another ground of appeal called “an additional ground 3”.
The amended Notice of Appeal now has the following grounds (without the particulars):-
- “The learned trial judge erred in law when he granted the order of amendment as the court lacked the jurisdiction to hear the application for amendment.
- The Learned trial Judge erred in law when he heard the application for amendment dated the 10th of September, 2003 filed by the 1st – 8th Respondents to amend the originating motion and reliefs in the statement of particulars.
- The lower court lacks the jurisdiction to entertain the suit.”
- The learned trial judge erred in law when he granted an order allowing the 1st – 8th Respondents to amend their originating motion and the reliefs in the statement of particulars.
- The learned trial Judge erred in law when he deemed the amendment as having been properly filed and served appropriate fees having been paid.”
Briefs of argument were filed by learned counsel for the parties to the appeal as required by the Rules of court. The initial Appellant’s brief was filed on the 13th of February 2006 and another filed on 9th June 2006 but deemed filed on the 17th of January 2007 when the Appellant was granted leave to, file and argue an additional ground of appeal. The 1st – 8th Respondents’ brief and the 9th Respondent’s briefs were filed on the 5th of March 2007 but both deemed filed on 5th of July 2007. The briefs were adopted by the learned counsel for the parties to the appeal at the hearing on 25/1/09 and we were urged to uphold the respective submissions contained there in. The learned senior, counsel for the Appellant had adopted and relied on the Appellants’ brief deemed filed on the 17/1/07 in arguing the appeal and did not mention the initial Appellants’ brief filed on the 13/2/06. The legal implication is that the said brief has been abandoned and for that reason. It is hereby struck out.
At paragraph 2 on page 2 of the Appellants’ brief filed on 9th June 2006, grounds 4 and 5 of the amended Notice of Appeal set out above were withdrawn by the learned counsel. Two (2) issues were then raised and submitted for determination in the appeal as follows:-
“2.1 Whether the learned trial judge was right in granting the 1st – 8th Respondents application for amendment whilst the preliminary objection of the Appellant challenging the jurisdiction of the court remained pending before the court and unheard.
2.2. Whether the lower court lacked he jurisdiction to entertain the substantive suit.”
The learned counsel for the 1st – 8th Respondents did not adopt or formulate issues for determination but replied “to the contentions of the Appellant” on the 2nd issue formulated by the Appellant.
On her part, the learned State Counsel who settled the brief for the 9th Respondent raised two issues which are in effect, the same with the ones framed by the learned Appellant’s counsel.
Before going into the submissions of the learned counsel on the issues formulated, I note that the 1st – 8th Respondents had given a notice of preliminary objection which was filed on the 18th of May 2008. The preliminary objection which challenges the competence of the appeal and jurisdiction of the court to hear it was argued in the 1st – 8th Respondents’ brief. Because its object is to abort and terminate proceedings in the appeal at the stage it was raised, it is expedient to determine same first before going into the merits of the issues canvassed in the appeal in order to avoid embarking on what might turn out to be an exercise in futility. GOJI V. EWTE (2001) 15 NWLR (736) 273 @ 280, OKOI V. IBIAG (2002) 10 NWLR (776) 455 @ 468, UBA V. ACB (2005) 12 NWLR (939) 232 @ 259. For that reason, I intend to consider and determine the preliminary objection first.
Before then however, I have observed that in the Appellant’s Reply brief, the learned Appellant’s counsel had raised an objection to the preliminary objection on the grounds that it was not filed in accordance with Order 3, Rule 15 of the Court of Appeal Rules 2002 for failure to set out the grounds of the objection. In any event, it was submitted that the objection raised in relief ‘d’ on the face of the motion filed on 3rd May 2006 was struck out on the 17th of January 2007. The answer to this objection lies in the fact that the 1st – 8th Respondents had filed notice of preliminary objection to the appeal on the 18th of January 2008, pursuant to Order 10 Rule 1 of Court of Rules, 2007. That objection was filed in accord with the provisions of the Rule of court under which it was brought since it was given three (3) clear days before the hearing of the appeal and the grounds thereof were set out therein Even though the 1st – 8th Respondents’ brief was filed before the date of filing the notice of objection, that fact alone is not fatal to the objection argued in the said brief since the law is that a Respondent is entitled to raise and argue a preliminary objection in the brief. See TIZA V. BEGHA (2005) 5 SC (PT II) @ 7, AREWA TEXTILE PLC V. ABDULLAHI (1998) 6 NWLR (554) 508, MAGIT V. UNIV. OF AGRIC, MAKURDI (2006) ALL FWLR (298) 1313.
