Continental Trust Bank Ltd. & Ors V. Otunba Michael Olasubomi Balogun & Ors (2002)
LawGlobal-Hub Lead Judgment Report
A. OGUNTADE, J.C.A.
The 1st to 4th respondents were the plaintiffs/applicants before the Federal High Court in Suit NO.FHC/L/CS/995/2001 where they brought an application for judicial review in the form of an Order of Certiorari, Declaration and injunction against the 1st and 2nd respondents. It was alleged that the 1st and 2nd respondents had improperly taken some decisions against the plaintiffs/applicants (i.e. 1st to 4th respondents) without affording them the opportunity to be heard.
In the course of the proceedings before the lower court, the appellants applied to be made parties to the proceedings, a request which was granted by Sanyaolu J. They then became the 3rd to 8th respondents. On 5/3/02 they brought an application asking for the following orders:
“1. An order dismissing and or striking out the plaintiffs motion on notice dated 26th November 2001 for an application for judicial review.
- And such further or other order of orders as this Honourable court may deem fit to make in the circumstances.”
The grounds relied upon for bringing the application were these:
“1. The plaintiffs’ motion on notice for judicial review as presently constituted is incompetent in law.
- The reliefs sought by the plaintiffs on the Amended Statement are not justifiable under Judicial Review proceedings.
- The plaintiffs motion on notice for Judicial Review amounts to an abuse of court process and is unknown to the Federal High Court Rules on Judicial Review of administrative decisions.
- The conditions precedent to hearing of the plaintiffs’ motion on Notice for Judicial Review particular the conditions contained in Order 47 rule 5(4), 6(1) and 9(2) of the Federal High Court (civil procedure) Rules, 2000 have not been satisfied.
- This Honourable Court has no jurisdiction to entertain this suit as it is presently constituted.”
On 14/5/02 the trial judge ruled on the application in these words: (at page 140 of the record of proceedings):
“In the exercise of my discretion as conferred by the said provision and having regard to the nature of the present case dealing with “Judicial Review”, I hereby rule that the preliminary objection filed herein by learned counsel for the 3rd – 8th Respondents/applicants be taken along with the substantive suit. This is without prejudice to the Respondents/applicants raising the issue of jurisdiction at the hearing of the substantive suit. ”
The 3rd to 8th respondents (now appellants) were dissatisfied with the ruling.
They have come on appeal against it. In the appellants’ brief, which was filed on their behalf, the issues for determination were formulated as follows:
“1. Whether or not the 3rd to 8th defendants/appellants’ motion on notice filed at the court below on 5th day of March 2002 is not sufficient compliance with the condition stated in Order 25 rule 2 of the Federal High Court (Civil Procedure) Rules 2002.
- Whether or not the learned trial judge was right to hold that jurisdictional issue cannot be raised pursuant to provisions or order 25 rule 2 of the Rules of the appellants’ application challenging jurisdiction yet to be argued.
- Whether or not the court below has discretion exercisable under the provisions of Order 25 rule 2 of the Rules when the points of law raised pursuant to Order 25 rule 2 of the Rules touch on jurisdiction of the court below.?
- Whether or not the court below was right in differing the hearing of the appellants’ preliminary objection as to jurisdiction till the trial of the substantive suit?”
The 1st – 4th respondents had before this court on 9-10-02 filed a notice of the preliminary objection to the appeal. The objection reads:
“(i) There is not valid appeal before this Honourable Court because the order of the learned trial judge directing that the above named appellants/applicants – be taken along with the substantive suit “is not appealable as of right or at all.
(ii) Even if the said order is appealable no leave was sought for or obtained as required by law.”
The 1st – 4th respondents formulated upon their notice of preliminary objection the following issues for determination:
“(i) Whether or not there is an appealable decision of the court below from which the appellants have appealed to this court.
(ii) Even if there is such as appealable decision, whether or not an appeal lies in the absence of leave granted court below or this court?
(iii) If (which is not conceded) an appeal lies, whether or not the court below was right in deferring the hearing of the appellants preliminary objection as to jurisdiction till the trial of the substantive suit.”
The 2nd respondent before the lower court and now 6th respondent before this court formulated two issues for determination, namely these:
“(i) whether the learned trial judge was right in law when he held that the appellants’ preliminary objection be taken along with the substantive suit.
