The State V. Dr. Olu Onagoruwa (1992)

LawGlobal-Hub Lead Judgment Report

M. A. BELGORE, J.S.C

The respondent was charged with the offence of stealing before Silva J. sitting in the High Court of Lagos. At the close of the case for the prosecution and after a no-case submission by the counsel for the accused person, learned Judge ruled the accused had a case to answer. Against this ruling the appellant filed a Notice of Appeal to the Court of Appeal and moved a motion before the same learned trial Judge for stay of further proceedings pending the determination of the appeal on the no case ruling by the Court of Appeal. This motion was dismissed and the accused by way of another motion in the Court of Appeal prayed as follows:-

“1. An Order extending the time within which to apply for leave to appeal on questions of mixed law and fact as contained in grounds 1, 2 and 4 of the grounds of appeal annexed hereto as Exhibit ‘B1’.

2. An Order granting leave to appeal on questions of mixed law and fact contained in grounds 1, 2 and 4 of the grounds of appeal annexed hereto as Exhibit ‘B1’.
3. An Order extending the time within which to appeal on questions of mixed law and fact contained in grounds 1, 2 and 4 of the grounds of appeal.
4. An Order deeming as properly filed the Notice of Appeal filed on the 25th day of June, 1990 containing the aforesaid grounds of mixed law and fact and annexed hereto as Exhibit ‘B1′.
5. An Order staying further proceedings in the lower court pending hearing and final determination of the substantive appeal in this case.

And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

And further Take Notice that the grounds upon which this application is brought are:

1. To bring the Appellant’s Notice of Appeal dated 25th June, 1990 which contains grounds of law and mixed law and fact in line with the 1979 Constitution, the Court of Appeal Act and mixed law and fact in line with the 1979 Constitution, the Court of Appeal Act and the Rules of this court.
2. To ensure that the success of the substantive appeal is not rendered nugatory.

Dated at Lagos this 13th day of August, 1990.”

This application anticipated that the Notice and Grounds of Appeal filed on 25th June, 1990 might be incompetent. With the present appellant’s preliminary objection to the motion quoted above, the Court of Appeal ruled as follows:

“Time extended within which to apply for leave to appeal on grounds 1, 2, and 4 as in Exhibit B1 is hereby granted. Time extended for appeal on mixed law and fact Notice of Appeal filed on 25th June, 1990 deemed’ properly filed as in Exhibit BI. INTERIM STAY IS HEREBY GRANTED PENDING THE DETERMINATION OF THE APPLICATION FORSTAY OF FURTHER PROCEEDINGS NOW FIXED FOR 27TH NOVEMBER, 1990.”

In effect the proceeding in the substantive case in the High Court was stayed pending the hearing of application for stay of further proceedings though leave was granted to appeal. The matter was adjourned to 27th November, 1990. On 12th November, 1990, the present appellant filed Notice of Preliminary Objection as follows:

“NOTICE OF PRELIMINARY OBJECTION

TAKE NOTICE THAT at the hearing of the motion of the Appellant/Applicant dated the 13th day of August, 1990 and filed on the same date in this Honourable Court the Respondent shall raise a preliminary objection to the motion and to the entire appeal on the grounds that:

1. This Honourable Court has no jurisdiction to entertain the same.
2. The entire appeal and all the steps and proceedings so far taken in it are a nullity.

IN THAT:

1. This Honourable Court in the case of Christopher Uche Versus The State CA/L/249/89 decided on the 4th day of October, 1990 held that an appeal on a no-case submission is incompetent and a nullity.
2. The present appeal being on a no-case submission must abide the decision of this Court in Christopher Uche Versus The State supra which, in any case, is binding on this Court.

Dated this 12th day of November, 1990.”

The matter could not be heard on 27th November, 1990 and was adjourned to 5th February, 1991 with the order that the interim stay of 23rd October, 1990 (earlier referred to) should continue. On 5th day of February, 1991, the proceedings that took place in the Court of Appeal may be summarised as follows:

“Preliminary objection was moved by Onyeike of counsel for the appellant as contained in the Notice above. He in his submission intimated the Court of their decision, then unreported, in Nwosu & Anor. vs. The State (1990) 7 NWLR (Pt.162) 322 that a ruling on a no-case submission is not appeallable. The counsel for the respondent, Gani Fawehinmi, Esqr., submitted, whilst avoiding the issue raised in the preliminary objection, that all the arguments proffered were premature as they ought to have been raised in the Brief of Argument. He cited the case of Akinbobola vs Plisson Fisko Ltd. (1991) 1 NWLR (Pt.167) 270,271, 272, a civil matter having not the slightest link with no-case submission. The Court then went ahead with this ruling:

“‘The objection is premature at this stage of the proceedings, it should or ought to be raised when the briefs have been filed and the appeal is being heard and there will be benefit of submission from both sides.

Preliminary objection at this stage is therefore disallowed, stay of further proceedings is hereby granted.”

