Fred C. Chiedozie V. Dayo Omosowan & Ors. (1998)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A,
This is an appeal against a decision of Olike J. of the High Court of Anambra State of Nigeria holden at Awka in suit No. AA/163/95 made on 3rd April, 1996, wherein he adjourned to the 3rd June, 1996 the substantive suit between the parties placed on the “undefended list” and fixed for hearing on 29th November, 1995, after he had heard and ruled on a preliminary objection challenging the competence or the action, and the jurisdiction of his court to entertain the action.
In the said ruling the learned trial Judge, Olike, J., dismissed the preliminary objection of the defendants and set down the substantive suit for hearing on 3rd June, 1998 with no order as to costs.
The defendants being dissatisfied with that ruling of 3rd April, 1996 applied for leave of the trial court to appeal against same to the court of Appeal, Enugu.
The said leave was granted whereupon the defendants then applied still to the trial court for an order staying further proceedings in the substantive suit pending the decision of the Court of Appeal on whether the court below had jurisdiction or not.
The said stay of proceedings was duly granted.
On the other hand, the plaintiff in whose favour the ruling in the preliminary objection was made, namely that his action was not statute barred, and that the court below had jurisdiction to entertain the suit, had a grouse against the learned trial Judge that the substantive suit which was placed on the “undefended list” was adjourned indefinitely to abide the outcome of the appeal on jurisdiction, instead of his being given judgment immediately. He therefore also appealed to this court against the decision of the: learned trial Judge adjourning his case to await the outcome of the defendants’ appeal. The pertinent portion of the trial court’s ruling complained against reads as follows:-
“The defendants have filed a motion to stay further proceedings in this case pending the determination in the Court or Appeal on the jurisdiction of this court to hear the substantive suit. As is well settled the issue of jurisdiction is crucial and should be determined first. The court will allow the defendants to obtain a decision on the question of jurisdiction from the Court of Appeal before taking further steps in the matter.”
Against the above ruling of the court below, the plaintiff has appealed to this court on two grounds which without their “particulars” read as follows:-
“1. The trial court erred in law in not hearing the case as undefended and entering judgment in the undefended list when the case came up for hearing on 3rd June, 1996 and instead adjourning the matter.
- The trial court erred in law in adjourning the case suo motu on the grounds that there was a motion seeking a stay of proceedings in the matter pending the decision of the Court of Appeal and adjourning the said motion to abide the outcome of the motion.”
From the above two grounds, the plaintiff, who will hereinafter be referred to as the “appellant”, formulated the following four issues for determination.
Issues for determination
- The appellant most respectfully submits the following issues for determination in this appeal:-
- Whether the legal position is that an issue of jurisdiction which can be raised at any time and at any stage of the proceedings can also be raised any how (Italics supplied) that is to say even without due process and once raised must all other proceedings abate and await its consideration and determination by the appellate courts (grounds 1 and 2).
- Whether the trial court has the discretion in a suit placed for hearing in the undefended list under the High Co un Rules No. 27 of 1988 of Anambra State to adjourn the suit where the defendant has not filed a notice of intention to defend nor an affidavit disclosing a defence on the merits (ground J).
- If the answer to No.2 issue is in the positive then whether the trial court in the circumstances of this case exercised that discretion judicially and judiciously when it adjourned the hearing suo motu, without any application by the defendant for leave to comply with the said rules and for the reason given by it without consideration for the competing rights of both the defendant and the plaintiff for justice. (Grounds 1 and 2).
- Whether the appellant is not therefore entitled to have his case heard in the undefended list and judgment entered in his favour.”
On the other hand, the defendants who will hereinafter be referred to as the “respondents” formulated only one issue as follows:-
Issue for determination
“Whether in the circumstances of the case, the lower court was right in adjourning the proceedings until the application before the court was determined or whether it could have entered judgment for the appellant.”
After careful consideration of all the issues formulated above, I am of the considered view that all the controversial points in this appeal can be conveniently resolved under issues 1 and 2 formulated by the appellant, with issue 2 being taken
together with issue 3. I shall now proceed to do so as follows:-
He Issue No. 1.
“Whether the legal position is that an issue of jurisdiction which can be raised at any time and at any stage of the proceedings can also be raised any how, that is to say even without due process and once raised must all other proceedings abate and await its consideration and determination by the appellate courts?”