(ii) whether the learned trial judge was right in law when he held to wit:
Further that in the instant case the two conditions set out under Order 25 sub rule 2 of our Rules of Court are not in existence to enable this court decide to take the preliminary objection before trial.”
In this judgment, I intend to consider together the appellants’ issues, which cover the 6th respondent’s issues and the issues arising out of the preliminary objection by 1st to 4th respondents.
Earlier in this ruling, I reproduced in full the prayers, which the appellants made to the lower court by their application, filed on 5-3-02. I also set out the grounds relied upon for bringing the application. The application was expressed to have been brought pursuant to Order 25 rules 2(1) and 2(2) of the Federal High Court Rules, which read:
“(i) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall disposed of by the judge who tries the cause at or after the trial.
(ii) A point of law so raised may, by consent of parties or by order of the court or a Judge in chambers on the application of either party be set down for hearing and disposed of at anytime before trial.”
The lower court wrote a ruling on the application spanning eleven foolscap pages.
I would have thought it needlessly long given the conclusion later reached by the court.
Although the appellants had asked that the 1st to 4th respondents’ suit be peremptorily dismissed or struck out in advance of hearing, the trial judge in his ruling only said that the matters raised on the appellants’ application would be considered along with the substantive suit. Did the trial judge need a ruling of eleven pages to express the views he did in the end?
When the conclusion reached by the lower court is related to the prayers placed before it, it is manifest that it had not decided anything amounting to a decision or an answer one way of the other on the prayers. But the appellants are all the same aggrieved because as they argued, the lower court ought to have taken separately their request for dismissal or striking out of plaintiffs’ application before proceeding to consider it on the merit?
Is there anything in Order 25 rule 2(2), which imposes it, mandatorily on the trial judge to first separately consider the point of law raised by the appellants before the trial of the suit? The prescription under Order 25 rule 2(2) is that the point of law “be set down for hearing and disposed of at anytime before the trial.”
There can be no doubt that Order 25 rule 2(2) is capable of conveying the notion that at all events when a point of law is raised, the same must be disposed of before the trial. It was this expectation that led the appellants to argue that the lower court was wrong to have determined that the point of law be taken along with the substantive suit.
The point I strive to make here is that appellants were not far off the mark in believing that the lower court ought first to have taken their point of law separately before the trial. The 1st to 4th respondents on the other hand argue that the point of law although needed to be considered first but not necessarily separate from the trial. The same line of argument as was canvassed before the lower court was repeated before us. The lower court considered the matter. It interpreted the provision as conferring on it discretion as to the order in which the point of law ought to be resolved.
It is my firm view that although the lower court did not take any decision on any of the prayers made on the appellants’ application, it nonetheless took a decision on the proper interpretation of Order 25 rule 2(2) of the Federal High Court Rules. That in my view was a judicial decision. Section 318( 1) of the 1999 Constitution of the Federal Republic of Nigeria defines “decision” to mean in relation to a court any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. ”
Sections 24 and 242 of 1999 Constitution give a right of appeal with or without leave from decisions of the Federal High Court or State High Court to the Court of Appeal.The decision of the lower court in this case was interpretative in nature. It is in my view an appealable decision. This is because the lower court could well have decided that Order 25 rule 2(2) left it no discretion other than to hear the point of law separately before trial. Chief F. R. A. Williams SAN for 1st to 4th respondents in his argument placed reliance on UNITED AGRO VENTURES LTD. V. FCMB LTD. (1998) 4 NWLR (Pt.54?) 546 at 561 for his views that the decision in this case is not an appealable one. The facts in that case are these.
The plaintiffs who had presented a petition before the Federal High Court for a company to be wound up later brought an application that the petition for winding up be advertised. The company sought to be wound up brought an application that the plaintiffs be restrained from advertising the petition. When the two motions came before the Federal High Court, the judge decided that both be heard together. The company appealed. The Court of Appeal per Onalaja J in its judgment said:
“In my opinion where no arguments on the two motions were proffered the procedure to be followed did not constitute a decision in fact and in law as there were no determination to completion of the respective prayers and or reliefs sought by the parties. Therefore the contention of the respondents that there was no decision against which the appellant would appeal is well founded and meritorious ….. ”
There is a clear difference on the facts between this case and the UNITED AGRO VENTURES case (Supra). In that case no arguments had been canvassed and therefore parties had not taken divergent positions, which needed the intervention of the court by a decision. In this case arguments had been canvassed. The appellants wanted the lower court to take the point of law raised first and separately. The 1st – 4th respondents thought otherwise. There was therefore a dispute, which was resolved by the decision of the lower court. There was therefore an appealable decision.
