Chief Gabriel Oparanti & Ors V. Alhaji Nasiru Oyeniyi & Ors (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED AMBI-USI DANJUMA, J.C.A.
This judgment is in respect of interlocutory decision of the High Court of Osun State delivered on 28/1/2011 and 18-2-2011 respectively in suit no. HOS/7/2010, per Aderibigbe, J. pursuant to an amended notice of appeal filed on 3/02/16. Following the leave of this Court granted on 20-1-2016, the appellants herein filed their amended appellants? briefs of argument dated 3-2-2016 on the 12-2-2016 in respect of their two appeals.
In consequence of the aforesaid and in response, the 1st and the 2nd respondents filed their joint 1st and 2nd respondents’ brief of argument, whilst the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th respondents did not file any brief of argument in opposition to the appeals.
The appeals emanating from the same proceedings and not having been consolidated, I shall proceed to determine each of them on their respective briefs of arguments as filed and oral submissions on points of law where made and as allowed in law. Starting with the first appeal.
APPEAL NO CA/AK/57/2011.
?To capture the essence of this appeal, I think it
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appropriate to set out the amended notice of appeal and the particulars thereof. They are as follows:-
AMENDED GROUNDS OF APPEAL.
?Take notice that the 1st to 7th appellants dissatisfied with the decision of the High Court of Justice of Osun State, Oshogbo Judicial Division, Osogbo contained in the ruling of Honourable Justice A. A Aderibigbe dated 28th January, 2011 both hereby appeal to the Court of appeal, Akure upon the amended grounds set out in paragraph 3 and will at the hearing of the appeal seek the amended reliefs set out in paragraph 4.
Take notice of further notice that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. PART OF DECISION APPEALED AGAINST- THE WHOLE DECISION
3. AMENDED GROUNDS OF APPEAL
1. The learned trial Judge erred in law and he failed to exercise his discretion judicially and judiciously by his refusal to hear and give any date for the hearing of the 10th to 17th defendants’ motion on notice dated 20th but filed on 21st January 2011 to set down for hearing and hear the preliminary issues/points of law which were validly pleaded and raised on issues relating to the plaintiffs’ locus standi to institute
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the case, juristic personality, limitation period, re judicata, competency of the case and the jurisdiction of the lower Court to entertain the case before he proceeded to hear and grant the plaintiffs’ application dated and filed on 17/9/2010 seeking to set aside the nomination, selection, approval and issuance of instrument of appointment and presentation staff of office to Oba Olanipekun as the Ataoja of Osogbo thereby occasioning miscarriage of justice.
PARTICULARS OF ERRORS
1. The 10th to 17th defendants entered conditional appearance and filed a joint statement of defence dated 25/10/2015 wherein they denied the plaintiffs’ claims and raised some objections on issues relating to the plaintiffs’ locus standi to institute the case, juristic personality, limitation period, res judicata, competency of the case and the jurisdiction of the lower Court to entertain the case, etc with an indication that the said issues would be called upon for determination at/or before the trial (pages 193 to 209 of the record).
2. By their application dated 20/1/2011 but filed on 21/1/2011, the 10th to 17th defendants prayed the lower Court to set down for
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hearing and to hear their said various objections and points of law which challenged the substantive case (pages 395 to 496 of the records).
3. The plaintiffs reacted to the said application by filing their counter affidavit and counsel’s written address thus making the said application ripe for hearing as at 28/1/2011 on which date the lower Court refused to hear and/or give any date for the hearing of the said 10th to 17th defendants’ application.
4. The lower Court on 28/1/2011 heard the plaintiffs? motion dated 17/9/2010 without considering the relevant facts, arguments and legal principles and without exercising its discretion judicially and judiciously.
5. The lower Court by its ruling of 28/1/2011 over ruled its previous ruling of 1/11/2010 delivered in the same case on the priority of the applications challenging the Courts jurisdiction and other applications after the Court had become functus officio, thereby demonstrating bias against the appellants.
2. The learned trial judge erred in law when he failed, declined and /or neglected to consider and follow the decisions of the Supreme Court and other Courts of records
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including (1) Owners of the MV “Arabella” V. Nigeria Agricultural Insurance (2008) 5 SCNJ 109 @ 124 to 126 (2) First Bank off Nigeria Plc. v. T.S.A Industries Ltd. (2010) 38 WRN 1 at 36, (3) A.G. Lagos v. Dosunmu (1989) 3 NWLR (Pt. 111). 552 (1989) 6 SCNJ 134, (4) Madukolu v. Nkemdilim (2001) 46 WRN 1, (5) Sofekun v. Akinyemi (1981) 1 NCLR 135, (1980) 1 ALL NLR 158, (6) Elebanjo & Anr. v. Dawodu (2006) 15 NWLR 76 @ 134-143; (2006) SCNJ 204 @ 238-245 cited to him on the on the issue of the priority of two applications before the proceeded to hear the plaintiffs’ application filed on 17/9/2010 seeking to set aside the appointment and installation of Oba Olanipekun as the Ataoja of Osogbo without first hearing the 10th to 17th defendants’ motion dated 20/1/2011 but filed on 21/1/2011 praying to set down for hearing and to hear the appellants’ preliminary points of law/objection to dismiss or strike out this case thereby occasioning miscarriage of justice.
