MISIRI ALIMI & ORS Vs. ASANI KOSEBINU & ORSJuly 20, 2016
JOLIMAIR NIGERIA LIMITED Vs. LIBERTY BANK PLCJuly 26, 2016
APPEAL NO: CA/L/896/12
Areas Of Law:
ACTION, APPEAL, COURT, JURISDICTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
Summary Of Facts
The Claimant now Respondent via a writ of summons claimed against the Defendant now Appellant, before the Lagos State High Court, the sum of 266,559,168.00 being the total amount outstanding on the facility granted to the Defendant by the Claimant which sum he has refused to repay, interest on the said sum at the rate of 20% from February 1, 2010 until judgment and thereafter at the rate of 7% per annum until the sum is fully paid, an order for sale of the property known as Plot 323, Victoria Island Annex, Lagos covered by the Lagos State Certificate of Occupancy No. 8/8187 registered as No. 8 page 8 in Volume 1987C in the Lagos Land Registry and the cost of the action. . The Respondent also filed a motion for Summary Judgment which was opposed by the Appellant who filed relevant processes such as statement of defence and a counter affidavit opposing the motion for summary judgment. The court took the application for summary judgment and adjourned same for ruling. Subsequently the Appellant filed a motion seeking to strike out the Respondent’s action before the lower court on the ground that the debt which is the subject matter of the action had been assigned or sold to the Asset Management Company of Nigeria and therefore he had no right of action. The Respondent filed a counter affidavit supported by a written address. The said motion was pending before the lower court and therefore not considered before the court proceeded to enter judgment in favour of the Respondent. Dissatisfied with the trial court’s decision, the Appellant has filed an appeal before this court challenging same.
Issues For Determination
- Whether having raised the issue of the competence of paragraphs 3, 4, 5, 6 and 10 of the Appellant’s counter Affidavit filed in opposition to the application for summary judgment suo motu the lower court was bound to call on parties to address it on the issue before considering and deciding the issues?
- Whether the lower court ought to have heard and determine the Appellant’s motion on Notice challenging the locus standi of the Respondent to further maintain the action rather than proceeding with the delivery of its judgment on March 16, 2012 in respect of the application for summary judgment?
- Whether the lower court was right to have entered summary judgment in favour of the Respondent having regard to the Counter Affidavit and Statement of Defence filed by the Appellant?
LOCUS STANDI- SIGNIFICANCE OF AN APPLICATION CHALLENGING THE LOCUS STANDI OF A PARTY
“Now, an application challenging the locus standi of a party is one challenging the competence of a party to institute the action. Competence has a bearing on jurisdiction, see the case of Paul Ekhaguere V Ekhosuehi (2010) LPELR – 4088(CA) where the court held as follows:
“Locus standi is a matter which borders on jurisdiction. This is because where a party does not have the standing to claim against a defendant, the court is bereft of jurisdiction to adjudicate upon such a claim. Jurisdiction is the competence of a court. And any defect in the competence renders the proceedings before it a nullity, a defect in competence is quite extrinsic to adjudication.”
– PER Y. B.NIMPAR, J.C.A
COURT PROCESSES – DUTY OF COURTS TO DISPENSE WITH ALL PROCESSES FILED BEFORE A FINAL DECISION IS MADE ON THE SUBSTANTIVE ACTION
“The settled position of superior courts is that all pending applications in the court’s file must be disposed of before judgment is delivered. See the case of Chief Akpan V Senator Effiong Bob & 4 Ors (2010) LPELR – 376(SC) which held thus:
“The trite position of the law is that where there are pending processes before a court, such as motions or other applications, such issues have to be dispensed with before a final decision is taken on the main action or appeal. See: Irolo V Uka (2002) 14 NWLR (Pt. 786) 195 at 225 where this court held: ‘it is the duty of a court, whether of first instance or appellate to consider all issues that have been joined by the parties and raised before it for determination. If the court failed to do, without any valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every court has a duty to hear, determine and resolve such questions.’ Thus, it would be wrong of a court, whose attention has been drawn to a pending process, such as Notice of withdrawal of appeal or motion on Notice to proceed to treat the appeal to finality when such processes have not been pronounced upon by it.” PER. MUHAMMED, J.S.C.
See also the case of Justice Okwuchukwu Opene V National Judicial Council &Ors (2011) LPELR – 475(CA) which relied on Onyema & Ors V Egbuchulum (1996) 5 NWLR (Pt. 448)224 at 265 where KUTIGI, J.S.C. (as he then was) said:
“The court had a duty to make its decision on preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against same“. “
– PER Y. B.NIMPAR, J.C.A
ISSUE OF JURISDICTION – THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE BECAUSE OF ITS FUNDAMENTAL NATURE
“Jurisdiction is the life wire of adjudication, see the case of Aribisala & Anor V Tlabi Ogunyemi & Ors (2005) 6 NWLR (Pt. 921) 212 where OGUNTADE, J.S.C said as follows:
“Jurisdiction is blood that gives life to the survival of an action in a court of law, and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be abortive exercise.”
The position is settled that jurisdiction can be challenged at any stage of the trial and in any manner. It could be in writing or even oral. See the case of Petro Jessica Enterprises Ltd &Anor V Leventis Technical Company Ltd (1992) LPELR – 2915 (SC) in which the court held thus:
“The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the court of appeal or to this court; a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent that the court may not have jurisdiction it can be raised viva voce.” PER Y. B.NIMPAR, J.C.A
COURT PROCESS – WHEN IS A COURT PROCESS PRESUMED TO BE BEFORE THE COURT?
“As to when a court process is presumed to be before the court, see the case of NITEL Plc V Mayaki (2007) 4 NWLR (1023) 173 where AGBO, JCA had this to say:
“I must however emphasis that once a process is filed in the registry of a court; the party that filed it has done all what is required of him. The process is therefore presumed to be before the court. It is the duty of the party claiming that the judge is unaware of the existence of this process to establish it.”
Also, a process is deemed properly filed as soon as the paper submitted to or deposited in the registry of court with the proper court officer assigned with that responsibility, the paper is deemed properly filed, see Ajuwa V S. P. D. C (Nig) Ltd (2008)10 NWLR (Pt. 1094) or LPELR – 5156(CA) and Seven – Up Bottling Co. Ltd V Yahaya (2001) 4 NWLR (Pt 702) 47 at 55.” PER. Y. B.NIMPAR, J.C.A
COURT -CONSEQUENCES OF A FAILURE BY THE COURT TO DEAL WITH ALL PENDING APPLICATIONS BEFORE DELIVERY OF FINAL JUDGEMENT
“The court had a duty to make its decision on any motion by any of the parties before proceeding to decide the suit thereby giving opportunity to anyone not satisfied with its decision to appeal against same. See Opene v. NSC(Supra). Where the court fails to deal with all pending applications in a suit before delivering the final judgment, it breaches the tenets of fair hearing which is a fundamental vice. This erodes the necessary vires of the court. In so doing, the court is robbed of jurisdiction and all decisions reached thereafter would be a nullity ab initio”. PER U.I.NDUKWE-ANYANWU, J.C.A
Statute Referred To: