Afribank Nigeria Plc V. Vesa Foods Agencies Ltd (2005)

LawGlobal-Hub Lead Judgment Report

PATRICK IBE AMAIZU J.C.A.

In order to appreciate this appeal, it is necessary to refer to the facts leading to the appeal. Briefly the facts are the plaintiffs claimed by a writ of summons as follows-

”The sum of N347,335,857.05 (Three hundred and forty seven Million, Three hundred and Thirty five thousand, Eight hundred and fifty seven Naira, five kobo), being balance sum owed and payable by the plaintiff, in respect of loan by way of overdraft facilities, granted by the plaintiff to the defendants, in Account No. 36:070-830-2 at Plaintiffs Ring Road Branch, Benin City, within the Jurisdiction of this Honourable Court, Corporate Main Branch A/C 36-270-392 Z, Short Term Working Capital A/C NO.31-310-053 F and MTL 75-100-47 merged account NO. MTLCD0109500034/ 0030015706313 at Lagos covered by Deed of Guarantees dated 7/1/88 – 1/9/90 and 1/9/90 executed by the 2nd and 3rd defendants etc, etc, etc.”

Later, the purchasers of the properties were joined through third party proceedings initiated against them.

1st to 4th defendants filed a joint Statement of Defence. The 1st defendant Counter-Claimed.

“Whereupon the 1st defendant claims as follows –

1) A Declaration that the 1st defendant is not indebted to the applicant warrant the due exercise of the power of sale over the properties deposited and/or pledged and/or mortgaged by the plaintiff and is therefore declaring purported sales of the properties as being liable to be set aside for being premature” grossly under valued, unlawful, null and void.

2) A Declaration that the 1st Defendant is entitled to the refund of all funds paid into its accounts with the plaintiff in excess of the actual amount granted as facility and permissible related charges with interests.

3) An Order directing the plaintiff to issue Deeds of Release forthwith in respect of properties mortgaged by or through the 1st Defendant in Port Harcourt and Benin City.

4) An Order setting aside and consequently directing the Deeds Registrar, Ministry of Lands, Port Harcourt to cancel the registration of the document evidencing the purported transfer by the plaintiff of the mortgaged properties being –

1) Property now registered as NO. 47 at Page 47 in Volume 272 of the Lands Registry, Port Harcourt.

2) Property now registered as NO. 48 at page 48 in Volume 272 in the Lands Registry. Port Harcourt; and to rectify the records of the properties at the Lands Registry Port Harcourt to reflect the cancel lotion.

5) An Order of perpetual injunction restraining the plaintiff/from howsoever purporting or deal with any of the properties belonging to or deposited or mortgaged by or through the 1st defendant to the plaintiff”

Upon an objection filed by the plaintiff bank and 3rd parties against the territorial jurisdiction of Benin High Court to adjudicate on the counter claim because it related to landed properties located in Rivers State the trial Court, by a Ruling delivered on the 17th day of March, 2003 upheld the objection. Part of the Ruling reads as follows –

“…What is more, in one of the reliefs (i.e. the relief in sub paragraphs (4) of paragraph 33) this Court is being asked to direct the Deed Registrar in the River State Ministry of Lands, Port Harcourt to cancel the registration of the document evidencing the transfer being questioned in the counter-claim. It appears to me that the counter claimants are by that relief seeking to stretch the territorial jurisdiction of this court beyond that know to law and to a breaking point.

This clearly is unacceptable.

In the result, I hold that there is some merits (sic) in the motion before Court for which reason it ought to be allowed. Motion is accordingly allowed. Having allowed the motion, I hereby make an order striking out the amended Counter-claim of 1st and 5th Defendants/Counter Claimants /Respondents dated 25th but filed on 26th July, 2002 on ground that this court lacks jurisdiction to hear and determine it. In exercise of my discretion, however, I make no order as to costs”.

