Bishop Samson I. Okelezoh & Ors. V. Rev. Davi Izuage & Anor. (2003)

LawGlobal-Hub Lead Judgment Report

RABIU DANLAMI MUHAMMD, J.C.A.,

The respondents herein were the plaintiffs at the lower court. They sued the appellants in the Benin Judicial Division of the Edo State High Court claiming the following reliefs:
“1. A declaration that as life trustees of the 5th defendant the 1st to 4th defendants have no right to exclude the plaintiffs from the lawful activities of the 5th defendant.

2. A declaration that as life trustees the plaintiffs are entitled to their remuneration/allowance due to them from the activities of the 5th defendant to date.

3. A declaration that the exclusion of the plaintiffs from the activities of the 5th defendant by the 1st to 4th defendants is illegal unconstitutional, null and void.

4. An order setting aside a document dated 11th of June, 1999 as the document was executed involuntarily under undue influence exerted on the 1st plaintiff by the 1st and 2nd defendants.

5. An order of perpetual injunction restraining the defendants by themselves, their agents or servants from interfering with the activities of the plaintiffs in the discharge of their duties in the 5th defendant.”

The plaintiffs then filed a motion ex-parte seeking the following:
“An order of interim injunction restraining the Defendants/Respondents by themselves, their agents servants, their church members from interfering with or disturbing the Plaintiffs/ Applicants in the performance of their church functions and duties in the Headquarters of the 5th Defendant/ Respondent at No. Perfection Close, off St. Saviour Road, Upper Sokponba Road, Benin City and its branches nationwide pending the hearing and determination of the motion on notice.”

This motion ex-parte was heard and granted on 24/11/2000 pending the hearing and determination of the motion on notice which was fixed for hearing on 15/1/2001. The defendants were not satisfied with the interim order, they therefore, filed a motion on notice on 27/11/2000 “praying for an order discharging the order of interim injunction made in this suit on 24th November, 2000 on the following grounds:
a) Fraudulent concealment and/or misrepresentation of material facts by the Plaintiffs/ Respondents;
b) Abuse of court process;
c) Lack of jurisdiction to hear and determine the Plaintiffs/Respondents’ claim.”

After hearing arguments from both parties, the learned trial judge in his Ruling said:
“I hold that the applicants have not made out a case for which the interim order made on 24/11/2000 by this Honourable Court be discharged. In the result, this application fails and same is refused.”

Aggrieved with this decision, the defendants appealed to this Court. They filed five grounds of appeal. Without their particulars, the grounds of appeal read:
“1. The Learned trial judge erred in law when he held that there was no material concealment and/or misrepresentation of fact by the Plaintiffs/Respondents in obtaining the order of interim injunction.
2. The Learned Trial Judge erred in law when he held that the Plaintiffs/Respondents’ action did not amount to abuse of judicial process.
3. The Learned Trial Judge erred in law when he failed to make pronouncement on his jurisdiction to make the interim order which was specifically raised before him.
4. The Learned Trial Judge erred in law when he failed to discharge the order of interim injunction which the Plaintiffs/Respondents failed to justify.
5. The ruling was against the weight of affidavit evidence before the trial court.”

The appellants filed their brief of argument. The respondents were served with the” appellants’ brief of argument. However, they failed or neglected to file the respondents’ brief of argument within the prescribed period. This prompted the appellants to file a motion to set the appeal for hearing on the appellants’ brief alone since the respondents have failed to file their brief. This was granted. Four issues were formulated in the appellants’ brief for the determination of the appeal.

The issues are:
“1. Whether or not the Respondents’ action did not conceal material facts from the trial court in their ex-parte application dated 9th November, 2000.
2. Whether or not the Respondents’ action did not in the circumstance of this case, amount to an abuse of the judicial process.
3. Whether the trial Court is vested with the jurisdiction to hear and determine the Respondents’ claim.
4. Was it right for the learned trial judge to decline to set aside his ex parte order of interim injunction?”

