APPEAL NO: SC.407/2016

Legalpedia Electronic Citation: LER [2018]SC.407/2016

AREAS OF LAW:

Appeal, Contempt Of Court, Constitutional Law, Court, Jurisdiction, Practice And Procedure

SUMMARY OF FACTS:

The Respondents commenced the main suit in this appeal before the Federal High Court by a writ of summons wherein they sought before the trial court, amongst others, a declaration that they are not indebted to the Appellant in any amount having paid the sum of N3, 500,000,000.00 as full and final settlement of their indebtedness; and an order of perpetual injunction restraining the Defendant from making any representation in any form, to any third party suggesting that any of the Plaintiffs is indebted to it in any way. The trial court made an interim order directing parties in the suit to maintain the status quo ante bellum; pending further orders of the court. The Appellant was duly notified and served with a copy of the order made by the court but then challenged the jurisdiction of the trial court over the subject matter of the suit, claiming that only the State High Court had jurisdiction to hear the dispute. Whilst awaiting the decision of the trial court on same, and contrary to the undertaking made by counsel, in flagrant disobedience to the pending interim order of the trial court, the Appellant filed several other winding-up petitions with Suit Nos. FHC/L/CP/1569/2015, FHC/L/CP/1689/2015, FHC/L/CP/1570/2015 and FHC/L/CP/1572/2015  before different judges of  Federal High Court against the various Respondents on the alleged indebtedness of the Respondents to the Appellant, the subject-matter in the earlier pending suit commenced by the Respondents. Upon becoming aware of the filing of the suits, the Respondents, in line with the provisions of the Sheriffs and Civil Process Act, commenced committal proceedings against the Appellant. The Appellant filed a counter affidavit and a written address against the Respondent’s motion and also raised a preliminary objection against the originating processes in the committal proceedings (Forms 48 and 49) seeking that same be struck out on grounds that the processes were not personally served on the Appellant amongst others. The trial court upheld the preliminary objection filed by the Appellant and struck out the committal proceedings for lack of proof of service of the originating processes on the Appellant. Strangely dissatisfied by the grant of its preliminary objection, the Appellant appealed to the lower court seeking a determination of the merits of the contempt proceedings without specifically appealing the striking out of the contempt process for want of jurisdiction by the trial Court. The lower court dismissed the appeal having affirmed the trial court’s lack of jurisdiction to determine the merits of the contempt proceedings hence, a further appeal to this court.

HELD:

Appeal Dismissed

 

ISSUE FOR DETERMINATION:

• Having regard to the entire facts and circumstances of this case whether the lower court was right to have dismissed the appellant’s appeal before it.

RATIONES:

QUESTION OF JURISDICTION- WHETHER A QUESTION OF JURISDICTION CAN BE RAISED AND DETERMINED IN THE ABSENSE OF ANY GROUND OF APPEAL

“To go further I would reiterate that jurisdictional questions are indeed fundamental and so can be raised and determined even in the absence of any ground of appeal so long as it is brought up. This position was well set out in Kotoye v Saraki (1994) 7 NWLR (Pt.357) 414 per Onu JSC this:-

… A question as to whether or not the court from which an appeal lies has jurisdiction will be considered by the Court to whom an appeal lies when both parties are reluctant to or agree not to raise, or even where the point is not raised in the Notice of Appeal.”

• PER M. U. PETER-ODILI, J.S.C.

COURT OF APPEAL- DUTY ON THE COURT OF APPEAL TO DETERMINE ALL ISSUES BEFORE IT

“Again from the record and in line with the practice for an intermediate court, the Court below having determined the issue of jurisdiction had proceeded to determine all the issues submitted to it by the appellant including the issue of the contempt on the merit. See Adah v NYSC(2004)All FWLR (Pt. 223) 1850; Ojoh v Kamalu (2005) 18 NWLR(Pt. 958) 556; FMH VCSA Ltd (2009)9 NWLR(Pt. 1145) 193 at 220 – 221; Benson v COP(2016)LPELR – 40439(SC).

To highlight what I am labouring to put across is to call in aid some dicta of this court thus:-Uzuda v Ebigah (2009) All FWLR (Pt.493) 1224 at 1247.

 … Where a court falls to give full consideration and determination of the case of a party, it is a situation touching on the violation of the party’s right to fair hearing. It is trite that where there is a breach of a party’s constitutional right of fair hearing, then, the proceedings are vitiated, thereby requiring the intervention of an appellate court on complaint of the affected party.

Also in Bayol v Ahemba (1999) 10 NWLR (Pt.623) 381 it was held that:

It has been said time without number that the judgment of a court must demonstrate a full dispassionate consideration of the issues raised and canvassed before it. This duty on the court is imperative otherwise it will be extremely difficult for a party whose case has not been accorded adequate and full consideration to accept that justice has been done to him.”

• PER M. U. PETER-ODILI, J.S.C.

COURT – FUNCTION OF A COURT

“It is to be noted that the essential function of all courts is to discover the truth in order to do justice to the parties before them. See Sodipo v Lemminkinen OY (1985) NWLR(Pt. 8)547 per Oputa.” PER M. U. PETER-ODILI, J.S.C.

