Dr. Akinola Ogunlewe V. Union Bank of Nigeria Plc (2016)
LawGlobal-Hub Lead Judgment Report
YARGATA BYENCHIT NIMPAR, J.C.A.
This appeal is against the judgment of the Lagos State High Court delivered on the 16th March, 2012 by HON. JUSTICE OLOKOBA wherein the Court entered summary judgment in favour of the Respondent. Dissatisfied with the judgment, the Appellant filed a Notice of Appeal dated 19th March, 2012 with five grounds of Appeal.
The brief facts leading to this appeal are simply that the Respondent took out a writ of summons claiming as follows:
i. The sum of 266,559,168.00 being the total amount outstanding as at February 1, 2010 on the facility granted to the Defendant now appellant by the Claimant from November 16, 2007 at the defendant?s request in the usual course of business which sum the defendant has refused to repay.
ii. Interest on the said sum of N266,559,169.00 at the rate of 20% from February 1, 2010 until judgment and thereafter at the rate of 7% per annum until the sum is fully paid.
iii. An order for sale of the property known as Plot 323, Victoria Island Annex, Lagos covered by the Lagos State Certificate of Occupancy No. 8/8187 registered
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as No. 8 page 8 in Volume 1987C in the Lagos Land Registry.
iv. Cost of the action.
The Respondent also filed a motion for Summary Judgment to which the Appellant opposed by filing relevant processes such as statement of defence and a counter affidavit opposing the motion for summary judgment. The Court took the application for summary judgment and adjourned same for ruling. Subsequently the Appellant filed a motion dated 22/2/2012 seeking to strike out the Respondent’s action before the lower Court on the ground that the debt which is the subject matter of the action had been assigned or sold to the Asset management company of Nigeria and therefore the Respondent had no right of action. The Respondent filed a counter affidavit supported by a written address. The said motion was pending before the lower Court before the trial judge delivered his judgment. The said pending motion was therefore not considered when judgment was delivered on the 16/3/2012.
?Dissatisfied therefore, the Appellant filed his Notice of Appeal containing five grounds of appeal. The Appellant’s brief settled by Adewale Adesokan dated 13/3/2014 was filed on the same date
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and a reply Brief dated 14/3/16 filed on the same date also. The Respondent’s brief settled by Bisi Bello dated 10/12/2014 was filed on the 17/2/15 and deemed on the 2/3/16. The briefs were adopted at the hearing of the appeal. The Appellant formulated 3 issues for determination as follows:
1. Whether having raised the issue of the competence of paragraphs 3, 4, 5, 6 and 10 of the Appellant?s counter Affidavit filed in opposition to the application for summary judgment suo motu the lower Court was bound to call on parties to address it on the issue before considering and deciding the issues.
2. Whether the lower Court ought to have heard and determine the Appellant?s motion on Notice challenging the locus standi of the Respondent to further maintain the action rather than proceeding with the delivery of its judgment on March 16, 2012 in respect of the application for summary judgment.
3. Whether the lower Court was right to have entered summary judgment in favour of the Respondent having regard to the Counter Affidavit and Statement of Defence filed by the Appellant.
The Respondent also distilled 3 issues for determination
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namely:
i. Whether in evaluating the affidavit evidence placed before it the lower trial Court did raise any issue suo motu that would have warranted that Court to call on the parties to address it on such an issue before delivering its Ruling/Judgment.
ii. Whether the lower Court was in error when on the 16th March 2012, it proceeded to deliver its Judgment on the Respondent’s motion for summary Judgment when it was not aware of the pendency of the Appellant’s motion on Notice challenging the further prosecution of the Respondent’s suit.
iii. Whether the lower trial Court was right when it entered summary judgment in favour of the Respondent having considered the counter affidavit and statement of defence filed by the Appellant and found them otiose.
Both sets of issues are basically the same but for the different way they are couched. The Court shall adopt issues set forth by the Appellant for determination in this appeal. Looking at the 3 issues closely, issue number 2 raises a jurisdictional question which must be taken first before the other issues can be considered. I shall therefore start determining the appeal on issue 2.
