CORAM

---

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO  JUSTICE, COURT OF APPEAL

SIDI DAUDA BAGE  JUSTICE COURT OF APPEAL

FATAYI-WILLIAMS, CHIEF JUSTICE COURT OF APPEAL

---

PARTIES

---

1. FIRST CITY MONUMENT BANK PLC2. MR. TOYIN OGUNNAIKE  APPELLANTS

---

1. CHOICE FINISHING & FURNISHING2. MR. CHINEDU CHIGBU  RESPONDENTS

---

AREA(S) OF LAW

---

---

SUMMARY OF FACTS

The 1st Appellant who appointed the 2nd Appellant as the Receiver /Manager of the 1st Respondent has prayed to the Court to declare the appointment as valid and subsisting and also sought for a perpetual injunction restraining the Respondents from denying the 2nd Appellant access to the 1st Respondent place of business and other branches. The Respondents on the other hand claimed that the 1st Appellant availed a credit facility in the sum of N20,000,000.00 (Twenty million Naira) to the 1st Respondent, and Respondent secured the loan facility with his All Assets Debenture. Due to the Respondent failure to liquidate the debt, the 1st Appellant then appointed the 2nd Respondent as the Receiver/Manager of the 1st Respondent. The Respondents challenged the appointment on the ground that it was not incompliance with the provision of the Companies and Allied Matters Act, 1990 and also that the trial Court lacked jurisdiction. The trial court in its ruling held that it has jurisdiction to entertain the matter and also held that the appointment of the 2nd Appellant as the Receiver/Manager of the assets of the 1st Respondent was valid in law. The Court however ordered the 2nd Appellant to vacate the premises of the 1st Respondent and deliver possession of same to it and also to return to the 1st Respondent all sums of money collected in excess of the sum of N14, 752,345.39 owed the 1st Appellant. Dissatisfied, the Appellants has appealed to the Court of Appeal.

---

HELD

---

Appeal Allowed

---

ISSUES

---

Whether, by virtue of Order 25 Rules (1) and (2) of the Federal High Court Civil Procedure Rules 2000, the motion on notice dated 1st November, 2002 does not amount to a demurer and therefore incompetent?Whether the learned trial Court was right to have granted to the Respondents a relief in an interlocutory application which is final in nature and not based on the claim or counter claim?Whether by collecting sums in excess of N14, 752,345.39 the 2nd Respondent had breached the terms of his appointment?

---

RATIONES DECIDENDI

---

DEMURRERS- ABOLISHMENT OF DEMURRERS BY THE FEDERAL HIGH COURT ON ISSUE OF JURISDICTION

---

“Demurrers have been abolished in the Federal High Court such that if a defendant desires to raise a point of law, he must do so in his statement of defence. This does not however apply to issues of jurisdiction.” PER.C.E IYIZOBA, J.C.A

---

DEMURRER APPLICATION – DISTINCTION BETWEEN A DEMURRER APPLICATION AND A CHALLENGE OF JURISDICTION

---

“In the case of Arjay Ltd. V. Airline Management Support Ltd. (2003) 7 NWLR (Pt. 820) 577, the Supreme Court per Onu JSC drew a distinction between a demurrer application and a challenge of jurisdiction in the following words:
“I agree with the Appellants to the effect that the preliminary objection in question challenged the jurisdiction of the trial court to entertain the action. This is not a demurer application in which case there should be a statement of claim in place, the facts of which the Appellants would be required to admit before bringing their objection. I agree with the Appellants’ submission that there is a difference between an objection to the jurisdiction and a demurer. I also agree with them that an objection to the jurisdiction of the court can be raised at any time, even when there are no pleadings filed and that a party raising such an objection need not bring application under any rule of court and that it can be brought under the inherent jurisdiction of the court. Thus, for this reason, once the objection to the jurisdiction of the court is raised, the court has inherent power to consider the application even if the only process of court that has been filed is the writ of summons and affidavits in support of an interlocutory application, as in the case in hand.”
The principle is indeed trite and there are a plethora of authorities on the point. See for example SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR (PT1252)317; Akere & ORS V The Gov Of Oyo State & Ors (2012) LPELR-7806(SC);Kwara State Polytechinic Ilorin & Ors V Oyebanji (2007) LPELR-11829(CA); Nadukolu V Nkemdilim (1962) SCNLR 341; Obimonure V Erinosho(1966)1ALL NLR 250; SKENCONSULT V UKEY(1981)1 SC 6.” PER.C.E IYIZOBA, J.C.A

---

JURISDICTION- ISSUE OF JURISDICTION CAN BE RAISED AT ANY TIME AND IN ANY MANNER.

---

“Jurisdiction of the court to entertain a case can be raised at any point in time and in any manner whatsoever.” PER.C.E IYIZOBA, J.C.A

---

JURISDICTION-THE DEFENDANT NEED NOT FILE HIS STATEMENT OF DEFENCE BEFORE CHALLENGING THE JURISDICTION OF THE COURT.

---

“Where issue of jurisdiction is concerned, the defendant need not file his statement of defence before objecting.” PER.C.E IYIZOBA, J.C.A

---

CASES CITED

---

---

STATUTES REFERRED TO

---

The Companies and Allied Matters Act, Cap. 59, Laws of Nigeria, 1990.

1999 Constitution of the Federal Republic of Nigeria.

The Federal High Court Civil Procedure Rules 2009.

 

---

OTHER CITATIONS