One of the findings of the lower Court as can be seen, is that all the properties, the subject of the Counter Claim were located in Port Harcourt. There was no appeal against the finding. It was after the Ruling that the defendants applied for leave of the lower Court to amend their pleadings. They also asked for leave for the 1st and 2nd defendants to file a counter claim in relation to the properties located in Benin City pledged by the 2nd defendant by another tripartite mortgage deed used to secure the facilities. The lower court by a Ruling dated 9/2/2004 granted the application.

Dissatisfied with the ruling, the plaintiff now the appellant filed ten grounds of appeal from which it distilled three issues for determination. The issues are –

i) Whether the Ruling of the trial Court dated 17th March, 2003 declining jurisdiction to entertain the defendants’ Counter claim was “a final decision” or “interlocutory decision”.

ii) whether the learned trial Judge was right in failing to apply the principles of Stare Decisis.

iii) Whether the reliance of the learned trial Judge on a dissenting judgment as a “prelude” to the Ruling. See: Section 294(3) of the Constitution Of the Federal Republic Of Nigeria, 1999. (Sic).

On the other hand, the learned Counsel for the defendants, now the respondent formulated the following two issues for determination –

i) Whether the trial Court was right in allowing the 1st and 2nd respondents to file a counter claim in respect of properties within the courts’ jurisdiction having earlier struck out a counter claim by the 1st and 5th respondents in respect of different properties outside the court’s jurisdiction.

iii) Whether the trial Judge failed to apply the principles of Stare Decisis. I have considered the issues formulated by the learned counsel for the parties.

It is my view that a consideration of the issues formulated by the learned Counsel for the Respondents would adequately dispose of the points raised in this appeal.

Arguing Issue One, Imadegbelo Esq. SAN, of counsel referred to a passage in the ruling of 17th March, 2003, striking out the Respondents’ counter claim. It runs thus –

“…In the result, I hold that there is some merits (sic) in the motion before the Court for which reason it ought to be allowed. Motion is accordingly allowed. Having allowed the motion, I hereby make an order striking out the amended counter claim of the 1st to 5th defendants/Counter claimants/Respondents dated 25th but filed 26th July, 2002 on ground that this Court lacks jurisdiction to hear and determine it….”

It is the learned SAN’s contention that once a party to a suit objects to the jurisdiction of a court; the issue raised in the objection touches on the competence of the Court to adjudicate or determine the cause or matter. In other words, the right of the claimant to approach the trial Court for a judicial remedy is being challenged. He argued that in that case a decision on the issue of jurisdiction concludes the rights of the parties on it as a “final decision”. He cited and placed reliance on the case of Western Steel Workers Vs. iron Steel Workers Union (1986) 3 NWLR Part 30 Page 617 at 626 per Obaseki JSC. In addition to the above case the learned SAN referred to the following cases –

1), AKINSANYA Vs. UBA LTD (1986) 4 NWLR (PART 35) PAGE 273 AT 295.

2) MBAKWE Vs. R M S AFRICA (2001) 4 NWLR (PART 704) PAGE 275

3) AILARA Vs. GARUBA (1995) 6 NWLR (PART 402) PAGE 490 AT 500 AND 501.

4) MENAKAYA Vs. MENAKAYA (1994) 5 NWLR (PART 345) PAGE 512 AT 520.

5) IFEDIORA Vs. UME (1988) 2 NWLR (PART 74) 5

The learned SAN also referred to the following publications –

1) Civil Procedure In Nigeria, 2nd Edition by Fidelis Nwadialo SAN Page 794.

2) The Nigeria Judge by Niki Tobi 1st Edition 1992 pages 190 and 191. Chapter 7 Page 162.

It is the learned SAN’s contention that any judgment that is based on a preliminary objection on an issue which terminates without any reference to Court, though not the last judgment is a final judgment and not an interlocutory judgment. He observed that a final judgment does not mean the last judgment in a suit.

