Arewa Paper Converters Ltd V N.d.i.c. (Nig. Universal Bank Ltd.) (2006)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
This is an appeal against the decision of the Court of Appeal Kaduna delivered on 22-5-2003, allowing the preliminary objection raised by the respondent in this court to the appeal of the appellant at the Court of Appeal against the decision of the Federal High Courtof 7-3-2000, refusing to set aside the judgment of the Failed Banks Tribunal Kano Zone given on 24-4-98 in the sum of N969, 572.01 with interest at 21%, against the appellant.
The appellant being a customer of the Nigeria Universal Bank limited was indebted to the Bank in its current account to the tune of N969,572.01 which remained unpaid. Banks Tribunals were established under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994. The respondent therefore as plaintiff, filed an action for the recovery of the debt from the appellant under the undefended list procedure before the Failed Banks Tribunal Kano Zone. In the course of the hearing of the matter, the Tribunal granted the respondent’s application to serve the appellant by means of substituted service which on return the Tribunal was satisfied that the appellant was duly served. In the absence of any notice of intention to defend the action in accordance with the rules, the Tribunal entered judgment against the appellant in terms of the amount claimed. This judgment was entered on 24-4-98. There was no appeal against this judgment by the appellant up to 28-5-99 when the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999 dissolving the Tribunals and transferring all pending part heard matters to the Federal High Court for hearing and determination, came into force.
On 22-10-99, five months after the coming into force of Decree 62 of 99, the appellant filed an application at the Federal High Court Kaduna asking the court to set aside the judgment of the Failed Banks Tribunal delivered against it since 24-4-98. In the same application, the appellant also sought for an interim relief of staying the execution of the same judgment pending the determination of the application to set aside the judgment. After hearing the parties on this application, the Federal High Court in its ruling delivered on 7-3-2000, dismissed the appellant’s application. Dissatisfied with the dismissal of its application, the appellant appealed to the Court of Appeal. However, before the appeal could be heard, the respondent filed a notice of preliminary objection to the hearing of the appeal.
When the appeal came up for hearing, the court below decided to take the preliminary objection first and upon hearing of the same, upheld it and struck out the appellant’s appeal. Therefore the appellant’s further appeal to this court now is against the striking out of its appeal by the court below on the ground that the court has no jurisdiction to entertain the appeal. In the appellant’s amended notice of appeal filed on 25-10-2004, the appellant challenged the decision of the Court of Appeal on three grounds of appeal from which three issues for determination were framed in the appellants brief. The issues are:
“1. Whether the appellant’s appeal from the Federal High Court to the Court of Appeal was incompetent by reason of the provisions of section 5(2) of Decree No 18 of 1994 (as amended) and Tribunals (Certain Consequential Amendments, etc) Decree No. 62 of 1999, which prescribes finality for the judgment of the Defunct Failed Banks Tribunal
- Whether the appellant’s right of appeal from the Federal High Court to the Court of Appeal guaranteed by the 1999 Constitution can be defeated by the provisions of the Failed Banks Decree No.18 of 1994 when the decision being appealed against was that of the Federal High Court and not that of the Tribunal
- Whether the court below was not in error when it failed to decide the appeal in the alternative on its merit regardless of the fact that it had hinged its decision on a preliminary jurisdictional point, which could be set aside by the Supreme Court”
Although the respondent had raised a preliminary objection to all the three grounds of appeal contained in the appellant’s amended notice of appeal, the respondent appeared to have also agreed with the appellant that there are three issues for determination in this appeal.
The versions of the respondent’s issues are:
“1. Whether the Court of Appeal rightly upheld the respondent’s preliminary objection to the appellant’s appeal Ground 1 of the amended grounds of appeal.
- Whether the refusal of the Federal High Court in exercise of the jurisdiction of the Failed Banks Tribunal, to set aside the final judgment of the Failed Banks Tribunal appellable Ground 2 of the amended notice of appeal.
