Ntoe Andrew O. Ansa & Ors V. The Registered Trustees of the Presbyterian Church of Nigeria & Ors (2007)
LawGlobal-Hub Lead Judgment Report
OMOKRI, J.C.A.
This is an appeal against the decision of Justice Odu of the High Court of Cross River State, Calabar in suit No. C/14/82 delivered on 29/8/2000.
The plaintiffs/respondents, (hereinafter called respondents) Registered Trustees of the Presbyterian Church of Nigeria, claimed that they are owners of a piece and parcel of land situate at Otu Street, I Edem Ishie Street, Ishie Town, Calabar. Having acquired the land as aforesaid, they proceeded to erect a church manse to accommodate their Ministers and or Pastors. When the building was at wall plate level they alleged that the Central Bank of Nigeria instructed the Police to demolish the building which they did. The respondents then instituted proceedings against the Central Bank of Nigeria and the police, herein described as defendants/respondents, claiming as follows:
“(a) A (declaration that the plaintiffs are the rightful owner of a piece and parcel of land situate at Otu Street/Edem Effiom Street, Calabar and arc entitled to a statutory right of occupancy over it.
(b) A declaration that the defendants are trespassers on the plaintiffs land at Otu Street, Calabar.
(c) The sum of N 1.5m as special and general damages for trespass and unlawful destruction of the plaintiffs building under construction at Otu Street, Calabar.
Particulars of Special Damages
(i) N579, 500.00 the current market price of the materials utilized by the plaintiffs in getting the building constructed to wall plate level before it was destroyed by the act of the defendants (details of the said sum are as computed in paragraph 27 of this statement of claim.
(ii) N920, 500.00 general damages for the unlawful and wrongful act of the defendants in destroying the plaintiffs’ Manse muilding (sic) erected to wall plate level.
(d) A perpetual injuction (sic) restraining the defendants their servants, agents and privies from any further interference with the plaintiffs’ right to possession, occupation and enjoyment of the said parcel of land on which the demolished property stands.”
While the case was still pending at the court below, the interested parties/appellants (hereinafter called appellants) filed an application on 11/2/99 praying that they be joined as defendants and counter-claimants in the suit. The lower court refused the application for joinder in its ruling delivered on the 9/8/2000.
Dissatisfied with the ruling of the lower court the appellants appealed to this court on 5 grounds on 15/8/2000. From the 5 grounds the appellants in their appellants’ brief dated 1/3/2002 and filed on 6/3/02 distilled two issues for determination. The two issues for determination are:
“(1) Whether the learned trial Judge was judicial and judicious in his ruling refusing to join the appellants either as defendants/counter-claimants or as defendant simpliciter.
(2) Whether the trial high court in view of the claim in this F matter can exercise jurisdiction over the defendants/respondents.”
The respondents distilled three issues for determination in their brief dated 16/5/03 and filed on 19/5/03 and they are as follows:
“(1) Whether the appellants are a necessary/interested parties in the action before the court to entitle them to be joined as defendants/counter-claimants, if the appellants are necessary/interested parties, what is their interest.
(2) Whether the trial High Court, the State High Court lacks jurisdiction in the matter in view of the fact that the suit was commenced in 1982 before the promulgation and commencement of Decree 107 of 1993, and whether the appellants who are strangers to the proceedings have a right to complain on the issue of jurisdiction.”
(3) Whether Decree 107 of 1993 has a retrospective effect so as to affect a suit, which was commenced in 1982, in the High Court, which at the time of commencement had jurisdiction over the suit.”
On issue I, it was submitted that the court below having agreed that the appellants had genuine claim to the title to the land in dispute should have joined them in the proceedings. They relied on Green v. Green (1987) 3 NWLR (Pt. 61) 480; Chimveze v. Masi (1989) 1 NWLR (Pt. 97) 254; and Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 and submitted that if the court could suo motu join a necessary party, then the court has a duty to join the appellants if they applied to be made parties to enable them defend their interest.