This last ruling led to the appeal to this court with the following grounds filed with leave in substitution to previous grounds.

“PART OF THE DECISION APPEALED AGAINST

The part of the decision disallowing the State’s preliminary objection as premature and granting a stay of proceedings at the trial Court.

GROUNDS OF APPEAL

(1) The learned Justices of the Court of Appeal erred in law in disallowing the preliminary objection of the State as premature.

PARTICULARS OF ERROR

(i) An objection as to jurisdiction can be raised at any time in a proceeding and preferably quia timet.

(ii) There is no law or rule of practice under which an objection as to jurisdiction must await the filing of brief.

(iii) The learned Justices of the Court of Appeal ought to have entertained the objection before taking further steps in the proceedings.

(iv) The grounds of appeal in this case and other documents before the Court of Appeal clearly showed that the appeal was incompetent it being an appeal against a ruling on no-case submission which appeal was held by the Court of Appeal in the case of Jerry Nwosu v. The State (1990) 7 NWLR (Pt.162) 322 to be incompetent.

(2) The learned Justices of the Court of Appeal erred in law in ordering a stay of proceeding of the High Court without hearing the counsel for the State.

PARTICULARS OF ERROR

(i) The Court of Appeal clearly breached the audi alteram partem rule in granting the prayer for stay of proceedings without hearing counsel for the State in opposition thereto.

(ii) Under Section 33(1) of the 1979 Constitution and the general law the State is entitled to be heard in opposition to the prayer for stay of proceedings.

(iii) After disallowing the preliminary objection of the appellant in the way the Court of Appeal did, the Court of Appeal ought to have taken arguments of the parties on the merits of the prayer for stay of proceedings before granting the same in line with the decision of this Court in Mohammed v. Olawumi (1990) 2 NWLR (Pt. 133) 458, 484 para, F-H.

4. RELIEF SOUGHT FROM THE SUPREME COURT

(1) An order setting aside the order disallowing the preliminary objection of the State.

(2) An order setting aside the order of stay of proceedings of the trial Court.”

Within these grounds the following issues were formulated by appellant for determination:

1. “Whether the Court of Appeal was right to hold that the preliminary objection of the appellant was premature.
2. Whether the Court of Appeal was right to grant a stay of proceedings at the High Court with the respondent (now appellant in this Court) moving his motion and without the appellant being heard in response thereto.”

Jurisdiction is a serious matter when raised in any Court. Sometimes it is apparent on the record that issue of jurisdiction is involved. e.g. when a matter goes before the Court of Appeal straight from the Magistrate Court; in a case of this nature the Court must address it suo motu even if the counsel of the parties fail to advert to it. Sometimes question of jurisdiction is latent and once raised by any of the parties, it must be addressed first by the Court, because if a Court should embark on a trial without jurisdiction, its exercise will be a nullity. Onyema vs. Oputa (1987) 3 NWLR (Pt.60) 259. The red light to Court to be cautious is the issue of jurisdiction and it must be settled by proper hearing of the parties before further proceedings in the matter can be embarked upon. Similarly there are occasions after a matter has been before the Court for long before the issue of jurisdiction arises – some in the middle of the entire proceedings onwards its tail end – in that case the jurisdiction must first be settled before proceeding further. Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. It is therefore never too late to raise the issue of jurisdiction and in cases of this nature it is never premature to raise it. Management Enterprises Ltd. vs. Olusanya (1987) 2 NWLR (Pt. 55) 179. The preliminary objections as to jurisdiction ought to have been taken first and decided upon. [See Oloha vs Akereja (1988) 3 NWLR (Pt.84) 508].

However, the Court of Appeal never adverted to a lapse in their proceedings, because a lapse I believe it was. The parties were not heard on the issue of stay of proceedings. The ruling granted the stay of proceedings of the trial in the High Court and this was an error by the Court of Appeal. Apart from the motion of the present respondent that includes prayer for stay of proceedings; neither party was heard on it. The preliminary objection was dismissed erroneously as I have explained above as it concerned jurisdiction of the Court to hear the subject-matter, and it was a further error not to hear the parties. It was not merely a case of audi alteram partem, none of the parties was ever heard on it.

It was for the above reasons that on the 14th day of November, 1991 I allowed this appeal and adjourned these reasons to today. In allowing the appeal, I ordered the application for stay of proceedings to be heard, but to hear first the preliminary objection which was not premature as claimed by the Court of Appeal in its ruling of the 5th day of February, 1991.M. L. UWAIS, J.S.C.: This appeal was allowed on the 14th day of November, 1991 and we remitted the case to the Court of Appeal for the application for stay of proceedings pending the appeal before that Court and the notice of preliminary objection filed by the Appellant to be heard on their merit. I reserved my reasons for the judgment till today. I now give the reasons.