With the objection raised and argued in the Respondents’ brief which was served on the Appellant, the filing of the notice on the 18th of January 2008 by the 1st – 8th Respondents can easily be waived away as being “abundente candela” out of abundance of caution on the part of their learned counsel. I now deal with the objection.
The learned counsel for the 1st – 8th Respondent had submitted on the objection that the decision appealed against was an interlocutory one and that the leave of either the High Court or the Court of Appeal is necessary before filing the appeal. Section 241(1) and (242) (1) of the 1999 Constitution were cited and said to make it emphatic that leave of court must be obtained for the appeal to be competent.
That the Appellant’s failure to obtain leave before filing the appeal is very fatal to the competence of the appeal and jurisdiction of the court to hear it. The cases of ASANI V. GIWA (1986) 3 NWLR (32) 796, FUMUDO V. ABORO (1991) 9 NWLR (214) 210, GABARI V. ILORI (2003) FWLR (177) 901 @ 911, BOWAJI V. ADEDUWURA (1976) SC 43 as well as section 315 of the Court of Appeal Act were relied on. In addition, it was argued that the appeal is against the exercise of the High Court’s discretion and it is trite that that court has discretion of amending processes before it at any time in the proceeding before judgment. Several cases including: – OJAH V. OGBONI (1976) 4 SC 69 @ 77 and 78, WOLUCHEM V. GUDI (1981) 5 SC 291, NABSONS LTD V. MOBIL OIL (1995) 31 LRCN 187 @ 194 and IKWEKI V. EBELE (2005) 127 LRCN 1231 @ 1251 were cited on the submission that the appeal cannot be filed without leave of court since it was against the exercise of a discretion by the High Court
It was also contended that the grounds of appeal raise issues which were not dealt with by the High Court in its decision and so did not flow from that decision; the subject of the appeal. Pages 154 – 162,167 -170 and 177 -183 of the record of appeal wee referred to and it was submitted that the grounds of appeal do not relate to the decision appealed against and so are incompetent.
Once more, several cases including DEJI V. FRANCIS (1999) 3 NWLR (596) 576, SARAKI V. KOTOYE (1992) 9 NWLR (261) 156 @ 184, NWANNA y. ONYE (2000) 15 NWLR (689) 92, KIBIYA V. RABIU (2005) ALL FWLR (287) 998 @ 1023-4 were relied on for that principle of law. That there is no valid Notice of Appeal for which the jurisdiction of the court can be invoked and page 1255 of the case of IKWEKI V. EBELE (supra) was set out as , authority for the submission.
It was the further contention of counsel that the issues raised in the appeal are fresh because they were not part of the issues heard at the lower court in the application for amendment since the Appellant had not appealed against the decision by that court to hear the preliminary objection along with the substantive suit. Learned counsel said the Appellant is estopped from complaining for a procedure which it had agreed to, relying on the cases of IBWA V. IMANO (2001) 85 LRCN 995 @ 1077& OBA IPILAIYE II V. OLUKOTUN (1996) 39 LRCN 1023, (96) 6 NWLR (453) 148.
Similarly, it was argued that for a fresh, issue to be properly raised at this stage, leave of court is necessary even if it was on jurisdiction or law, citing the case of JOV. V. DOM (1999) 4 NWLR (620) 538) as authority for that position. According to the learned counsel, that the issue of jurisdiction of the lower court being raised limine is grossly in breach of the Constitution for being time wasting since the application could have been heard within 14 days as stipulated under the Fundamental Rights Enforcement Rules. We were finally urged to find the appeal incompetent and the Notice of appeal an abuse of the court’s process.