On issue 2, the appellants submitted that the issue of jurisdiction can be raised at any stage of the proceedings even by this court suo motu. It was pointed out that the instant case on appeal commenced in 1982 but while the case was still pending, Decree No. 107 of 1993 came into force particularly section 230(l)(q), (r), (s) and by these provisions only the Federal High Court has jurisdiction over matters concerning and touching the Central Bank of Nigeria and the Police. Counsel argued that from the claims of the plaintiffs/respondents which include declaration and injunction by virtue of the provisions of section 230(1) and (s) the court below had no jurisdiction to hear the suit. It was also pointed out that Decree 107 of 1993 did not save suits pending in State High Courts before the Decree. Therefore, as at 17/11/93, being the commencement date of the Decree, the court below lacked jurisdiction to entertain the claim before it. The appellants referred to Universal Trust Bank of Nig. Ltd. v. Ukpabia (2000) 8 NWLR (Pt. 670) pg. 570 and the provision of section 251 (I) (n) of the 1999 Constitution, which is the same as section 230(1) and (s) of Decree 107 of 1993 and submitted that even under the present dispensation the State High Court still has no jurisdiction to entertain any matter touching the Central Bank of Nigeria and the Nigerian Police being agencies of the Federal Government.
The respondents, on issue 1, contended that there must be a dispute between them and the appellants, as defendants, to entitle them to be joined as parties to the suit and it is improper to join as co-defendants persons against whom the plaintiffs had no cause of action and against whom they had not made any claim. Relying on Ayorinde & Ors. v. Alhaja Airor Oni & 1 Or. (2000) 2 – 3 SCNJ I at 21 and 21; (2000) 3 NWLR (Pt. 649) 348; Oshodi v. Egunjobi (1966) I ANLR 278, it was submitted that when the nature of evidence before the court is such that the case of the party before it can be determined in the absence of those not joined it can proceed to do so. It is only in cases where it will not be right and the court cannot properly determine the issue before it in the absence of the parties whose participation in the proceedings is essential for the effectual and complete determination of the issue before it will it be necessary to insist on the joinder of such necessary parties. On the issue of multiplicity of action, it was submitted for the respondents that the appellants have no claims against them before the lower court.
It was also submitted that if the appellants established any right at all, it would be time barred as the cause of action arose in 1982 and it cannot avail the appellants in 1999 when they sought to be joined as defendants/counter-claimants. They relied on U.B.A. Plc v. Alh. Garba Abdullahi (2003) 3 NWLR (Pt. 807) 359 and submitted that the issue of limitation, being a jurisdictional issue, can be raised at any time even on appeal.
It was the contention of the respondents on issues 2 and 3 that the trial was commenced in 1982 before the promulgation and commencement of Decree 107 of 1993 which has no retrospective effect.
Relying on O.H.M.B. v. Garba (2002) 7 SCNJ 256 at 265; (2002) 14 NWLR (Pt. 788) 538 the respondents contended that a right in existence at a time a new law is passed transferring jurisdiction of a court to another court will not be lost. It was contended that it is a cardinal principle of law that unless it affects purely procedural matter, a statute cannot apply retrospectively unless it is made to do so by a clear and express term. The respondents relied on the provisions of section 6(1) of the Interpretation Act, 1990 where it is provided that any right, privilege or obligation accrued to an individual shall not be affected by the repeal as it was held in O.H.M.B. v. Garba (supra). It was also the contention of the respondents that even if the court lacks jurisdiction to entertain the matter the appellants have no right to complain as they are strangers to the proceedings.
Reacting to the respondents’ brief, the appellants filed a reply brief on 14/11/03 wherein it was submitted that whether the respondents’ suit began in 1982 or not since it was still pending in 1999 the lower court lacked the jurisdiction by virtue of Decree No. 107 of 1993 and by the provisions of section 251(1), (p) and (r) of the 1999 Constitution. Also that section 6(1) of the Interpretation Act only saved acts or deeds under a repealed enactment and in any case the Constitution supercedes any law or statute. The appellants placed reliance on I.N.E.C. v. Musa (2003) 3 NWLR (Pt. 806) 72 and Olutola v. University of Ilorin (2004) 18 NWLR (Pt. 905) 416.
I have very carefully considered and reflected on the two sets of issues formulated for determination by the parties in this appeal and in my view those formulated by the appellants are preferable.
They are concise, succinct and more derivable from the grounds of appeal. I shall therefore adopt and rely on them in this appeal.
