The Chief Judge Of Abia State Hon. Justice K. O. Amah & Ors V. Ndionyenna Nwankwo, Esq. (2007)

LawGlobal-Hub Lead Judgment Report

RHODES-VIVOUR, J .C.A.

The respondent was the plaintiff in the court below. He sued the appellants/defendants on a writ of summons accompanied by statement of claim wherein he claimed against the defendants jointly and severally as follows:

1. A declaration that the approval for the High Court of Arochukwu by the 1st and 2nd defendants is for sitting in Arochukwu town and not an approval for Arochukwu Local Government.
2. A declaration that the purported transfer of the proposed Arochukwu High Court site for Arochukwu to Ututu in Arochukwu Local Government is null and void, and of no effect.
3. Injunction restraining the defendants, their agents, privies and/or servants from building or continuing to build, and from furnishing the purported High Court building at Ututu until the approved High Court Complex at Arochukwu is realized.
4. A mandatory injunction directing the defendants to continue and complete the High Court Complex earlier started in Arochukwu without further delay or to realize in whatever form possible the High Court of

Arochukwu.

On being served with the writ of summons and statement of claim the defendants entered an unconditional appearance. A few applications not relevant to this appeal were filed and granted, e.g. motion on notice for extension of time to so enter and for an order deeming as properly filed and served defendants memorandum of appearance. Motion for order of interlocutory injunction.

Leave to amend capacity in which the plaintiff sued, i.e. leave to sue in a representative capacity. Deeming proposed amended statement of claim as properly filed.

On 30/4/02 the defendants filed a notice of preliminary objection on the grounds that the court lacks jurisdiction to entertain the suit and that same be struck out. Further grounds in support of the preliminary objection were that:

1. The plaintiff lacks the locus standi necessary to prosecute this suit.
2. By virtue of the Public Officers (Protection) Law, Vol VI, Cap. 106, Laws of Eastern Nigeria, 1963 applicable to Abia State, the suit is statute barred in that it was not instituted within the 3 months period allowed by law.
3. The suit is otherwise an abuse of the court process.

In a considered ruling delivered on the 15th of July, 2002, I. F. Ogbuagu, J., (as he then was) of the High Court of Ohafia Judicial Division dismissed the preliminary objection.

The present appeal is against that ruling.

On 19/7/02 the defendant filed a notice of appeal containing four grounds of appeal. An application to amend the grounds of appeal was granted by this court on 5/3/03. Briefs were filed and duly exchanged. The appellant’s formulated three issues for determination.They are:

1. Whether the trial Court has jurisdiction to entertain the suit.
2. Whether the trial court was right in striking out our preliminary objection challenging his jurisdiction to hear a suit on the ground that the objection was not supported by any affidavit.
3. Whether the trial court was right in dismissing the preliminary objection.

The respondent formulated two issues for determination. They are:

1. Whether the grounds of appeal as formulated are competent and thus arguable before this Court.
2. Whether the respondent has locus to institute and maintain this action.

At the hearing of the appeal on the 23rd of January, 2007 the appellants were absent and unrepresented. The, respondent, Mr. N. Nwankwo, a legal practitioner appeared in person. He adopted his brief, urged us to take the appellants brief and the reply brief filed on 11/3/03, and 8/5/03 respectively as having been argued.

In further submissions Mr. Nwankwo urged us to dismiss the appeal because the grounds of appeal are incompetent, since no leave was obtained from the court below or this Court before they were filed, consequently there is no appeal.

These submissions on the appeal being incompetent are Issue No. I in the respondents brief. It is fundamental. If it succeeds there would be no competent appeal before this court, and it would become unnecessary to consider any other issue. I shall now consider whether there is a competent appeal before this Court.

In his brief, Mr. N. Nwankwo observed that the appellants filed a notice of appeal containing four grounds of appeal numbered (a), (b) (c) and (d). He further observed that on 5/3/03 this court granted the appellant leave to amend the grounds of appeal by deleting grounds (d) and (c) by substituting a new ground (e).

Continuing his submission learned counsel observed that only the two newly substituted or amended grounds of appeal i.e. (d) and (e) were adopted, abandoning the earlier grounds. He observed that grounds (a) and (b) were on law, while (c) was on facts and (d) on mixed law and facts.

Contending that no leave either of the lower Court or this court was obtained to file the said grounds in an interlocutory appeal. Reference was made to section 241 of the Constitution. Section 15 of the Court of Appeal Act.