Particulars of errors
a. The appellants’ motion filed on 21/1/2011 was capable of disposing of the plaintiffs’ motion to set aside the appointment and installation of Oba Olanipekun and this case
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without full trial
b. Various decision of the Supreme Court and other courts cited before the learned trial judge on the need to give priority to the appellants’ motion to set the objections down for hearing before considering the plaintiffs’ application to set aside Oba Olanipekun appointment were ignored.
3. The learned trial judge erred in law when failed to exercise his discretion judicially and judiciously by proceeding to hear and by hearing the plaintiffs’ motion to set aside Oba Olanipekun’s appointment and installation without first hearing the appellants’ motion set down for hearing and to hear the appellants’ objections to the whole case, thereby occasioning miscarriage of justice.
PARTICULARS OF ERRORS
a. The discretion given to the Court by Order 22 of the Osun State High Court Amended (Civil Procedure) Rules 2008 ought to be exercised judicially and judiciously.
b. The Lower Court did not exercise its discretion judiciously.
4. The decision of the lower Court is against the weight of evidence.
4.AMENDED RELIEFS SOUGHT BY THE APPELLANTS
1. An order to set aside the ruling of the lower Court delivered on
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28th January, 2011.
2. An order of this Court to hear and determine the 10th to 17th Defendants’ motion on notice dated 20/1/2011 but filed on 21/1/2011 to challenge the competency and jurisdiction of the lower Court to entertain substantive case AND IN THE ALTERNATIVE, an order of this Court remitting the substantive case with the said defendants? application to the High Court of Justice of Osun State to be heard by another judge apart from Hon. Justice A.A. Aderibigbe with an order that the said application should be given top priority in the overall interest of justice.?
The appellants? narration of the history of the proceedings in this appeal together with the facts are so aptly captured. I having read the entire record of appeal in its bulky form.
It is for this reason of honest and articulate reproduction, that I shall adopt the same and reproduce them herein thus:-
The dispute in this suit before the lower Court centers essentially on the amended 2005 Ataoja of Osogbo Chieftaincy declaration. The 1st set of respondents as the plaintiffs at the lower Court are challenging the validity of the amended 2005 Ataoja of Osogbo chieftaincy
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declaration and calling for its nullification, extinction of certain Ruling Houses and and injunctions among other reliefs. The writ of summons by which the 1st set of respondents instituted the proceedings is on page 1 to 4 of the records. The statement of claim of the 1st set of respondents is on page 5 to 15 of the records. The 1st set of respondents by the endorsement on the writ of summons and statement of claim, claimed against the appellants sixteen reliefs the centre focus of which are declarations and injunctions in respect of Ataoja of Osogbo Chieftaincy.
The appellants denied the 1st set of respondents’ claim in their entirety and set out their statement of defence. However, by paragraphs 30 and 31 of the said Appellants? statement of defence as required by the rules of the Honourable Lower Court, the Appellants raised the preliminary issues or points of law which could have disposed of this case without going through the rigour of trial of this case. The statement of defence of the Appellants is on page 195 to 200 of the records wherein the Appellants raised the said preliminary issues or points of law.
It must be emphasized at this
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stage that Oba Jimoh Oyetunji Olanipekun Olarooye II as the Ataoja of Osogbo was not a Party to case at the time of moving the application.
He has not even been joined as a party in the case.
The Appellants filed a motion on notice for setting down for hearing the preliminary issues or points of law raised by paragraphs 30-31 of their statement of defence with an affidavit in support and two (2) Exhiibits attached marked as Exhibits GAAC 1 AND GAAC 2 respectively. Some of the issues raised in the said motion are the issues of locus standi, res judicata, legal personality, statute bar and the jurisdiction of the Honourable to hear the entire case. All the Respondents were duly served with their application for setting down for hearing and hearing off the preliminary point or issues of law raised which challenges the jurisdiction of the Honourable Court to hear the matter. The said motion on notice was dated and filed on 21/1/2011 and same is contained on page 395 of the record.
The 1st set of respondent also filed an application to set aside the installation and appointment of the incumbent Ataoja of Osogbo who is not a party and
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has not been joined as a party in this case as presently constituted. The 1st set of Respondents? said application contained on page 622 to 643 of the record.