- Whether the Court of Appeal must consider in all cases the merit of an appeal after holding that it lacked jurisdiction to entertain the appeal Grounds 3 of the amended notice of appeal”
Starting with the respondent’s preliminary objection to the appellant’s three grounds of appeal, the grounds of the objection are that ground one is uncertain, vague and general in terms; ground two read with the particulars is also vague. Ground three on the other hand was attacked on the basis that it does not challenge the ratio decidendi of the decision of the Court of Appeal being appealed against. The essence of a ground of appeal is to appraise the opposite party of the nature of the complaint being raised therein. The overriding consideration is whether the ground being attacked is clearly stated or is vague. See Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253. Bearing this principle in mind, although the appellant’s three grounds of appeal are drawn in such a way that they contained long quotations from the judgment of the court below with very lengthy particulars covering a number of pages, all the same the grounds cannot be described as vague because they clearly convey to the respondent the nature of the complaint of the appellant being raised in the grounds of appeal.
Ground one is only complaining against the upholding of the respondents preliminary objection by the court below. In ground two the appellant is complaining against the refusal of the court below to exercise its jurisdiction to hear the appellant’s appeal. All the appellant is saying in ground three on the other hand is that the court below not being a final court on issue of jurisdiction, acted in error in not proceeding to hear the appellant’s appeal after upholding the respondent’s preliminary objection. With this observation, I say all the three grounds of appeal contained in the appellant’s amended notice of appeal are competent. I now proceed to look into the issues arising for determination in this appeal with one issue formulated from each of the three grounds of appeal. Issues one and two in this appeal are interrelated. I will take them together. While the first issue is dealing with the competence or otherwise of the appellant’s appeal struck out by the court below, the second issue is mainly dealing with the appellant’s right of appeal from the decision of the Federal High Court under the 1999 Constitution to the Court of Appeal. Learned senior counsel to the appellant citing section 5(1) and (2) of the Failed Banks Decree No.18 of 1994 relied upon by the Court of Appeal in upholding the respondent’s preliminary objection, argued that the decision of the Court of Appeal particularly where it held that a prayer addressed to the Federal High Court to set aside the judgment of the Failed Banks Tribunal where refused should be treated exactly as a lapsed decision of the Failed Banks Tribunal, is erroneous. Senior counsel explained that the appellant’s application at the Federal High Court was based on the provisions of the Tribunals (Certain Consequential Amendments, etc) Decree No.62 of 1999, which made the Federal High Court successor of the Failed Banks Tribunal; that as the application was based on or predicated on non-service of process, it was quite in order and rightly heard by the Federal High Court which ought to have set aside the judgment of the Failed Banks Tribunal, being a nullity as it was given without due service of process on the respondent. Several cases cited in support of the submission of the appellant include Adigun v. Attorney General of Oyo State (1987) 1 NWLR (Pt. 53) 678.
Learned senior counsel observed that the court below in its ruling now on appeal, absolutely misconceived the scope and the jurisdiction of the Federal High Court vis-a-vis the provisions of Decree No.62 of 1999, the provision of section 2(3) of which states that the court process filed before the abrogated Tribunal under Decree No.18 of 1994, shall be deemed to have been filed before the Federal High Court. With regard to the right of the appellant to appeal against the decision of the Federal High Court to the Court of Appeal and ultimately to this court, learned senior counsel asserted that the right of the appellant is guaranteed under the 1999 Constitution read along with section 2(3) of the Tribunal (Certain Consequential Amendments, etc) Decree No.62 of 1999 and the case of Eyesan v. Sanusi (1984) 4 SC 115; (1984) 1 SCNLR 353. Learned counsel emphasized that the appellant’s right of appeal can only be obstructed or expressly taken away where a statute or the Constitution expressly provides as stated in the cases of Onigbeden v. Balogun (1975) 4 SC; Ugwuh v. A.