CORAM

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PARTIES

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KUNLE YINKA ADEMOLA   APPELLANTS

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1.    ATTORNEY GENERAL OF THE FEDERATION2.    MINISTER OF LANDS, HOUSING AND URBAN RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

Judgment was entered in favour of the Claimant/Appellant at the Federal High Court in the absence of the Defendants/Respondents, who thereafter applied requesting the court to set aside its judgment which was given in default of defence and appearance. The court granted the Defendants/Respondents request and set aside the judgment. Aggrieved with the decision of the trial court, the Appellant has appealed to this Court.

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HELD

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Appeal Dismissed

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ISSUES

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Whether a trial court has jurisdiction to set aside its own judgment given on the merits of the case on the ground that a party seek to raise a defence, after trial that the original suit was statute barred?Whether this Honourable Court should reverse the ruling of learned trial Judge of 26th September, 2001 and restore the judgment made on the merits of the case.

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RATIONES DECIDENDI

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GROUND OF APPEAL – STATUS OF AN ISSUE NOT DISTILLED FROM THE GROUND OF APPEAL FILED BY AN APPELLANT

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“Any issue not distilled from the ground of appeal filed by the appellant is incompetent and ought to be discountenanced, see Globe Fishing Industries Ltd V Coker (1990) 7 NWLR (Pt 162) 265; UTB Ltd V Dolmetsch (Nig) Ltd (2007) 16 NWLR (Pt 1061) 520 and Obioha V Duru (1994) 8 NWLR (Pt 365) 631 at646 – 647”. PER Y.B.NIMPAR, J.C.A

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DETERMINATION OF JURISDICTION – JURISDICTION IS DETERMINED BY THE CLAIM BEFORE THE COURT

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“Jurisdiction is known to be determined by the claim before the court, see Minister For Works V Tomas (Nig) Ltd (2002) 2 NWLR (Pt 752) 740.”PER Y.B.NIMPAR, J.C.A

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APPEAL – DUTY ON PARTIES TO BE CONSISTENT IN ARGUING THEIR CASE ON APPEAL

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“It is trite that parties are not allowed to introduce or setup one case at the trial court and proceed to argue another on appeal. There should be consistency as there must be orderliness in the pursuit of justice, see Awuse V Odili (2003) 18 NWLR (Pt 851) 116 at 161; Olufemi V Babalola (2003) 4 SCNJ 287; and Goar V Dasun& Ors (2009) LPELR – 4205 (CA).” PER Y.B.NIMPAR J.C.A

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JURISDICTION – JURISDICTION IS ONE THAT THE COURT MUST CLEARLY BE CERTAIN TO HAVE AND NOT ONE THAT SHOULD BE ASSUMED

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“Jurisdiction is a threshold issue in any adjudication and it is one that the court must clearly be certain to have and not one that should be assumed. Jurisdiction is what the Constitution clothes a court with or what a statute gives in very clear and exact terms.” PER Y.B.NIMPAR, J.C.A

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FRESH ISSUE – MEANING OF FRESH ISSUE

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“Fresh issue has been described in the case of Direct On Pc Ltd V Sof Technologies Ltd (2011) LPELR – 4042 (CA)as follows:
“For avoidance of doubt, a fresh issue or point of law is a new point of law which was not raised by any of the parties at the trial of the case.See also Shonekan V Smith (1964) 1 ALL NLR 168, Akpere V Barclays Bank Ltd (1977) 1 SC 219 at 247, Osinupebi V Saibu (1983) 1 SC 104; Okolo V Union Bank Of Nigeria Ltd (1998) 2 NWLR (Pt 539) 618;” PER Y.B.NIMPAR, J.C.A

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ISSUES FOR DETERMINATION -ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL

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“It is trite that issues for determination must arise from the grounds of appeal which also must have been fashioned out from the judgment or ruling appealed against, see Oba V Egberongbe (1999) 8 NWLR (Pt 615) 485; Saraki& Ors V Kotoye (1992) 9 NWLR (Pt 264) 156 and Omnia V Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576.” PER Y.B.NIMPAR, J.C.A

