Chief Eugene Eneh V. Nigeria Deposit Insurance Corporation & Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Enugu Division, hereinafter referred to as the lower Court, delivered on the 26th January 2006 setting aside the interlocutory decision of the Enugu State High Court, hereinafter referred to as trial Court, dated 6th day of December 2000.
On the 18th day of August 1998 the appellant as plaintiff at the trial Court commenced suit No. E/388/98 against the respondents.
The 1st respondent filed two motions on the 22nd day of September 1998 and 5th day of June 2000 respectively challenging the trial Courts jurisdiction to entertain the suit. The two applications, on being consolidated on the 4th day of October 2000, were argued together. The trial Court in a considered ruling dated 6th of December 2000 dismissed 1st respondents objections to its jurisdiction to hear and determine appellants suit.
Dissatisfied with the decision, the 1st respondent appealed to the lower Court which allowed the appeal and set aside the trial Court’s ruling.
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Aggrieved by the lower Courts judgment, the appellant has come on appeal against same vide his notice filed on the 8th day of February 2006 containing two grounds.
At the hearing of the appeal on the 9th of April 2018, parties having identified their respective briefs adopted and relied on them as their arguments for and against the appeal.
The 1st respondents Notice of preliminary objection pursuant to Order 2 Rule 9, Order 6 Rule 9 and Order 8 Rule 7 of the Supreme Court Rules 1999 as amended and Section 241 of the 1999 Constitution filed on 8/2/16 challenging the competence of the appeal has been argued in its brief.
It needs to be considered and determined first. The issue of jurisdiction of Courts, including this one, in relation to what they entertain remains fundamental. It will be a futile exercise for this Court to proceed on a matter without the necessary jurisdiction. See Madukolu V. Nkemdilim (1962) 1 ALL NLR (Pt 4) 587 and Galadima V. Tambai (2000) 11 NWLR (Pt 677) 1 SC.
The two issues distilled at paragraph 5 of the 1st respondent’s brief as having arisen for the determination of its preliminary objection are:-
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(a) Whether the appellant’s two Grounds of Appeal being that of mixed law and fact are competent to vest in this Honourable Court the requisite jurisdiction in the absence of leave of Court first sought and obtained.
(b) Whether the failure of Appellant to file his brief within time and without leave of this Court does not render the appeal incompetent and warranting its dismissal
On the 1st issue, learned counsel for the 1st respondent submits that an intimate reading of the two grounds in the appellant’s notice of appeal reveals that they are at best grounds of mixed law and facts which require seeking and obtaining the leave of Court before filing the appeal. Any appeal based on the grounds without having sought and obtained leave of Court before it was filed, learned counsel insists, being incompetent, has to be struck out. Learned counsel sustains his submissions on Opuiyo V. Omoniwari (2007) 16 NWLR (Pt 1060) 415, Akinyemi V. Odua Investment Co Ltd (2012) 17 NWLR (Pt 1329) 209 at 233, Jov v. Dom (1999) 7 SCNJ 27 at 33, Abidoye V. Alawode (2001) 3 SCNJ 40 at 47, Ogidi V. Egba (1999) 6 SCNJ 107 at
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117 and Ehinlanwo V. Oke (2008) 6 SCNJ 316 at 337.
On the 2nd issue, learned 1st respondent’s counsel submits that appellants brief of argument was filed outside the time provided for doing so by Order 6 Rule 5(1)(a) of the Supreme Court Rules 1999 as amended. Appellants notice of appeal, it is contended, was filed on the 8th February 2006 with the delivery of the judgment appealed against by the lower Court on 26th January. 1st respondent, it is submitted, was served with the record of appeal on 13th February 2000. Appellants brief, it is further contended, was filed on 4th May 2006 by far outside the time allowed by Order 6 Rule 9 of the rules of Court. The appeal as well as the appellants brief being incompetent, learned counsel submits, should be struck out.