-G., East Central State (1975) 6 SC 13; Boardman v. Sokoto N.A. (1965) 1 All NLR 214; Obiyan v. Military Governor of Mid- West State (1972) 4 SC 248 and Mohammed v. E.O.P. (1999) 12NWLR (Pt. 630) 331. In conclusion, learned senior counsel urged this court to allow the appeal as it is not the intention of the law makers that provisions of section 5(1) and (2) of Decree No.18 of 1994 should deprive the appellant of its right of appeal duly conferred by another statute and the Constitution. For the respondent, it was submitted by its counsel after narrating the undisputed facts of this case and relying on section 5(1) and (2) of the Failed Banks Decree No.18 of 1994 and the case of Onuaguluchi v. Ben Collins Ndu & Ors. (2001) 7 NWLR (Pt. 712) 309 at 321, that where a statute renders any judgment of a court or Tribunal final, both the Court of Appeal and this court lack appellate jurisdiction to entertain the appeal: that it is the statute that conferred the jurisdiction that had taken it away; that in the present case the judgment of the Tribunal against the appellant which was sought to be set aside before the Federal High Court, had been preserved by statute, namely Decree No.62 of 1999 and therefore cannot be set aside or appealed against. With regard to the complaint of the appellant that it went before the Federal High Court to have the judgment of the Failed Banks Tribunal obtained in default against it set aside mainly on the grounds of denial of fair hearing which cannot be waived, learned counsel to the respondent observed that since the appellant was given opportunity to be heard but failed to avail itself before the Failed Banks Tribunal, it cannot complain of any denial of fair hearing which can be waived having regard to the decision of this court in Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292 at 306. Learned counsel further observed that as the appellant was not before the Federal High Court to enforce its fundamental rights, most of the cases cited in that line are not relevant in the present case.
On the relevance of the provisions of sections 2 and 3 of Decree No.62 of 1999, learned counsel to the respondent quoted the provisions and submitted that the application of the appellant before the Federal High Court not being in respect of a part heard matter or new proceeding instituted before that court but for proceeding in respect of suit No FBT/KNZ/CY/242/98, the Federal High Court lacked jurisdiction to entertain the application: that although the trial court heard the application and dismissed it, the decision of the trial court was still not appealable to the Court of Appeal being a final decision of a court which is a successor of the Failed Banks Tribunal under Decree No.62 of 1999, particularly when the relief sought in the appeal was to set aside the judgment of the Failed Banks Tribunal delivered on 24-4-98. Learned counsel concluded by asking this court to dismiss the appeal. On 24-2-2003, the court below heard this appeal in the course of which learned counsel adopted their respective briefs of argument which also contained arguments on preliminary objection raised by the respondent that the court below lacked jurisdiction to entertain and determine the appellant’s appeal. The notice of preliminary objection dated 13-2-2003 and filed the same day at the court below is in terms set out below:
“(a) This Honourable Court has no jurisdiction to entertain and determine this appeal.
(b) The notice and grounds of appeal are incompetent.
And take notice that the grounds of the said objection are as follows:
- The original grounds of appeal contained in the notice of appeal together with additional ground 3 complaint against an order of substituted service made by the Failed Banks Tribunal on 1st April, 1998 and the subsequent service by substituted means effected by the Bailiff of the Failed banks Tribunal on the appellant on 6th April, 1998 Section 5(1) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 (as amended) provides right of appeal against the decision of the Tribunal within 21 days after the decision: while section 5(2) of the aforesaid Decree provides for finality of the decision after 21 days of the decision in the absence of appeal. The notice and grounds of appeal challenging the decision of the Failed Banks Tribunal filed without leave and out side the statutory period allowed for appeal, is in competent. The grounds of appeal read together with their particulars infringed the provisions of Order 3 Rule 2(4) of the Court of Appeal Rules, 2002 for being vague or general or disclosed no reasonable grounds of appeal.” In its judgment delivered on 22-5-2003, the Court of Appeal upheld the preliminary objection of the respondent challenging the competence of the appeal and the jurisdiction of that court to entertain and determine it and accordingly struck out the appeal.