I will first start with the issue of jurisdiction, because jurisdiction is the sine qua non of the matter.
It is the authority vested in a court which gives the Court the power to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. Whatever a court does without jurisdiction is a nullity.

At the hearing of the appeal, the respondents did not appear even though they were served. With the leave of the Court, the appellants were allowed to argue the appeal based on the appellants’ brief of argument. It was submitted in the appellants’ brief that jurisdiction was the bedrock upon which the court’s competence to adjudicate on a matter rested. It was so fundamental that an adjudicating court was required to resolve it before taking any step in the proceedings.

To buttress these submissions the following cases were relied upon: Akegbejo & Ors vs Dr. D.O. Ataga & Ors (1998) 1 NWLR (Pt 534) 459 and Imeokparia Vs Imeokparia (1992) 1 NACR (Pt 2) 337. It was further submitted that the issue of jurisdiction was so important that it could be raised at any stage of the proceedings and where the parties failed to raise the issue of jurisdiction, the trial court has a duty to raise it suo motu if sufficient materials were placed before it. It was then submitted that the lower court has no jurisdiction to entertain the matter because by the express provisions of Section 251(1)(e) of the 1999 Constitution of the Federal Republic of Nigeria, it is the Federal High Court that has exclusive jurisdiction to entertain the respondents’ claim.

It was also submitted that the lower court had the jurisdiction to determine that it had no jurisdiction to make the order of interim injunction, but failed to do so on the erroneous ground that the appellants’ attack on the Court’s jurisdiction ought not to have been made in the course of arguing the appellants’ motion seeking an order discharging the order of interim injunction it made against the appellants. We were then urged to hold that the trial judge gravely erred when he failed to make a pronouncement on his competence or jurisdiction to hear and determine the respondents’ claim which was challenged by the appellants.

One of the grounds the appellants relied upon for asking the lower court to discharge the order, of interim injunction it made against them was that the trial court lacked jurisdiction to hear and determine the respondents’ claim. In his ruling the trial judge, declined to make any pronouncement with regards to the issue of jurisdiction.

According to the trial judge, it was not the time to raise the issue and that it ought to be properly made against the main case and not as a ground for setting aside an order made ex-parte. This is what he said:
“This brings me to the issue of jurisdiction. Clearly superior courts of records have jurisdiction to make ex-parte orders in appropriate cases. Where a court lacks jurisdiction to adjudicate’ upon a matter before it, the party challenging the jurisdiction of the court should direct such challenge to the suit itself and not in my view’ to interlocutory orders made in the case. Where a party successfully challenges or establishes that a court has no jurisdiction to adjudicate on a matter before it any interim orders made in the meantime is ‘thrown overboard with the main case. This should be the approach.”

I will first of all state that the trial judge was wrong to decline to make a pronouncement one way or the other as to whether or not the Court had jurisdiction to entertain the matter. The issue of jurisdiction was properly placed before him and it was a grave error not to’ pronounce specifically on the issue.

The issue of jurisdiction is so fundamental that it can be raised at any stage of the proceedings. It could even be raised for the first time at the Supreme Court. See A. O. Obikoya vs The Registrar of Companies & Official Receiver of Pool House Group (Nigeria) Ltd (1995) 4 SC 31 where it was stated by the Supreme Court at page 34 that:
“We are of the opinion that, although learned counsel for the appellant would appear to be unfair in raising the question of jurisdiction in the manner in which he did, our rules of practice permit the issue of jurisdiction to be raised at any stage of the proceedings up to the trial determination of an appeal by this Court. This is because the existence or absence of jurisdiction in the court of trial goes to the root of the matter so as to sustain or nullify the trial judge’s decision or order in respect of the relevant subject matter.”