The appellant disagrees with the 1st respondent. In his reply brief, it is contended that the two grounds of appeal are all grounds of law alone. Though founded on facts, it is submitted, what the appellant seeks by them is the application of the law to ascertained facts as circumscribed in his statement of claim. The appeal, it is further
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contended, only seeks to know whether the lower Courts conclusion on the ascertained facts is right or wrong. Relying onOgbechie V. Onochie (1986) 2 NWLR (Pt 23) 484 at 491, learned appellants counsel urges that the first issue be resolved against the 1st respondent.
On the 2nd issue, it is argued that appellants time to file his brief of argument begins to run from the date the appellant, rather than the 1st respondent, was served with the record. Evident from forms 18 and 19 of the record of appeal endorsed by learned appellant’s counsel Chief J.C. lfebunandu, it is submitted, the record was served on the appellant on the 23rd of February 2006. From that date, appellant’s time to file his brief, ten weeks, was yet to lapse when the brief was filed. Further relying on Ugwuanyi V. Nicon Insurance Plc (2013) ALL FWLR (Pt 686) 482 at 512 and NBCI V. Integrated Gas Nig Ltd (2005) ALL FWLR (Pt 250) 1, learned counsel submits that the 1st respondent who filed his brief on the 18th January 2007, withdrew same on the 28th day of May 2015 and had it substituted following a Courts order on 4th November 2015, is estopped from challenging the competence of
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the appellants brief. On the whole, learned appellant counsel prays that 1st respondent’s objection be overruled.
By Section 233(2)(a) of the 1999 Constitution as amended, an appeal from the decision of the Court of Appeal to this Court on facts alone or mixed law and facts requires the leave of the lower Court or this Court before it can be filed. A ground of appeal for which leave is required and is filed without such leave is incompetent. See Ojemen V. Momodu II (1983) 1 SCNLR 188 at 205, Akiwiwu Motors Ltd & anor V. Sangonuga (1984) 5 SC 184 at 188 and KTP Ltd V. G&H (Nig) Ltd (2005) 5 SC (Pt II) 140, (2005) LPELR-1660 (SC).
A scrutiny of the two grounds of the instant appeal reveal them to be alleging the lower Courts misunderstanding or misapplication of the law to ascertained, undisputed or admitted facts as circumscribed in the appellant’s statement of claim. These grounds are grounds of law alone and I so hold. See Ogbechie V. Onochie (No 1) (1986) 2 NWLR (Pt 23) 484, and General Electric Company V. Harry Ayoade Akande & ors (2010) LPELR-9356 (SC).
It is trite that an appeal is generally regarded
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as a continuation of the original suit. See Adegoke Motors Ltd V. Adesanya and anor (1989) LPELR-94 (SC), Oredoyin V. Arowolo (1989) 4 NWLR (Pt 114) 172 and Senator Nkechi Justina Nwaogu V. Hon. Emeka Atuma & ors LPELR-19648 (SC). The objection of the 1st respondent against the trial Courts assumption of jurisdiction to entertain the appellants action is what brought about the instant appeal. This Court in considering the fundamental nature of jurisdiction of a Court has pronounced in several of its decisions on the inevitability of allowing issues of jurisdiction to be raised before it even for the first time without the need for leave since the Court is of last resort. See Oniah V. Onyia (1989) 1 NWLR (Pt 99) 514 at 540 and Attorney General of Oyo State V. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt 92) 59.
Finally, the 1st respondent in asking this Court to discountenance the appellants brief seeks to invoke the discretionary powers of the Court. He has the duty of providing the necessary material on which basis the discretion is to be exercised in his favour. See University of Lagos V. Aigoro (1985) 1 NSCC 88 and Babatunde V.
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Pan Atlantic Shipping and Transport Agency Ltd & ors (2007) 4 SCNJ 140.
In the case at hand the presumption of regularity enures to the appellant. His brief is to be presumed as having been regularly filed and therefore competent until the presumption is, by concrete facts, rebutted. By Section 168 (1) of the Evidence Act 2011 recognition and validity must be accorded the appellant’s brief of argument that has been duly processed. See Aliu Bello V. AG Oyo State (1986) 12 SC 1 and Citec International Estate & ors V. Francis & ors (2014) LPELR-22314 (SC).
