Edward Goji V. Joseph Ewete (2006)
LawGlobal-Hub Lead Judgment Report
AKAAHS, J.C.A.
Edward Goji sued Joseph Ewete before the Upper Area Court, Jos on 8/8/90 in suit No. JUAC-CU-04-89 claiming damages for trespass over a piece of land in Laranto, Jos within Jos Metropolis. In the course of the trial, learned counsel for the defendant brought a motion before the said Upper Area Court praying that court to strike out the suit for lack of jurisdiction since the land was held under a statutory right of occupancy. The Upper Area court ruled on the application refusing to strike out the suit. The defendant appealed to the Plateau State High Court against the ruling. The High Court sitting on appeal (Coram Oyetunde J., and Galadima J., (as he then was) affirmed the decision of the Upper Area Court and dismissed the appeal in suit No. PLD/J76A/90. The Upper Area Court then proceeded with the case and entered judgment for the plaintiff. Aggrieved with the decision, the defendant appealed to the High Court (now differently constituted by Uloko CJ and Sankey J.,) in suit No. PLD/J74/94. On 21/1/98 the High Court sitting on appeal allowed the appeal and remitted the suit to the High Court for trial. The plaintiff was dissatisfied with the decision and appealed against it to the Court of Appeal in Appeal No. CA/J/103/99. On 10/7/2001, this Court upheld a preliminary objection raised by the defendant on the competency of the appeal and struck out the appeal. It is an effort to have a competent appeal that the appellant was prompted to bring this motion dated 18/7/2001, but filed on the 19/7/2001 praying this court for the following reliefs:
(i) Extension of time within which to apply for leave to appeal against the judgment of the High Court of Justice, Jos sitting on appeal, delivered on 21/1/98.
(ii) Leave to appeal against the said judgment.
(iii) Leave to appeal against the said judgment on grounds of mixed law and facts.
(iv) Leave to raise and argue fresh issues of law and facts which were not raised before the lower court.
(v) Extension of time within which to appeal against the said judgment.
(vi) Leave to use and adopt the record of appeal in respect of appeal No. CA/J/103/99 which was struck out on 10/7/2001 as the record in this present appeal.
The application is supported with a 10 paragraph affidavit and a further affidavit dated 5/3/02 to which two judgments of the High Court sitting on appeal have been annexed. There is a further affidavit to which the judgment of the Court of Appeal was annexed. Mr. O. B. James, learned counsel for the applicant argued that at the stage of this application this court should not consider the merit or otherwise of the proposed appeal; rather the court should consider the application based on the materials presented before it. He referred to exhibit 2 attached to the counter-affidavit and submitted that no cogent reason has been advanced why the application should not be granted. He said that the order made by Uloko CJ and Sankey J., is appellable because it constitutes a decision, citing sections 242 and 318(1) 1999 Constitution and the case of Mohammed v. Olawunmi (No.2) (1993) 5 SCNJ 94 at 109-110, (1993) 4 NWLR (Pt.288) 384 in support. He therefore urged this court to grant the application.
Mr. Okafor, SAN, representing the respondent opposed the application and he filed a 10 paragraph affidavit dated 23/10/01 in opposition to the motion attaching two exhibits namely motion dated 6/5/99 and the ruling dated 11/1/2000. He contended that by Order 3 rule 4(2) Court of Appeal Rules, 2002, the applicant must satisfy two conditions – the affidavit should show good and substantial reasons why the appeal was not filed within time. He contends that exhibit “B” annexed to the further affidavit dated 5/3/02 namely the proposed ground of appeal is not a good and arguable ground of appeal. He said the High Court should be allowed to determine who has title to the land. The second point for opposing the application is that the applicant has consistently disobeyed the order made on costs as none has been paid. He relied on Shugaba v. U.B.N. Plc (1999) 11NWLR (Pt.627) 459 at 459 and 475 – 476 and urged this Court to dismiss the application.
Mr. James in reply stated that he was not aware that the costs awarded were yet to be paid. That notwithstanding no specific order has been made with regard to payment of costs as was the case in Shugaba v. U.S.N. Plc supra. He nevertheless offered to pay the cost within two weeks.
By virtue of Order 3 rule 4(2) Court of Appeal Rules, an application for extension of time to appeal must be supported by an affidavit setting forth good reasons why the appeal was not brought within the stipulated time and by grounds of appeal showing prima facie why the appeal must be heard and not why it should succeed. See: Cedar Stationeries Ltd. v. I.B. WA. Ltd. (2000) 15 NWLR (Pt. 690) 338.