The learned SAN further contended that once the issue of jurisdiction is raised, or challenged in a substantive claim or counter claim, the trial court or any other judge of co-ordinate jurisdiction has no competence to rehear the issue of jurisdiction. The remedy is an appeal.

He referred to the observation of Niki Tobi in the case of ANYAEGBUNAM Vs. A.G ANAMBRA STATE (2001) 6 NWLR (PART 710) 532 AT 542.

In the view of the learned SAN, the learned trial Judge had no competence to revisit or pronounce on the issue of lack of jurisdiction, which it has pronounced upon in its Ruling of the 11th of March, 2003. The learned SAN further submitted that once an issue like jurisdiction has been raised and distinctly determined by a trial Court as a general rule neither party is allowed to fight that issue again. That being the case, the parties herein cannot subsequently in the same suit advance further evidence directed to show that the Ruling of 17th March, 2003 was wrong.

It is the learned SAN’s contention that the parties are bound by the Ruling.

Consequently, in his view, it was wrong for the respondents to file a new counter claim and urge the court by fresh evidence to grant same. He cited the following cases among others –

1) FRANCIS SHAMU Vs. AFRIBANK NIG PLC (2002) 17 NWLR (PART 795) PAGE 185.

2) UKAEGBU Vs. UGORGI (1991) 6 NWLR (PART 196) PAGE 12

3) OGBOGU Vs. NAIRIBE (1992) 6 NWLR (PART 245) 40

4) ITO Vs. EKPE (2000) 3 NWLR (PART 650) PAGE 678

Continuing, the Learned SAN submitted that the lower Court erred in law and in fact by holding that –

“Now, if the subject matters of the two suits are compared and contrasted it will be clear that the present counter claim being proposed deals with landed properties in Benin City, but those in the defunct counter claim are in Port Harcourt”.

He contended that the above conclusion is wrong for the following reasons –

1) The defunct counter claim at page 32-38 of the record of appeal dealt with properties in Benin City in paragraphs 3a, 20, 23(2), 27, 29, 33 and 33(5).

2) Questions of jurisdiction are considered globally and not piece meal or instalmentally.

3) The Court is not allowed to double speak on the preliminary issue as to whether it had jurisdiction to entertain the counter claim or not. There cannot be two decisions or Rulings on jurisdiction on a point in one suit before a trial Court.

4) If a party seeking to raise as a new question a point which has already been substantially decided between the same parties by a court of competent jurisdiction in a former action, the fact may be brought before the Court by affidavit and the Statement Of Claim, though good on the surface, it may be struck out and the second action dismissed even though the matter is not strictly res judicata.

He relied on –

STEPHENSON Vs. GARRET (1898) 1 QB 677

GREENHALGH Vs. MALLARD (1947) 2 AER 255

COOK Vs. RICKMAN (1911) 2 KB 1125

5) A pronouncement on jurisdiction in a suit cannot be re opened varied or altered unless by an appeal.

Finally, the learned SAN urged the Court to resolve the issue in favour of the appellant as the parties to his appeal are bound by the” final decision” of the trial Court dated 17/03/2003.

Arguing per contra, Mozia, Esq. of counsel submitted that the real issue to be determined is whether the ruling of 17/03/2003, by which the lower Court declined territorial jurisdiction to entertain the counter claim filed by the 1st and 5th respondents on the ground that, as specifically found by the court, the properties, the subject matter of the said claim, were in Port Harcourt fore-close the 1st and 2nd respondents from filing a new counter claim in respect of different properties located in Benin City within the Courts jurisdiction. He reminded the court that the earlier counter claim was struck out. And, neither of the parties appealed against, what the counsel described, as the clear positive finding of the court, that the properties were situated in Port Harcourt. In this regard, the learned Counsel referred to this part of the Ruling-

“…I must reject as I do any contention to the effect that the properties, which fall for consideration in the counter claim or any of such properties are located in Benin City”.

The learned Counsel then emphasised that the court affirmed as follows on the point –

“…since the situate of the properties involved is Port Harcourt, the proper court to hear and determine such main relief is the High Court Of Rivers State”.