The 1st respondents failure to establish when the record of appeal was served on the appellant constitutes and amounts to inability to rebut the presumption that appellants brief has been regularly filed. The objector cannot seriously insist that the time of filing the brief has lapsed and the brief as filed is incompetent. In the particular circumstance of the instant appeal, be it re-emphasized, the fundamental issue of jurisdiction the appeal raises entitles the appellant to argue his appeal even viva voce. See Omomeji V. Kolawole (2008) 14 NWLR (pt 1106) 180.
1st respondent’s objection resultantly fails. It is overruled.
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The Court will proceed to determine the competent appeal.
The two issues the appellant submitted at paragraph 3 of his brief of argument read:-
(i) Was the Court of Appeal right in examining the consequences of the success of the appellants relief as claimed in determining whether the trial Court has jurisdiction to entertain the suit before it
(ii) Was the lower Court right in holding that the trial Court, i.e. the Enugu State High Court had no jurisdiction to entertain the suit having regard to the reliefs as averred in the statement of claim” (Underlining supplied for emphasis).
The 1st respondent’s lone issue for the determination of the appeal reads:-
Whether the Court of Appeal was right in coming to the decision that the Enugu (sic) Court had no jurisdiction to entertain the suit having regard to the fact that the appeal does not lie from the Failed Bank Tribunal to Enugu (sic) High Court but to special Appeal Tribunal (now count of Appeal) and also that the Enugu (sic) had no supervisory jurisdiction to review the decision of the Failed Bank Tribunal a fortiori that of the Federal High Court.”
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The 2nd and 3rd respondents’ lone issue distilled for the determination of the appeal reads thus:-
Whether the lower Court was correct in holding that the High Court had no jurisdiction to entertain the claim seeking to set aside the order(s) of the failed Bank tribunal.”
Appellant’s 2nd issue which is similar to the issues distilled by each set of the respondents will be considered and resolved in the determination of the appeal.
Arguing the appeal, learned appellants counsel submits that by Sections 5(1) and 39(a) of the Land Use Act, the trial Court is vested with exclusive original jurisdiction over land the subject of a statutory right of occupancy granted or deemed granted by the governor. Any land situate in urban areas in Enugu State, it is argued, comes within the trial Courts jurisdiction. It is settled that the issue of a Courts jurisdiction in a matter on pleadings, learned counsel submits, is determined by the plaintiffs claim as endorsed on the writ of summons. It is evident from the pleadings of the parties herein, contends learned counsel,
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that the dispute between them is as to who owns the right of occupancy to plot 10 – Block VI Ogui Communal Land Layout Enugu. This state of pleadings of the parties vests jurisdiction in the trial Court. What effect the exercise of the trial Courts jurisdiction will have on the judgment of the failed Bank Tribunal as the lower Court insists, it is submitted, cannot take away the vested jurisdiction. The appellant who was never a party to the suit at the Failed Bank Tribunal, it is submitted, cannot be bound by the tribunals judgment. The issue before the trial Court was never pronounced upon by the Failed Bank Tribunal which jurisdiction does not extend to the right of occupancy the parties dispute in the instant suit is founded on. Relying inter-alia on Western Steel Workers Ltd V. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt 49) 284, Adeyemi V. Opeyori (1976) 9-10 SC, NV. Scheep V. Mv.” S” Araz (2001) FWLR (Pt 34) 543 at 593, Federal Republic of Nigeria V. lfegwu (2003) FWLR (Pt 167) 703, Ibori V. Agbi (2004) ALL FWLR (pt 202) 1799 at 1845, learned counsel urges that the issue be resolved in appellants favour, the
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lower Courts decision adjudged erroneous and the appeal allowed.