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ISSUE 2
“Whether the lower Court ought to have heard and determined the Appellant?s Motion on Notice challenging the locus standi of the Respondent to further maintain the action rather than proceeding with the delivery of its judgment on March 16th, 2012 in respect of the application for summary judgment.”
It was contended by the Appellant that due to the fact that the Respondent had assigned the Appellant’s indebtedness to AMCON, the Respondent no longer had the right to maintain the action and due to the consequential lack of locus standi on the part of the Respondent, the Appellant had to file the application for striking out. Furthermore, the Appellant submitted that since the application challenged the locus standi and by extension the competence of the Court in proceeding with the matter, the Court ought not to have ignored the application and proceeded to give judgment. That locus standi is a crucial matter touching on jurisdiction which the Court is obliged to determine before going into the merits of the case, citing the case of ADESANYA V. PRESIDENT OF NIGERIA (1981) 2 NCL 358. The Appellant further submitted that the Respondent must not
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only have the locus standi to institute the action but must always possess the locus standi to continue the action.
In response, the Respondent contended that from the Record of Appeal, it is nowhere recorded that the Appellant’s application was ever brought to the notice of the trial Court either before or at the delivery of the judgment. As such, the Appellant’s submission not being backed up by the Court?s Record should be discountenanced, relied on NWAIBE V. STATE (1996) 9 NWLR (PT. 472) 343. The Respondent further contended that contrary to the submissions of the Appellant and based on the Record of Appeal, it is evident that the Appellant and his counsel were very much aware of the intervention of AMCON before the date on the letter informing the Appellant of AMCON’S intervention. Yet again, the Respondent submitted that it was the duty of the Appellant to bring the application before the Notice of this Court and failure to do so was fatal to its fate, referred to CHIEF IMEH ALBERT AKPAN V. SENATOR EFFIONG BOB & 4 ORS (2010) 4 – 7 S.C. (PT 11) 57.
According to the Respondent, even if the trial Court?s attention had been drawn to
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the application, it would have still failed woefully for lacking in merit. It therefore urged this Court to dismiss the appeal.
In response to the brief filed by the Respondent, the Appellant insisted that the lower Court raised the issue of incompetence suo motu and without hearing the parties. He referred to the following cases; ONWUKA HI-TEK INDUSTRIES PLC & ORS V. ICON LIMITED (MERCHANT BANKERS) & ORS (1992) 2 NWLR (PT 226) 733, KOTOYE V. CENTRAL BANK OF NIGERIA (1989) 1 NWLR (pt. 98) 419, KUTI V. BALOGUN (1978) 1 SC 53, KUTI V. JIBOWU (1972) 6 SC 147. On whether the Appellant ought to have been granted leave to defend, the Appellant submitted that it was not necessary for the trial judge to consider at that stage whether the defence had been proved but that what is required is for the Court to look at the facts deposed therein, relied on CALISTUS OBITUDE V. ONYESOM COMMUNITY BANK LTD (2014) 9 NWLR (PT. 1412) 352.
RESOLUTION:
It is conceded by both sides that there was a motion before the Court which was not determined by the time the Court delivered its judgment. The affidavit in support of the motion unheard stated that the
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Appellant received a demand notice dated January 24, 2012 from AMCON over the same outstanding debt which now led the Appellant to immediately file its motion seeking to strike out the suit for want of locus standi. The judgment was delivered on the 16/3/2012.
Now, an application challenging the locus standi of a party is one challenging the competence of a party to institute the action. Competence has a bearing on jurisdiction, see the case of PAUL EKHAGUERE v. EKHOSUEHI (2010) LPELR – 4088 (CA) where the Court held as follows:
“Locus standi is a matter which borders on jurisdiction. This is because where a party does not have the standing to claim against a defendant the Court is bereft of jurisdiction to adjudicate upon such a claim. Jurisdiction is the competence of a Court. And any defect in the competence renders the proceedings before it a nullity, a defect in competence is quite extrinsic to adjudication.”
