3PLR – ICHOKU V. ABAI
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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ICHOKU
V.
ABAI
COURT OF APPEAL
[PORT-HARCOURT DIVISION]
3PLR/2001/157 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
JAMES OGENYI OGEBE, JCA (Presided and delivered the leading judgment)
IGNATIUS CHUKWUDI PATS-ACHLONU, JCA
MICHEAL EYARUOMA AKPIROROH, JCA
BETWEEN
HON. JUSTICE FELIX N. N. ICHOKU
AND
- MIKE ABAI ESQ.
- THE GOVERNOR OF RIVERS STATE
- RIVERS STATE JUDICIAL SERVICE COMMISSION
- NATIONAL JUDICIAL COUNCIL
- THE ATTORNEY-GENERAL OF THE FEDERATION OF NIGERIA
REPRESENTATION
E.C. Ukala, SAN., with G.J. Okirigwe for the appellant
Respondent: absent.
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Brief writing – arguments in respect of issues arising in an appeal – need for arguments to be contained in a brief of argument.
PRACTICE AND PROCEDURE – APPEAL – Court of Appeal resolving issues which have not be pronounced upon by the lower court – propriety of.
PRACTICE AND PROCEDURE – JURISDICTION – Challenging the jurisdiction of the court and applying to dismiss an action in limine – distinction between.
PRACTICE AND PROCEDURE – JURISDICTION – Issue of jurisdiction – importance of – various means through which issue of jurisdiction can be raised before a court of law – whether it can be raised for the first time at the Supreme Court.
PRACTICE AND PROCEDURE – JURISDICTION – Jurisdiction of a court – whether could be challenged under the inherent jurisdiction of the court by virtue of section 6(6)(a) of 1999 Constitution.
PRACTICE AND PROCEDURE – Federal High Court – whether its jurisdiction could be challenged without coming under order 24 of Federal High Court (Civil Procedure) Rules 1999.
PRACTICE AND PROCEDURE – Motion challenging court’s jurisdiction and motion to dismiss action in limine – distinction between.
MAIN JUDGMENT
JAMES OGENYI OGEBE, JCA (Delivering the leading judgment): The plaintiff/respondent sued the appellant and other respondents in this appeal in the Federal High Court, Port Harcourt seeking the following declarations:
“(a) a declaration that the 1st defendant has ceased with effect from the said 17th day of August, 1999 to be a judicial officer and public/civil servant of the Government of Rivers State of Nigeria.
(b) a declaration that the 1st defendant has ceased to be a judicial officer and public/civil servant of Rivers State of Nigeria in all ramifications and under any guise whatsoever with effect from the 17th day of August 1999 aforesaid…”
He also sought an injunctive relief to restrain other respondents from presenting the appellant as a judicial officer. The 1st respondent also filed a statement of claim wherein he sought substantially the same reliefs as contained in his writ of summons. The appellant by a motion filed on the 26th day of January, 2000 sought to have the suit struck out on grounds of lack of jurisdiction.
The trial Judge, Abdullahi, J., took arguments and on the 7th of March, 2000 gave a ruling striking out the motion for incompetence. The last paragraph of the ruling is pertinent and is reproduced herein:
“By filing the notice of preliminary objection and motion on notice challenging the jurisdiction of this court without first and foremost, filing their statement of defence as required of them under order 24 of the rules, I hold that the 1st, 2nd and 3rd defendant have put the cart before the horse. The notice of preliminary objection dated 13th December 1999 and filed on the same day and the motion on notice dated 10th December 1999 and filed on 26th January 2000 are therefore incompetent and hereby struck out.”
Dissatisfied with that decision the appellant has appealed to this court and the learned Senior Advocate for him filed a brief of argument on his behalf and identified one issue for determination as follows:
“Whether the learned trial Judge was right in assuming jurisdiction to entertain the suit on the ground that it was premature to determine the issue of jurisdiction, if not, whether the Federal High Court has jurisdiction to entertain the suit, subject matter of this appeal.”
The 1st respondent also filed a brief of argument and identified three issues for determination as follows:
“(i) Whether a point of law can be argued at the court of first instance without the defendant/appellant filing a statement of defence and raising same therein in view of the provisions of order 24 of the Federal High Court (Civil Procedure) rules 1999.
(ii) Whether the Federal High Court has jurisdiction to entertain or adjudicate on suit No.FHC/PH/CS/995/99.
(iii) Whether the plaintiff/respondent has the locus standi to institute or prosecute suit No. FHC/PH/CS 995/99.
It should be noted from the ruling of the lower court that it did not decide the question of whether or not it has jurisdiction in the matter before it. It also did not decide whether or not the 1st respondent has a locus standi to bring the action. All that the court decided was that the appellant’s motion was incompetent because it did not accord with order 24 of the Federal High Court (Civil Procedure) Rules 1999. It follows therefore that both the learned Senior Advocate for the appellant and the 1st respondent are calling on this court to resolve issues which have not been pronounced upon by the lower court. This is entirely wrong. This court is a Court of Appeal and it is only competent to review decisions that have been made by the lower court.
From what I have said it is quite clear that the only issue which arises for determination in this appeal is whether or not the learned trial Judge was right in holding that the challenge of the jurisdiction was premature as the motion on notice in that respect did not accord with order 24 of the Federal High Court (Civil Procedure) Rules 1999.