Responding, learned counsel to the 1st respondent submits that appellants complaint against the lower Courts judgment shows complete misapprehension about the decision. The dicta of Karibi-Whyte JSC in Western Steel Workers Ltd V. Iron Steel Workers Union of Nigeria & anor (1987) 2 SC 11 at 31 that where the jurisdiction of a Court is challenged the possibility of success of the claim is irrelevant, learned counsel submits, has been totally misconstrued by learned appellants counsel. The dicta being an obiter, it is submitted, does not bind the lower Court. Learned counsel relies on Rossek V. ACB Ltd (1993) 8 NWLR (Pt 312) 382 at 458, Buhari V. Obasanjo (2003) 17 NWLR (Pt 850) 510.
While accepting as trite that it is the plaintiffs claim as the determinant of a challenge to a Courts jurisdiction in his further argument, learned 1st respondents counsel submits that the effect of the earlier decision of the Failed Bank Tribunal in suit No. E/388/98 on the very property the appellant seeks to relitigate on in the instant case cannot be ignored.
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The appellant who in paragraphs 7, 8 and 12 of his statement of claim traces his title to Chidi Chinemelu, one of the parties in suit No. E/388/98 decided by the Failed Bank Tribunal, it is argued, cannot insist that since he was not a party in the earlier suit his claim in the present suit cannot be foreclosed. From his pleadings, it is submitted, he was privy to the proceedings at the Failed Bank Tribunal. The critical point in the instant matter, learned counsel concludes, is the fact that the Failed Bank Tribunal being a Court of coordinate jurisdiction, the extant law precludes the trial Court from further exercising jurisdiction on the same property.
Available facts in this matter, it is submitted, clearly show the appellants desire to frustrate or subvert the decision of the Failed Bank Tribunal. The trial Courts jurisdiction having been ousted by Section 3(3)(d) of the Decree No. 18 of 1994, the counsel submits, the lower Court is right to have so held. Relying on Nwosu V. Imo Esa & 3 ors (1990) 2 NWLR (Pt 135) 688 at 715 and 725, Alhaji Nusa Labaran V. Mr. Jonas Okoye (1995) 4 NWLR (Pt 389) 303
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learned counsel urges the resolution of the issue against the appellant and the dismissal of the appeal.
Similar arguments and submissions have been proffered in the 2nd and 3rd respondents brief. It suffices to contend with the foregoing from the 1st respondent.
Now, both sides to this appeal agree, and rightly too, that the claim of the plaintiff settled any challenge to the jurisdiction of the Court urged to determine the claim. See Tukur V. Government of Gongola State (1989) 9 SCNJ 1 and Engineer S.D. Yalaju-Amaye V. Associated Engineering Contractor & ors (1990) 4 NWLR (pt 145) 422.
This Court has long settled the principle that a Court has jurisdiction to adjudicate over a matter when:-
(a) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another.
(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 has come before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
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See Madukolu & ors V. Nkemdilim (1962) 1 ALL NLR 587, SLB Consortium Ltd V. NNPC (2011) 5 SCM 187 and Chief S.S. Obaro V. Alhaji Sale Hassan (2013) LPELR-20089 (SC).
The appellant as plaintiff claimed at the trial Court, per paragraph 20 of his statement of claim, as follows:-
(1) A declaration that the plaintiff is entitled to right of occupancy of that parcel of land known as and called plot 10 Block VI Ogui New Layout, Enugu by virtue of a Deed of Assignment registered as No. 21 at page 21 in Volume 1400 of the Lands Registry in the office at Enugu.
(2) A declaration that the 1st defendant is not competent and has no locus standi to apply by way of Motion on Notice to set aside an irrevocable Power of Attorney registered as No. 9 at page 9 in Volume 1397 in the Lands Registry at the office in Enugu the basis of which the plaintiff was granted a Deed of Assignment.
(3) A declaration that the purported Order made on 27th January 1998 in suit No. FBT/EZ/31/96 by the Failed Bank Tribunal Enugu zone in a Motion on Notice at the instance of the 1st defendant setting
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aside the said irrevocable power of Attorney registered as No. 9 page 9 in Volume 1397 at the Lands registry, invalid, null and void.