F Shanu & Anor v Afribank Nig. Plc (2000) 13 NWLR (Pt.684) 392; (2000) FWLR (Pt. 23) p. 1221;

S. U. Ojemen & Ors. v. His Highness W O. Momodu & Ors. (2001) 1 NWLR (Pt.323) 685, (2001) FWLR (Pt. 37) p. 1138, (1983) 1 SCNLR 188.

He argued that grounds (c) and (d) are incompetent and ought to be struck out. The new ground (d) cannot stand as it is based on a non existing ground, while ground (e) is an additional ground that cannot be filed by amendments, but by motion seeking leave to file additional grounds of appeal which was not applied for and was not granted.

Concluding he submitted that since only the amended grounds (d) and (e) were argued, since no such ground existed the appeal ought to be struck out as being grossly incompetent.

Invoking, the provisions of Order 6 rule 9(5) this court took the appeal as having been argued in the absence of the appellants or their counsel.

In the appellants reply brief, the learned counsel for the appellants argued that Issue 1 in the appellants brief is from ground (a) of the additional grounds of appeal, on jurisdiction. Issue 2 from grounds (a) of the original grounds of appeal, while Issue 3 was distilled from ground (b) of the additional grounds of appeal. Concluding he observed that leave to file these grounds were unnecessary as they are on law.

In the notice of appeal on pages 45 to 48 of the record of appeal the grounds of appeal are as follows:

(a) The learned trial Judge erred in law when he held, striking out the appellants (as applicants) preliminary objection that the said appellants preliminary objection was not supported by any affidavit.

(b) The learned trial Judge erred in law when he held that the appellants (as defendants) having entered an unconditional appearance in the action waived their right to challenge the jurisdiction of the court to hear the suit, before filing their pleadings.

(c)The learned trial Judge in his ruling under reference held inter alia that the respondents (as applicant) motion for leave to sue in a representative capacity ought to have been for approval of the Authority to sue in a representative capacity. This is far over-reacting as the said application for leave to sue in a representative capacity was not before the Court and has not been argued.

(d) The learned trial Judge erred in law when he held that the notice of preliminary objection (subject matter of this appeal) was without merit and struck out same.

(e) Additional grounds of appeal shall be filed upon the receipt of a copy of the ruling dated 15/7/02.

On 7/2/03 learned counsel for the appellants filed before this court a motion on notice brought under Order 3 rule 2 (5), Order 3 rule 16 of the Court of Appeal rules seeking the following:

1. An order granting leave to the appellants/applicants to amend their grounds of appeal dated 19/7/02 and filed on 26/7/02 (which is exhibited to the supporting affidavit and marked exhibit A) in terms set out in the schedule of amendment hereto exhibited and marked exhibit B.
2. An Order deeming the amended notice and grounds of appeal hereto exhibited and marked exhibit “C” as properly filed and served.
3. An Order granting leave to the appellants/applicants to argue the issues arising from the additional grounds of appeal stated in the amended notice and grounds of appeal.

On 5/3/03 the prayers were granted, the amendment to the original notice of appeal was as follows:

(d) The trial court lacks jurisdiction to adjudicate the suit.

(e) The learned trial court erred in law in dismissing the appellants (as defendants/applicants) preliminary objection.

Section 241 (1) of the Constitution gives a party a right of appeal from the decision of the Federal High Court or a High Court to the Court of Appeal in that by virtue of subsection (1) a party who is not satisfied with the decision of a Federal or State High Court has a right of appeal if and only if the grounds of appeal are of law only.

On the other hand where the grounds of appeal are not of law but of mixed law and fact or fact, the right of appeal to the Court of Appeal can only be exercised where the aggrieved party has obtained the leave of either the Federal or State High Court or the Court of Appeal.

See section 242(1) of the Constitution.

Total International Ltd. v. Awogboro (1994) 4 NWLR (Pt. 337) p.147

Gbe v. Esewe (1988) 4 NWLR (Pt. 89) p. 434;

Oluwole v. L.S.D.PC. (1983) 5 SC p. 1;

Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) p. 410.

It is now necessary for a classification of the grounds of appeal as one of law or fact or mixed law and fact to be made to see whether leave ought to have been obtained by the appellants before filing the notice of appeal.