Arguing the above issue it was submitted on behalf of the appellant that an application challenging the jurisdiction of the court was an interlocutory application, which, as stipulated by the rules should be initiated by motion, written or oral (Order 16 rules 1,2 and 3 of High Court Rules of Anambra State, 1988 was cited as authority). Learned counsel for the appellant thereafter went beyond the bounds of the practice in a trial court, and trespassed into the realms of the Court of Appeal, by submitting that “a preliminary objection to the competence of an appeal should be brought by motion on notice before the hearing of the appeal. He cited many decided cases in support. However, since the learned trial Judge at the court below was not hearing an appeal, it is unnecessary to reproduce them here. Finally it was submitted on this issue that an objection on jurisdiction has to be raised “by due process” and the consideration given to the issue by the trial court when it was not so raised before it led it to hold wrongly that “the court will allow the defendants to obtain a decision on the question of jurisdiction from the Court of Appeal before taking further steps in the matter”.
In response to the above it was submitted on behalf of the respondents that jurisdiction being a fundamental matter, any issue of jurisdiction must, where it arises, be addressed at the earliest opportunity, for any hearing to proceed without jurisdiction is a wasteful exercise. The issue of jurisdiction is so important that to fail to address it at the earliest stage may, if it turns out that the court had no jurisdiction the whole proceedings however well -conducted will be rendered null and void. It therefore must be addressed promptly (Ojokolobo v. Alamu (1987) 3 NWLR (Pt. (1) 377, cited in support). It was further submitted that it was unthinkable that a court faced with a contention that it lacked jurisdiction to determine a matter should proceed to enter judgment because the suit was on the undefended list only to await a determination of the issue of its jurisdiction. It was therefore submitted that the learned trial Judge was perfectly right in adjourning the proceedings to allow the Court of Appeal hear and determine the respondents’ appeal on the question of jurisdiction.
I have carefully considered the two arguments canvassed above and must start by saying that the issue or jurisdiction is so basic and fundamental to any effective adjudication in our jurisprudence that any defect in the competence of the court is fatal, and the proceedings are a nullity however well conducted and decided. (Madukolu v. Nkemdilim (1962) 2 SCNL 341; Skenconsult v. Ukey (1981) 1 S. C. 6; and Rossek v. A. C.R. Ltd. (1993) 8 NWLR (Pt.312) 382. It is for this reason that an objection on jurisdiction can be raised at any stage of the proceedings, even at the Supreme Court. But it is equally trite that where the objection is founded on the Constitution or a statute, the objection must be raised promptly and timeously at the first available opportunity as was done in the instant case. In the case of Kasikwu Farms Ltd. v. A-G, Bendel State (1986) 1 NWLR (Pt. 19) 695 at 704, it was stated by the Court of Appeal (Benin Division) per Alfa Belgore, J.C.A. (as he then was) that
“Where an objection all jurisdiction is based on a constitutional or statutory provision, it must be raised as early in the proceedings as possible, so as to avoid the court embarking on an exercise in
futility.”
See also the cases of Obada v. Governor of Kwara State (1990) 6 NWLR (Pt. 157) 482 C.A .. and Opawande  v. Oyedokun (1992) 6 NWLR (Pt. 248) 512 C.A. In view of the foregoing it becomes clear that issue No. 1 must be answered in the affirmative, i.e., in favour of respondent.
Re Issues No.2 & 3
“2. Whether the trial court has the discretion in a suit placed for hearing in the undefended list under the High Court Rules No. 27 of 1988 of Anambra State to adjourn the suit where the defendant has not filed a notice of intention to defend nor an affidavit disclosing a defence on the merits.
- If the answer to No.2 issue is in the positive then whether the trial court in the circumstances of this case exercised the discretion judicially and judiciously when it adjourned the hearing suo motu without my application by the defendant..”
Under issue 2, the main contention of the appellant was that under the rules governing “undefended list” actions, there was no provision for the court to adjourn a matter fixed for hearing when the defendants had filed no process or processes. The case of UAC Technical Ltd. v. Anglo Canadian cement Ltd. (1966) NWLR 349 and other cases that followed it were cited in support. It was then submitted that where as in this case the defendants failed to file a notice of intention to defend and did not apply to court even for extension of time to comply with the rules there was no material before the court on which it could exercise any discretion in the defendants’ favour and the plaintiff WJS entitled to judgment. The case of Williams v. Hope Rising Voluntary Funds Society (1982) 2 SC. 145 was cited in support.