On the issue of reference to Benin City in the Counter claim, the learned Counsel referred to the following finding of the lower court-

“Looking at the totality of the counter-claim as it is, it appears plain that reference to Benin City in that relief is meant to deceive the Court into believing that there are indeed, some of such properties located in Benin City…..

However, a careful look at the entire counter claim has revealed that nowhere in it is any property located in Benin City is specifically stated. On the contrary, as shown in sub paragraph (4) of paragraph 33 of the counter claim, the properties are located in Port Harcourt”.

The learned Counsel reminded the court that there was no appeal against the finding. It is his contention that the finding constituted an issue estoppel against the parties in the suit. In his view, it cannot be validly argued, as the appellant sought to do that any of the properties on which the earlier counter claim was based was located in Benin City.

The learned Counsel further reminded the court that where as the 1st and 5th respondents sought unsuccessfully to be allowed to maintain the earlier counter-claim, it is the 1st and 2nd respondents that are, prosecuting the present counter claim.

He observed that the properties affected by the 2nd Counter claim are different. They belong to the 2nd respondent and were used to secure financial exposure granted to the 1st respondent through a tripartite deed. He contended that the said financial exposure is the basis of the main suit initiated by the appellant.

Considering the antecedent facts, the learned Counsel submitted that a counter claim in all intent and purposes is a separate, independent and distinct action. And, any valid cause of action whether founded on equity or law against a plaintiff by a defendant may be brought as a counter claim by the latter, in the very suit filed by the former, subject however to the over riding condition that the counter claim is one that can conveniently be heard and determined with the main claim. He referred to the case of JERIC NIG. LTD Vs. UNION BANK OF NIG PLC (2000) 15 NWLR (PART 691) 447 AT 467 AT 463. He referred also to Order 4 Rule 2(1) of the High Court Civil Procedure Rules 1988 of Bendel State applicable in Edo State.

The learned Counsel reminded the court that it was not the appellants’ case that the counter claim cannot be conveniently considered along with the substantive action. Or further, that it was in dispute that the properties which are the subject of the counter claim were indeed used to secure the financial facilities upon which the substantive action is predicated. He contended that the essence of the decision of 17/03/2003 was that the Benin High Court lacked the requisite jurisdiction to adjudicate over a counter claim based on properties located in Port Harcourt, Rivers State. Being a separate and distinct action, the 1st and 2nd respondents (the latter is suing for the first time as a counter claimant) are clearly not estopped from bringing the new claim as no plea of rest judicata or issue estoppel can be founded on the Ruling of 17/03/2003.

The learned Counsel then referred to the issue of the alleged finality of the Ruling of 17/03/2003 and the ratio decidendi of the Ruling. He identified the latter as –

“the Benin High Court lacked jurisdiction to adjudicate on a counter claim in respect of property which situate or is located in Port Harcourt “.

He contended that the new counter claim is not an attempt to resubmit the same issue to the court for adjudication. This is because, according to the learned Counsel, the parties are not the same, the subject matter is different. He referred to the case of OYEROGBA Vs. OLAOPA (1998) 13 NWLR (PART 583) 509 AT 525, where the Supreme Court decided on when an issue estoppel may arise.

Finally, the learned Counsel submitted that the decision of 17/03/2003 is an interlocutory and not a final decision. In support of this contention he refeued to the following cases –

1) EKEDILICHUKWU NIG. LTD Vs. IFEANYI CHUKWU OSONDU (NIG.) LTD (1996) 1 NWLR (PART 424) 316 AT 322.

2) EBOKAM Vs. EKWERUBE & SONS TRADING CO. LTD (1999) 10 NWLR (PART 622) 242 AT 255.

He urged that the issue be resolved in favour of the respondents.