In reaction to the preliminary objection, learned counsel for the Appellant had argued that no notice of preliminary objection was filed in accordance with Order 3 Rule 15 of Court of Appeal Rules, 2002. that the 1st – 8th Respondents had abandoned prayer 1 and the alternative relief (a) of the objection on the 17th of January 2007 and the prayers were struck out by the court. In the alternative, it was submitted that the alternative relief (a) does not comply with Orders 3 Rule 15 for failure to state the grounds of the objection which arguments of counsel are no substitute to. That failure to raise the objection in the proper manner renders it incompetent since the Rules of court are meant to be obeyed. The cases of NWINYIMA V. COP (2005) 11 NWLR (936) 255 @ 259 & OSHIOMOLE V. FGN (2005) 1 NWLR (907) 413 @ 429. In further alternative, it was submitted that the grounds of appeal are purely of law and not mixed law and fact and so no leave of court was required for them. Section 241(1) (b) of the 1999 Constitution was cited and it was submitted that the Appellant had a right of appeal where the ground of appeal involves questions of law alone even if it is interlocutory, GBASHA V. LOVEBET (2005) 15 NWLR (949) 551 @ 574, EXCEL PLASTICS IND V. FBN PLC (2005) 11 NWLR (943) 59 @ 95-6, SHANU V. AFRIK BANK PLC (2000) 13 NWLR (684) 392 @ 402 were relied on. It was also submitted that the Appellant is complaining about the procedure the lower court adopted in hearing the application for amendment without hearing the preliminary objection to its jurisdiction and so it is pure law on the authority of UBA V. SAMBA PET CO. (2002) 16 NWLR (793) 361. Further that grounds 1 and 2 of the Appellant’s Notice of Appeal complain about misunderstanding or misapplication of the law by the lower court to proved or admitted facts and so the grounds are of pure law. Among others, the case of ES.C.S V. N.M.B. (2005) 7 NWLR (924) 215 @ 248-9 were cited on the definition of a ground of law and it was argued that it is an error when a court proceeds to hear a matter over which it lacks jurisdiction. Reliance was placed on IDATA V. EJEKO (2005) 11 NWLR (936) 349 @ 362. It was learned counsel’s contention that the appeal is against the jurisdiction of the lower court and not against the exercise of a discretion by that court and so all the authorities on the requirements of leave are irrelevant.
Conceding that the grounds of appeal ought to flow from the ruling appealed against, it was submitted that grounds 1, 2, 4, and 5 arose from the ruling while for ground 3 which raises issue of jurisdiction of the lower court, leave was granted by the court on 17th January 2007 to raise same when the Notice of Appeal was deemed amended. That the amendment of the Notice of Appeal dated back to the original Notice of Appeal on the authority of FBN V. TSOKWA (2004) 4 NWLR (866) 271 @ 298-9 and that the 1st Respondent cannot complain about the competence of the additional grounds now and ought to have challenged same before the application for amendment of the Notice of Appeal was granted. Page 387, paras E – G of the UBA PLC V. SAMBA PET CO (supra) was referred to.
In any event, it was said the law is settled that the issue of jurisdiction being fundamental can be raised at any time even for the first time on appeal with or without leave of court. The case of ELUGBE V. OMOKHAFE (2004) 18 NWLR (905) 319 @ 338 among others was cited on that principle and it was submitted that a litigant can waive the issue of jurisdiction as a matter of procedure but not as one of substantive law, relying on NDAYAKO V. DANTORO (2004) 13 NWLR (889) 219.
The above are the relevant portions of the submissions by the learned counsel on the preliminary objection to the competence of the appeal. As can easily be discerned from the above submissions by the learned counsel for the 1st – 8th Respondents, the objection is based primarily on the following planks:-
(a) That the appeal is against the interlocutory decision of the lower court.
(b) That the necessary prior leave of court was not obtained before the Notice of Appeal containing the grounds of appeal was filed.
All the other submissions argued by learned counsel in their respective briefs are fully embedded in the above issues and would be completely answered in the determination of these issues.
For a start, there are certain principles of law which have for long been established and settled such that they are beyond viable legal arguments now. Among them are that:-
(a) An appeal to the court is as of right in any civil or criminal proceedings where the ground of appeal involves questions of law alone against interlocutory or final decision. Section 241(1)(b) of the 1999 constitution, see KRAUS THOMPSON ORG. LTD V. UNICAL (2004) 9 NWLR (879) 631 @ 658 PARA B – C where MUSTAPHA, JSC held:-
“‘By virtue of section 241(1)(b) of the 1999 Constitution an appeal from any decision of the High court whether interlocutory or final, to the Court of Appeal is as of right where the ground of appeal involves ‘questions of law alone.”
See also GOVERNOR KWARA STATE V. GAFAR (1997) 7 NWLR (511 51, ADELOWA V. EDET (2001) 3 NWLR (699) 186, EKWULUGO V. A.C.B. (2006) 6 NWLR (975) 30.