Meanwhile, the lower Court had, in a ruling delivered on Monday, the 1st day of November, maintained rightly that an application that challenges the jurisdiction of the Honourable Court has precedent over and above any other applications and same should be heard first. The ruling of the lower Court on the priority of applications is on pages 1076 to 1090. However, on 28th day of January, 2011 when the attention of the lower Court was called to the appellants’ pending application to set down for hearing the preliminary issues or points of law for hearing and the reasons while the Honourable Lower Court should exercise its discretion to hear the application first (supporting the reasonings with Supreme Court cases) over and above any other applications that might be pending before the Court, the lower Court in its short ruling stated that the Appellants’ application challenging the jurisdiction of the Lower Court “is not a preliminary objection per se”. The learned presiding/trial judge went
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further to state that he would therefore exercise the discretion he has under Order 22 of the Osun State High Court (Amended) Civil Procedure Rules, 2008 to refuse to hear the application for setting down the preliminary issues before the previous application. The short rulings of the Honourable Lower Court is contained on pages 1071 to 1075 of the record.
The Honourable lower Court then proceeded to hear the 1st set of respondents? application for setting aside the appointment and installation of the incumbent Ataoja of Osogbo and delivered the ruling in the said application on 18th February, 2011 and set aside the set appointment despite that he was not a party and has been joined as a party. The said ruling of the lower Court setting aside the appointment and installation of the incumbent Ataoja without affording him a hearing is on page 1113 to 1130 of the record.
This appellant formulated 2 (Two) issues for our determination thus:-
1. Whether the appellants? motion which raises some preliminary issues/points of law challenging the jurisdiction of the lower Court in this case is by its very nature a preliminary
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objection to the jurisdiction of the lower Court. (Relates to ground 1 of the grounds of appeal).
2. Whether the lower Court has exercised its discretion judicially and judiciously by refusing to give priority to the appellants? motion on notice for setting down the preliminary issues or points of law challenging the jurisdiction of the lower Court to entertain the case by declaring that the motion is not a preliminary objection per se and proceeded to hear the first set of respondents’ application for setting aside and whether same can be supported by the weight of evidence.
The 1st and 2nd respondents formulated a sole issue in this appeal, and by their respondents brief of argument filed on 10/3/16 and deemed filed on 16/5/16 and adopted on same date.
The said issue is coined thus:
Whether the learned trial judge was not right in his decision to hear first the 1st and 2nd respondents’ motion on notice dated and filed 17th September, 2011, to set aside the unlawful acts of the appellants slated for 28th January, 2011 tor hearing, instead of the appellants’ motion of 20th January, 2011 (pages 247 – 297 of the record) to set aside
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for hearing some points of law raised in their statement of defence. Grounds 1, 3, 4, 5, 6,7 ,8 and 11 of the amended notice of appeal).
?I shall proceed to summarize the submissions of the learned counsel, for the appellants. Arguing the appeal, the brief whereof was prepared by G. T. Adesina Esq, Ijatuyi Esq, leading, adopted the said brief and the reply brief thereto the 1st and 2nd respondents brief and urged hat the appeal be allowed and the decision in the ruling of the learned trial judge – be set aside.
The two issues postulated were argued together. Learned counsel, referring to Order 22 Rules 1 and 2 of the Osun State High Court (Amended) Civil Procedure Rules, 2008 contended that a defendant in a case who believes that he has some preliminary issues or points of law which can dispose of case before or during the hearing of the case is expected to raise by his pleadings such preliminary issues or points of law; pointing out that the said rules expressly disallows demurrer but allows a party to apply to set down for hearing such points of law so raised and gives a presiding judge the discretion to hear such points of law before the trial.<br< p=””
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The learned counsel pointed out the fact that the 10th to 17th defendants, the present appellants herein and his clients filed their application dated 20/1/2011 on 21 – 1 -2011 wherein they raised the issues of locus standi, re judicata, legal personality, statute bar/limitation period and the jurisdiction of the lower Court to hear the entire case. That all the respondents were served the said application challenging the jurisdiction of the trial Court to hear the entire case.
It is submitted that the said application is capable of disposing the said case at the lower Court and the lower Court ought to have heard the said application when its attention was called to the said application. Learned counsel contended that the said application amounted to a preliminary objection in its own right contrary to the holding of the lower Court that “it is not a preliminary objection per se.”
Referring to the definition the phrase – “per se’ in the Blacks Law Dictionary, 7th Edition at page 1162 where it is defined to mean (1) of, in, or by itself, standing alone, without reference to additional facts and (2) As a matter of law; the learned counsel
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contended that the learned trial judge erred in this respect and his finding was not supported by the facts and documents before him and was perverse.
Proceeding in his argument, the learned counsel further contended that the learned trial judge accentuated his error by that ruling when he reversed himself against his previous ruling of 1 – 11 -.2010 wherein he had rightly given priority to applications challenging the Courts’ jurisdiction to hear a case over and above all pending applications. Counsel is of the view that the lower Court was biased against his clients.