I have had the opportunity of reading in draft the reasons for judgment read by my learned brother Belgore, J.S.C. I entirely agree with them. The respondent herein was the appellant before the Court of Appeal. The respondent filed an application on the 13th day of August, 1990 in which he inter alia prayed the Court of Appeal to grant “An ORDER staying further proceedings in the lower court (i.e. High Court) pending the determination of the substantive appeal in this case.” This application came up before the Court of Appeal (Coram Ademola, J.C.A., Babalakin, J.C.A. (as he then was) and Awogu, J.C.A.) and was adjourned to the 23rd day of October, 1990 as the respondent, herein appellant, was absent in Court. On the adjourned date the motion came up before a differently constituted panel of the Court of Appeal (Awogu, Kalgo and Tobi, J.J.C.A.) and the Court of Appeal stated, in part as follows –

“Interim stay is hereby granted pending the determination of the application for stay of further proceedings now fixed for 27/11/90.”

Before the matter came up on the adjourned date, the respondent (now appellant) filed a notice of preliminary objection on or after the 12th day of November, 1990. On the 27th day of November, 1990 a panel of the Court of Appeal differently constituted from the previous ones (Babalakin, Kalgo and Tobi J.J.C.A.) further adjourned the application on the request of learned counsel for the respondent (now appellant) to the 5th day of February, 1991. On the last mentioned date another panel different from all the previous panels sat. It consisted of Babalakin, Ogundere and Awogu, J.J.C.A. The notice of preliminary objection was then moved by the respondent (now appellant) who canvassed that the motion filed by the appellant (now respondent) for stay of further proceedings in the High Court pending his appeal and indeed the appeal itself should be struck-out by the Court of Appeal on the premise that the Court of Appeal had no jurisdiction. The decision of the Court of Appeal in the case of Nwosu & Anor. v. The State (1990) 7 N.W.L.R. (Part 162),322 was cited in support of the submission. Learned counsel to the appellant replied to the submission in support of the preliminary objection and thereafter the record of the Court of Appeal (per Babalakin, J.C.A.) reads as follows

“COURT This objection is premature at this stage of the proceeding, it should or ought to be raised when the briefs (of argument) have been filed and the appeal is being heard and there will be benefit of submissions from both parties.

Preliminary: Objection at this stage is therefore disallowed stay of further proceeding is hereby granted.” (parenthesis mine)

Both Ogundere and Awogu, J.J.C.A. agreed with the foregoing. It is this stand of the Court of Appeal that provoked the appellant herein to appeal to this Court.

Mr. Onyeike, learned Legal Officer, argued on behalf of the appellant that he opposed the respondents’ application for stay of further proceedings on the 23rd day of October, 1990, before the application was adjourned to the 27th day of November, 1990 for further hearing. He complained that no argument by the parties was heard on the 5th day of February, 1991 before the Court of Appeal granted the application, Mr. Olanrewaju, learned counsel for the respondent conceded both in his brief of argument and oral address that no argument was heard on his application before the Court of Appeal granted it. He, therefore, submitted that the application should be remitted to the Court of Appeal so that it could be properly heard by giving the parties the opportunity to present their arguments thereon.

With regard to the holding by the Court of Appeal that the notice of preliminary objection on its jurisdiction was premature, Mr. Onyeike canvassed that an objection to jurisdiction can be taken at any stage of the proceedings before a Court. He submitted that the ruling of the Court of Appeal was inconsistent with its earlier decision in Nwosu & Anor. v. The State (supra).

It is quite clear from the foregoing that the Court of Appeal did not hear the parties before granting the application for stay of further proceedings. In my opinion, this is palpably wrong. Although there are occasions when an application can be disposed of by a court without hearing argument by the parties in the case, (see Section 213 (4) and 221 (2) of the 1979 Constitution) this is not one of such cases. The parties in the present case cannot be said to have had a fair hearing, not even the respondent whose application was granted could be considered as having had a fair hearing. The situation of the appellant in the circumstances was even worse. The whole of the proceedings was therefore a travesty of justice and could not have been in its interest. It must as a result be vitiated.

It has been said time without number that the issue of jurisdiction of a court is fundamental. Its being raised in the course of proceedings can neither be too earlier or premature nor be late. For if there is want of jurisdiction, the proceedings of the Court will be affected by a fundamental vice and would be a nullity however well conducted the proceedings might otherwise be – see Oredoyin v. Arowolo (1989) 4 N.W.L.R. (Part 114) 172 at 187 and Onyema v. Oputa. (1987) 3 N.W.L.R. (Part 60) 259. Furthermore, the jurisdiction of a court to determine an issue as to whether it has jurisdiction is not a procedural matter but substantive since any court without jurisdiction is incompetent to determine a matter and if it does exercise the jurisdiction which it does not possess its decision is a nullity – Ojokolobo v. Alamu. (1987) 3 N.W.L.R. (Part 61) 377 at p. 391 B: Ifewe v. Mbadugha. (1984) 5 S.C. 79; (1984) 1 SCNLR 427; and Odi v. Osafile. (1985) 1 N.W.L.R. (Pt. l) 17.