The undisputed facts agreed by the parties in this appeal part of which I have earlier narrated in this judgment are that the proceedings of the Failed Banks Tribunal in the course of which the respondent’s application for substituted service on the appellant was heard and granted on 1-4-98, is not in dispute. So also is the fact on the return of service by substituted means, the Tribunal heard the respondent’s suit in accordance with the rules of court on the undefended list and delivered its judgment against the appellant on 24-4-98. There was also no appeal against this judgment of the Failed Banks Tribunal within 21 days to the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunals) Decree 1984 as amended. The parties are also not disputing the fact that with the coming into force of the Tribunals (Certain Consequential Amendments, etc) Decree No.62 of 1999, the Tribunal (which heard the appellant’s case had been dissolved and all part-heard matters before it had been transferred to the Federal High Court as from 28-5-99 for continuation and disposal. The preliminary objection raised by the respondent at the court below to the competence of appellant’s appeal and the jurisdiction of that court to entertain and determine the appeal was rightly raised. See Pan Asian African Co. Ltd. v. N.I.C.O.N (1982) 9 SC 1 and Tukur v. Govt. Gongola State (1989) 4 NWLR (Pt. 117) 517. The law is also trite that a court of law is said to be competent to entertain and determine a matter placed before it if:
(a) It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. This is because any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect being extrinsic to the adjudication. See Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617 and Madukolu & Ors. v. Nkemdilim & Ors. (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt.4) 587, where it was stated at page 595 that where all the three conditions listed above for the exercise of jurisdiction co-exist, such a court is said to have competence and jurisdiction. In the case at hand, the appellant’s application filed at the Federal High Court on 22-10-99, was brought under the Tribunals (Certain Consequential Amendments, etc) Decree No 62 of 1999, which dissolved the Failed Banks Tribunals constituted under the Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Decree No.18 of 1994, under which the respondent’s suit No FBT/KNZ/CV /242/98 against the appellant was heard and determined.
The relief sought by the appellant before the Federal High Court which before the coming into force of Decree No.62 of 1999 had no jurisdiction in suits connected with Failed Banks, was the setting aside of the judgment of the Failed Banks Tribunal delivered since 24-4-98. The question is whether the Federal High Court was competent to entertain and determine the appellant’s application. Decree No.62 of 1999 which conferred jurisdiction on the Federal High Court with effect from 28-5-1999, contains the following provisions in sections 2 and 3 as follows: ”
2(1) The Federal High Court or the High Court of a state, as the case may be, shall have jurisdiction to try the
offences created under the enactments specified in the schedule to this Decree.
(2) Accordingly, a tribunal established in any of the enactments specified in the schedule to this Decree is hereby dissolved.
(3) A charge, claim or court process filed before a Tribunal established under any of the enactments specified in the schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a state, as the case may be and such charge, claim and court process shall be deemed amended as to title, venue, and such other matter as may be appropriate to give effect to this sub-section without further assurance than this Decree.
(4) Any order, remand, decision or judgment made by a Tribunal before the commencement of this decree is hereby preserved.
(5) A decision or judgment of a tribunal made before the commencement of this Decree shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of this Decree.
(6) Where before the commencement of this Decree, a matter has been concluded in a Tribunal and the Tribunal was for any reason whatsoever unable to deliver the judgment, the Judgment may be delivered by a Judge of the Federal High Court or the High Court of a state, as the case may be: Provided that the judgment shall have been written.