Having regard to the facts of the instant appeal and the submission of the counsel in their respective briefs, I consider it necessary and reasonable to deal with issue No.2 first, because it relates to the issue of jurisdiction of the court below. Once an issue of jurisdiction is raised at any stage in the proceedings in any court in any matter, it ought to be gone into first as failure to do so may mean that all the exercise of adjudication may turn out to be a useless waste of time. See State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 57 per Nnaemeka-Agu, J.S.C.; Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1. Also in Adekanye v. Comptroller of Prisons (2000) 12 NWLR (Pt. 682) 563 at 570, this court held that the issue of jurisdiction being a fundamental issue which touches on the competence of a court or tribunal to adjudicate on the suit before a court or tribunal must always be resolved first and foremost whenever it is raised in a suit. See G & C Lines v. Olaleye (2000) 10 NWLR (Pt. 676) 613 at 627. I shall therefore consider issue No.2 now.
Before going into the main issue it is proper and apposite that I consider an ancillary issue raised by the respondents. It is the contention of the respondents that the appellants, being strangers to the proceedings at the lower court, have no right to complain about the jurisdiction of the court. That submission in my view is ridiculous and it is of no moment. The issue of jurisdiction is a threshold issue therefore it can be raised at any stage of a proceeding even in the Supreme Court for the first time and it can be raised suo motu whether or not the parties raised it. See Matari Matori & 6 Ors. v. Dangaladima & Anor. (1993) 2 SCNJ 121: (1993) 3 NWLR (Pt. 281) 266; and State v. Onagoruwa (supra). In Westminister Bank Ltd. v. Edwards (1942) AC 529 at 536, Lord Wright observed as follows:
“Now it is cleared that a court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent it can do so all its own initiative even though the parties have consented to the irregularities…”
Also in Farguharson v. Morgan (1894) I QB 552 at 556, Lord Halsbury said thus:
“It has long been settled that, where an objection to the jurisdiction of an inferior court appears on the face of the proceedings, it is immaterial by what means and by whom the court is informed of such objection”
In Olutola v. University of Ilorin (supra) page 446 the Supreme Court held that:
‘The issue of jurisdiction is a threshold issue which may be considered at any stage in the course of proceedings be it at the pre-stage trial of the case during the trial or during the hearing of the appeal by the Court of Appeal and even in the Supreme Court. The issue of jurisdiction is very fundamental as it goes to the competence of the court or tribunal. If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of a substantive matter. The issue may be raised by any of the parties or by the court itself suo motu …”
It is clear from the above cited cases that the fact that it was the appellants who raised the issue of jurisdiction is irrelevant and immaterial. The court can raise the issue suo motu and as it was held in Farguharson v. Morgan (supra), it is immaterial by what means and by whom the court is informed of such an objection.
The above notwithstanding, it is also very important to note that the appellants have a constitutional right of appeal against the ruling of the lower court under sections 242 and 243 of the 1999 Constitution, which they have exercised and they have a valid appeal before this court. Therefore, the appellants cannot be described as “strangers” in their own appeal. They are perfectly entitled to raise the issue of jurisdiction in the instant appeal and this court is eminently qualified to consider the issue of jurisdiction raised by the appellants.
Now, the facts of this case on appeal are straightforward and they are not in dispute. It is not in dispute that the suit at the court below was filed in 1982. It is equally not in dispute that the suit was still pending before the lower court in 1999 when the appellants filed the application for joinder. From the claims of the respondents at the court below, it is clear that it is for declaration and for injunction challenging the executive action of the Federal Government and its agencies. The Central Bank of Nigeria and the Nigerian Police that is, the defendants/respondents, are agencies of the Federal Government. Therefore, the suit instituted by the respondents at the lower court comes within the purview of the Constitution (Suspension and Modification) Decree No. 107 of 1993. For clarity and ease of reference I have chosen to reproduce the relevant portion of the Decree. Section 230(1):
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from –
(a) ….
(b) ….
(c) ….
(q) ….
(r) …..
(s) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies ”
From the above provision it is manifestly clear that the court below was divested of the adjudicatory jurisdiction to entertain, hear and determine the suit before it with effect from 17/11/93 and same was vested on the Federal High Court.