With respect, the Court of Appeal was therefore wrong when it held the view that the preliminary objection raised by the appellant on its jurisdiction to hear the appeal brought before it by the respondent was premature. The notice was to save it the trouble of toiling in futility should it indeed be without jurisdiction.

It is for these and the reasons stated by my learned brother Belgore, J.S.C. that I allowed the appeal and remitted the case to the Court of Appeal for both the application for stay of proceedings pending appeal and the preliminary objection to be determined properly.

A. G. KARIBI-WHYTE, J.S.C. On the 14th November, 1991, I summarily allowed this appeal. I indicated that I will give my reasons today. This I now proceed to do hereunder.

Dr. Onagoruwa was charged on information with stealing the sum of N720,000 contrary to section 390 of the Criminal Code. He pleaded not guilty. At the close of the case for the prosecution, his counsel submitted that the prosecution had not made out a prima facie case against him in respect of the offence charged. He applied that the accused be accordingly discharged. The learned trial judge, Silva J, in his ruling on the 21/6/90 rejected the submission; He held that the prosecution had made out a prima facie case. He called upon the accused to make his defence. Accused was dissatisfied with this ruling and on the 29/6/90 appealed to the Court of Appeal. His application to the trial Court for stay of proceedings pending the appeal, was refused on the 21st July, 1990. Pursuant to his appeal to the Court below, he applied to that Court for stay of proceedings. The Court below granted him interim stay of proceedings on the 23rd October, 1990, and adjourned hearing of the application to the 27th November, 1990.

By notice of motion dated 12th November, 1990, David Onyeike, Esqr., learned counsel to the state, who are the Respondents in the Court below, raised a preliminary objection to the hearing of the application. He relied on two grounds of law which he stated as follows-

“1. This honourable court has no jurisdiction to entertain the same.

2. The entire appeal and all the steps and proceedings so far taken in it are a nullity.”

In that

1. This honourable Court in the case of Christopher Uche v. The State CA/L/249/89 decided on the 4th day of October, 1990 held that an appeal on a no-case submission is incompetent and a nullity.
2. The present appeal being on a no-case submission must abide the decision of this Court in Christopher Uche v. The State, supra, which, in any case, is binding on this Court.”

The application came up for argument on the 27th day of November, 1991 and was adjourned to the 5th February, 1991. The Court made an order that the interim order for stay of proceedings granted was to continue. On the 5th February, 1991, Mr.David Onyeike for the Respondents moved his notice of motion for preliminary objection dated 12th November, 1990 seeking an order that the appeal be struck out on grounds of lack of jurisdiction in the court to hear the appeal. He cited and relied on Nwosu & anor. vs. The State (1990) NWLR. (Pt. 162) 322.

In reply, Chief Gani Fawehinmi, for the Respondent submitted that in order to consider a departure from Nwosu v. The State cited and relied upon it will be necessary for parties to file briefs of argument. It was submitted that the issue could not be considered fully by way of a preliminary objection. He relied on Akinbobola v. Plisson Fisko (Nig,) Ltd. (1991) 1 NWLR. (pt.l67) 278.

The following which seems to me to be the opinion of the Court was stated on p.27 of the record of proceedings,

“Court:This objection is premature at this stage of the proceedings, it should or ought to be raised when the briefs have been filed and the appeal is being heard and there will be benefit of submission from both parties.

Preliminary Objection at this stage is disallowed stay of further proceedings is hereby granted.”

B.O. Babalakin,

Justice, Court of Appeal

(Sgd.)

Hon, Justice J.D. Ogundere J.D.Ogundere

I agree Justice Court of Appeal

(Sgd.)

Hon. Justice F.O. Awogu F.O. Awogu

I agree Justice Court of Appeal”

I have reproduced the proceedings of the 5th February, 1991 which is the subject matter of this Appeal. The only grounds of this appeal, without the particulars are that

“1. The learned Justices of the Court of Appeal erred in law in striking out the preliminary objection of the State as premature.

2. The learned Justices of the Coun of Appeal erred in law in ordering a stay of proceedings of the High Court without hearing the Counsel for the State.

Counsel filed briefs of argument in the appeal. They adopted their briefs of argument and relied on them in their submissions before us.

Learned Counsel for the Appellant formulated two issues for determination. Respondents Counsel formulated the issues somewhat differently in his brief of argument. The issues formulated by Appellant are as follows-

“1. Whether the Court of Appeal was right to hold that the preliminary objection of the Appellants was premature

2. Whether the Court of Appeal was right to grant a stay of proceedings at the High Court without the respondent moving his motion and without the appellant being heard in response thereto.”

Learned Counsel to the Respondent formulated the issues as follows-

“3.1. Whether the Court of Appeal was right in the circumstances of this case by its decision that the preliminary objection of the Appellant to the competence of the respondent’s application for stay of proceedings and indeed to the appeal be argued in the briefs of the parties.

3.2. Whether the decision of the Court of Appeal ordering a stay of proceedings in the High Court in the circumstances was right.”