3(1) Where any part heard matter is pending before any Tribunal on the date of the making of this Decree, the Judge: –
(a) may, if the parties to the proceedings agree in a civil cause, adopt the proceedings of the Tribunal concerned;
(b) shall, in a criminal case, try the matter de novo pursuant to this Decree
(2) All new proceedings shall be brought before the court in accordance with the rules of procedure of the court concerned.” These are the provisions of the Tribunals (Certain Consequential Amendments etc) Decree 1999, otherwise known as Decree No.62 of 1999, that conferred specific jurisdiction to the Federal High Court in all criminal and civil matters that were within the jurisdiction of the Failed Banks Tribunals which were in operation under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree 1994 otherwise known as Failed Banks Decree No.18 of 1994. In other words, by section 2(1) of Decree No.62 of 1999, the Federal High Court with effect from the date of the commencement of the Decree being 28-5-1999, had stepped into the shoes of the Failed Banks Tribunals in respect of all matters within the jurisdiction of the Tribunals under the Failed Banks Decree which had been consequentially amended to bring the life of the Failed Banks Tribunals to an end. Thus, the jurisdiction of the Federal High Court to entertain and determine matters under the Failed Banks Decree commenced on 28-5-99. Next is to determine from the provisions of the new Decree No. 62 of 1999, the types of matters transferred from the defunct Failed Banks Tribunals to the Federal High Court. By sub-section (3) of section 2 of the Decree, a charge in respect of a criminal matter, a claim in the process for recovery of debts of banks, or court process filed before any Failed Banks Tribunal under the Failed Banks Decree, are deemed to have been duly filed or served before the Federal High Court. The provision of sub-section (4) of section 2 of the Decree on the other hand preserved any order, remand, decision or judgment made by any dissolved Failed Banks Tribunal before the commencement of the Decree on 28-5-99. With regard to the decision or judgment of a Tribunal made before the commencement of the Decree, it is to be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of Tribunal before the commencement of the Decree. This section 2 of the Decree has also taken care of situation where any dissolved Tribunal had concluded the hearing and determination of a matter before it in a judgment which had been written but was not delivered before 28-5-99, when the Decree came into force. The Federal High Court by sub-section (6) of the section, was invested with the jurisdiction to deliver the judgment. The nature of the jurisdiction conferred on the Federal High Court by Decree No.62 of 1999 is further specifically stated in section 3(1) and (2) of the Decree earlier quoted in this judgment. The jurisdiction under this provision is confined to part-heard matters pending before the dissolved Failed Banks Tribunal on the date of the making of the Decree on 28-5-99. The jurisdiction also covers all new proceedings that shall be commenced before the Federal High Court. The provisions of sections 2 and 3 of Decree No.62 of 1999 conferring additional jurisdiction on the Federal High Court in respect of matters under the jurisdiction of the dissolved Failed Banks Tribunals, are quite plain and unambiguous. It is in line with the provision of section 251 of the Constitution of the Federal Republic of Nigeria 1999, which recognised this type of additional jurisdiction conferred by statute in specifying the general jurisdiction of the Federal High Court under the Constitution. What I have to examine now is where the case of the appellant can be accommodated under the provisions of sections 2 and 3 specifying the jurisdiction of the Federal High Court with effect from 28-5-99, since the appellant claimed to have brought its application before the Federal High Court under section 3 of the Decree. The undisputed facts of this case contained in the record of appeal, show that the suit No FBT/KNZ/CV/242 against the appellant for the recovery of a bank debt, was commenced before the Kano Zone Failed Banks Tribunal on 1-4-98. The suit was heard on the undefended list in accordance with the rules applicable before the Tribunal and concluded with a judgment against the appellant for the sum of N969,572.01, on 24-4-98. The case was heard under the Failed Banks Decree No.18 of 1994 before it was amended by Decree No.62 conferring jurisdiction in such cases on the Federal High Court which on 22-10-99, about 5 months after the commencement of the Decree, received the application of the appellant to set aside the judgment of the dissolved Tribunal against it. Is this application by the appellant within the matters that can be taken and determined by the Federal High Court under sections 2 and 3 of Decree No.62 of 1999 Clearly, the jurisdiction of the Federal High Court under those sections of statute is confined to part-heard matters left behind by the defunct Fail Banks Tribunals at various stages of proceedings right from the date of filing