I now consider the submissions of the learned Counsel on the above issue. The first ruling of the lower court was delivered on the 17/03/2003. This ruling was as a result of the preliminary objection raised by Imadegbelo Esq., SAN, of counsel. The objection reads in part as follows –

“Take Notice that this Honourable Court will be moved on……..day of…….2002 at the hour of 9′ 0 clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the plaintiff/applicant praying this Honourable Court for the following orders –

1) An Order setting down the points of law raised in paragraphs 30, 30a and 31 of the plaintiff Reply and Defence to Counter Counterclaim to 1st-4th defendant and Statement of Defence and Counterclaim more particularly set down in the schedule herein for determination before trial:

Schedule

1) Paragraph 30 of the plaintiff’s Reply and Defence Of Counterclaim

The plaintiff avers that this Hounourable court lacks jurisdiction or competence to entertain this counterclaim particularly paragraph 33(1) (2) (3) (4) and (5) on the alleged sale of properties in Port Harcourt and rectification of the Register of the Lands Registry, Port Harcourt outside the territorial jurisdiction of this Honourable Court. Etc.”

It was on this objection that the ruling of 17/03/2003 was made.

I hereunder reproduce the relevant excerpts of the Ruling delivered following the objection. That is, the Ruling of 17/03/2003. They are:

1. “Based on the foregoing therefore, I must reject as I do any contention to the effect that the properties which fall for consideration in the counter claim or any of such properties are located in Benin City”. (Page 50 of the record of proceeding).
2. “For emphasis, I say that exactly what learned counsel has told the court the relief does not constitute that it is. For instance, even though the claim is couched in such a clever way as to avoid the use of the term “land” or” real property” as constituting the subject matter but merely repeatedly use the term “properties “, this court is not prepared to fall into such deception. As earlier stated sub paragraph (4) of paragraph 33 of the Counter Claim has clearly put the point beyond question as to the situate of the properties being those registered as No. 47 and 48 at pages 47 and 48 respectively in Volume 272 in the Lands Registry Port Harcourt. It is a matter of law that only real properties such a land that are so registered” (page 52 of the record of proceedings) “.
3. “All these complaints relate to the mortgage transaction in respect of properties situated in Port Harcourt.

I am clearly of the view that Counter Claim in the main falls within the suits described in the above Rule and since the situate of the properties involved is Port Harcourt, the proper Court to hear and determine such main relief is the High Court Of Rivers State “(page 53 of the Record of proceedings)”.

From the foregoing, it is not in doubt that the preliminary objection and the ruling itself show that what was in issue was whether the lower court has jurisdiction to hear a counter claim in respect of land in Port Harcourt. The lower court ruled that it has no such jurisdiction.

There was no appeal against the ruling. It follows that the Ruling remains valid and bind the parties.

It is common ground that it was after the ruling of the 17/03/2003 that the respondent brought another application praying the court inter alias for-

“(b) an Order granting 1st and 5th applicants leave to file a counter claim against the respondents in the terms of the proposed counter claim to the affidavit in support of motion and also marked as Exhibit VFAI”.

The contention now is that the lower Court having struck out the respondents” first counter-claim for want of jurisdiction, the now proposed counter-claim becomes incompetent.

In support of this view, Imadegbelo Esq., SAN, of counsel quoted and relied on a number of authorities including –

1. WESTERN STEEL WORKS Vs. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (PART 30) PAGE 617.
2. AGBOJO Vs A.G. FEDERATION (1986) 2 NWLR (PART 23) PAGE 528.

He relied also on Civil Procedure in Nigeria by Fidelis Nwadialo Page 794.

Before I go further, I observe that under Order 4 Rule 2 of the Bendel State High Court (Civil Procedure) Rules, 1988, applicable in Edo State a defendant in any action, who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in the action, in respect of any matter (whenever or however arising may instead of bringing a separate action make a counter claim in respect of that matter; and where he does so, he shall add the counter claim to his defence.

The above rule of procedure is supported by a plethora of case law authorities. In that case, the onus is on the appellant who in this appeal contends otherwise, to prove that this general rule does not apply in this case.