On issue No.3 it was argued that even if the trial court had and could exercise the discretion which it did on 3/6/96 the discretion exercised was not judicious/judicial because the court over-indulged the defendants at the expense of the plaintiff. In over-indulging the defendants as the trial court did, the court did not take into account the competing rights of the plaintiff to have his case determined under the specific provisions of the law under which he had brought his case for adjudication. At no time did the defendants being indebted to the plaintiff as claimed. Finally, it was submitted that the trial Judge was wrong in not having the plaintiffs case heard in the undefended list and this was as a result of the court acting on wrong principles of law. This court was then urged to have recourse to section 16 of the Court of Appeal Act and order 1 rule 20 Court of Appeal Rules and to hear the suit in the undefended list and have judgment entered for the plaintiff.
In reply to the above, it was submitted on behalf of the respondents that the learned trial Judge, and indeed the courts of this country, had unfettered discretional powers to adjourn any proceedings pending before it from time to time in order to do justice in a case. (Order 23 rule 7 of High Court Rules, 1988 of Anambra State applicable to Enugu State was cited in support).
Under issue No 3, learned counsel for the respondents conceded that although a court had a discretion to adjourn a matter, but that discretion nevertheless had to be exercised “judicially and judiciously”. It has to be exercised not in bad faith, not frivolously or vexatiously. If, however, there was any miscarriage of justice in the exercise of such discretion, the appellate court has the competence to have it reviewed (Odusote v. Odusote (1971) 1 All NLR 219).
It was therefore submitted that the exercise of discretion by the learned trial Judge in the instant case was done “judicially and judiciously” and not in bad faith.
An appellate court would not therefore disturb the exercise of such discretion. This court was therefore urged to dismiss this appeal.
I have carefully considered all the arguments canvassed above by learned counsel on both sides and come to the following conclusions.
As conceded by even the learned counsel for appellant himself, all courts in the Federation have unfettered discretional powers to adjourn any proceedings pending before them in order to do justice in a case. There were however two points of divergence as follows:-
(a) Whether there was even a discretion at all to adjourn a matter placed on the “undefended list” where the defendant had no filed a notice of intention to defend, or affidavit disclosing a defence on the merit.
According to the appellant there was no such discretion in the instant case, whereas the respondents’ counsel was of the view that there was such discretion, since not only the competence of action but also the jurisdiction of the court was being challenged. The court’s attention has been drawn to the provisions of Order 16 rules 1-3 or the High Court Rules of Anambra State, 1988, which applies to Enugu State, and the said rules read as follows:-
“1. Interlocutory applications include all applications made to the court in connection with a suit before the suit is commenced, or between the commencement of and the judgment on the suit, or after judgment in the suit.
- All interlocutory applications shall be made by motion.
- Oral motion may be made to the court in the presence of the adverse party, but the court may refuse to entertain such motion unless and until it be made in writing.”
Mention must also be made of Order 23 rule 7 of the same High Court Rules which provides as follows:
“The court may postpone the hearing of any cause on being satisfied that the postponement is likely to have the effect of better ensuring the hearing and determination of the questions between the parties on the merits, and is not made for the purpose or mere delay. The postponement may be made on such terms as to the court may seem just.”
From the two Orders and rules of court set out above, I am satisfied that the cases placed under the “undefended list” under Order 24 rule 9 of the said High Court Rules, do not enjoy any separate immunities other than those given Linder that rule y, Learned counsel for appellant seems to give the impression that “undefended list” cases are something “out of “this world” which are exempted from other rules that govern other “mortals” or cases in the normal run of litigation.
But that is certainly not so. Undefended list cases are not governed by rules in any separate handbook. The immunity they enjoy are only those in Order 24 rule 9. In this regard, it was pointed out by the learned senior counsel for respondents that the expression ;’any cause” in the opening sentence of order 23 rule 7 (supra) includes suits in undefended list, and I agree with him. By parity of reasoning, I am also of the view that everything said under Order 16 rules 1-3 applies to cases on the undefended list. In other words, it is not abnormal for a counsel to raise a preliminary objection in an “undefended list” cast, as was done by the learned counsel for respondents in this case. And when that is done, there will be nothing unusual for a trial Judge to put the substantive suit aside, and dispose of the preliminary objection as was done by the learned trial Judge in this case. Learned counsel for the appellant also gave the false impression in his brief that no “notice of intention to defend” was ever filed on behalf of the respondents in this case, nor any “affidavit in support of notice to defend”, whereas these two documents were clearly shown at pages U and 14 -15 of the record of proceedings, compiled by the appellant himself with leave of this court.