In paragraphs 8 and 9 of the affidavit in support of the motion, the applicant deposed to the following facts:
“8. That I am informed by O. B. James Esq., of counsel whom I verily believe as follows:
(a) That the issue was not raised before the lower court that leaves of this Honourable Court is therefore needed to raise them as fresh points on appeal.
(b) That the fresh issues raised in the proposed ground of appeal are not new to the respondent.
- That it is essential in the interest of justice to grant the reliefs sought in this motion …”
Apart from the submission of learned counsel that the order made by Uloko CJ and Sankey J., constitutes a decision which is appellable, he did not advance any reason why the appeal must be heard. The reason is to be found in the proposed ground of appeal wherein the appellant’s complaint is as follows:
“The Judgment of the learned Justice of the High Court sitting on appeal amounted to a nullity in that by the said decision the said Court appears to have sat on appeal over its earlier decision in respect of the same case delivered on the 26/11/90.
Particulars
(a) The issue of jurisdiction had earlier been determined by the said court sitting on appeal Coram Honorable Mr. Justice S. Galadima in appeal No. PLD/J/76A/90 in a judgment delivered on the 26th November, 1990 and came to the conclusion that the Upper Area Court had jurisdiction to entertain the suit.
(b) Given the above circumstances the learned Justices of the High Court sitting on appeal ought not to have re-opened the issue of jurisdiction”.
At the time the High Court sitting on appeal decided suit No. PLD/J/74A/90 it was dealing with the narrow issue whether the Upper Area Court could entertain an action in trespass to land even where the land was situated in Laranto in the Jos metropolis. The High Court after reviewing several authorities held that since the main issue before the Upper Area Court was about claim for damages for trespass to the plaintiff’s land and there was no claim for declaration of title by either party in the case, the Upper Area Court could exercise jurisdiction in the matter. This ruling was given before the parties gave evidence and tendered documents as exhibits. Exhibit “E” was later tendered and it was in consideration of this exhibit that the Upper Area Court commented as follows:
“moreover whether exhibit E the judgment is a valid subsisting judgment is questionable since the land is said to be in Laranto Jos within Jos metropolis in the light of the Land Use Decree 1975 (sic) which empowers only the High Courts to entertain questions of title to land in urban areas”.
It was this observation which attracted the attention of the High Court when the substantive matter was before it on appeal. Since the document formed part of the evidence of the substantive case, and there was an appeal on the issue, there was no way the High Court could turn a blind eye and ignore resolving the issue. Even the High Court which heard the interlocutory appeal was conscious of the fact that where the issue of title was raised, it is only the High Court that could exercise jurisdiction to entertain the claim. The panel of the High Court which heard Appeal No. PLD/J74A/94 certainly did not sit on appeal in respect of the order made by the first panel which ruled in Appeal No. PLD/J76A/90 that the Upper Area Court had the jurisdiction to entertain the claim for trespass.
Once a court lacks the competence to entertain the case, the proceedings are a nullity no matter how well they might have been conducted. In other words, unless 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, any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt. 2) 587 at 590.
Section 39(1) (a) of the Land Use Act, 1978 stipulates as follows: –
“39(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings –
(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph, the proceedings includes proceedings for a declaration of title to a statutory light of occupancy;
(b)…”
The High Court was perfectly right to take up the issue of the competency of the Upper Area Court to entertain the action in limine. To have done otherwise would be tantamount to the court shirking its responsibility in deciding the appeal according to law.
Apart from the fact that it will not serve the interest of justice to allow the applicant appeal against the order remitting the case to be heard by the High Court afresh, the applicant in seeking leave to appeal is asking for this court’s discretion to be exercised in his favour. He should therefore come with clean hands. It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. Thus, a party who knows of an order whether null and void, regular or irregular cannot be permitted to disobey it. See: Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt. 412) 129; Ezekiel-Hart v. Ezekiel-Hart (1990) 1 NWLR (Pt. 126) 276; Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621; Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539; Shugaba v. U.B.N. Plc (1999) 11 NWLR (Pt. 627) 459.
I find that the application has no merit and it is accordingly dismissed with N2, 500.00 costs to the respondent.
Other Citations: (2006)LCN/1933(CA)