of the charge or suit, to the stage of delivery of judgment written and left behind undelivered by the Tribunal. Any charge or claim outside this area cannot fall into the category of part-heard matters pending before a Tribunal before its life was brought to an end by the Decree. In other words, the case of the appellant in which judgment had been delivered by the Tribunal since 24-4-98, more than one year before the commencement of Decree No 62 of 1999, is certainly not available for the Federal High Court to pick up and determine under its new jurisdiction not being a part-heard matter pending before the Tribunal as at 28-5-99. It would have been a different situation if the judgment of the Tribunal against the appellant was only written and not delivered before the commencement of Decree No.62 of 99. The judgment then could have been delivered by the Federal High Court under section 2 subsection (6) of the Decree thereby qualifying the judgment as a part-heard matter under section 3 of the Decree which would have brought the appellant’s case squarely within the jurisdiction of the Federal High Court and a fortiori within the jurisdiction of the court below. Whether the case of the appellant can be accommodated under section 3(2) of Decree No. 62 of 1999 as a new proceeding being commenced before the Federal High COURT may be examined to see if the court could have jurisdiction to entertain it. On close examination, the answer of course is in the negative on the face of the judgment of the Failed Banks Tribunal delivered against the appellant in suit No. FBT/KNZ/CV/242/98 since 24-4-98. As the case of the appellant was not being commenced as a new proceeding before the Federal High Court under the provisions of Decree No.62 of 1999, that court cannot be clothed with the jurisdiction to entertain and determine the claim. See Moore v. Tayee (1934) 2 WACA 43 at 45 and Mandara v. A.-G., Fed. (1984) 1 SCNLR 311. In other words, the case of the appellant having been instituted, heard and determined by the Failed Banks Tribunal under the Failed Banks Decree No.18 of 1994, before the amendment to divest the Tribunal of its jurisdiction, the appellant cannot now come before the Federal High Court which had taken over the jurisdiction of the Tribunal with effect from 28-5-99 for any relief. This is because the rights and obligation of the parties in this case had been effectively determined by the Tribunal under the repealed provisions of Decree 18 of 1994 section 5 of which states:
“5(1) A person convicted or against whom a judgment is given under this Decree may, within 21 days of the conviction or judgment, appeal to the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunals) Decree 1984, as amended, in accordance with the provisions of that Decree.
(2) The decision of the Special Appeal Tribunal shall be final and, where there is no appeal, the decision of the Tribunal shall be final.” The appellant not having availed itself of the remedies at its disposal under Decree No.18 of 1994 before the amendment to either apply before the Tribunal to set aside its judgment given against the appellant in suit No. FBT/KNZ/CV/242/98 on 24-4-98, on grounds of improper service, or appeal against the judgment within the time prescribed by section 5(1) of the Decree, the appellant is no longer clothed with any right to seek remedy before the Federal High Court under the new dispensation brought about by Decree No.62 which on its commencement on 28-5-99, swept away not only the Failed Banks Tribunal but also the Special Appeal Tribunal to which the appellant ought to have sought remedy on appeal. Since there is no provision in sections 2 and 3 of Decree No. 62 of 99 to deal with any matter already heard and disposed of by the dissolved Tribunal, the Federal High Court clearly is without jurisdiction to entertain and determine the appellant’s application. In this respect, the issue of whether or not the judgment of the Tribunal against the appellant was final in the absence of any appeal against it within 21 days which was heavily flogged by the parties before this court, is no longer important on the face of the clear provisions of sections 2 and 3 of Decree No. 62 of 99 which conferred jurisdiction on the Federal High Court. With this situation, the Federal High Court has no jurisdiction to hear the application filed by the appellant which formed the basis of this appeal. Following this ouster of the jurisdiction of the Federal High Court to entertain the appellant’s application, the judgment of the Failed Banks Tribunal against it being a judgment of a court of competent jurisdiction against which there was no appeal, subsists. The rights created, preserved or determined in that judgment remain valid until set aside. However, the trial Federal High Court by virtue of the provisions of Decree No. 62 of 1999, is incompetent to vary and/or reject rights thus established by the court of competent jurisdiction namely, the Failed Banks Tribunal. This means even if there were some errors in the judgment of the Tribunal against the appellant, it is for the competent court to which an appeal lies against the