LEGALPEDIA ELECTRONIC CITATION: LER[2018]SC.86/2006

AREAS OF LAW: APPEAL, COURT, JUDGEMENT AND ORDER, JURISDICTION, LAND LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS:

The Plaintiff/Appellant instituted an action against the Defendants/Respondents at the Enugu State High Court whereupon; the 1st Respondent filed two motions, challenging the trial court’s jurisdiction to entertain the suit. The two applications, on being consolidated, were argued together. The trial court in a considered ruling dismissed 1^st Respondent’s objections to its jurisdiction to hear and determine the Appellant’s suit. Dissatisfied with the decision, the 1^st Respondent appealed to the lower court which allowed the appeal and set aside the trial court’s ruling. Aggrieved by the lower court’s judgment, the Appellant has filed the instant appeal against same. The 1^st Respondent filed a Notice of Preliminary Objection challenging the competence of the appeal, that the grounds of appeal are grounds of mixed law and facts which requires the leave of court to be first had and obtained, that the Appellant’s brief of argument was filed outside the time provided by Order 6 Rule 5(1) (a) of the Supreme Court Rules 1999 as amended hence, the Appellant’s brief being incompetent should be struck out.

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HELD:

Appeal Dismissed

ISSUE FOR DETERMINATION:

• Was the lower court right in holding that the trial court, ie the Enugu State High Court had no jurisdiction to entertain the suit having regard to the reliefs as averred in the statement of claim?

RATIONES:

APPEALS – CONDITION PRECEDENT FOR FILING AN APPEAL ON FACTS ALONE OR MIXED LAW AND FACTS

“By Section 233(2)(a) of the 1999 Constitution as amended, an appeal from the decision of the Court of Appeal to this Court on facts alone or mixed law and facts requires the leave of the lower court or this Court before it can be filed. A ground of appeal for which leave is required and is filed without such leave is incompetent. See Ojemen V. Momodu II (1983) 1 SCNLR188 at 205, Akinwumi Motors Ltd & anor V. Sangonuga (1984) 5 SC 184 at 188 and KTP Ltd V. G&H (Nig) Ltd (2005) 5 SC (Pt II) 140, (2005) LPELR-1660 (SC).” PER M. D. MUHAMMAD, J. S. C.

APPEAL – WHAT IS AN APPEAL?

“It is trite that an appeal is generally regarded as a continuation of the original suit. See Adegoke Motors Ltd V. Adesanya and anor (1989) LPELR-94 (SC), Oredoyin V. Arowolo (19890 4 NWLR (Pt 114) 172 and Senator Nkechi Justina Nwaogu V. Hon. Emeka Atuma & ors LPELR-19648 (SC).” PER M. D. MUHAMMAD, J. S. C.

FRESH ISSUE ON APPEAL – EXCEPTION TO THE REQUIREMENT OF OBTAINING THE LEAVE OF COURT IN RAISING FRESH ISSUE ON APPEAL

“This Court in considering the fundamental nature of jurisdiction of a court has pronounced in several of its decisions on the inevitability of allowing issues of jurisdiction to be raised before it even for the first time without the need for leave since the court are of last resort. See Oniah V. Onyia (1989) 1 NWLR (Pt 99) 514 at 540 and Attorney General of Oyo State V. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt 92) 59”. PER M. D. MUHAMMAD, J. S. C.

PRESUMPTION – PRESUMPTION OF REGULARITY OF THE APPELLANT’S BRIEF OF ARGUMENT

“By Section 168 (1) of the Evidence Act 2011 recognition and validity must be accorded the appellant’s brief of argument that has been duly processed. See Aliu Bello V. AG Oyo State (1986) 12 SC 1 and Citec V. International Estate & ors V. Francis & ors (2014) LPELR-22314 (SC). PER M. D. MUHAMMAD, J. S. C.

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JURISDICTION – FACTORS THAT DETERMINES THE JURISDICTION OF A COURT

“This Court has long settled the principle that a court has jurisdiction to adjudicate over a matter when:-

(a)  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.

(b)  The subject matter of the case is within us jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and

(c)  The case has come before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

See Madukolu & ors v. Nkemdilim (1962) 1 ALL NLR 587, SLB Consortium Ltd v. NNPC (2011) 5 SCM 187 and Chief S.S. Obaro v. Alhaji Sale Hassan (2013) LPELR-20089 (SC).” PER M. D. MUHAMMAD, J. S. C.

REVIEW OF JUDGMENT – WHETHER A COURT CAN REVIEW THE JUDGMENT OF ANOTHER COURT OF CO-ORDINATE JURISDICTION

“It is settled that a court cannot review the judgment of a court of co-ordinate jurisdiction. See Akporue V. Okei (1973) 12 SC 137, Akanbi V. Durosaro (1998) 12 NWLR (Pt 577) 284, Koden V. Shidon (1998) 10 NWLR (Pt 571) 66. In Dingyadi v INEC(2011) 10 NWLR (PT. 1255) 347, this court held that:

Under the doctrine of stare decisis, lower courts are bound by the theory of precedent. It is in effect a doctrine which enjoins Judges to stand by their decisions and the decisions of their predecessors, however, wrong they are and whatever injustice they inflict. All courts established under the Constitution derive their powers and authority from the Constitution. The hierarchy of courts shows the limit and powers of each court. It is to ensure that hierarchy of the court is never in issue, Mohammed v Olawunmi [1993] 4 NWLR (pt. 287) 254; 7 UP Bottling Co. Ltd v Abiola and Sons {Nig) Ltd [1995] 3 NWLR (pt. 883) 257; Osho v Foreign Finance Corporation [1991] 4 NWLR (pt. 184) 157; Dalhatu v Turaki [2003] 15 NWLR (pt. 843) 310.”

• PER M. D. MUHAMMAD, J. S. C.

JURISDICTION OF THE FEDERAL HIGH COURT – WHETHER THE FEDERAL HIGH COURT HAS SUPERVISORY JURISDICTION OVER FAILED BANKS TRIBUNAL

“The Federal High Court also lacked supervisory jurisdiction over the Failed Banks Tribunal. See Section 1 (5) and (6) of the Decree and the case of Comptroller of Nigerian Prisons & Ors Vs Dr. Femi Adekanye & Ors (1999) 10 NWLR (Pt. 623) 417 C-E”.PER K.M.O KEKERE-EKUN,J.S.C

ORDER OF COURT – STATUS OF AN ORDER DISMISSING AN APPEAL ON GROUNDS OF FAILURE TO FILE THE APPELLANT’S BRIEF OF ARGUMENT

“An order dismissing the appeal for failure to file Appellant’s Brief of Argument is final, the dismissal order being one deemed to be on the merits: Asalu & Ors. v. Dakan & Ors. (2006) LP.E.LR. – 573 (S.C); Kraus Thompson Ors. v. NIPSS (2004) 5 S.C (Pt. 1) 16.” PER E. EKO,        J.S.C.

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INCOMPETENT APPEAL- STATUS OF AN INCOMPETENT APPEAL

“On the other hand, an incompetent appeal can only be struck out and not dismissed on the merits.” PER E. EKO, J. S. C.

 

STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Evidence Act 2011

Land Use Act

Recovery of Public Property (Special Military Tribunal) Decree 1984, as amended

Supreme Court Rules 1999 (as amended)

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