Learned counsel is, of the view that whilst the Court may have a discretion to set down the application for the consideration of those preliminary points of law, that discretion was not exercised judicially, and judiciously in the instant case on appeal; that it was arbitrarily exercised when rather than hear and rule on the application, the Court proceeded to take the 1st and 2nd respondents’ motion on notice dated 17 – 9 – 2010 for setting aside all the processes that led to the nomination, selection etc of Oba Olanipekun as the Ataoja of Osogbo without hearing or fixing any date for
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the hearing of the appellants’ application filed on 21 – 1 – 2011 to challenge the jurisdiction of the lower Court to entertain the suit etc which preliminary issues/points of law had been validly raised in paragraphs 30 – 31 of the statement of defence.
The learned counsel contended that while the exercise of a Court’s discretion may not be lightly interfered with by an appellate Court, an appellate Court should nonetheless interfere, where it is obvious that having set out clearly the matters and principles of law he had to consider in carrying out a judicial exercise but failed to apply these principles correctly to the facts before him to arrive at the right decision, the appellate Court should interfere.
Counsel referred us to Williams V. Hope Rising Voluntary Society (1982) ALL NLR (Pt. 1) page 1 at 10. He contended that the application for setting down for hearing of the preliminary issues/points of law, though by way of motion on notice is a preliminary objection to the jurisdiction of the lower Court to entertain the whole case. That Order 22 Rules 1 and 2 of the Civil Procedure Rules of Osun State High Court that abolished demurrer and
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only enjoined the appellants as defendants to raise in their statement of defence any preliminary issues or points of law had been complied with; and that, that constituted a preliminary objection on jurisdiction capable of disposing the case without going through the rigours of hearing the substantive case, finding, anchor in the case of Owners of the MV “Arabella V. Nigeria Agricultural Insurance Corporation (2008) 5 SCNJ 109 @ 125.wherein the Supreme Court held that a point of law or defence can be raised on preliminary objection or in a motion if the point of law will be decisive of the whole litigation. See FBN Plc. V. TSA Industries Ltd. (2010) 38 WRN 1 @ 36.
That a challenge to jurisdiction is a radical issue that goes to the root of a case and no matter how well decided a case is, once the Court has no jurisdiction the entire exercise is a nullity as a defect in competence is not only intrinsic but extrinsic to adjudication. A. G. Lagos State V. Dosunmu (1989) 3 NWLR (pt. 111) 525 at 566 referred.
Referring again to FBN Plc. V. TSA Industries Supra, it was submitted that Rules of Court are meant to regulate matters in Courts and help
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parties in the presentation of their cases within a procedure meant for the purpose of fair and quick dispensation of justice. That the Rules are meant for the attainment of justice and must be observed and obeyed.
That the appellants have done all they needed to do and the trial judge denied them fair hearing and fair trial. Ebenogwu V. Onyemaobim (2008) 3 NWLR 396 at 421 was referred to.
That the further proceedings in hearing the application to set aside were a nullity. It was also contended and forcefully too, that it is trite that a question of law and jurisdiction can as a matter of fact, nay an objection could be taken at any stage even orally and not necessarily by a motion alone.
The learned counsel referred us to the locus classicus case of Madukolu v. Nkemdilim (2001) 46 WRN 1 @ 13 on the factors that must guide the Courts and exist before a Court assumes jurisdiction in a case, thus;
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no members is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no
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feature in the case which prevents the Court exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
That when the jurisdiction of a Court is challenged, it is better to settle it one way or the other before proceeding to hearing the case on its merits. That any failure by the Court to determine the challenge to its jurisdiction is a fundamental breach which renders any further step taken in the proceedings a nullity. That an objection may be raised at any time in the proceedings, but it is not a free for all procedure. When a statute under which an issue or matter is to be raised has provided a procedure for raising such issues or matter, and no other must be followed. See Adejobi V. The State (2011) 6 SCNJ 409 @ 424.
Learned counsel argued that the word “may” as appears in the Rules connotes mandatoriness on the part of the judge to entertain the appellants? application over and above other application pending. Counsel submitted that the interpretation ascribed to the phrase ?May? in the circumstances
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was erroneous as according to him it would amount to cosmetic/ornamental display if such interpretation holds sway and the Rules will be otiose and academic; that the failure to hear the appellants? application and proceeding thereafter was a nullity and that the subsequent proceeding and Rulings thereon be set aside as they were all nullities.
We have been urged to order for the hearing of the appellants application on the grounds that the lower Court wrongly assumed jurisdiction and did not exercise its discretion judicially and judiciously by hearing the 1st and 2nd respondents? application dated 17-9-2011 before fixing any hearing date for the appellants? motion dated 20/1/2011 filed on 21-1-2011.