This Court has on many occasions counselled that the issues for determination in an appeal must be so formulated to circumscribe the grounds of appeal. The issues formulated should not go beyond the grounds of appeal complained of against the judgment of the Court, see A-G., Bendel State v. Aideyan (1989) 4 NWLR (pt. 118) 646, SC. In the instant case, the only issues arising from the grounds of appeal and relevant for determination are (a) whether the preliminary objection to the appeal was premature and (b) whether the court was right to have granted the application for stay of proceedings without hearing the respondent to the application.

Learned Counsel to the Respondent has in his formulation of issues included some of the reasons why the court below acted as it did. I do not think this is necessary in formulating issues. The relevant issues which concern the Court are the principles sought to be justified in the determination of the case. Here the issues are (i) Whether a challenge on grounds of jurisdiction is premature and ought to be postponed pending the tiling and exchange of briefs of argument (ii) Whether the court below can grant an application which is opposed without hearing the respondent. I therefore prefer the formulation of the issues by learned Counsel to the Appellant. I accordingly adopt them.

This appeal will be better understood if the facts are put in their sequence.

This will accentuate the proper perspective.

The notice of preliminary objection to the hearing of this appeal was filed on the 12th November, 1990. On the 23rd October, 1990 the Court below had granted Respondent enlargement of time to apply for leave to appeal on grounds 1, 2, 4. Leave to apply on question of mixed law and facts in grounds 1,2 and 4. Also granted was extension of time to appeal on mixed law and fact. The notice of appeal filed on 25/6/90 was deemed to have been validly and properly filed. Respondent was granted interim stay of further proceedings pending the determination of the C application for stay of further proceedings which was adjourned to the 27/11/90.

Before the 12th November, 1990, when the notice of preliminary objection was filed, the only application pending was one for the stay for further proceedings. The question whether there was an appeal before the Court below had not been raised. Learned Counsel’s contention is that on the 5th February, 1991 when

(a) the order for stay of further proceedings was made,

(b) the order on the argument in respect of jurisdiction was postponed to the filing of briefs by the parties;

the court had no jurisdiction to hear the appeal. The notice of appeal and all proceedings subsequent thereto including the interim stay of proceedings and the application for stay of further proceedings, are a nullity and should be struck out.

In his brief of argument and in his oral expatiation of same Mr Onyeike learned Counsel to the Appellant submitted that the preliminary objection was founded on a ground of want of jurisdiction in the court below which in his submission is a question of law. Learned counsel relied on the recent decision of the same court in Nwosu v. The State (1991) 7 NWLR. (pt.162) 322 where it was held that a ruling on a no-case submission not being a decision within S.227 (1) of the Constitution 1979 was not appealable.

It was further submitted that having raised lack of jurisdiction the court must determine that issue one way or the other before proceeding with the matter. The decisions of Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508; A-G of Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111), Kpema v. The State (1986) 1 NWLR (Pt. 17) 396; Sken-Consult Ltd. v. Ukey (1981) 1 SC.6; Ezomo v. Oyakhire (1985) 1 NWLR (Pt.2) 195 were cited and relied upon. The court of Appeal it was submitted, was therefore wrong to have called for the filing of briefs of argument on the merits of the case without first determining the issue whether it had jurisdiction to hear and determine the appeal before it. Counsel argued that the procedure adopted assumed that the appeal was valid. Learned Counsel submitted that where notice of appeal was fundamentally defective, as in this case, the roper order of the Court of Appeal was to strike out the appeal as incompetent.

Learned Counsel to the Respondent in his brief of argument submitted that the Court below merely postponed the hearing of argument on the preliminary objection to the hearing of the appeal. The appeal against the ruling of the Court was still pending. The Court has not decided the question of the validity of the appeal. It was therefore argued that the question whether the Court of Appeal has the jurisdiction to hear and determine the appeal did not arise. Accordingly the submission of learned Counsel for the Appellant which did not go to any issue was irrelevant. – See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 at p. 180.

It was conceded that where lack of jurisdiction was raised as a preliminary objection it was necessary first to deal with the objection – Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 6 SC. 175, Okafor v. A-G of Anambra State (1991) 6 NWLR (Pt.200) 659 at 679; Osadebay v. A-G Bendel State (1991) 1 NWLR (Pt. 169) 525; Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.l94) 652. It was submitted that the order of the Court of Appeal in the instant case was that the argument on the preliminary objection be adjourned for briefs of argument to be filed, so that the question of jurisdiction and the merit of the appeal would be argued together. This it was argued, made good sense and was within the powers of the Court of Appeal. Learned counsel referred and relied on section 16 of the Court of Appeal Act 1976 and Order 1 rule 20(4) of the Court of Appeal Rules. It was submitted the order made has not occasioned any miscarriage of justice, and is the best in the circumstances. This same practice was adopted in Fawehinmi v. N.B.A. (No. 1) (1989) 2 NWLR (Pt. 105) 494; Williams. v. Daily Times of Nigeria Ltd (1990) 1 NWLR (Pt. 124). It was accordingly submitted that Appellant’ complaint was premature.