In UTB (Nig.) Ltd. v. Ukpabia (supra) it was held that by virtue of Decree No. 107 of 1993 only the Federal High Court has jurisdiction to the exclusion of any other court to entertain a suit for declaration or injunction challenging the executive action or decision of the Nigeria Police. See also, Zakari v. I.G.P. (2000) 8 NWLR (Pt. 670) 666; and University of Agriculture. Makurdi v. Jack (2000) II NWLR (Pt. 679) 658. See Akegbejo v. Ataga (1998) I NWLR (Pt. 534) 459 and I.G.P. v. Aigbiremelen (1999) 13 NWLR (Pt. 635) 443.Relying on O.H.M.B. v. Garba (supra), the respondents contended that pending matters in the State High Courts concerning the Federal Government or its agencies before the enactment of Decree No. 107 of 1993 could still be heard and determined by the State High Court and the decision thereof shall not be invalidated.
The respondents are of the view that their suit commenced in 1982 before the promulgation and commencement of Decree No. 107 of 1993 it is not in anyway affected because the State High Court had jurisdiction then. They also contended that the Decree is not retrospective and it did not contain any provision to the effect that the suits pending before the State High Court should abate. The contention of the respondents is one to which, with due respect, I cannot subscribe. The respondents’ contention relates to cause of action jurisdiction whereas the issue in contention in this appeal is the adjudicatory jurisdiction of the court. The cause of action jurisdiction deals with the right and privileges which have accrued to the respondents whereas the adjudicatory jurisdiction of the court relates to the competence of a court to hear and determine an action before it. The distinction between cause of action jurisdiction and adjudicatory jurisdiction was made by the Supreme Court in Olutola v. Unilorin (supra). In that case Niki Tobi, JSC, clearly brought out the distinction between cause of action jurisdiction and adjudicatory jurisdiction of a court at pages 464 – 465 of the report where he said thus:
“The law which supports a cause of action is not necessarily co-extensive with the law which confers jurisdiction on the court which entertains the suit founded on that cause of action. The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard. In the instant case, it was puerile for the appellant to argue as he did that the cause of action arose when the State High Court had jurisdiction over the matter, regardless of the fact that when the action was heard, the court had been divested of such power by reason of the amendment of section 230(1) of the 1979 Constitution by Decree 107 of 1993. Adan v. N.Y.S.C. (2004) 13 NWLR (Pt. 891) 639.”
At page 469 – 471 of the report, Edozie, JSC had this to say:
“Thus, a State High Court may have the jurisdiction to entertain a suit at the time the cause of action arose but at the time of the actual trial, it is divested of that jurisdiction. This was exactly what happened in the instant case where the respondent removed the appellant from inter alia the office of the Dean of the Faculty. As at that time and even as at the time of the commencement of the action in January, 1983 before the High Court of Justice, Kwara State, the existing substantive law was the 1979 Constitution which by section 236 thereof conferred unlimited jurisdiction on the State High Court. By that the High Cout1 of Kwara State had jurisdiction to hear and determine the matter.
But the trial continued until 8th May, 1996 while Decree No. 107 of 1993 denying the State High Court jurisdiction came into effect on 17th November, 1993.
As from that date the trial High Court had no jurisdiction to deal with the matter again. A.-C., Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 55; Alao v. Akano (1988) 1NWLR (Pt. 71) 431, Uwaifo v. A.-C., Bendel State (1982) 7 SC 124, Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382, Adah v. NYSC (2004) 13 NWLR (Pt. 891) 639; Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) referred to.”
It should be noted that the case of Olutola v. Unilorin (supra) came later in time to the case of O.H.M.B. v. Garba & Ors. (supra), naturally it should be preferred and relied upon in this appeal.
Although, O.H.M.B. v. Garba & Ors. (supra) was not considered or overruled in Olutola v. Unilorin (supra), where there are conflicting judgments of courts of equal jurisdiction over the subject matter in dispute the rule is that the decision that is later in time operates as a bar and it represents the correct position of the law.
See Mkpedem v. Udo (2000) 9 NWLR (Pt. 673) 631 at 644-645 and Nwangwu v. Ukachukwu (2000) 6 NWLR (Pt. 662) 674 at 695. In the circumstances I am obliged to follow the later decision of the Supreme Court on the subject matter which is Olutola v. Unilorin (supra). It represents the current and correct state of the law and I am bound to apply it in this appeal. That being the case, it is unarguable that the lower court, being a State High Court, has no jurisdiction in actions or proceedings brought against the Federal Government or any of its agencies relating to a declaration or injunction challenging the validity of any executive and administrative action of the Federal Government and its agencies.