(b) That the issue of jurisdiction of a trial court can be raised for the first time at the appeal stage with or without the leave of court GAJI V. PAYE (2003) 8 NWLR (823) 583, OKE V. OKE (2006) 17 NWLR (1008) 224 @ 238, BAKOSHI V. CHIEF OF NAVAL STAFF (2004) 15 NWLR (896) 268, .ELUGBE V. OMOKHAFE (2004) 18 NWLR (905) 319, ARAKA V. EJEAGWU (2000) 15 NWLR (692) 684.
(c) That leave of court is a condition precedent to the competence of grounds of appeal involving questions of mixed law and fact against interlocutory or final decisions. See Section 242 (1) of the 1999 Constitution OJUKWU V. ONYEADODOR (1991) 7 NWLR (203) 286, AQUA LTD V. ONDO STATE SPORTS COUNSEL (1988) 4 NWLR 622.
(d) That leave of court is a condition precedent to the competence of a ground of appeal involving fresh or new issues not raised at the trial. See MITI V. NNB PLC (1997) 3 NWLR (496) 737, OKAFOR V. A.G. ANAMBRA STATE (2000) 11 NWLR (679 479, RAMBERT V. NIGERIAN NAVY (2006) 7 NWLR (980) 514 @ 534.
The community effect of the above established principles of law is that failure to obtain leave or absence of the prior leave of leave where and when necessary is fatal to the competence of the such grounds of appeal. The failure to obtain leave or absence of prior’ leave in such a situation would render the grounds of appeal as the case may be, incompetent. AJA V. OKOREO (1991) 7 NWLR (203) 260, ONWNJOH V. UNIJOS (2006) ALL FWLR (304) 552.
In this appeal the parties are one and I agree with them, that the decision of the lower court appealed against was one which did not fully and completely determine the rights of the parties in the action, It is therefore in law, an interlocutory decision. One other point that is indisputable is the fact that that decision appealed against was entered in an application by the Respondent for the amendment of the originating processes in the case and so in the exercise of the lower court judicial discretion.
With the above and the established principles of law set out earlier in mind, I would now look at the grounds of appeal and consider, whether or not prior leave pf court is necessary to make them competent.
The live and effective grounds in the appeal are grounds 1, 2 and 3 of the amended Notice of Appeal since the learned counsel for the Appeal had abandoned grounds 4 and 5 of the said Notice of Appeal.
I have before now, set out the grounds in the said Notice of Appeal. Without any difficulty it is clear from the terms of the grounds; 1 & 2. that they have one feature and substance which is that the lower court had no jurisdiction to entertain the application for amendment when preliminary objection to its jurisdiction to hear the suit was pending. Ground 3 on its part challenges the jurisdiction of the lower court to entertain the suit in which the application for amendment was made.
Now it is to be noted that the challenge in grounds 1 and 2 are on and relate to procedure adopted by lower court to determine a later application for amendment while the preliminary objection on its jurisdiction to entertain the claims before it was pending. It was not a challenge that the lower court had no jurisdiction at all to determine the application for an amendment. The issue of jurisdiction raised or involved in these two grounds is therefore one of procedure and not substantive law. The issue raised is purely based on the principles of practice and procedure that once an issue of jurisdiction was raised in any proceedings before a court it should be determined first before further step is taken by the court. I have noted that when the application for amendment came up for hearing on the 20th of October 2003 before the lower court, as shown at pp 167 – 170 of record of appeal, the learned counsel who appeared for the Appellant (as 1st Respondent) did not raise any objection to the procedure adopted to hear the application before a determination of the pending preliminary- objection. Rather the said learned’ counsel Mr C. D. Nwankwo, fully participated and therefore accepted that procedure by making submissions in opposition to the application and urged the lower court to refuse and dismiss same. Well, the law is that the issue of non compliance with procedure cannot be raised at this stage if not objected to at the trial because a party in such circumstances will be taken to have acquiesced in the validity of the procedure. See AYANWALE V. ATANDA (1988) 1 SCNJ 1, OGBONNA V. AG. IMO STATE (1992) 1 NWLR (2020) 647, ADENE V. DANTUBU (1994) 2 SCNJ 130, (94) 2 NWLR (328) 509, EFFIONG V. IKPEME (1999) (99) 4 NWLR (606) 280 @ 272.