Before I go further, let me refer to the case of the appellant once more, if you like for emphasis. His case is that –

1) that once a Court upholds or declines jurisdiction on a counter claim, the matter is at an end and nothing more can be done by counter claimant.

2) that the lower Court having struck out a counter claim on 17/03/2003, the Court becomes functus officio on the issue of counter claim.

It does seem to me that the above submissions cannot be right. It is trite that where a court of competent jurisdiction has settled by “final decision” the matters in dispute between the parties neither party or his privy may relitigate that issue again by bringing a fresh action NWAOPARA OGBOGA Vs. NWONUMA NDINBE AND ORS (1992) 6 NWLR (PART 245) PAGE 40. It is also trite that issue estoppel binds the parties concerned as well as the court. In that case, a court is not permitted to reverse itself upon taking a decision on an issue in the same proceedings. That court is said to be functus officio on that issue. FRANCIS SHANU AND OR Vs. AFRIBANK (NIG.) PLC (202) 17 NWLR (PART 795) PAGE 185.

The Ruling of 17/03/2003 was in respect of Counter Claim affecting land in Port Harcourt. The present counter claim is in respect of land in Benin. It is clear that the issue estoppel does not apply.

I am aware that the apex court in WESTERN STEEL WORKS Vs. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (PART 30) 617 held that, a decision of a Court on the question of whether it has jurisdiction in a matter is a final decision. It concludes the right of the parties on whether or not, they can approach the court for a remedy. It is my view that the right that is concluded, can only be the right in respect of the matter or issue the court was called upon to decide. In other words, the emphasis should be on what that court was called upon to decide. I seem to agree with the lower Court that the case is not applicable here as the facts of the two cases are not the same. The emphasis is on the matter or issue between the parties that was decided.

I have read the submissions of the learned Counsel for the appellant in other legal authorities and his Reply Brief. It is my view that it will amount to a denial of the respondents’ right to counter claim in the present suit if the application is refused.

I resolve the issue in favour of the respondent.

Arguing issue 2, Imadegbelo, Esq, SAN, of counsel referred to the doctrine of binding precedent, which the lower courts are bound to follow. He contended that it is the judicial policy for lower courts to adhere to the rule of stare decisis. He observed that in that case, a lower Court cannot refuse to be bound by the decisions of higher courts even when the decisions are reached per incuriam.

It is the view of the learned SAN, that the lower Court in the present case refused to apply, and follow, the Supreme Court’s decision in the case of WESTERN STEEL WORKERS LTD Vs. IRON STEEL WORKERS UNION (1986) 3 NWLR (PART 30) 617. And, the Court of Appeal decision in AGBAJO Vs. AG. Of FEDERATION 618. (1986) 2 NWLR (PART 23) PAGE 548.

In his attempt to bring out the seriousness of this judicial impertinence, the learned SAN referred to UWAIS, CJN’s observation in the case of ATOLAGBE VS. AWUNU (1977) 9 NWLR (PART 522) PAGE 536; that –

“It is now settled that under the common law doctrine of precedent, or stare decisis, the decision of a higher Court may be criticized by the Judges of the lower court, but notwithstanding the criticism, the Judge of the lower court is bound to follow and apply such decision or but cannot side track it ”

On the same issue, the learned SAN also cited the following cases –

1) DALHATU VS TUKARI (2003) 15 NWLR (PART 843) 310 AT 336

2) NAB LTD Vs BARRI (NIG.) LTD (1995) 8 NWLR (PART 413) PAGE 25.

3) AG. OGUN STATE Vs EGENTI (1986) 3 NWLR (PART 28) 265.