That the issues jointly argued be resolved in favour of the appellant against the 1st and 2nd respondents and the appeal be allowed. That the case be remitted to be heard by another judge and the appellants’ motion dated 20 – 1 – 2011 and filed on 21 – 1 – 2011 be given accelerated hearing.
The 1st and 2nd respondents’ by their brief of argument settled by Adewale Adegoke Esq. and filed on 10 – 3 – 2016; by their learned counsel
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submitted in the main appeal that Order 22 Rules 1 and 2 of the Osun State High Court (Amended) Civil Procedure Rules herein after called “the Rules or “the Rules of the trial Court” give the judge the discretion as to the time he could or might take any application brought under the Rules and whether he could take the point of law raised in the statement of defence before or at the trial of the suit.
Quoting from the case of Olaniyan v. Oyewole (2008) 5 NWLR (Pt. 1079) at 138, paragraphs B-D where the Court held inter alia thus:
?An interpretation that would justice a slave to grammar should be deplored. An interpretation that would convey the intendment of the legislature must always be preferred. I am also of the firm view that rules of Court being merely adjectival law should not be elevated to the status of substantive legislation for which there must be strict compliance by the parties and the Court.
In the principle of the construction of statutes, the Courts have adopted liberal and purposive approach to give effect to the law makers. In that sense, the entire statutes must be considered and the general object meant to be secured
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by the statutes should be looked at.?
That a holistic view of the Rules in point, gives both the parties and the judge a discretion to exercise; that a party may decide to raise any point of law in his pleadings, or file a formal application challenging the jurisdiction of the defence. That the judge too has a discretion to either take the point raised in the pleadings before or at the trial of the suit, depending on the pleasure of the judge and the circumstances surrounding the case.
That if a party decides to raise a point of law in his defence pursuant to the Rules, he should be ready to abide by the opinion/decision of the Court with respect to time of taking such points of law. That the point of law is not a preliminary objection per se as the Rules gives a discretion as to the time to take it and that the appellants had conceded to this fact in their argument at paragraph 4.012 of the brief of argument.
That this was distinct from a situation where a party files a notice of preliminary objection to the suit challenging the jurisdiction of the Court without filing a statement of defence or raising any point of law in the statement of
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defence in which case the judge has no discretion as to the time of taking such preliminary objections pending before him first inspite of the fact that the 1st and 2nd respondents? application to set aside the unlawful act of the appellants was filed before the preliminary objections.
That the word ?May? in the Rules made it discretionary for either thee party or judge and that the cases cited were in applicable as none of them involved an interpretation of the Rules; that it was not correct to say that the Judge did not exercise his discretion judicially and judiciously. Referring to Dinyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) Pages 1-146 paragraph A wherein the Supreme Court said ?I must remark that the Rules of Courts are made for attaining justice with ease, certainly and dispatch.
They are made for the purpose of obtaining justice by parties in the citadel of justice. They must not be used in the instant of this case as a clog in the wheel of obtaining such justice” that the appellants and 3rd, 6th and 9th respondents, had hurriedly nominated, selected, appointed and approved the installation and presentation of
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staff of office to Alhaji Jimoh Oyetunji Olanipekun as the Ataoja of Osogbo not minding the pendency of a suit and motion for interlocutory injunction to restrain them from installing a new Ataoja of Oshogbo and against the order of Court that, they should avoid taking steps that would foist on the Court a fait accompli and inspite of counsel’s assurances.
That the 1st and 2nd respondents had on 11 – 1 -2011 informed the Court of their application to set aside and that the appellants? counsel were in Court when it was adjourned to 28-1-2011 for hearing and that he did not inform the Court of is intention to set down the application for hearing the point of law raised. In his statement of defence filed earlier and inspite of the dismissal of the two preliminary objections filed by the other defendants by the Ruling of the Court on that date. That on 28-1-2011 being the date for the hearing of application to set aside, that appellants? counsel informed the Court of his points of law raised in the statement of defence, which was filed after the proceedings of 11-1-2011.
That some of the counsel to the other respondents on the date informed
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the Court that they had just been served but were ready for the motion to set aside fixed to the knowledge of the appellants? counsel.
That in the circumstances, the decision of the judge was properly exercised. That there was no preliminary objection filed but only a motion filed a few days earlier which the appellant?s counsel only brought to the attention of the judges on 28-1-2011.
Alluding to and quoting Adamu v. Sadi (1997) 5 NWLR (Pt. 504) 205 at 217-218 wherein Edozie, JCA deprecated the habit of filing processes late, by stating:
“This case underscores the need for counsel to file Court processes long before such processes are due to come before the Court to allow sufficient time for necessary formulated or file a document intended to be used in a case on the day on just a day before the case is due to come before the Court. Even where counsel takes the unusual step to see that the document is before the Court on the day of hearing, the case may be adjourned if the opposite party complains of non – service on it, the Court is in a position to take the case not having the opportunity of reading through the documents
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beforehand. The Court deprecates such a practice, which usually causes unnecessary prolongation or delay in the administration of justice.?