The settled position of superior Courts is that all pending applications in the Court’s file must be disposed of before judgment is delivered. See the case of CHIEF AKPAN V. SENATOR EFFIONG BOB & 4 ORS (2010) LPELR –
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376 (SC) which held thus:
“The trite position of the law is that where there are pending processes before a Court, such as motions or other applications, such issues have to be dispensed with before a final decision is taken on the main action or appeal. See: IROLO V. UKA (2002) 14 NWLR (PT. 786) 195 at 225 where this Court held: ‘it is the duty of a Court, whether of first instance or appellate to consider all issues that have been joined by the parties and raised before it for determination. If the Court failed to do, without any valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such questions.’ Thus, it would be wrong of a Court, whose attention has been drawn to a pending process, such as Notice of withdrawal of appeal or motion on Notice to proceed to treat the appeal to finality when such processes have not been pronounced upon by it.” Per MUHAMMED, J.S.C.
See also the case of JUSTICE OKWUCHUKWU OPENE V. NATIONAL JUDICIAL COUNCIL & ORS (2011) LPELR ? 475 (CA) which relied on ONYEMA &
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ORS V. EGBUCHULUM (1996) 5 NWLR (Pt. 448) 224 at 265 where KUTIGI, J.S.C, (as he then was) said:
“The Court had a duty to make its decision on preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against same”.
Issues were joined on the said motion by both sides. The Respondent filed its counter affidavit and written address on the 8th February, 2012. The judgment was delivered on the 16th March, 2012.
There is no indication that the trial Court fixed the motion for hearing. The processes were part of the record before the trial Court. The Court could not have used the same file without seeing the said motion. The Appellant paid for the filing of the motion and once paid, it immediately formed part of the Court?s file, thus, the Appellant lacks control on what happens to the processes because the Court?s internal working mechanism should have been activated in such a way that the Court should have attended to it. MUNTAKA – COOMASSIE, JCA, in the case of ABIARA V. REGD. TRUSTEES, M.C. OF NIG. (2007) ALL FWLR (PT. 391) 1664 held
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as follows:
?A prudent Judge before he embarks on any important decision or exercise, he ought to have asked or looked into his file if there is any pending application. It is not enough for the Judge to hold that he was not aware of the motion and that none of the counsel drew his attention to its existence.”
It appears the Court conveniently ignored the motion and proceeded to deliver its Ruling/Judgment. The Respondent submitted that the Appellant planted a motion in the Court?s file. The Respondent cannot be heard to say so because it was duly served and it hitherto responded. The Respondent’s counter affidavit and written address are at pages 230 – 263 of the Record of Appeal. So how can it now allege that the motion was planted? Between the date of filing the said motion and the date the Ruling/Judgment was delivered, there is no record of any action by the trial Court. It could be reasoned that the Court did not advert its mind to the pending application but the duty of the Court is that of diligence in ensuring that due process is followed and if it used the file in preparing the Ruling/Judgment then, it can be safely said that the
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trial Court saw the motion but ignored it. Again, the frustration of a trial Court can be inferred, having gotten to judgment stage and suddenly a motion is thrown into the wheels to truncate concluding the matter. This can truly be frustrating but the tenets of fair hearing and fair trial cannot be watered down and must be observed no matter the frustrating circumstances. Courts should be careful enough to take out all pending applications before delivering judgment in any matter. A little more care would have saved time in this case. A Court should not shut its eyes to such processes.
The defect becomes more damaging when lack of jurisdiction is the ground of the application. Jurisdiction is the life wire of adjudication, see the case of ARIBISALA & ANOR V. TALABI OGUNYEMI & ORS (2005) 6 NWLR (PT. 921) 212 where OGUNTADE, J.S.C said as follows:?Jurisdiction is blood that gives life to the survival of an action in a Court of law, and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be abortive
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exercise.”
The position is settled that jurisdiction can be challenged at any stage of the trial and in any manner. It could be in writing or even oral.