The learned SAN then referred to the reason why the lower Court failed to follow the two cases. It was because the Court could not reconcile the cases. It is the learned SAN’s view that the reason given by the court is tantamount to questioning the two authorities of the Higher Courts. He then contended on the authority of IGE Vs. OLUNLOYO (1984) ANLR PAGE 150 AT 155; that –

“…A dissenting judgment or minority judgment as it is sometimes called is not ajudgment of the Court under the 1979 Constitution. It is the judgment of the majority that is the judgment of the Court…” per Obaseki JSC.

It is the learned SAN’s contention also that the lower Court should not have relied on the dissenting judgment of AJOSE ADEOGUN J.C.A. in AGBAJO Vs. AG. FEDERATION & 2 Ors (1986) 2 NWLR (PART 23) PAGE 528. He urged the court to resolve the issue in favour of the appellant.

Arguing per contra, Mozia Esq., of Counsel posed the question – Did the lower court really decline or refuse to apply and follow the Supreme Court’s decision in the following cases: –

1) WESTERN STEEL WORKERS LTD Vs.IRON STEEL WORKERS UNION.

2) AGBAYO Vs. AG. OF FEDERATION?

The learned Counsel referred to the relevant parts of the Ruling of the said court in order to find the answer, i.e. –

1) ” I am not in a position to criticize decisions of courts higher than this court. Indeed, the operation of the principle of courts” hierarchy and the doctrine of stare decisis does not permit that kind of attitude”.

2) “However, !am unable to reconcile the two cases considered above”.

The learned Counsel then submitted that there is nothing objectionable in a Court stating that it is unable to reconcile the two cases, as long as the said lower Court, eventually proceeds to deal with the case under consideration in conformity with the directions of the Supreme Court or Court of Appeal as the case may be.

Continuing, the leaned Counsel referred to other parts of the Ruling, which show that the lower court arrived at its conclusions for reasons other than what is being suggested by the learned SAN. In this regard, he referred to the following passages of the Ruling –

a) “Both cases merely decided a general principle as opposed to being confined to (sic) the decision of a court declining to hear a counter claim on want of jurisdiction.

b) “the effect of a Court of dismissal is to bar the plaintiff’s claim and prevents (sic) him from swung the defendant in respect of the same matter at any time after.

He emphasised that in relation to the dissenting opinion in the case of AGBAJO Vs. AG. FEDERATION & ORS the lower court held that-

“I have however quoted from the opinion of the minority as a prelude to the case I am now about to refer to, on the point that, there are a number of authorities to the effect that once parties’ rights have not been decided it may not he too appropriate to use the word dismissal, and even if it is wrongly used, the effect is the same as an order of striking out”.

Finally, the learned Counsel submitted that the lower Court did not proceed to place any reliance on the said minority decision. Rather, in his view, the court proceeded to consider and rely on the Supreme Court’s decision in the case of CEEKAY TRADERS CO. LTD Vs. GENERAL MOTORS CO. LTD & ORS (1992) 8 LRCN 312.

He urged the Court to resolve the issue in favour of the respondent.

The Common Law system, which we in this country inherited from our Anglo Saxon Colonial past depends on the doctrine of binding precedents otherwise known as stare decisis. Jowitt’s Dictionary Of English Law defines stare decisis as-

“(To stand by things decided) to abide by former precedents where same points come again in litigation,… ”

It is clear from the definition, in my view; that the emphasis is on -“where the points come again in litigation”.With that in mind let me now consider the case of WESTERN STEELWORKS Vs. IRON STEEL WORKERS UNION. In that case, it was decided by the supreme Court that inter alia –

1.Where the issue of a court’s jurisdiction is raised, it is an issue, which touches on the competence of that court,rather than the rights of the parties in the subject matter of the litigation or dispute.

2. A decision of a court on the question whether it has jurisdiction in a matter is a final decision since it concludes the rights of the parties on whether or not they can approach the court for remedy.

NWADIALO, in his book, Civil Procedure In Nigeria, second Edition, commenting on the case has this to say at page 794,

“In the same case, that is, the Western Steel Works Ltd case, the decision of the Court of Appeal, which the Supreme Court held as a final one was that the State High Court had jurisdiction to adjudicate on the matter in question on an order remitting that for trial before another Judge”.