It was submitted that the only reason the appellants filed their process, the hearing of which the hearing of which the Court overruled on the 28th January, 2011, was to stop the hearing of the 1st and 2nd respondents motion to set aside. That the Supreme Court has warned parties against engaging in practice only aimed at frustrating and cheating out a plaintiff against a judgment which he is legitimately entitled to.
Relying on Karibi Whyte, JSC?s distum in Nishizawa v. Jethwani (1984) 12 SC Page 234 @ 315-316 wherein His Lordship stated thus:
“That a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligation and indebtedness.”
?He contended that it was the exercise of a disciplinary jurisdiction for contempt against people who
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had not come to Court with clean hands.
That the applicants cannot be in contempt and at the same time be asking for favourable exercise of discretion.
That to have done otherwise, would render the pending processes, a mere academic exercise. That the acts of the appellants and other respondents amounted to stealing a match against the 1st and 2nd respondents and should not be allowed to stand. Daniel v. Ferguson (1891) 2 CH 27 at 30. That all that the Court did was to restore the parties to the position they were when the offending party became aware of the pending application. Ivory Merchant Bank v. Partnership Investment Limited (1996) 5 NWLR (Pt. 448) Page 362 @ 367-368 referred.
That the action of the Court did not prejudice the application of the appellants. That rather than pursue their pending application the appellants have abandoned it and urging the Court to give approval to the flagrant disobedience to the Court processes.
That it was not the appellants? case that the lower Court had no authority to entertain the 1st and 2nd respondents? case and ruling having been given, it was a mere academic exercise to complain
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now.
That the application was not declined but held not to be ripe for hearing that it could be taken at the appropriate time; and that the issue of fair hearing raised was grossly misconceived. That the point could be taken at any time and would bear on the substantive suit. That this issue be resolved against the appellants and their appeal be dismissed. Adeniyi Esq, State counsel for the 3rd, 4th and 5th respondents filed no brief of argument and aligned with the appellants.
In the same manners, M. A. Shittu Esq. for the 6th respondent filed no brief and said he aligns with the appellants’ position.
Aliu Esq. for the 7th respondent filed no brief but said he aligns with the 2nd respondent. It must in this instance be stated that a party that does not file a brief in opposition is deemed to be with the appellant and not the other way. He that is not against you is for you.
If the 7th respondent wanted to go with the 2nd respondent, he ought to have filed a respondent’s brief of argument articulating his support and in opposition to the appellants’ brief. There shall be no presumption in law as to his supporting a fellow respondent who is not
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the challenger in this appeal.
Sanusi Esq. for 8th respondent filed no brief and leaves it at the discretion of the Court and rightly so; the 9th respondent, represented by Olanogun Esq. filed no brief and by his silence on any position in this appeal is presumed not to oppose the appeal.
In reply to the 1st and 2nd respondents? brief of argument, the appellants by their brief filed on 11-4-2016 but deemed filed on 16-5-2016 which is undated, complained that the said respondents? brief was irregular, misconceived and incompetent for all alluding to the existence of 11 grounds of appeal when infact the appellants? amended notice of appeal upon which his brief was filed had only 3 grounds of appeal and that the brief should be struck out.
I shall do no such thing. Just as the appellant’s reply brief of argument is undated but is non the less a brief of argument as it has been filed and clearly is connected to the appeal and in response, so also the respondents’ brief replying the issues raised in the appellant’s brief is competent, regular and satisfies the purpose, the error in stating the number of grounds of appeal
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notwithstanding.
After all, a reply brief is in response to the appellants’ issues for determination and not to the grounds of appeal, which numerical number and mistake in stating them is not material.
I refuse the unenticing and injudicious invitation to strike out the 1st and 2nd respondents’ brief of argument.
On the merit, learned counsel contended that demurrer had been abolished and the rules of the High Court of Osun State did not allow for the filing of any preliminary objection alone without filing a statement of defence.
That the appellant did the right thing under Order 22 of the Rules relevant and applicable. The case of Owners of the MV Arabella v. Nigeria Agricultural Insurance Corporation (2008) 5 SCNJ 109 at 125 emphasizing that the Rules of Court allows that point of law or defence may be raised by preliminary objection or in a motion if the point will be decisive of the whole litigation and that as a matter of fact, an objection may be taken at any stage orally and not necessarily by motion.
