CORAM

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PARTIES

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UNION BANK OF NIGERIA PLC  APPELLANTS

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PETER OMOKARO    RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant/Applicant’s Appeal to the Court of Appeal was dismissed by the Court for want of diligent prosecution upon an application made by the Respondent. Dissatisfied with the dismissal, the Appellant/Applicant brought before the Appeal Court a Motion on Notice urging the Court to set aside its earlier Order ,and also for an Order relisting the Appellant/Applicant’s appeal.

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HELD

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Application Struck out

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ISSUES

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None

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION- THE ESSENCE OF A PRELIMINARY OBJECTION RAISED AT THE HEARING OF AN APPEAL IS TO PUT AN END TO THE APPEAL

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“The essence of a preliminary objection raised at the hearing of an appeal is to put an end to the appeal, see the case of General Electric Co V Harry Akande (2011) 4 NSCQR 611 where RHODES VIVOUR, J.S.C. explained thus:
“The purpose being to bring the hearing of the appeal to an end for being incompetent or fundamentally defective. Consequently a successful preliminary objection terminates the appeal. If I may add to the above, where as in this appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary objection are only filed against one or more grounds of appeal which cannot stop the court from hearing the appeal.” See NNPC V FAMFA OIL LTD (2012) LPELR – 7812 (SC).” PER. Y. B. NIMPAR, J.C.A

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JURISDICTION OF A COURT- IMPORTANCE AND EFFECT OF THE JURISDICTION OF A COURT

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“Jurisdiction has been held to be the life and blood of adjudication see the case of Dapionlong V Dariye (2007) 4 S.C. (Pt 111) 118.
“Jurisdiction is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided they might be since a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction is therefore considered to be a nerve centre of adjudication; the blood that gives life to the survival of an action in a court if law in the same way that blood gives life to the human being in particular and the criminal race in general.” PER. Y. B. NIMPAR, J.C.A

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PRACTICE AND PROCEDURE- INSTANCES WHERE THE COURT OF APPEAL WILL SET ASIDE ITS OWN JUDGMENT OR RULING

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“This court has the jurisdiction to set aside its judgment or ruling in certain circumstances which were stated in the case of IGWE V KALU (2002) 7 S.C. (Pt 11) 236 listed the following:
(i). When the judgment is obtained by fraud or deceit in the court or of one or more of the parties such a judgment can be impeached or set aside by means of an action which may be brought without leave.
(ii). When the judgment is a nullity. A person affected by an order of court which can properly be described as a nullity is entitled to have it set aside (see Skenconsult V Ukey (1981) 1 SC 6.
(iii) When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade V Okinoga (1961) ALL NLR 119.” PER. Y. B. NIMPAR, J.C.A

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CASES CITED

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STATUTES REFERRED TO

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Court of Appeal Rules, 2002

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CLICK HERE TO READ FULL JUDGMENT

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