Learned Counsel to the Respondent submitted that the contention of Appellant that the Appeal be struck out without hearing argument on the merits was wrong. The Court of Appeal, it was argued, cannot make such an order at this stage. I have outlined fairly comprehensively, the arguments of Counsel in this appeal on the issue of jurisdiction. It seems to me dear that Appellants main contention is that the court below had no jurisdiction to hear the appeal or make any orders on the applications before it. Respondent’s argument was that in the special circumstances of the case it had.

Appellant’s Counsel had relied on arguments which in my respectful opinion, may be the issue in this appeal after the question of jurisdiction has been determined; but is not any ground for denying the court the exercise of jurisdiction vested in it by the Constitution. Learned Counsel argued that the appeal being one against a submission of No case to answer, in accordance with the decision of the court of Appeal in Nwosu v. The State (supra), the court lacks jurisdiction. This it was submitted was because the Court of Appeal was bound by its own previous decision Osho v. Foreign Finance Corporation (supra).

I entirely agree with the submission of Respondent that the issue whether the Court of Appeal was bound by its own previous decision in Nwosu v. The State (supra) is not a question of jurisdiction. The rule governing the issue whether the Court was bound by its own previous decisions has already been spelt out in earlier cases and there have been recognized exceptions – See Yusuf v. Egbe (1987) 2 NWLR (Pt.56) 341. Fatola v. Mustapha (1985) 2 NWLR (Pt. 7) 438.

For Appellant to succeed in the question of competence of the Court, Appellant must bring his case within the principles enunciated in the locus classicus of Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) (1962) 2 SCNLR 341. The principles there laid down are that, a court is competent when –

(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another.

(2) 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; and

(3) The case comes before the Court initiated with due process of law, and upon fulfillment of a condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal for the proceedings are a nullity however well conducted.

But this is not the issue in this case, There is no complaint about the composition or the qualification of the members. The issue of subject-matter has been raised. This ought to be argued and decided. The issue is that an issue of jurisdiction concerning the appealability of a ruling on a No-case submission was raised. The court went on to make orders, such as granting interim stay of proceedings and orders to file briefs of argument in the appeal without determining whether it had the jurisdiction to hear the appeal and to make any orders. It is common ground between the parties, and this is well settled law that where the issue of jurisdiction has been raised the proper approach of the court is to settle that issue before deciding on the next course of action.

In Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria Ltd. (1976) 6 SC. 175 at 188-9. Fatayi Williams JSC said;

“Moreover, there is a clear distinction between stating that the court has no jurisdiction to hear a case, and stating that the court has no jurisdiction to determine whether or not it has jurisdiction to hear the case. Thus the court may, by statute lack jurisdiction to deal with a particular matter, but it, has jurisdiction to decide whether or not it has jurisdiction to deal with such matters- See Wilkinson v. Banking Corporation (1948) 1 K.B. 721 (C.A.) at 725) Concisely stated a court is entitled to exercise jurisdiction to determine whether or not it has jurisdiction to hear the case”

In the instant case, Appellant has not challenged the Constitution of the court, and the qualification of its members. The challenge of its jurisdiction is as to the subject matter of the appeal. In such a case the Court undoubtedly has the jurisdiction to determine whether it has jurisdiction in respect of the subject matter. – See Okafor v. A-G Anambra State (supra).

This is one of the circumstances laid down in Barclays Bank Nigeria Ltd. v. Central Bank of Nigeria Ltd. when the court is entitled to exercise jurisdiction. Thus when an issue of jurisdiction is raised, the court is ex debito justitiae entitled to determine its own jurisdiction. This is whether or not it has the jurisdiction which it is being at once claimed and denied by the parties. – See Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129. Appellant’s counsel has submitted that where its jurisdiction is in issue the exercise by the court of this jurisdiction to determine whether or not it has jurisdiction to determine the issue before it, is fundamental to a valid exercise of its jurisdiction. It was further submitted any order in the absence of such a determination is invalid. It is a nullity. I agree entirely with this submission. – See Barclays v. Bank v. Central Bank (supra) Din v. A.G. Federation (1986) 1 NWLR, (Pt.17) 471.

I do not think learned Counsel is right in his submission that the Court below is empowered by s. 16 of the Court of Appeal Act, 1976, and order 1 rule 20 (4) of the Court of Appeal Rules 1981 to postpone a ruling on jurisdiction to the hearing of the substantive case. The cases of Fawehinmi v. N.B.A (No. l) (1989) 2 NWLR (Pt.105) 494 and Williams v. Daily Times of Nigeria Ltd. (1990) 1 NWLR (Pt.124) 1 are distinguishable and not applicable.

In Fawehinmi v. NBA (No.1) (supra), the issue was not as to the jurisdiction of the court to determine the appeal. It was whether counsel to the Nigerian Bar Association, who were also named parties to the action were competent as parties to the action to argue the appeal robed in their capacity as Counsel, and not as litigants. The Supreme Court directed counsel to file briefs of argument on this novel issue. The question of the jurisdiction of the court to hear the appeal was not raised. It was not an issue.