(b) “The second point of divergence is whether the said adjournment was done “judicially and judiciously”.
In this regard, I have no hesitation in agreeing with the learned Senior Advocate for the respondents that the adjournment in the instant case was done “judicially and judiciously” as it was done in the interest of justice, after hearing legal arguments on both sides for and against a “preliminary objection” to enable the respondents (who were the losers in that objection) to appeal to a higher court.
It would have been a wasted effort if the learned trial Judge had proceeded to try the substantive suit, and at the end of the day, the Court of Appeal gave a verdict that the lower court had no jurisdiction, or that the action was statute barred. I am however happy to say that this interlocutory appeal has now been heard and determined and the Court of Appeal which upheld the ruling of the learned trial Judge in the following terms:-
“In view of my findings above, namely that the learned trial Judge was right in saying that he had jurisdiction to try the matter and also that the suit or the respondent was not statute barred, this appeal therefore fails and is hereby dismissed with costs of N4,000,00 (four thousand naira) in favour of respondent.” See the case of Omosowan v. Chiedozie (1998) 9 NWLR (Pt. 566) 477 (coram Akpabio, Salami and Tabi, J.J.CA) of this court published on 31st August, 1998.
One would have expected that having won the interlocutory appeal at the Court of Appeal, and collected his handsome costs of N4,000,00 the respondent (appellant herein) would apply to withdraw this appeal from this court, and then pursue the substantive suit in the “undefended list” at the court below. But, no, he would not do that, he must pursue this appeal to its bitter end.
Having said the above, I must conclude this judgment by saying that the decision of the learned trial Judge in this case adjourning the substantive suit to abide the outcome of the appeal on jurisdiction was an exercise of discretionary power which ordinarily should not he appealed against. It is not every and any statement of a judge made in the course of judicial proceeding that is appealable.
See the case of Awoniyi v. Buremoh (1996)4 NWLR (Pt. 443) 419 at 433, where the Court of Appeal. (Kaduna Division) per Muhammed, J.C.A. said as follows:-
“Indeed the comment in the passage having been made in the middle of the exercise of reviewing evidence, cannot come anywhere near a decision of the court within the meaning of s. 277(1) of the 1979 Constitution which is capable of being: appealed against.”See also the definition of “decision” under s. 277 (1) of the 1979 Constitution of the Federal Republic of Nigeria, which reads as follows:-
“‘decision’ means’ in relation to a court, any determination or that court and includes judgment, decree, order, conviction, sentence, or recommendation.”In the instant case, the court made no determination whatsoever on the substantive suit apart from merely adjourning the case.
Finally I must refer to the case of Ogolo v. I.M.B. (Nig) Ltd. (1995) 9 NWLR (Pt.419) 314 at 317, ratio 5, where the Court of Appeal, Port Harcourt Division, held per Onalaja JCA, in the lead judgment as follows:-
“The grant or refusal of an amendment is an exercise of judicial discretion by the court which is to be exercised judicially and judiciously. Being an exercise of judicial discretion the principle and attitude or an appellate court is that it will not interfere, where it had been exercised bona fide and not arbitrarily or illegally, (University Of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) page 143 at 148: Saffieddline v. Cop (1965) 1 All NLR 54: Ugboma v. Olise (1971) 1 All NLR8; Ntukidem v. Oko (1986) 5 NWLR (Pt.45) page 909; Atano v, A-G Bendel State (1988) 2 NWLR (Pt. 75) page 201; Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 at 749 referred to) (P.324, paras D-E)”
On the totality of the foregoing, I hold that this appeal has been a hopeless waste of judicial time and has no merit at all. It is accordingly hereby dismissed with costs of N3.000.00 in favour of the respondents. As for the prayer of appellant under “Relief sought from the court of Appeal” that this court should now hear his substantive suit on the undefended list, under power conferred on this court by s.16 of the Court of Appeal Act, 1976, and enter judgment for him, we regret that we cannot do such thing as we have no such jurisdiction. Under s.219 of the Constitution of the Federal Republic of Nigeria, which created this court, our jurisdiction is purely appellate. As such, we have no power to entertain any case in respect of which a judgment or ruling has not yet been delivered by a trial court.
The substantive suit of the appellant, in respect of which proceedings was stayed pending determination of appeal, is therefore hereby ordered to be revived for hearing and determination on the “undefended list” at the court below.
Other Citations: (1998)LCN/0424(CA)