TECHNICAL JUSTICE – ATTITUDE OF COURTS TO TECHNICAL JUSTICE

“To put it straight, what is brought to the fore in this objection is a recourse to technical justice used to clog the wheel of the judicial and judicious determination of this appeal which is not the role for the court. See Bhojsous Plc v Daniel Kalio (2006)2 SCNJ 156; Garba v Kwara Investments Co. Ltd(2005) 1SCM 79;Military Administrator, Benue State v O.P. Ulegede Esq. (2011)17 NWLR(Pt. 741) 194. PER M. U. PETER-ODILI, J.S.C.

APPEAL – BASIS FOR THE ARGUMENT OF APPEALS

“It needs be said that appeals are argued on issues and not grounds even though the issues are distilled from the grounds. See Sadiq v Akinkunmi (2001) 2 NWLR (Pt.696) 101; Oyegun v Nzeribe (2012) 7 NWLR (Pt.1194) 577.” PER M. U. PETER-ODILI, J.S.C.

 

CONTEMPT PROCEEDINGS – STATUS OF CONTEMPT PROCEEDINGS VIS-À-VIS THE SUBSTANTIAL SUIT

“It needs be said that the contempt proceedings is distinct and independent of the main suit in this appeal. In relation to the status of the contempt proceedings via-a-vis, the main suit or appeal, I shall refer to the case of Mr. V. Onocha v Attorney General of Delta State (2013) LPELR – 20781 (CA) where that court held thus:-

…If from the definition, contempt of court reflects the conduct of the contemnor in the face of the court or outside of its face, then it is easy to say that contempt proceeding is not part of the main civil or criminal proceedings before the court. It is separate. Hence a separate proceedings, if the court arrives at a decision, it becomes a final one, and thus entities the contemnor to the right of appeal.”

• PER M. U. PETER-ODILI, J.S.C.

APPEAL – WHETHER AN APPEAL CONSTITUTES A NEW SUIT

“This calls up the reminder to what is now trite in law which is that an appeal is a continuation of hearing and not on its own to be activated without a linkage to the earlier trial or appeal from a lower court. Ajide v Kelani (1985) 3 NWLR (Pt.12) 248 at 269; Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Pt.109) 250 at 266.” PER M. U. PETER-ODILI, J.S.C.

APPELLATE COURT – WHETHER AN APPELLATE COURT CAN EXERCISE JURISDICTION IN A MATTER WHERE THE TRIAL COURT LACKS SAME

“The case of Akinbobola v Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 285 would highlight what I have been trying to communicate and there this court had stated in very clear terms the true position of things thus:-

The court being an appellate court, cannot exercise jurisdiction in a matter where the trial Judge is without jurisdiction. It only exercises its appellate jurisdiction to correct the errors of the learned judge; hence it will have no jurisdiction to make consequential orders after it has held that the learned judge had none. Accordingly having held that the learned trial judge had no jurisdiction to make consequential orders the court below could not have made because it can only exercise jurisdiction on appeal as if the proceedings had been instituted in the Court of Appeal as court of first instance.”

• PER M. U. PETER-ODILI, J.S.C.

FINDINGS OF COURT – STATUS OF FINDINGS OF COURT NOT APPEALED AGAINST

“I agree with learned counsel for the respondents that there is no appeal against the above specific finding by any party to this appeal and same remains forever binding on parties. See Akere v Governor of Oyo State(supra). See also Ewinstel Nigeria Ltd. Abia(2011) LPELR-4132(CA) where it held in the following manner:-

“Indeed, where as in the instant case, an aggrieved party complains of non service, particularly an originating process, such a party is raising a fundamental issue which challenges the competence and jurisdiction of the court to entertain the matter, talk less of determining the same. Thus, where as in the instant case such a party establishes the non service in question complained of the entire proceedings become a nullity and either the trial court or an appellate court, is duly bound to set it aside. Failure to effect service where it is highly required is a fundamental vice of a monumental dimension or cataclysmic proportion, which will engender a destructive and devastating effect on the case, as it goes to the core of it, Indeed, it is the service of the process on the adverse party that confers the court with the competence and jurisdiction on the matter. Without it the court will be left stranded and floundering like a fish out of water. Where there is a disconnect or failure to serve a party who deserves to be served; the party concerned is entitled ex debito justitiae to have the order which emanated therefrom, to be set aside as a nullity. See Mbadinuju vEzuka (1994) 8 NWLR(Pt. 364) 5; Mark v Eke (2004)5 NWLR(Pt. 865)54; Ononye v Chukwuma (2005) 17 NWLR (Pt. 953)90, per Oredola, JCA(pp.21-22, paras. E-D)’ .

• PER M. U. PETER-ODILI, J.S.C.

CONCURRENT FINDINGS OF COURTS – ATTITUDE OF AN APPELLATE COURT TO CONCURRENT FINDINGS OF LOWER COOURTS

“It follows that the invitation to this court to interfere with the well grounded concurrent findings of the two courts below is vehemently rejected being baseless. See Idufueko v Pfizer Products Ltd (2014) 1 NWLR(Pt. 1420)96 at 113; Ugba v Suswan(2014) 14 NWLR(Pt. 1427)264 at 315 where it was:

“Decisions in case law are meant to speak volume both in the given situation and for future guidance. Counsel is well advised to desist from filing unnecessary suits which are merely academic and yielding no benefits but mere waste of quality time.”

• PER M. U. PETER-ODILI, J.S.C.

 

STATUTES REFERRED TO:

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

Federal High Court (Civil Procedure) Rules 2009

Judgment (Enforcement) Rules

Sheriffs and Civil Process Act

Supreme Court Act