In Ogbechie & Ors. v. G. Onochie & Ors. (1986) 2 NWLR (Pt. 23) p. 484 at p. 491 Eso, JSC observed thus:

“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”

See also Metal Construction WA. Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) p. 299; Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (Pt. 496) p. 652; Maskala v. Silli (2002) 13 NWLR (Pt.784) 376, (2002) 6 SC (Pt.11) p. 210.

In the original notice of appeal grounds (a) and (b) are on law, ground (c) is on facts, while ground (d) is on mixed facts and law.

No leave was obtained before the interlocutory appeal was filed. In the motion filed on 5/3/03, earlier alluded to, this court granted the appellant leave to delete grounds (d) and (e) and substitute with a new grounds (d) and (e).

The argument of learned counsel for the respondent is that the new ground (d) cannot stand since it is based on a non existing ground, and ground (e) cannot be filed by amendment but only by motion seeking leave to file additional grounds of appeal which was not applied for.

This argument is fast becoming academic, and courts should not engage or spend precious judicial time on issues that are nothing more than an academic exercise.

Nkwocha v. Gov. of Anambra State (1984) 1 SCNLR p.634;

Okulate v. Awosanya (2002) 2 NWLR (Pt 645) p. 530;

Obi-Odu v. Duke (No. 2) (2005) 10 NWLR (Pt. 932) p. 105;

Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) p. 47.

My, lords on the 5th March, 2003 the Court of Appeal granted leave to the appellants to amend grounds (d) and (e), grounds, and learned counsel for the respondents now say are incompetent. It is not for this panel, another panel of the court of appeal to agree or disagree with learned counsel. It is well settled that once the Court of Appeal or a court of competent jurisdiction gives a judgment, ruling or order it becomes functions officio. Consequently a panel of the Court of Appeal under whatever guise cannot alter the order, ruling or judgment of another panel except to correct clerical mistakes or some error arising from any accidental slip or omission. The only remedy available to an aggrieved party is to appeal to the Supreme Court. See Onwuchekwa v. Co-operative and Commerce Bank (Nig.) Ltd. (1999) 5 NWLR (Pt. 603) P 409; Usman v. Umaru (1992) 7 NWLR (Pt. 254) p. 377.The submission of learned counsel does not fall in line with recognized exceptions above, and sustaining his arguments would amount to sitting on appeal over the orders made by another panel of the Court of Appeal. That would be very wrong. The appeal is thus competent in the circumstances.

I now turn to consider the issues in this appeal. I have examined the issues formulated by both sides and I am of the view that the issues formulated by the appellants are more germane for consideration in this appeal.

The respondents formulated two issues. I find them no longer relevant because Issue 1 which is on the competency of this appeal has already been dealt with and a pronouncement made.

Issue No.2 is on locus standi, also an issue of jurisdiction subsumed in Issue No.1 of the appellants Issue No.1 on jurisdiction.

Much as the Court of Appeal has the power to adopt or even formulate issues that should address the real grievance in an appeal, I refrain from so doing as I am satisfied with the issues formulated by the appellant.

See Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) p. 582

Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) p. 146.

I shall now deal with issues Nos. 1 and 2 together since they are both on jurisdiction.

Issue 1 reads:

Whether the trial court has jurisdiction to entertain the suit.

Issue 2 reads:

Whether the trial court was right in striking out our preliminary objection challenging his jurisdiction to hear a suit on the ground that the objection was not supported by any affidavit.

Learned counsel for the appellants submitted that the decision to create judicial division of Abia State High Court is an administrative one and as such not justiciable. Reliance was placed on section 41(1) and (2) of High Court Law, Cap. 61 Vol. IV, 1963, Laws of Eastern Nigeria, applicable on Abia State.

Continuing his submissions he observed that the trial Court lacks jurisdiction to entertain the action because the reliefs sought by the respondent are unknown to law and cannot be granted by the court.

Reference was made to Western Steel Works Ltd. & Anor: v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) p. 284.

Contending that the jurisdiction of a Court to entertain an action should be determined by the main claims/reliefs and not by the ancillary reliefs which are dependent on the primary claims.

Learned counsel further observed that the court lacks jurisdiction to entertain the suit because the respondent (as plaintiff) lacks the requisite locus standi to bring the action. Reference was made to Oloriode & Ors. v. Oyebi & Ors. (1984) 15 NSCC p. 286; (1984) 1 SCNLR 390; Ilori v. Benson & Ors. (2000) 9 NWLR (Pt. 673) 570, (2000) FWLR (Pt. 26) p. 1846.