The contention of the respondents that Decree 107 of 1993 is not retrospective and it did not contain any provision that suits involving the Federal Government and any of its agencies pending before the State High Court should abate, have no legs to stand regard being had to the Supreme Court decision in Olutola v. Unilorin (supra). It is trite law that a statute is prospective and not retrospective, but Decree 107 of 1993 made no special provision for cases pending in the State High Court. Jurisdiction of courts must be stated expressly and clearly by the Constitution or statute, but definitely not by mere inference or implication. A court cannot assume or arrogate to itself a jurisdiction which it does not have or which has been clearly and effectively divested from it.
A court is competent, when:
“(1) it properly constituted with respect to the number and qualification of its members;
(2) the subject matter of the action is within its jurisdiction;
(3) the action is initiated by due process of law; and
(4) any condition precedent to the exercise of its jurisdiction has been fulfilled.”
See Madukolu & Ors. v. Nkemdilim (1962) All NLR 581 at 589 – 590; (1962) 2 SCNLR 341.lt is clear from the above principles that a court inter alia will have the necessary competence to hear and determine a matter before it if the subject matter is within its jurisdiction, and there is no feature in the case, which prevents the court from exercising its jurisdiction.
There is no doubt that in 1982 when the respondents filed the suit, the lower court had jurisdiction to entertain the suit by virtue of the provisions of section 236(1) of the 1979 Constitution but at the time of the actual trial in 1999, that is six years after Decree No. 107 came in force, it had been divested of that jurisdiction. Having been divested of its adjudicatory jurisdiction the lower court had nothing to hold on to. It is either the court has jurisdiction or it has none. See Adah v. NYSC (2004) 13 NWLR (Pt. 891) 639. The principle that the jurisdiction of a court is determined by the law existing at the time the cause of action before it arose cannot be invoked to vest jurisdiction in a court when it has none. The crucial point in issue here is whether at the time of hearing the suit the trial court had the jurisdiction to adjudicate in the matter. Relating the above to the instant appeal I conclude that the adjudicatory jurisdiction of the court below having been effectively divested on 17/11/93 by Decree No. 107, the respondents’ suit pending before the lower court after that date is a nullity.
The respondents alluded to the provisions of section 6(1) of the Interpretation Act, 1990 and contended that legal proceedings may be continued as if the enactment had not been made because the rights which have accrued to them at the time Decree 107 of 1993 was promulgated transferring jurisdiction of the State High Court to the Federal High Court will not be lost. Let us now examine the provision. Section 6(1) of the Interpretation Act, 1990 provides:
“6(1) The repeal of an enactment shall not –
(a) revive anything not in force or existing at the time when the repeal takes effect;
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;
(c) affect any right, privilege, obligation or liability accrued or incurred under the enactment;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment;
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed.”
It is clear as crystal, that section 6(1) of the Interpretation Act did not vest any court with jurisdiction. In fact it did not deal with the adjudicatory jurisdiction or competence of the courts rather it only saves any right, privilege, obligation or liability accrued or incurred or deeds under a repealed enactment. In the first instance this is not a case of a repealed enactment. The issue here is simply that the jurisdiction of the State High Courts, including the lower court, have been divested of the jurisdiction to hear and determine action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies and same was vested on the Federal High Court since 17/11/93. The right, privilege and obligation which gave rise to the cause of action of the respondents is not in issue here. As I stated earlier on in this judgment there is a clear distinction between cause of action jurisdiction and adjudicatory jurisdiction. See Adah v. N.Y.S.C. (supra) and Olutola v. Unilorin (supra). Section 6(1) of the Interpretation Act, 1990 is relevant in the consideration of cause of action jurisdiction and it would only be relevant in the case of adjudicatory jurisdiction in situation where judgment had actually been delivered before the repeal of an enactment. In such a case a right or privilege arising from the judgment must have accrued to one of the parties in the case. However, that is not the situation in the instant appeal. It can be seen from pages 18 – 50 of the record of the lower court that it had not even commenced hearing in the suit. So the matter was not G even part heard. That being the case, the provisions of section 6(1) of the Interpretation Act, 1990 is inapplicable in the instant appeal and it cannot provide any saving grace for the respondents’ suit at the lower court.