In Williams v. Daily Times of Nigeria Ltd. (supra) the issue was whether Respondent who came by way of Respondent’s notice, under Order 8 rule 3(1) RSC. 1985 ought to have filed a cross-appeal. It was objected by way of preliminary objection that the application was incompetent and ought to be struck out. The Supreme Court adjourned the hearing to a further date to enable Respondent to file amended brief of argument to answer the objection of the incompetence of the application. The court subsequently heard both the preliminary objection and the main appeal. The preliminary objection and the Appeal were decided in the same judgment.

It is important to observe that there was no objection to the jurisdiction of the court to hear the appeal. The jurisdiction of the court was not disputed. Accordingly, the determination of the issue did not arise.

The submission which relies on the exercise of power will be summarily dismissed. It is well settled that section 16 of the Court of Appeal Act, 1976 does not confer jurisdiction, but enables the court to exercise powers with respect to jurisdiction vested by Statute. Similarly Order 1 r.20. Rules of Court made on the assumption that the court has jurisdiction do not confer jurisdiction. See Ogunremi v. Dada (1962) All NLR, 663 under Order 1 r. 20 (4) of the Court of Appeal Rules.

The all important question in the instant appeal is whether the issue of the jurisdiction of the court having been raised, the court below decided that issue before proceeding to make any orders on the application before it

It is important to observe the fundamental principle that the issue of jurisdiction can be raised at any stage of the proceedings, even on an appeal in the Supreme Court- See Ejiofodomi v. Okonkwo (1982) 11 SC. 74, National Bank v. Shoyoye (1977).5 SC .181 Udenta v. Chukwunta & ors. (1953) 3 ENLR, 44.

In Swiss Air v. A.C.B. (1971) 1 All NLR.37, where the issue of want of jurisdiction taken after the close of pleadings was disallowed by the Court, this Court held:-

“We accordingly think the learned trial judge was in error in thinking that on a matter of jurisdiction of the Court it was too late for Mr. Impey to take the objection when he did.”

The objection as to jurisdiction goes to the root of the matter- namely the legal capacity to make coercive order – See Obikoya v. Registrar of Companies (1975) 4 S.C. 31 Bronik Motors v. Wema Bank (1983) 1 SCNLR, 296. The Court of Appeal refused to hear the preliminary objection as to its jurisdiction because in its opinion it was premature. It was prepared to hear the objection after parties had filed briefs of argument in respect of their case. It would seem, as counsel to the appellant rightly observed, that the Court of Appeal assumed, without deciding the issue, that it had jurisdiction to hear the appeal, and therefore to make the orders. In my opinion the court below was wrong to assume that it had jurisdiction to make orders without first determining the issue whether it had the requisite jurisdiction.

The Court below appears to have jumped the first stage of deciding the issue whether it has jurisdiction, This was the issue raised in the appeal, The question whether a ruling on a no-case submission is subject matter of Appeal is the substantive issue in the appeal. That can only be decided when the Court of Appeal has determined that it has jurisdiction to hear the appeal. The court below was wrong to hold that the preliminary objection as to jurisdiction was premature. As I have pointed out in this judgment there are many decisions of this Court where it has been held that an objection as to jurisdiction can be taken at any time. It has also been held that even without pleadings the court can order preliminary points of law to be taken. In my opinion, it is neither too early nor too late for a party to litigation to raise the issue of lack of jurisdiction in the court. As soon as the parties, and the subject-matter of the lis, the issues in dispute, are clear and have been identified, the issue of lack of jurisdiction can be raised. So also can the point be raised, on appeal.

The practice of the court is long established and well settled that where a defendant conceives that he has a good defence to the action against him, he may by motion raise such defence and seek to dismiss or strike out the action without hearing evidence. – See Martins v. Federal Administrator- General (1962) 1 All NLR 120, (1962) 1 SCNLR 209; Habib v. Principal Immigration Officer (1958) 3 FSC. 75, (1958) SCNLR 219; Enwezor v. Onyejekwe (1964) 1 All NLR,14. It cannot therefore be premature to seek to dismiss an appeal on a preliminary objection as to the jurisdiction of the Court. See Aina v. Trustees of Nigerian Railway Corporation Pensions Fund (1970) All NLR. 281.

I now turn to the grant of stay of proceedings without hearing the Respondent.

The facts are undisputed. The Court of Appeal has already granted an interim stay of proceedings. Respondent now Appellant was opposing the application for stay of proceedings. When the stay of proceedings was granted on the 5th February 1991, the Court did not give the opportunity to learned Counsel to the Respondent who had clearly signified his intention to be heard in opposition to the application.

