Legalpedia Citation: (2024-09) Legalpedia 18511 (CA)

In the Court of Appeal

GOMBE

Wed Sep 25, 2024

Suit Number: CA/G/17/2024

CORAM

HON. JUSTICE A. A. B. GUMEL JCA

HON. JUSTICE U. A. OGAKWU JCA

HON. JUSTICE M. DANJUMA JCA

PARTIES

ISA ALI (Also known as “ALI ISAH”)

APPELLANTS

HON. VICTOR MELA

RESPONDENTS

AREA(S) OF LAW

CIVIL PROCEDURE, JURISDICTION, PRELIMINARY OBJECTIONS, PRACTICE AND PROCEDURE, APPELLATE JURISDICTION

SUMMARY OF FACTS

The Respondent filed a civil suit seeking declaratory reliefs, injunctions, and damages against the Appellant for alleged malicious prosecution and defamation of character. The Appellant filed a preliminary objection challenging the trial court’s jurisdiction, arguing that a pending application in Appeal No: CA/ABJ/PRE/CR/729MI/2022 made the suit an abuse of court process. The trial court dismissed the preliminary objection, leading to this appeal.

HELD

The Court of Appeal dismissed the appeal and affirmed the ruling of the trial court. The Court held that:

1. The trial court correctly exercised jurisdiction as the Appellant’s pending motion had not been served on the Respondent for about two years.
2. The Respondent’s preliminary objection to the appeal was dismissed as the ground of appeal raised a jurisdictional issue which can be raised at any time without leave.
3. The Appellant failed to show any substantial error, miscarriage of justice, or violation of legal principles in the trial court’s ruling.
4. The trial court’s findings represented the correct position of the law and required no interference from the appellate court.

ISSUES

Whether the trial court was right when it held that it has jurisdiction over Suit No: GM/58/2023 despite the pendency of Appeal No: CA/ABJ/PRE/CR/729MI/2022 ?

RATIONES DECIDENDI

FUNDAMENTAL NATURE OF JURISDICTION – IMPORTANCE OF JURISDICTION IN ADJUDICATION

“It is a rudimentary principle of law that the jurisdiction of a court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision.” – Per Ali Abubakar Babandi Gumel, J.C.A.

PURPOSE OF PRELIMINARY OBJECTION – EFFECT OF SUCCESSFUL PRELIMINARY OBJECTION

“The purpose of a preliminary objection to an appeal is to bring forth the effect or incompetence of an appeal. So, where the preliminary objection is sustained, the appeal ought not be heard, but where it was heard already, it should not be considered on the merit, because a successful preliminary objection to an appeal terminates or aborts the consideration of the appeal on the merit.” – Per Ali Abubakar Babandi Gumel, J.C.A.

JURISDICTION RAISING JURISDICTIONAL ISSUES

TIME FOR RAISING JURISDICTION: “What is in issue in the preliminary objection is that of jurisdiction which can be raised at any stage of the proceedings even on appeal up to the Supreme Court and in that regard it is not mandatory that leave of court be obtained before the issue of jurisdiction can be raised.” – Per Ali Abubakar Babandi Gumel, J.C.A.

PRACTICE AND PROCEDURE NOTICE OF APPEAL – REQUIREMENTS FOR VALID NOTICE OF APPEAL

“Where the Appellant’s Notice of Appeal contained reliefs sought in compliance with Order 7 Rule 2 of the Court of Appeal Rules, 2021, the appeal becomes valid and competent and the reliefs become grantable.” – Per Ali Abubakar Babandi Gumel, J.C.A.

UNCONTROVERTED AFFIDAVIT EVIDENCE – EFFECT OF FAILURE TO COUNTER AFFIDAVIT

“The law is trite that where a party fails to counter affidavit of evidence of the opposing party, the deposition therein are deemed to be true and correct position of the issue(s) so deposed to.” – Per Ali Abubakar Babandi Gumel, J.C.A.

PRACTICE AND PROCEDURE INTERFERENCE WITH TRIAL COURT’S FINDINGS – GROUNDS FOR APPELLATE INTERVENTION

“The Appellant had not shown any substantial error apparent therein, any miscarriage of justice or violation of some principles of law or procedure warranting that the said finding be set aside by this court.” – Per Ali Abubakar Babandi Gumel, J.C.A.

ABUSE OF PROCESS ABUSE OF COURT PROCESS – DETERMINATION OF ABUSE OF PROCESS

“With the Plaintiff/respondent’s counter affidavit standing unchallenged and undisputed it goes without saying that the hearing of the Plaintiff/Respondent’s suit cannot be on a head collision with the defendant/applicant’s motion on notice.” – Per Ali Abubakar Babandi Gumel, J.C.A.

JURISDICTION GROUNDS OF APPEAL ON JURISDICTION – LEAVE REQUIREMENT

“A ground of appeal which raises the issue of jurisdiction does not necessarily have to relate or flow from the decision against which the appeal lies. This is because jurisdiction is the soul of adjudication.” – Per Ali Abubakar Babandi Gumel, J.C.A.

PRACTICE AND PROCEDURE RELIEFS IN NOTICE OF APPEAL – NATURE OF APPELLATE RELIEFS

“The reliefs this court is urged to grant are the reliefs contained in the Notice of Appeal and not the reliefs as claimed at the trial court.” – Per Ali Abubakar Babandi Gumel, J.C.A.

JURISDICTION JURISDICTION AS THRESHOLD ISSUE – FUNDAMENTAL NATURE OF JURISDICTION

“Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. It has variously been described as the life blood, the life wire, the fiat, the stamp of authority which necessarily enures to the Court or Tribunal and empowers it to adjudicate.” – Per Ali Abubakar Babandi Gumel, J.C.A.

PRACTICE AND PROCEDURE SERVICE OF COURT PROCESSES – EFFECT OF NON-SERVICE

“It is clear that the said Appellant’s Motion has not been served on the Respondent till date. This is now about 2 years after same was filed.” – Per Ali Abubakar Babandi Gumel, J.C.A.

PRACTICE AND PROCEDURE GROUNDS OF APPEAL – COMPETENCE OF GROUNDS OF APPEAL

“The Notice of Appeal which is found at pages 1090-1095 Vol. 2 of the Record of Appeal has a sole ground which raised a jurisdictional issue.” – Per Ali Abubakar Babandi Gumel, J.C.A.

PRACTICE AND PROCEDURE PRELIMINARY OBJECTIONS – DETERMINATION OF PRELIMINARY OBJECTIONS

“Logic demands that before we go into the substantive appeal, we first consider the Respondent’s Preliminary Objection.” – Per Ali Abubakar Babandi Gumel, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Court of Appeal Rules, 2021
   

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