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EFFECT OF LACK OF JURISDICTION – LACK OF JURISDICTION REMOVES THE COMPETENCE OF THE COURT

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“Lack of jurisdiction removes the competence of the court. It was held by the court thus:
It is well settled in many decision of this court that a court is competent when the subject matter of the case is within jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. See Galadima V Tambai (2000) 11 NWLR (Pt 677) 1.”PER Y.B.NIMPAR J.C.A

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DETERMINATION OF THE JURISDICTION OF THE FEDERAL HIGH COURT – WHERE THE FEDERAL GOVERNMENT OR ITS AGENCIES IS A PARTY, THE COURT MUST EXAMINE FURTHER THE SUBJECT MATTER ALONG THE PARTY TO DETERMINE IF THE COURT HAS JURISDICTION

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“The settled position therefore is that where the Federal Government or its agencies is a party, the court must examine further the subject matter along the party to determine if the court has jurisdiction. The era of using Federal Government or its agencies as a blanket cover to give Federal High Court jurisdiction on matters which are clearly outside Section 251 of the 1999 Constitution and where it has no jurisdiction is over. It is a court with exclusive jurisdiction on specified matters unlike the High Court which has a general jurisdiction, see Agbaso V Iwunze(2014) LPELR – 24108 (CA) relying on Adetayo V Ademola (2010) NWLR (Pt 1215) 169.“PER Y.B.NIMPAR J.C.A

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JURISDICTION – MEANING OF JURISDICTION

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“It is settled that the Federal High Court has no jurisdiction in the subject matter of land. The court said jurisdiction is the blood that gives life to the survival of an action in a court of law, without jurisdiction, the action will be like an animal that has been drained of it blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise, See Utih V Onoyivwe (1991) 1 NWLR (Pt 166) 166. PER Y.B.NIMPAR J.C.A

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FRESH ISSUE –APPROPRIATE TIME FOR A PARTY TO RAISE AND ARGUE A FRESH ISSUE

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“A party can only raise and argue a fresh issue where it has filed a cross appeal or Respondents Notice to contend that the judgment should be sustained on other grounds. None of these steps were taken by the Respondents so they cannot ordinarily raise an issue for determination, See Eke V Ogbonda(2000) 18 NWLR (Pt 192) 506 at 522.” PER Y.B.NIMPAR, J.C.A

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DETERMINATION OF JURISDICTION OF COURT – THE JURISDICTION OF COURT WILL BE DETERMINED BY THE SUBJECT MATTER OF THE CLAIM AND NOT THE CLAIM RELATING TO THE INJUNCTION

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“The jurisdiction of the court will be determined by the subject matter of the claim and not the claim relating to the injunction as argued by the appellant which is an ancilliary relief and which depends on the primary claim. See Oloruntoba – Oju V Dopamu (2008) 7 NWLR (Pt 1085¬) 1;Nkuma V Odili (2006) LPELR – 2047 (SC); Adeyemi V Opeyemi (1976) 1 F.N.L.R 149; Savannah Bank V Pan Atlantic (1987) 1 NWLR (Pt 49) 212; Plateau State V Attorney General of the Federation (2006) 3 NWLR (Pt 968) 346.” PER Y.B.NIMPAR, J.C.A

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FRESH ISSUE ON APPEAL – ISSUES THAT REQUIRES THE LEAVE OF COURT WHEN RAISING A FRESH ISSUE ON APPEAL

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“The court in the case of Ali V Albishir (2007) LPELR – 8319 (CA) held as follows:
“The general principle is that when a party seeks to file and argue any fresh issue not canvassed in the lower courts whether that issue pertains to land or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised relates to the issues of jurisdiction, the point or issue can properly be filed and argued with or without leave of court even if it is being raised for the first time.”
See also Obiakor V State (2002) 10 NWLR (Pt 776) 612 at626 and Gaji V Paye(2003) 8 NWLR (Pt 823) 563; UTB V Dolmetsch Pharmacy (SUPRA) and Ayinke Stores Ltd V Adebogun (2008) 10 NWLR (Pt 1096) 612.” PER Y.B.NIMPAR J.C.A

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CASES CITED

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STATUTES REFERRED TO

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

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