It was submitted that any challenge to the Court’s jurisdiction if raised, it must be resolved first and that Rules of Courts
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are meant to be obeyed. See FBN Plc.V. TSA Industry Ltd. (2010) 38 WRN 1 @ 36: that demurrer having been abolished, raising the point of law as to jurisdiction in the statement of defence, as done, was in order. Ajilorura v. Disu (2006) ALL FWLR (Pt. 333) 1613 per Mukhtar, JSC was referred.
That the appeal was not academic and that the act of the Court was prejudicial to the interests of the appellants and was of no moment. In the same manner, an objection is not only a preliminary objection when it is so tagged; the fact that it is not so called, does not rob it of that description nor make it less an objection. The perception of the Court as to what a preliminary objection ‘per se’ is, is wrong.
The appellants had rightly raised points of law relating to limitation of action, locus standi and the challenge to jurisdiction based on the non fulfillment of condition precedent to the taking of an action in a Court by the 1st and 2nd respondents as plaintiffs at the trial Court.
Having so pleaded those defences and brought them to the attention of the trial Court, the trial Court was bound in law to consider and decide on those challenges on points of law
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bordering on the challenges to jurisdiction first as they were jurisdictional questions. They had priority of place in the adjudication process and may be raised at any time and how so ever.
Indeed they may be raised even for the first time in the Supreme Court and or at the Court of Appeal.
Indeed at any level of the litigation process at the trial Court and without leave of Court being sought and granted. The Courts, indeed the Apex Court, has made it clear that it may even be raised orally or by motion or in any form.
Indeed the Court has a duty to raise it suo motu and to have it determined first. This is more so that it is even apparent on the statement of defence filed as contained inn paragraphs 21, 22 and 23 thereof.
In Zakari v. Nigerian Army (2015) NWLR 77 the Apex Court held that the issue of jurisdiction may be raised at any stage of a case and even without leave of Court, and the Court was duty bound to consider and resolved that issue before taking any further step in the proceedings as, if it is not so done, any subsequent action taken shall be a nullity no matter how well conducted and correct the decision may be on the
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merit.
The appellants, having pleaded defences raising challenges to jurisdiction, the Court was bound to consider them first. The Court had no discretion to postpone it to be heard after any other application except perhaps one that was strictly for contempt of Court in facie curia. The application to set aside was not such application that could be given priority as its consideration amounted to a subversion of the application or challenge to the jurisdiction of the Court as made
In Attorney General of Lagos State V. Dosummu (1989) 3 NWLR (pt. lll) 552 at 566, the apex makes it clear that the issue of jurisdiction is not only intrinsic, but it is extrinsic to adjudication.
That is the case, and more so that such challenge to jurisdiction may be raised by preliminary objection or by motion; see Owners of the MV Arabella V. NAIC (2008) 5 SCNJ 109 @ 125 and being an issue that will be decisive of the matter at the Court, the trial judge was bound to consider the points of law raised before any other application(s) in the suit.
That the highest Court has so said, makes any contrary disposition or action nothing but an act of judicial impertinence
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and a violation of the settled position of stare decisis.
This, the Supreme Court has frowned at. See Suleiman V. C. O. P. (2008) SCNJ. The argument that the appellants will not be prejudiced by a consideration of their application at a later stage to be determined by the Court at its whims and caprices suggests that the Court has an uncanalysed discretion; there is no such discretion in the Court in the circumstance of an objection on the question of jurisdiction as to when it may be taken.
It has to be taken first before any other act in the litigation. Just as the parties have no jurisdiction to compromise jurisdiction, so also it cannot be waived by either the parties or the Court. See Ariori v. Elemo (1983) SC1.
The Court cannot appropriate or reprobate the issue of jurisdiction in the same case, as the want of jurisdiction is fatal to the proceedings no matter how well it is conducted.
In this case, the trial Court held that the issue of jurisdiction must be considered first, but reprobated by bending backwards in a discriminatory and prejudicial posture in the appellants’ challenge on jurisdiction by reversing itself. The Court had
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become functus officio in that respect as rightly submitted by the appellants’ learned counsel. His task has been accomplished and all he needed to do was to apply that principle across board; – that would have been an impartial administration of justice. In Ngere V. Okuruket XIV (2014) 11 NWLR (pt. 1417) page 14, at page 163 Ngwuta, JSC stated at page 179 of the report thus “The Court cannot approbate and reprobate on the issue of jurisdiction in the same case as the want of jurisdiction is fatal to the proceedings no matter how well it is conducted. See Ndaeyo v. Ogunnaya (1977) 1 SC 11: Madukolu V. Nkemdilim (1962) 1 ALL NLR (pt 4) 587, (1962) 2 SCNLR 341: Okafor v. Ezenwa (1992) 4 NWLR (Pt. 237) 611.