judgment, in this case the Special Appeal Tribunal, to connect it or so declare. The result of the proceedings undertaken in the absence of jurisdiction by the trial court is of course obvious as the law on the situation is trite. Coming back to the appeal filed by the appellant against the decision of the Federal High Court in exercise of its jurisdiction under sections 2 and 3 of Decree No.62 of 1999 dismissing the appellant’s application, the right of appeal does not stem out of or derive exclusively from the provisions of the 1999 Constitution as argued on behalf of the appellant. The true position is that the right of appeal of the appellant from the decision of the Federal High Court on a matter originating/from the decision of a Failed Banks Tribunal with effect from 28-5-99 to the Court of Appeal lies in section 7(1) of Decree No. 62 of 1999 which states: “7(1) A person convicted or against whom a judgment is given under this Decree may, within 30 days of the conviction or judgment, appeal to the Court of Appeal.” This specific right of appeal is of course in addition to the general right of appeal conferred by sections 241 and 242 of the 1999 Constitution. Therefore the appellant’s appeal to the Court of Appeal having its roots from the decision of the Failed Banks Tribunal handed down since 24-4-98 and which was not properly or rightly placed before the Federal High Court for adjudication thereby affecting the proceedings of that court, also affected the competence of the appellant’s appeal. This is because although the trial Federal High Court heard the appellant’s application to set aside the judgment of the Failed Banks Tribunal on the merit, as by virtue of the provisions of sections 2 and 3 of Decree No. 62 of 1999, that court lacked jurisdiction to entertain and determine the application, the proceedings in the matter including the ruling being appealed against by the appellant are a complete nullity leaving nothing at all to support any appeal. In other words when the court below in its judgment said at page 134 of the record that: ‘This court in my humble view is without jurisdiction to entertain an appeal whether directly or indirectly from the decision of the Failed Banks Tribunal given on 24th April 1998 or before 29-5-99.”all that court was saying is that as at 29-5-99, when Decree No.62 of 1999 was in force, the judgment of the Failed Banks Tribunal of 24-4-98, against the appellant was not a pending part-heard matter that could have gone before the Federal High Court for any form of adjudication under the Decree. This is because the case of the appellant was governed by the provisions of the Failed Banks Decree 1994 before its amendment in 1999 and therefore the rights and obligation of the parties in this appeal in respect of the case must be determined in accordance with the law prevailing before the amendment. See A-G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Alao v.Akano (1988) 1NWLR (Pt. 71) 431; Uwaifo v. A-G. Bendel State (1982) 7 SC 124,(1983) 4 NCLR 1; Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 201; Rossek v. AC.B. Ltd. (1993) 8 NWLR (Pt. 312) 382 at 474 and the recent decision of Adah v. N.Y.S.C (2004) 13 NWLR (Pt. 891) 639 at 648, where Uwaifo, JSC observed: “It ought to be understood that the law which supports a cause of action is not necessarily co -extensive with the law which confers jurisdiction on the court which entertains the suit founded on that cause of action. The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard.” Thus, in the case at hand, upon the state of the law conferring jurisdiction on the Federal High Court as at 22-10-99 in respect of matters arising from the Failed Banks Decree No. 18 of 1994 as amended, the Federal High Court was deprived of the jurisdiction to entertain and determine the appellant’s application. Therefore the court below having found the appellant’s appeal incompetent, after striking out the appeal for lack of jurisdiction to entertain it, the court ought to have proceeded to make the consequential order of declaring the proceedings and ultimate ruling of the Federal High Court being appealed against a nullity having been conducted and given without jurisdiction. All the same, although the court below did not make specific finding that the trial court has no jurisdiction to entertain the appellant’s application, its decision upholding the objection of the respondent and striking out the appellant’s appeal, is quite in order. With the conclusion I have arrived at in the determination of this appeal on issues 1 and 2, it is no longer necessary to look into the complaint of the appellant in issue No.3 which is no longer a life-issue. In the final analysis, having regard to the circumstances of this case, I completely agree with the court below in striking out the appellant’s appeal before it on the grounds that it has no jurisdiction to entertain and determine the appeal. Consequently, the appellant’s appeal against the order of the Court of Appeal striking out its appeal is hereby dismissed. The respondent is entitled to costs which I assess at N10,000.00 (against the appellant).
SC.135/2003