See the case of PETROJESSICA ENTERPRISES LTD & ANOR V. LEVENTIS TECHNICAL COMPANY LTD (1992) LPELR – 2915 (SC) in which the Court held thus: “The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raise early on issue of jurisdiction; but once it is apparent that the Court may not have jurisdiction it can be raised viva voce.”
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The contention of the Respondent that the motion was filed out of time cannot stand because it challenges the competence of the Respondent and as stated earlier, competence of a party affects jurisdiction. That makes the motion competent and it ought to have been fixed for hearing before judgment. The Respondent is supporting the view that a Court should be circumspect in handling matters to avoid falling into traps designed to derail the Court and submitted that the
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motion was a booby trap for the Court. I agree that a counsel filing an application late in the proceedings when the matter has been adjourned for judgment should formally draw the attention of the judge through the registrar of the pendency of the motion. That would be fair to the Court and the other party. But that does not absolve the Court from glossing over such a process. In this case the motion was properly filed and then served on the Respondent, the motion is presumed to be before the trial Court and it is therefore the duty of the registry to get a date for the hearing of the motion. As to when a Court process is presumed to be before the Court, see the case of NITEL PLC V. MAYAKI (2007) 4 NWLR (1023) 173 where AGBO, JCA had this to say:
“I must however emphasis that once a process is filed in the registry of a Court, the party that filed it has done all what is required of him. The process is therefore presumed to be before the Court. It is the duty of the party claiming that the judge is unaware of the existence of this process to establish it.”
Also, a process is deemed properly filed as soon as the paper submitted to or deposited in
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the registry of Court with the proper Court officer assigned with that responsibility, the paper is deemed properly filed, see AJUWA V. S.P.D.C (NIG) LTD (2008) 10 NWLR (PT. 1094) or LPELR – 5156(CA) and SEVEN-UP BOTTLING CO. LTD V. YAHAYA (2001) 4 NWLR (PT 702) 47 AT 55.
It is pertinent therefore, that until the locus standi of the Respondent is determined, the Court cannot make progress in the determination of the matter. When so raised, the Court must first resolve the issue of jurisdiction before taking any further step, see the case of ELDER AMADI UCHEGBU & ORS V. THE SHELL PETROLEUM DEV. CO. NIG. LTD (2009) LPELR – 8891(CA) which stated thus:
“It has also been held in a plethora of decided cases that issues bordering on jurisdiction are threshold issues which ought to be determined first and could be raised for the first time before an appellate Court. It could also be raised by any party; the trial Court inclusive.”
?Skipping the determination of that challenge to locus standi has caused a serious lapse in the hearing of the matter. There cannot be a valid judgment in favour of the Respondent without due determination of the
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question whether the respondent has locus standi. Even the other issues formulated by the Appellant cannot be determined until it is settled that the Respondent had the locus standi to institute the action in the first place. Going into the merit of the other issues would put the cart before the horse and tie the hands of the trial Court in determining the question of locus standi which must be resolved before any other step can be taken in the matter. Therefore, nothing touching the merit of the appeal can be determined until the issue of jurisdiction is cleared.
The relief sought by the Appellant in this appeal which seeks to set aside the judgment of the trial Court to allow the Appellant defend the claim is partially granted. The setting aside here is strictly to determine the issue of locus standi of the claimant and until that is determined in favour of the Respondent, there cannot be any claim for the Appellant to defend.
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There cannot be a decision if one party has no locus standi. A decision can therefore rightly be appealed against only if the parties are competent before the Court. If one party is incompetent then there cannot be a valid
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judgment. Until the competence of the Respondent is determined, which is fundamental in this case, the Judgment delivered on the 16th day of March, 2012 cannot stand.
The appeal therefore succeeds in part and only on the 2nd issue which has the resultant effect of remitting back the case to the Chief Judge of Lagos State to reassign to another Judge for hearing the motion challenging the locus standi of the Respondent first before taking any further step. The judgment of OLOKOBA J, is hereby set aside.
No order as to cost.
Other Citations: (2016)LCN/8773(CA)