In an appeal to it, the lower Court with the issue of jurisdiction still hanging and not resolved one way or the other, ordered that the case be retried by another judge of the High Court. The Court below ought to have resolved the jurisdictional question of the trial Court assuming and declining jurisdiction in the same case. The Court, trial or appellate has no omnipotent authority to make orders. See Chia V. Cop (1989) BNLR 118.
The Court acts within
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the limits of its powers and the powers do not include the power to assume and decline jurisdiction in the case or to reverse itself as if sitting on appeal over its judgment/ruling.
Effluxion of time or estoppel cannot affect the right of party to raise the issue of jurisdiction as judgment delivered without jurisdiction is, and remain for all times and purposes, a nullity. See Peenok Ltd. V. Hotel Presidential Ltd. (1982) 12 SC 1: National Bank v. Shoyoye (1977) 5 SC 181: Barclays Bank V. Central Bank (1976) 6 SC 175. It is inherent in the issue of jurisdiction herein that no delay, no matter its duration can be said to be in excusable. Exercise of judicial discretion in favour of the applicant is, on the facts before the Court, in accord with common sense. See Odusote V. Odusote (1971) NMLR 228”
The arguments by the 1st and 2nd respondents? counsel that the appellant were tardy in bringing their application to the notice of the Court is on the aforesaid authority, without basis, therefore. What is more, as Ariwoola, JSC stated in the same case supra, “The question of jurisdiction may be raised at any stage and even for the first time in the
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Supreme Court.
The issue of jurisdiction must be thoroughly examined and finally resolved before the merit of the case can be entertained. It is trite law that where a Court does not have jurisdiction to entertain a matter, its decision amounts to nothing.
The entire proceedings and decision are void no matter how well conducted. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341: Nwankwo & Anr. V. Yar’Adua & Ors. (2010) 12 NWLR (pt. 1209) 518: 6 SCM 121; Chief Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508 as stated earlier, the issue of jurisdiction can be raised at any stage of the proceedings. Our rules of practice permit this and this Court has stated so over and over again that indeed the issue of jurisdiction can be raised up to the final determination of an appeal by this Court.
The reason being that 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 decision or order of the trial judge in respect of the subject matter.
See Obikoye V. The Registrar of Companies and Official Receiver of Pool House GRP (1975) 4 SC 31: Adegoke V. Adibi & Anr. (1992) 5 NWLR
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(pt. 242) 410 (1992) 6 SCNJ 136.”
The appellants cannot be accused of having a motive to stultify the hearing of the 1st and 2nd respondents application to set aside and thus using the perceived motive as a ground for assuming jurisdiction to discard the hearing of an application that must in law be heard first; and what is more, to proceed to giving a far reaching decision on the merit that has completely taken away the existence of the lis or res ie the purported nomination, selection and installation or appointment that constituted the reason for the suit and defence in the first place.
The learned counsel for the 1st and 2nd respondents, in my view, only attempted to turn the law in this situation of a challenge to jurisdiction on its head by embarking on speculative academic postulations intended to subvert the rules of Court and the settled position of the law. A Court?s discretion, nay power is not uncanalysed even where it exists, as it must be exercised judiciously and judicially and in the full appreciation of the circumstances of the case. See also Ngwuta, JCS in Ngere V. Ukureket xiv (Supra).
?A discretion, even if it exists, it
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must not be used to truncate justice by the judex subterraneously foisting a fait accompli on litigants by enthroning the desire to protect what it perceives as a threat to its integrity beyond the rights of the competing litigating parties to have an impartial determination of their disputes and/or issues raised and in accordance to settled procedures of law/regulations, relevant and applicable. The issues raised by the appellants which also encapsulate those raised in the negative by the 1st and 2nd respondents’ are each resolved in favour of the appellants.
It needs to be said loudly that it is strange that the lower Court which had rightly identified issues of challenge to its jurisdiction will isolate some for determination and leave others because they have not been tagged as “preliminary objection” and filed as such or that attention was only drawn to it after the fixture of the counterpart objection on their date of hearing. There was nothing wrong with or rather the applications would have been, at worst, taken together or adjourned compositely to allow responses to them by the other parties who had all acknowledged the service thereof. That may explain
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the non objection to and the non challenge posture of the other respondents to the instant appeal. As they saw no defence to the appeal.
Where there is no defence or answer to an appeal, counsel as minister in the temple of justice should feel bold to say so, as their first duty is to justice and to the Courts before their clients.
The appeal has merit and is allowed.
Accordingly, the ruling of the Osun State High Court delivered by Aderibige, J on the 28th January, 2011 in suit No HOS/71/2001 is set aside and quashed. The learned Honourable Chief Judge of Osun State shall in his discretion, re – assign this case to a different judge other than Aderibigbe, J. and which different judge shall hear the case denovo with priority to be given to the appellants’ application relating to the challenge to the jurisdiction of the Court, as made.
I make no orders as to costs.
Other Citations: (2016)LCN/8950(CA)
