CORAM

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Muhammed Lawal Shuaibu JCA

Abubakar Mahmud Talba JCA

Mohammed Danjuma JCA

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PARTIES

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1. CHIEF EKPENYONG OKON EFFIONG II

2. ELDER EDET NYONG EDET

3. ELDER (CHIEF) ETETIM EYO

APPELLANTS 

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1. DENO-ENUO BASSEY ANDONG AKOM

2. DENO ENUO BASSEY ATANA

3. DENO-ENUO BASSEY ESSIEN BASSEY

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, LAND, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The parties in this appeal have, (it is alleged) been engaged in litigation involving the same land on several occasions which led to the judgment in Suit No. 4/1922. Hardings arbitration of 1949 and that of C/25/1950 ended in West African Court of Appeal. The present action allegedly was filed by the same claimants as in the previous judgments with protracted proceedings. The Appellants filed an application to dismiss the suit on the ground of abuse of Court process res judicita and the competence of the trial Court to interpret the judgment of the Court of co-ordinate jurisdiction.

The Respondents applied for time to react to the Appellants’ application which the Appellants did not oppose but the learned trial Judge struck out the Appellants’ application. Aggrieved by the decision, the Appellant lodged the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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1.Whether the striking out of the application by the learned trial Judge without hearing from the Appellants or counsel who were present in Court did not amount to denial of fair hearing?

2.Whether the issue of jurisdiction when raised cannot be determined first and whether the ruling on the said application if in favour

 

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RATIONES DECIDENDI

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FAIR HEARING – MEANING OF FAIR HEARING

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A fair hearing means a fair trial. See the case of ASAKITIKPI V. THE STATE (1993) LPELR-572 (SC). In the case of ARIORI & ORS V. ELEMO & ORS (1983) LPELR- 552 (SC), it was stated thus: “Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the case”. Per OBASEKI, JSC (P. 44, Para. A) – Per Mohammed Danjuma, JCA

 

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FAIR HEARING – THE PLACE OF FAIR HEARING IN ADJUDICATION

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The law is settled that fair hearing or lack thereof is fundamental to the competence of a Court’s proceedings and the jurisdiction of the Court itself. The principle of fair hearing is therefore fundamental to all Court procedures and proceedings like jurisdiction, the right to fair hearing is both a fundamental and a constitutional right of every party to a dispute who is to be afforded an opportunity to present his case to the adjudicating authority without let or hindrance from the beginning to the end. It also envisages that the Court or Tribunal hearing a case should be fair, impartial, and without showing any degree of bias against any of the parties. Thus, every party must be given an equal opportunity of presenting his case. See the case of JAPAUL MINES AND PRODUCTS LIMITED V. SALROD NIGERIA LIMITED (2019) LPELR-48171(CA). – Per Mohammed Danjuma, JCA

 

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FUNCTUS OFFICIO – WHEN A COURT IS DEEMED TO BE FUNCTUS OFFICIO

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As learned counsel to the Respondents pointed out, once a Court has delivered a ruling on an issue, it cannot revisit same as it has become fucntus officio. In the case of IHEDIOHA & ANOR V. OKOROCHA & ORS (2015) LPELR-40837 (SC), it was stated that:

‘It is trite that once an issue or issues have been raised and determined by the Court between the litigating parties, the Court becomes functus officio to either direct or allow the parties to re-open the same issues before it for relitigation. See John Andy Sons & Co. Ltd V. National Cereals Research Institute (1997) 3 NWLR (Pt. 491) 1, Nnajiofor V. Ukonu (1985) 2 NWLR (Pt. 9) 686 at 688, Chief Ozo Nwankwo Alor & Anor V. Christopher Ngene & Ors (2007) 17 NWLR (Pt.1062) 163’. Per OKORO, JSC (P. 12, Paras. C-E).

​See also the case of DINGYADI & ORS VS. INEC & ORS (2011) 10 NWLR (Pt. 1255) 347 AT PAGE 366 and SANUSI Vs AYOOLA & ORS (1992) LPELR-3009 (CA). – Per Mohammed Danjuma, JCA

 

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JURISDICTION – THE IMPORTANCE OF JURISDICTION IN ADJUDICATION

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In the case of A.G. LAGOS STATE V. DOSUNMU (1989) LPELR-3154 (SC), it was held that:

‘Jurisdiction is a radical and crucial question of competence. Either the Court has jurisdiction to hear the case or it has not. If it has no jurisdiction, the proceedings are and remain a nullity however well conducted and brilliantly decided they might otherwise have been. The reason is that a defect in competence is not intrinsic to, but rather, it is extrinsic to the adjudication. See Madukolu and Ors V. Nkemdilim (1962) 1 All NLR 587 at P. 595". Per OPUTA, JSC (P. 10, Paras. C-D).

​Similarly, in the case of NWANKWO V. CUSTOMARY COURT NDIAWA & ORS(2009) LPELR-4589(CA), it was stated thus: ‘However, where a Court acts without jurisdiction or in excess of its jurisdiction, no amount of liberality can validate its action". Per KUDIRAT KEKERE-EKUN, JCA (P. 28, Para. D). – Per Mohammed Danjuma, JCA

 

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JURISDICTION – WHEN THE ISSUE OF JURISDICTION CAN BE RAISED – WHEN A COURT SHOULD DECIDE THE ISSUE OF JURISDICTION

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It is trite law that once an issue of jurisdiction is raised, it must be determined first. The issue of jurisdiction can also be raised at any stage of a case, be it at the trial, or on appeal, even for the first time in the Supreme Court. It is so important that the Court can raise it suo motu. Once it is apparent that the Court may not have jurisdiction, it can be raised as it is in the interest of justice to do so. See the case of OWONIBOYS TECHNICAL SERVICES LTD V. JOHN HOLT LTD (1991) 6 NWLR (Pt. 199) 550.

By refusing to first determine the issue of jurisdiction, the lower Court acted outside its authority. Jurisdiction cannot be assumed or implied and the Court cannot confer it on itself, not even by the consent of the parties. As soon as the Appellants raised the issue of jurisdiction, the lower Court ought to have determined the issue before proceeding to the substantive suit.

​In the case of GARBA V. MOHAMMED (2016) 16 NWLR Part 1537 Page 114 at 167 to 168, the Supreme Court held thus: ‘It is incumbent on a Court to take objection and rule thereon one way or the other before a final decision is to be made on a substantive matter before it. The Court can take the objection together with the substantive suit in so far as the substantive suit does not involve the taking of oral evidence’ – Per Mohammed Danjuma, JCA

 

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JURISDICTION – WHEN THE ISSUE OF JURISDICTION SHOULD BE DETERMINED

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Jurisdiction is a fundamental issue which cannot be overlooked once it is raised. And it must be determined and resolved one way or the other before proceeding to determine the substantive matter. The entire proceedings and Judgment of the lower Court having been determined without jurisdiction is a nullity. – Per A. M. Talba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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

 

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