Learned counsel for the Appellant had conceded that on the authority of NDAYAKO V. DANTORO (supra) a litigant can waive the issue of jurisdiction as matter of procedure which is exactly what the law in the above authorities has affirmed in respect of the Appellant. In these premises, the issue in the two grounds not having been raised at the lower court, is one that is fresh or new since it was not pronounced upon by the lower court. Consequently the grounds of appeal 1 and 2 which raise the issue of procedural jurisdiction require the prior leave of court to be competent grounds of appeal as established in the authorities cited on the point earlier in this judgment. There is no suggestion here that the Appellant had sought for and obtain the leave of court necessary for the grounds to be competent. In addition, since the grounds involve questions that are fresh or new because they were not raised and pronounced upon by the lower court in the ruling/decision appeal against, the grounds do not enure or arise from that decision. For that reason too, the said grounds are not competent. In the result, my decisions on grounds 1 and 2 of the Appellant’s amended Notice of Appeal are incompetent and liable to be struck out. For the aforementioned reasons, the preliminary objection by the 1st – 8th Respondents on the said grounds therefore succeeds and I uphold it. The grounds are struck out.
The 1st issue formulated by the learned counsel for the Appellant from these grounds is automatically affected by the incompetence of the grounds and so is also incompetent. JOHN HOLT VENTURE V. OPUTA (1996) 9 NWLR (470) 101, EGBE V. ALHAJI (1990) 1 NWLR (128) 546,
We are now left with the Applicant’s ground 3 which questioned the jurisdiction of the lower court to entertain the suit of the of the 1st – 8th Respondents filed vide the Fundamental Rights Enforcement Procedure Rules as stated at the beginning of this judgment.
Looking calmly at the ground of appeal, I observed that it was not filed in respect of any decision of the lower court in respect of which a valid appeal pends in the court. Rather the ground involves the preliminary objection raised by the Appellant in the suit of the Respondents which the lower court decided it will take along in the suit and had in fact commenced hearing as shown at pages 71 – 5 of the record of appeal. The record of the appeal shows that the lower court was in the process of hearing the suit along with the preliminary objection, when the ruling on the application for the amendment by the 1st – 8th Respondents; (the subject of this appeal) was made. The Appellant had therefore raised and submitted the issue of the jurisdiction of the lower court to entertain the Respondent’s suit to that court but did not wait for a pronouncement on it by that court before he now by way of the ground 3 brought it to this court. Let it be remembered that the preliminary objection was raised in the course of an application for the enforcement of fundamental which is governed by the peculiar Rules provided therefor and that the application is still pending at the lower court,
The ground of appeal 3 is like I stated before now, therefore not related to any decision of the lower court on the application of the Respondents before it.
I would like to point out that the appeal by the Appellant against the procedure adopted by the lower court in hearing the application for amendment by the Respondents before, and while the Appellant’s preliminary objection was pending have nothing to do with ground 3. This is because even if the Appellant was to succeed on such appeal, the effect would have been an order by the court setting aside the procedure adopted by the lower court, and the order for amendment.
What ground 3 attempts to do is abort or prevent the lower court from a determination of the preliminary objection submitted to it and which it was in the process of hearing and consideration, Since there was no decision by the lower court either on the Respondents’ application or the Appellant’s preliminary objection thereto there cannot be any right of appeal in the Appellant that will entitle it to file an appeal in respect of the application before the lower court. The lower court is, the trial court and until it determines one way or the other the Respondents’ application and the Appellant’s preliminary objection, submitted to it for determination by the parties: the jurisdiction of the court ‘over both the application and the preliminary objection cannot properly be invoked since there is no decision upon which a right of appeal can be predicated under Section 240 of the 1999 Constitution of Federal Republic of Nigeria. The principle of law that an issue of jurisdiction can be raised even at this stage for the first time is not at large or unwieldy. Before it can properly be raised there has to be a decision in the suit to which it relates by a lower court and which confers a right of appeal in a party.
For the above reasons, my view is that ground 3 is incompetent and therefore struck out.
In the result, I resolve the preliminary objection by the 1st – 8th Respondents and hold that grounds contained on the Amended Notice of Appeal and the appeal are incompetent.
With the above findings: the duty or even need to consider the submissions on the issue raised in the appeal abate. OKONJI V. NJOKANMA (1991) 7 NWLR (202) 131, ONYEMEH V. EGBUCHULAM (1996) 5 NWLR (96) 5 NWLR (448) 255, NEPA V. ANGO (2001) 15 NWLR (737) 627, ADELEKAN V. ERU-LINE NV (2006 ALL FWLR (321) 1213 @ 123.
In the final result, for being incompetent, the appeal is hereby struck out. Parties to bear their costs of prosecuting the appeal.
Other Citations: (2009)LCN/3185(CA)