When a court’s jurisdiction is challenged, the court must first of all assume jurisdiction to decide whether it has or lacks jurisdiction to entertain and determine the matter. See: A-G, Lagos State Vs Dosunmu (1989) 3 NWLR (Pt 111) 552; A-G, Bendel State Vs Aideyan (1989) 4 NWLR (Pt 118) 646 and Salami Vs Chairman, LEDB (1989) 5 NWLR (Pt 123) 539. When a Court’s jurisdiction is challenged, it is better for the court to settle that issue first before proceeding to hear the case on the merits. The reason is that jurisdiction is a radical and crucial question of competence, for, if the court has no jurisdiction to hear a case, the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication. See: Madukolu Vs. Nkemdilim (1962) All NLR 587.

In Nwosu Vs Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt 135) 688, the Supreme Court stated at pages 726 – 727 per Belgore, JSC:
“The issue of jurisdiction is always fundamental and it is only prudent it be resolved first, otherwise the court that ignores that issue might finally find its going to the real trial of all issues a mere adventure. Jurisdiction is the power of the court to adjudicate in the subject matter and it is either given by the Constitution or a specific statute on the subject in issue. To avoid unnecessarily wasting time of the court, it is therefore desirable to ascertain first if there is jurisdiction by the court to try the issue.”

Since the appellants challenged the competence and jurisdiction of the lower court to entertain the respondents’ claim, it became mandatory for the lower court to first decide the issue of jurisdiction before taking any further step in the proceedings. See: Onyema Vs Oputa (1987) 3 NWLR (Pt 60) 259 and Mohammed Vs Ali (1989) 2 NWLR (Pt 193) 349. The learned trial judge was therefore wrong not to have pronounced on the issue of jurisdiction one way or the other.

The jurisdiction of the lower court, which is a High Court of a State, is as prescribed by Section 272 of the Constitution of the Federal Republic of Nigeria, 1999. The jurisdiction of a State High Court is subject to the provisions of Section 251 and other provisions of the Constitution. Section 251 of the Constitution prescribes the jurisdiction of the Federal High Court and it provides:
“251-(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(a) x x x x x x x x
(b) x x x x x x x x
(c) x x x x x x x x
(d) x x x x x x x x
(e) Arising from the operation of the companies and Allied Matters replacing that Act or regulating the operation of companies incorporated under the companies and Allied matters Act;”

From the above, it is clear that the Federal High Court has exclusive jurisdiction in civil causes and matters arising from the operation of the companies and Allied Matter Act or regulating the operation of Companies incorporated under the said Act. The 5th appellant i.e. Registered Trustees of Ministry of Perfection is a body registered under Part C of the Companies and Allied Matters Act. See paragraph 3 of the affidavit in support of the ex-parte motion where it was deposed that:
“3. That sometimes in 1986, myself in conjunction with the 1st and 2nd defendants/Respondents, formed the 5th defendant and incorporated same under the Companies and Allied Matters Act, 1990 as an incorporated trustee. ”

It is the plaintiff’s claim that determines the jurisdiction of a Court. I will now consider the claims of the respondent to determine whether or not they are claims arising from the operation of the Companies and Allied Matters 40. Act or regulating the operation of Companies incorporated under the said Act. I have at the beginning of this judgment reproduced the claim of the respondents.

Looking at all the claims, it is manifest that they all have something to do with the operation of the 5th respondent which is a body incorporated under the Companies and Allied Matters Act. The claim falls within the ambit of Section 251(1) (e) of the 1999 Constitution and it is within the exclusive jurisdiction of the Federal High Court. The lower court, which is a State High Court has no jurisdiction to entertain and determine the matter and I so hold.

Having reached this conclusion that the court below lacks jurisdiction to entertain and determine the matter, there is no need for me to consider the other issues. In the circumstance, the appeal succeeds and is hereby allowed by me. The order of interim injunction made on 24/11/2000 by Sadoh J., is set aside. Suit No. B/806/2000 is struck out for want of jurisdiction. The appellants are entitled to cost which I assess at N3,000.00.

Other Citations: (2003)LCN/1377(CA)