As can be seen in the case of Western Steel Works Supra, the Supreme Court used the words “subject matter” of “litigation or dispute”. Nwadialo on the other hand, in his commentary, used the words to adjudicate on the matter in question”.

In my considered opinion, the words are used not for fun. They underline the need to identify in a given case, the real issue between the parties that was decided by a court. This also in my view, is, notwithstanding the fact that the decision is a final one. My understanding of this, is that the fact that a superior Court or indeed any court of record says it has no jurisdiction to hear a case, does not mean that the parties cannot bring before the same court in the same proceeding any other issue that is different from what they have earlier decided that this cannot be the case. I am strengthened in my view by the observation of Oputa JSC in the case of ADEGOKE MOTORS LTD Vs. DR. BABATUNDE ADESANYA (1989) 3 NWLR (PART 109) PAGE 25 –

“I think it ought to be obvious by now, that it is the facts and circumstances, of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices, whether they are rationes decidendi or obiter dicta must therefore be in extricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their context for without known facts, it is impossible to know the law on those facts.”

In the present case, the lower court painstakingly referred to the reason why he refused jurisdiction in its ruling of 17/03/2003.

It said-

“… It therefore follows from the foregoing, that the reason or if you like the ground why the said counter claim – filed on 26/7/02 was struck out on 17/03/2003 was not because a redemption of mortgage as a subject matter of a Suit constituted an action that this Court could not in law hear, but because Port Harcourt was the location of the affected mortgaged properties, especially in the light of the ancillary relief in the Counter Claim that this Court should command the Deeds Registrar of Rivers State to carry out certain obligations in respect of the matter”.

The above passage of the Ruling shows that the lower Court identified the “subject matter of litigation or dispute”, and when it came to the conclusion that it is different from what was before him ruled that –

“…The need does not arise because as earlier noted, they are not by their present motion attempting to relitigate the properties contained in the defunct Counter Claim, but properties that are separate and distinct from those and whose locations as also earlier observed, is in Benin City, thus, clothing this Court with both subject-matter and territorial jurisdictions”.

“I think it ought to be obvious by now, that it is the facts and circumstances, of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices, whether they are rationes decidendi or obiter dicta must therefore be in extricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their context for without known facts, it is impossible to know the law on those facts.”

In the present case, the lower court painstakingly referred to the reason why he refused jurisdiction in its ruling of 17/03/2003.

It said –

“It therefore follows from the foregoing, that the reason or if you like the ground why the said counter claim -filed on 26/7/02 was struck out on 17/03/2003 was not because a redemption of mortgage as a subject matter Suit constituted an action that this Court could not in law hear, but because Port Harcourt was the location of the affected mortgaged properties, especially in the light of the ancillary relief in the Counter Claim that this Court should command the Deeds Registrar of Rivers State to carry out certain obligations in respect of the matter”.

The above passage of the Ruling shows that the lower Court identified the “subject matter of litigation or dispute”, and when it came to the conclusion that it is different from what was before him ruled that –

“The need does not arise because as earlier noted, they are not by their present motion attempting to relitigate the properties contained in the defunct Counter Claim, but properties that are separate and distinct from those and whose locations as also earlier observed, is in Benin City, thus, clothing this Court with both subject-matter and territorial jurisdictions”.

When the Ruling is read together, it becomes very obvious that the lower Court did not refuse to apply and follow the Supreme Court decision, in the case of WESTERN STEELWORKERS LTD Vs. IRON STEEL WORKERS UNION and the Court of Appeal decision, in AGBQAJO Vs. AG. OF FEDERATION.

The issue is resolved in favour of the respondent.

From all I have said, this appeal has no merit. It is accordingly dismissed. I award costs of N5000.00 to the respondents.

The appeal is dismissed.

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Other Citations: (2005)LCN/1775(CA)