Learned counsel to the Appellant has submitted that as he was not given the opportunity to be heard in opposition, so did learned Counsel to the Respondent, who was the applicant not heard to move the motion. It seems that the court undertook to play the role of the Applicant. Counsel has submitted there was therefore a clear breach of the audi alteram partem rule. Counsel relied on Garba v. University of Maiduguri (1986) 2 SC. 128 (1986) 1 NWLR (Pt.18) 550; Ex parte Olakunrin (1985) 2 NWLR. (Pt.4) 652; Aladetoyinbo v. Adewunmi (1990) 6 NWLR, (Pt. 154) 98.

It was further submitted, relying on Ayanboye v. Balogun (1990) 5 NWLR (Pt.15l) 392 that Applicant for stay of proceedings having not moved his motion is deemed in practice and in law to have abandoned it. He could not be granted the prayers merely because they were included in the motion papers. Learned Counsel submitted that the Court of Appeal was wrong to have granted the prayer for stay of proceedings in the manner it did.

In his reply to the submissions of learned counsel to the Appellant, learned counsel to the Respondent submitted that it is not correct that Applicant did not move the motion praying for stay of proceedings. He conceded that the Court of Appeal did not hear argument on the merits of the application for stay of proceedings. It was however submitted that all the materials necessary for the grant of the application, which were uncontradicted, was before the court. The court was therefore in a position to exercise its discretion in favour of the applicant. The grant of stay of proceedings is within the discretion of the court, and was right in the manner of the exercise of the discretion. See In re Adewunmi (1988) 3 NWLR (Pt.83) 483 at 496 Yesufu v. Co-Operative Bank (1989) 3 NWLR, (Pt.110) 483, Clement v. Iwuanyanwu (1989) 3 NWLR (Pt.107)39.

It was submitted that the Order did not and has not been shown to occasion a miscarriage of justice or that it is detrimental in any was to the Appellant.

Finally, learned counsel to the Respondent submitted that the error complained of is a slip, which is not sufficient for allowing the appeal.

It seems to me that the concession made by learned Counsel to the Respondent, that the Court below did not hear Counsel to the Respondent in that court in opposition to the application and that the court relied on the motion and the supporting affidavit in granting the application raises crucial fundamental issues in our administration of justice. Our adversary system of the administration of justice demands that a party, and his witnesses if any, should be heard before the case against him is determined. In Sadau v. Kadir (1956) 1 FSC, 39 (1956) SCNLR 93. Jibowu FJ, expressed it as follows-

“It is a fundamental principle of the administration of natural justice that a defendant and his witnesses should be heard before the case against him is determined, and it is, in my view, a denial of justice to refuse to hear a defendant’s witnesses.”

It is an elementary and fundamental principles of our administration of justice that no decision can be regarded as valid unless the trial judge or court has heard both sides in the conflict, – See in Deduwa v. Okorodudu (1976) 9/10 SC, 329. This test of fair hearing applies once a trial has commenced, after issue has been joined. It is accordingly a denial of fair trial and a direct infringement of the audi alteram partem rule to determine an application without hearing the opponent of the party to the action – See Amadi v. Aplin (1972) 4 SC. 228; (1972) 1 All NLR (Pt.1) 409; Kano N.A. v. Obiora (1959) 4 FSC.226 (1959) SCNLR 577. It is only when the opponent has been heard that the Judge would be seen as discharging the duty of an unbiased umpire. Learned Counsel to the Respondent appears to consider the absence of miscarriage of justice as a consideration to ameliorate an infringement of a provision of fundamental human right. This is not the correct legal position. The violation of the rule of audi alteram partem per se lies in the breach of the fundamental human right. Once right is violated, it is irrelevant whether a decision made subsequent thereto is correct- See Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 9 SCNJ, 1 (1989) 4 NWLR (Pt.117) 517; and 592. Fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. See United Bank for Africa Ltd. & Anor. v. Mrs. Ngozi Achoru (1990) 10 SCNJ, 93; (1990) 6 NWLR (Pt.156) 254. Concisely stated, a denial of the right to be heard is a breach of constitutional right, natural justice and rules of Court-Alhaji, Chief Yekini Otapo v. Chief RD. Sunmonu & Ors. (1987) 3 S.C.N.J. 57; (1987) 2 NWLR (Pt.58) 587.

There is no doubt that in the instant case, there was a denial of the right to be heard in respect of the stay of proceedings. Accordingly, the order of stay of proceedings made consequent upon the denial of the right to be heard, is a breach of the right to fair hearing. It is therefore a nullity – See Prince Yahaya Adigun & Ors. v. Attorney -General of Oyo State & 18 Ors. (1987) 3 SCNJ, 118. (1987) 1 NWLR (Pt.56) 196. The order being a nullity, there is no stay of proceedings. The stay of proceedings in the trail of the Respondent in charge No. LCD/05/88 is declared a nullity.

The above are my reasons for allowing the appeal of the Appellant, against the appeal of the Respondents to the Court of Appeal, and the Order of the Court of Appeal staying proceedings in the High Court in the trial of the information charging the Appellant with the offence of stealing contrary to section 390 of the Criminal Code.

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SC.59/1991