Chief F. R. A. Williams SAN has also argued that the decision of the lower court concerned the exercise of discretion; and that therefore the grounds of appeal raised were necessarily of fact or mixed law and fact. It was therefore argued that as the appellants had not first obtained the leave of the lower court or this court, there was no valid appeal.
With profound respect I am unable to agree. It was the trial judge who in his ruling said he was exercising a discretion. The appellants’ counsel never conceded that the trial judge had a discretion as to the manner the point of law ought to be considered. The lower court was therefore primarily engaged in the exercise to determine the correct interpretation of Order 25 rule 2(2). That the trial judge came to the conclusion that he had discretion did not alter the fact that he came to that decision whilst interpreting Order 25 rule 2(2). When a ground of appeal challenges the correctness of the interpretation given by a court of law to the provision of a statute or Rule of Court, it is in my humble view a ground of law. I am satisfied that the appellants did not need to seek or obtain leave of court to challenge on appeal the interpretation given by the lower court to Order 25 rule 2(2) of the Federal High Court Rules 2000.
Now to the final question, was the lower court in error to have decided to consider the point of law raised by the appellants along with the substantive suit? I think not. The appellants have referred to several cases inclining to the view that when a challenge is raised to the jurisdiction of the court, the point ought to be treated as a threshold issue to be resolved first. The cases relied upon include (1) THE STATE V. ONAGORUWA (1992) 1 S.C. 161; A.G. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (Pt.111) 552; MAIDA WA V. HUSAINI (2000) 6 NWLR (Pt.662) 698 ANOGALU V. ORALUSI (1994) 2 NWLR (Pt.327) 500 and ONYEME V. OPUTA (1987) 3 NWLR (Pt.60) 259 at 292.
When a court has no jurisdiction to hear a case any order or decision reached in such a case is a nullity. Therefore, prudence and commonsense dictate that valuable judicial time and resources be not wasted in hearing a case on its merits only to discover later that the court has no jurisdiction to hear the case. When therefore it is said that the issue of jurisdiction be first considered, it is to curtail the risk of getting involved in an exercise, which may turn out to be fruitless. However, the issue of absence of jurisdiction in a court to hear a case can arise in different forms. If it arises in a case in which it is necessary to call several witnesses, it may be necessary to first dispose of the issue of jurisdiction in order to avoid a waste of judicial time. On the other hand it may arise in an interlocutory motion in which parties file affidavit evidence to be followed by arguments. In such a case a court may decide to hear together arguments on jurisdiction with arguments on the merits of the application. In such a situation, it is more economical to hear both together and thus relieve the court of the need to write two rulings should it decide that it has jurisdiction in the matter. Whichever way, the issue of jurisdiction presents itself, the important thing to bear in mind is that the court should first consider and make a decision on its jurisdiction before considering the merits of the case. Considering the question of jurisdiction first does not necessarily mean that the consideration has to be first and separate. It can be considered together with the merits of the case but always before the merit.
It is a matter to do with the prudent management of judicial time in which a particular judge hearing a case has discretion. No hard and fast rules can be laid down as to do so will needlessly constrain the exercise of discretion in as simple a matter as how best to manage the court’s time. Ajudge is not a robot and cannot be treated as such.
In the case on hand, Sanyaolu J. has only exercised his discretion by deciding to take the point of law raised along with the merits of the application before him. The decision of the learned judge is particularly understandable given the fact that the matter before him was in the form of an application in which he only needed to consider the affidavit evidence along with the arguments of counsel. This was not a case in which the trial judge had to take evidence from witnesses such as to make it more economical to take the issue of jurisdiction raised first and separately. There is nothing in Order 25 rule 2(2) that removes the exercise by a judge of such discretion. The lower court in my view was right to do so and there is no basis to fault its decision.
Accordingly, this appeal fails. It is dismissed with N6,500.00 costs in favour of the 1stto 4th respondents.
Other Citations: (2002)LCN/1322(CA)