The learned Senior Advocate for the appellant submitted that once the issue of jurisdiction is raised before a trial court, it is the duty of that court to resolve that issue one way or the other before taking further steps in the proceedings. He relied on the cases of United Agro Ventures Ltd. v. F.C.M.B. Ltd. (1984) NWLR (547) 546 at 562; Mogaji v. Mil. Admin. Ekiti State (1998) 2 NWLR (538) 425 at 441; Oyelami v. Mil. Admin. Osun State (1998) 4 NWLR (547) 624 at 634. He submitted that the trial court was wrong in holding that the appellant could not raise the issue of jurisdiction until he has filed a statement of defence and raised therein the issue of jurisdiction as a point of law under order 24 of the Federal High Court (Civil Procedure) Rules 1999. He argued that the correct position of the law is that the issue of jurisdiction being a constitutional issue is a matter to be raised under the inherent jurisdiction of the court by virtue of section 6(6)(a) of the 1999 Constitution. He referred to the case of Okoye v. Nigerian Construction and Furniture Co. Ltd. & Ors (1991) 6 NWLR (Pt. 199) 501.
The learned Senior Advocate also argued that what the trial court did was to assume jurisdiction without determining whether it has jurisdiction or not. This was an erroneous procedure as was pointed out in the case of State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33.
The 1st respondent submitted in his brief in reply to this issue that the trial court was right in holding that the appellant should have filed a statement of defence and raised the issue of jurisdiction therein as a point of law under order 24 of the Federal High Court (Civil Procedure) Rules 1999 before that point of law could be properly taken by the trial court. The 1st respondent then said he adopted his submission before the lower court and the ruling of that court as part of his argument.
With the greatest respect, this is a lazy way of arguing an issue before an appeal court. All arguments in respect of issue before this court should be contained in the brief of the parties. It is not for this court to start fishing for the argument of counsel in the lower court in order to resolve issues before it. The 1st respondent did not turn up in court to argue his brief. Instead he wrote a letter to the court adopting his brief. This meant that we had no opportunity to ask him any questions on his brief.
It is a fundamental principle of law that jurisdiction of a court to try a matter is the pillar upon which any court can stand before it adjudicates on the matter before it. Once the jurisdiction is so fundamental that it can be raised at any stage of the proceedings before any court of law even before the Court of Appeal or the Supreme Court. It can be taken orally or by way of preliminary objection or by motion or in any manner whatsoever and the court is duty bound to resolve it one way or the other before it can proceed with the matter. The court cannot waive the challenge of its jurisdiction aside because if a court has no jurisdiction, no matter how well conducted the proceedings are, the result is a nullity. See the cases of United Agro Ventures Ltd. v. F.C.M.B. Ltd.(1998) 4 NWLR (Pt. 547) 546 at 562; Mogaji v. Military Admin Ekiti State (1998) 2 NWLR (Pt. 538) 425 at 441; Oyelami v. Mil. Admin. Osun State (1998) 4 NWLR (Pt.547) 624 at 634.
Order 24, 2(1) and (2) of the Federal High Court (Civil Procedure) rules 1999 read:
“2 (1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A party of law so raised may, by consent of the parties, or by order of the court or a Judge in chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.”
The trial Judge relied on this order to hold that it was premature for the appellant to challenge the jurisdiction of the court without first filing a statement of defence and raising the issue of jurisdiction of the court without first filing a statement of defence and raising the issue of jurisdiction as a point of law.
In the case of Ege Shipping & Trading Industry Incorporated & Ors v. Tigris Int. Corp. (1999) 14 NWLR (Pt.637) 70 at 89 the Supreme Court made it clear that there is a distinction between challenging the jurisdiction of the court and applying to dismiss the action in limine, the distinction lying in the fact that an application to dismiss an action in limine does not necessarily constitute a challenge to the jurisdiction of a court but involves cases where the court has jurisdiction or where its jurisdiction is assumed while the action is challenged on grounds of law under the rules of court.
I am firmly of the view that the trial court was wrong in holding that the appellant could not challenge its jurisdiction without coming under order 24 of the rules of court. The challenge of jurisdiction is a constitutional matter which can be raised under the inherent jurisdiction of the court by virtue of section 6(6)(a) of 1999 Constitution at any stage of the proceedings before any court of law independently of any rules of court. Consequently I allow this appeal and set aside the ruling of the trial court. I remit the case to the Federal High Court, Port Harcourt differently constituted to re-hear the appellant’s motion challenging its jurisdiction purely on the merits of the motion before taking any other steps in the substantive suit before it. The appellant is entitled to costs of N5, 000.00 against the 1st respondent.
IGNATIUS CHUKWUDI PATS-ACHOLONU, JCA: I agree with the judgment of my learned brother. The court below must make a pronouncement on the issue of jurisdiction before it can legitimately or competently make any comment on the case as any comment of whatever kind will amount to assumption of jurisdiction which at that stage was an issue in contention. I allow the appeal.
MICHEAL EYARUOMA AKPIROROH, JCA: I read in advance the lead judgment of the learned brother, Ogebe, JCA just delivered and I agree with his reasoning and conclusion.
I have nothing to add.
Cases referred to in the judgment
Ege Shipping & Trading Industry Incorporated v. Tigris Int. Corp. (1999) 14 NWLR (Pt.637) 70.
Mogaji v. Mil. Admin. Ekiti State (1998) 2 NWLR (Pt. 538) 425.
Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501.
Oyelami v. Mil. Admin. Osun State (1998) 4 NWLR (Pt. 547) 624.
State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33.
United Agro Ventures Ltd. v. F.C.M.B. Ltd. (1984) NWLR (Pt. 547) 546.
Statute referred to in the judgment
Constitution of the Federal Republic of Nigeria 1979, section 6(6)(a)
Rules of Court referred to in the judgment
Federal High Court (Civil Procedure) Rules 1999, order 24.