Furthermore, it is of paramount importance and significance that the amendment effected by Decree No. 107 of 1993 on the provisions of section 230(1) of the 1979 Constitution were re-enacted in full in section 251(1) of the 1999 Constitution which is currently in force. It will be recalled that hearing has not even commenced in the suit before the lower court. It therefore means that it cannot hear or determine the suit even if it is sent back to it now. A perusal of the provisions of section 251 of the 1999 Constitution reveal that it did not make any provisions for saving or to save suits pending in the State High Courts before it came into force in October 1999 in respect of suits or actions which the Constitution has vested exclusive jurisdiction on the Federal High Court.
It must be emphasized that courts operate within the parameter of the jurisdiction or judicial power vested in them by the Constitution and they cannot widen or expand the extent of this power which has been so expressly defined by the Constitution.See. Buraimoh v. Akande (2000) 15 NWLR (Pt. 690) 260 to 274. It is important to note that while section 236(1) of the 1979 Constitution gave the State High Courts unlimited jurisdiction, section 272(1) of the 1999 Constitution did not, instead the powers of the State High Courts is now circumscribed and the section is subject to the provisions of section 251. See N.P.A. v. Eyamba (2005) 12 NWLR (Pt. 939) 409 at 443.
By virtue of the provisions of section 1(1) of the 1999 Constitution, the Constitution is supreme and its provision shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. It supercedes any law or statute or enactment. It is the ground norm, the organic and fundamental law of the land. All other legislation in the land take their hierarchy from the provisions of the Constitution. See Orhiunu v. F.R.N. (2005) I NWLR (Pt. 906) 39 at 55 – 56. By virtue of section 1(3) of the 1999 Constitution if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law or statue shall to the extent of its inconsistency be void. In A.C.B. Plc v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt. 405) page 26, the Supreme Court said thus:
“It has never been the case in our laws that the provisions of an ordinary statute would render nugatory the relevant provisions of the Constitution. Therefore, if any law of a State including subsidiary legislation is inconsistent with the provision of the Constitution, the provision of the Constitution shall prevail, and that State law is to the extent of the inconsistency void.”Therefore, the provisions of section 6(1) of the Interpretation Act, 1990 cannot override the provisions of the 1999 Constitution.
The conclusion I reach is that the lower court in the circumstances has no jurisdiction whatsoever in the subject matter before it. Issue No.2. must be resolved in favour of the appellants.
Having reached the conclusion that the lower court has no jurisdiction to hear and determine the suit before it, it is unnecessary to proceed to consider issue 1, which relates to the joinder of the appellants as defendants/counter-claimants. If a court has no jurisdiction to hear and determine a suit, then a consideration of the question of joinder is an exercise in futility. Where a court hears a matter without jurisdiction, the proceeding however ably conducted will be a nullity. See Madukolu v. Nkemdilim & Ors. (supra); Nemi & Ors. v. 17ze State (1994) 10 SCNJ 1; Reported as Ogugu v. State (1994) 9 NWLR (Pt. 366) 1; and Salati v. Shehu (1986) 1NWLR (Pt. 15) 198.
The appellants have urged upon the court to order for their joinder as defendants/counter-claimants in a hearing before a proper court. This is an order that cannot be made by this court because the proceeding in the instant suit on appeal is a nullity. Where a court lacks jurisdiction, then it has no power to make orders affecting subsequent determination on the merit and it lacks power to exercise any power in relation to the suit. See Akinbobola v. Plisson Fisko (Nig.) Ltd. & 2 Ors. (1991) 1 SCNJ 258; (1991) 1 NWLR (Pt. 167) 270. Also in Charles Ejike & Ors. v. Nnakwesi Ifeadi & Ors. (1998) 6 SCNJ 87; (1998) 8 NWLR (Pt. 561) 323 it was held that lack of jurisdiction invalidates all proceedings including judgment or review of it on appeal. The duty of the court is to terminate proceedings before it. See Nemi & Ors. v. The State (1993) 2 SCNJ 139; Reported as Ogugu v. State (1994) 9 NWLR (Pt. 366) 1.
In the result, this appeal succeeds and it is hereby allowed. The proceedings of the High Court of Cross River State sitting in Calabar G presided over by Odu J., in suit No. C/14/82 is hereby set aside and struck out for want of jurisdiction. I make no order as to costs.
Appeal allowed.
Other Citations: (2007)LCN/2410(CA)