Contending that there is no common interest between the respondent and the Arochukwu Community to equip the respondent with the necessary locus standi to sue in a representative capacity. He urged us to hold that the trial court lacks the jurisdiction to entertain the suit.

Learned counsel for the respondent argued that the respondent, a lawyer has the locus standi to institute and maintain this action even as an individual member of Arochukwu Community in Abia State of Nigeria, contending that the host Community of Arochukwu has interest in the High Court Complex that was cited in the community but subsequently transferred and built in the 1st appellant’s Community.

Relying on Fawehinmi v. Akilu & Anor: (1987) 4 NWLR (Pt. 67) p. 797; Imade v. Military Administrator Edo State & Ors. (2001) 6 NWLR (Pt. 709) 478, (2001) FWLR (Pt. 69) p. 1385.

He submitted that the respondent has locus standi and urged us to uphold the ruling of the trial Court.

The argument by learned counsel for the appellants that the decision to create judicial decisions in Abia State is an administrative one and so not justiciable cannot be correct.

An action would be said to be justiciable where the person filing the action has an interest in the claim. Any real controversy between the parties is justiciable. Conversely, hypothetical, academic or moot issues are not justiciable. Before an action can be said to be justiciable there must exist a real controversy which a court of competent jurisdiction can determine.In this case the respondent, a legal practitioner feels aggrieved that the new High Court ought to be built in Arochukwu and not Ututu and has approached the court seeking declarations, and injunctive reliefs. His action is indeed justiciable.

Not too long ago there was a distinction between judicial and administrative acts. For example public authority acting judicially could be controlled by the Courts by certiorari and mandamus, but while acting administratively there was no control. As the years rolled by, declarations applied to judicial and administrative acts wherever the acts complained of were challenged for good reason or for denial of justice. Declarations apply to administrative acts as well as judicial acts. See PYX Granite Co. Ltd. v. Ministry of Housing and Local Government (1958) 1 Q.B. p. 554; Padfield v. Minister of Agriculture Fisheries and Food (1968) AC. 997.

The decision by the appellants to construct a High Court Complex at Ututu, the 1st appellant’s home base instead of at Arochukwu is an administrative act by the 1st appellant. The court has the power to examine the said administrative act and make appropriate declarations if the need arises, or for good reason. Complaints must be investigated and grievances remedied. The remedy available is for the party aggrieved, in this case, the respondent to seek declarations, which cover judicial and administrative acts. In the circumstances the respondent was right to seek declarations and injunctive reliefs. The reliefs sought by the respondent are very well known to law and can be granted by the court.

Learned counsel for the appellants was also of the view that the respondent lacks the requisite locus standi to bring the action.The rule in locus standi developed to protect the court from being used as a playground by professional litigants, busybodies and cranks that have no real stake or interest in the subject matter of the litigation they wish to pursue.

Senator Adesanya v. President of Nigeria (1981) 5 SC p. 112 lays down the rule for locus standi in civil cases, while Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) 797, (1987) 18 NSCC (Pt. 2) p. 269 lays down the far more liberal rule for locus standi in criminal cases.

Holding that the respondent (as plaintiff) has locus standi to institute the suit the learned trial Judge said at page 41 of the record of appeal that:

“There is therefore, locus standi whenever there is a justiciable dispute … without much ado, a careful perusal of the statement of claim … puts the court in no doubt that he has locus standi to institute this action. If even the applicant is to amend the capacity he is suing, he will still have the locus standi to sue. This is because, and it is settled, a person who sues in a representative capacity, does so for the benefit of the group or Community he is representing and himself… ”

Locus standi, specie of jurisdiction denotes legal capacity to institute a suit in a Court. It means a right of appearance. In a long line of cases the term locus standi and the principles governing the existence of it has been explained.

In Ogbuehi v. Governor of Imo State (1995) 9 NWLR (Pt.417) 53 it was stated that there are two tests in determining locus standi of a person. They are:

1. The action must be justiciable;
2. There must be a dispute between the parties.

And the interest of justice demands that at all times locus standi should be given a broad and liberal scope by the court to bring out the true essence of justice according to law.

See further U.B.A. Plc v. ETL Ind Ltd. (2004) 18 NWLR (Pt.904) p. 180; Gilda v. Kitta (1999) 12 NWLR (Pt. 629) p. 21.The plaintiff is usually questioned as to whether he is the proper person either natural or legal to institute an action. For instance a non-existent or dead person cannot sue. See Anyebe v. State (1986) 1 NWLR (Pt.14) 39, (1986) 1 SC p. 87; Nigerian Nurses Association v. A.G. Federation (1981) 11-12 SC p 1.