(4) An order compelling the 2nd defendant to restore in its books all entries relating to the Power of Attorney dated 8th day of March 1998 and registered as No. 9 at page 9 in Volume 1397 of the Lands Registry in the office at Enugu.
(5) An injunction restraining the defendants, their servants and or agents from disposing of by way of sale the said property known as Plot 10 Block VI Ogui New Layout Enugu and or the registration of any title relating to it without the consent of the plaintiff.
(Underlining supplied for emphasis).
Appellants foregoing claim was being pursued notwithstanding the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994, extant then, which provided in Section 3(3) thereof thus:-
The tribunal shall in the exercise of its powers under this Decree –
have all powers of the Federal High Court (in this Decree referred to as the Court”) and accordingly the judgments and decisions of the Tribunal shall be executed and enforced in the same way and manner
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as the judgments and orders of the Court.
It is in recognition and application of the foregoing extant provision that the lower Court in relation to appellants claim supra held at page 132 of the record of appeal per Ogebe JCA, as he then was, as follows:-
“This section clearly gives the tribunal the status of a High Court and its judgment can only be reviewed by the Court of Appeal and not by a State High Court. See the case of the Comptroller of the Nigerian Prisons and Ors Vs. Dr. Femi Adekanye and Ors (1999) 10 NWLR Pt. 623. A close examination of the reliefs sought in the Respondents claim particularly paragraphs 20 (2)-(5) of the statement of claim reproduced earlier in this judgment shows that the entire claim was an attempt by the Respondent to set aside the decision of the Failed Bank Tribunal as regards the disputed property. It is not a simple claim of declaration of title to land. I am of the view that the trial Court had no jurisdiction whatsoever to entertain such a claim. It follows therefore that the lower Court was gravely in error in assuming jurisdiction.
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In concurring, Adekeye JCA, (as she then was), opined at pages 135-136 of the record as follows:-
The above was the position of the Law at the time the plaintiff/respondent appeared before the High Court.
The Tribunal with the power of the Federal High Court and the Enugu High Court were then Courts of co-ordinate jurisdiction, the High Court cannot sit on appeal over its jurisdiction and orders, review or set same aside. Laws were thereafter modified, Section 230(1) of 1979, as amended by Decree 107 of 1993, Federal High Court Act of 1990, and Section 251(1) of 1999 have now vested the jurisdiction of the Tribunal in the Federal High Court exclusively. In the instant appeal the Enugu High Court of Justice had no jurisdiction or competence to grant the reliefs sought or to nullify the subsisting orders of a Court of co- ordinate jurisdiction. The orders made by the tribunal were valid and are subsisting until set aside by an appellate Court NDIC v. S.B.N. Plc (2003) 1 NWLR (Pt. 801) 311; Anigboro v. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (Pt. 399) 35; Akanbi v. Durosaro (1998) 4 NWLR (Pt. 546) 422.”
It is the foregoing decision of the lower Court the appellant tries to pick holes in.
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It is settled that a Court cannot review the judgment of a Court of co-ordinate jurisdiction. See Akporue V. Okei (1973) 12 SC 137, Akanbi V. Durosaro (1998) 12 NWLR (Pt 577) 284, Koden V. Shidon (1998) 10 NWLR (Pt 571) 66.
The lower Court is right that what the appellant set out to achieve is the review of the earlier decision of the Failed Bank Tribunal by the trial Court which is of co-ordinate jurisdiction as the former. Most certainly the trial Court, as held by the lower Court, on the authorities, lack the jurisdiction to do so.
In the instant case it is indeed evident that there is a feature in the case before the trial Court that disables it from exercising its jurisdiction over appellant’s claim. See Madukolu V. Nkemdilim (supra).
In the result the lone issue is resolved against the appellant and the unmeritorious appeal dismissed. The lower Court’s judgment is accordingly affirmed at a cost of (#200,000.00k) two hundred thousand naira in favour of the 1st respondent.
SC.86/2006