In deciding whether a plaintiff has locus standi the Judge is expected to diligently examine the statement of claim to see if it discloses a cause of action vested in the plaintiff. The averments in the statement of claim must disclose the rights and obligations or interests of the plaintiff which have been violated.

See Thomas v. Olufosoye (1986) 1NWLR (Pt. 18) p. 669; Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) p. 377.

The plaintiff must have sufficient legal interest in seeking redress in court and this is only determined in the light of the facts and circumstances of each case.Paragraphs 23, 24 and 25 of the statement of claim are instructive. They read thus:

“23. The plaintiff aver that Arochukwu town is home to the following structures:

(a) A Magistrates Court Complex

(b) A Federal Prison/sub Treasury

(c) A Police Station/Bank

(d) An Administrative headquarters of the Local Government

(e) State Security Service Offices/Personnel and a lot more that will enhance the administration of justice, all very proximate to the Arochukwu High Court site.

24. The plaintiff aver that all the above listed are absent in Ututu and indeed there is nothing that will support the administration of justice that is present in Ututu and this will hamper the smooth operation of a High Court especially in this present situation of lack of police vehicles including black Maria to transport awaiting trial persons to court. The purp0l1ed site itself is a baren land.
25. The plaintiff aver that as a legal practitioner he has a lot to loose if the administration of justice is hampered, and as a litigant in suit No. HOH/48/2001 currently pending before the Ohafia High Court in which both the plaintiff and the two defendants in that suit are all native of Arochukwu, the interest of justice would have been better served if the approved Arochukwu High Court had been in existence as the plaintiff and the defendants would have been saved the attendant high cost of transportation as the said suit and others would have been transferred to Arochukwu Judicial Division.”

The chance of the claim succeeding is not in issue when considering the locus standi of the plaintiff.

The paramount consideration is whether the plaintiff has sufficient interest in the subject matter of the dispute.

Indeed the interpretation of section 6(6) (b) of the Constitution is that a person who files a suit in Court must be a proper person, natural or legal.

It does not confer locus standi but prescribes the extent of such judicial powers. The person must have a legal right or special interest in the subject matter. See Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) p. 606; Owodunni v. Reg. Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt. 675) p. 315.

In this case, it is clear from the statement of claim that the respondent is aggrieved by the decision of the 1st appellant to abandon the construction of a High Court at Arochukwu and commence construction of a High Court at Ututu, the 1st appellant’s home town.

In paragraphs 23, 24 and 25 of the statement of claim the respondent averred to his interest and grievances in constructing the High Court in Ututu.

In my respectful view the learned trial Judge was right in holding that the respondent had the locus standi to maintain the action notwithstanding the fact that he sued in a representative capacity. This is so since a person suing in a representative capacity sues on behalf of the Community or those he represents and himself. The named plaintiff and the unnamed plaintiff are all parties. They all have locus standi to institute the action.

Striking out the preliminary objection challenging the Courts jurisdiction to hear a suit on the ground that the objection was not supported by affidavit.

The court below held, and I have found that it was right to so hold that it had jurisdiction to hear the suit. Striking out the preliminary objection because it was not supported by affidavit was not the reason why the court held that it had jurisdiction. I shall, now comment further on preliminary objections and affidavits.

Preliminary objections strictly speaking deal with law, consequently there is no need for supporting affidavit, but the grounds of the objection must be clearly stated. For example objection that court process has not been complied with, suit/process is an abuse of process. When, as often happens a preliminary object strays from law to facts of the case, the onus is now on the pm1y relying on the preliminary objection to justify the facts, and this can only be done by filing an affidavit.

A preliminary objection may be supported by affidavit depending on what is being objected to. If the preliminary objection is on law an affidavit is unnecessary, but if on facts an affidavit is mandatory.

Striking out the preliminary objection on the ground that the objection was not supported by affidavit is a moot point, of an academic nature, and Courts restrict their decisions only to live issues. See Obi-Odu v. Duke (No.2) (2005) 10 NWLR (Pt. 932) p. 105; Oyeneye v. Odugbesan (1972) 4 SC p. 244; Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) p. 47; Nkwocha v. Gov. of Anambra State (1984) 1 SCNLR p. 634.

In the cause of proceedings before the court below the preliminary objection was considered and dismissed. The present appeal is against that ruling. The preliminary objection was not dismissed because the affidavit in support was struck out. It was dismissed because the court found it to be lacking in substance. Issue No.3 to be considered now, shows that the preliminary objection was considered and the fact that the affidavit was struck out was no longer relevant to the success or failure of the said objection.

Issue 3

Whether the trial court was right in dismissing the preliminary objection.

Learned counsel for the appellants observed that the orders of the learned trial Judge striking out and dismissing the same preliminary objection are inconsistent, void and of no effect. Relying on Hambe v. Hueze (2001) 4 NWLR (Pt.703) 372, (2001) FWLR (Pt. 42) P. 1. He urges us to resolve this issue in favour of the appellants.

Learned counsel for the respondent observed that it was not correct to say that the learned trial Judge struck out the preliminary objection and at the same time dismissed it. He further observed that after the learned trial Judge struck out the preliminary objection, he decided to hear it in the event he was wrong to have struck it out.

Concluding he submitted that the case of Hambe v. Hueze (2001) 4 NWLR (Pt.703) 372, (2001) FWLR (Pt. 42) p.1 does not apply.

The learned trial Judge struck out the preliminary objection because according to his Lordship the said objection disclosed no grounds and was not supported by affidavit. On page 38 of the record of appeal, the preliminary objection was held to be incompetent and accordingly struck out.

After striking out the preliminary objection the learned trial Judge observed that the issue of jurisdiction can be raised at any stage of the proceedings, in the statement of defence, or if it would be decisive of the case – Order 24 rule 2 of the Abia State High Court (Civil Procedure) Rules, 2001.

His Lordship also observed that the appellants entered unconditional appearance, and with such an appearance cannot raise preliminary objection they having waived their rights to object.

After all the observations the learned trial Judge said on page 40 of the record of appeal that:

“But assuming that the Court is wrong in relying on issue of waiver, or holding the view that if the defendants had filed a statement of defence with an indication therein, that a preliminary objection would be raised as to the competency of the plaintiff to institute this suit or that the suit itself, is statute barred and that it will not amount to a waiver, it seems to me that although the defendants irrevocably entered an appearance in his suit, they are still entitled to challenge the jurisdiction of the court. This is because, as noted herein above, issues of jurisdiction can be raised at any stage of the proceedings and be determined forthwith. See NBN Ltd. v. Shoyoye (1977) 5 SC p. 181. That being the case, the court will deal with the merits of the objection.”

The above explains why after the learned trial Judge struck out the preliminary objection he decided to hear it on its merits. Three reasons appear clear to me:

(1) His Lordship decided to hear the preliminary objection in the alternative assuming he was wrong to have struck it out.

(2) Issues of jurisdiction can be raised at any stage of the proceedings and can be determined.

(3) His Lordship raised the issue of jurisdiction suo motu.

In the Hambe v. Hueze case relied on by learned counsel for the appellant, the notice of appeal was struck out and the appeal was dismissed based on the said notice, the Supreme Court held that after the notice of appeal was struck out for being incompetent there was no appeal to be dismissed. This, as quite rightly pointed out by the Supreme Court is simple logic. The case had nothing to do with jurisdiction.

Jurisdiction is threshold, very basic; it can be raised at any stage of the proceedings and even on appeal, or by the trial Judge suo motu.

This is so because a trial without jurisdiction is a nullity. See Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) p. 675; Bakare v. A.-G., Federation (1990) 5 NWLR (Pt. 152) p. 516.In my respectful view after striking out the preliminary objection the learned trial Judge very much aware of the fundamental nature of jurisdiction raised it suo motu. His lordship proceeded to hear the parties, and so no one was denied his right to fair hearing. In the light of the above the case of Hambe v. Hueze (supra) clearly does not apply as in that case it was held to be wrong, to strike out and dismiss the same application, while in this case an issue of jurisdiction brought on a defective preliminary objection was struck out but subsequently heard on the courts motion because of the fundamental nature of the issue involved.

An application can only be dismissed after there has been an interpartes hearing. That is to say an order of dismissal means that the trial Judge heard the matter on the merits.

An application is struck out when it has not been heard on the merits. A dissatisfied litigant can file again his application that was struck out, while the remedy available to a party whose application is dismissed is to proceed on appeal.

For the reasons earlier highlighted the learned trial Judge was right to dismiss the preliminary objection.

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Other Citations: (2007)LCN/2297(CA)