AMANA V. IGALA AREA TRADITIONAL COUNCIL & ORS
March 26, 2025OKUNOLA TAIWO V. FEDERAL REPUBLIC OF NIGERIA
March 26, 2025Legalpedia Citation: (2022-04) Legalpedia 91471 (SC)
In the Supreme Court of Nigeria
Fri Apr 8, 2022
Suit Number: SC.178/2015
CORAM
OLUKAYODE ARIWOOLA
EJEMBI EKO
UWANI MUSA ABBA AJI
MOHAMMED LAWAL GARBA
ADAMU JAURO
PARTIES
MISS LUCIA TAIWO ADEYEMI & 3 ORS.
APPELLANTS
V. O. ACHIMU/NDIC (ASSURANCE BANK NIGERIA LIMITED) & 2 ORS
RESPONDENTS
AREA(S) OF LAW
ACTION, APPEAL, COURT, JURISDICTION PRACTICE AND PROCEDURE, STATUTE
SUMMARY OF FACTS
This appeal is against the judgment of the lower Court which affirmed the judgment of the Federal High Court wherein the Appellants’ application to set aside the judgment of the defunct Failed Banks Tribunal in suit No. FBT/11/KN/CV/22/98 was refused. On the 20th of April, 1999, the Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Tribunal sitting at Kano, (the Tribunal) established by the Failed Banks Decree No. 18 of 1994 (Decree 18) entered a default judgment against the late father of the Appellants; Michael Babatunde Adeyemi, and two (2) other defendants in suit No. FBT/11/KN/CV/22/98. Thereafter, the Tribunal was dissolved by the Tribunals (Certain Consequential Amendments, E.T.C) Decree No. 62 of 1999 (Decree 62) which also vested jurisdiction in the Federal High Court to, among others, hear part-heard matters pending before the Tribunal, try the offences created under the enactments specified in the schedule to the Decree and enforce any order, remand, decision or judgment made by the Tribunal; which were preserved thereunder, in accordance with the procedure of the Tribunal.
On the ground that he was not served with the initiating or any processes relating to the suit, the late Mr. Adeyemi filed a Motion before the Federal High Court, Kano (trial Court) on 30th December, 1999 for orders to set aside the judgment of 20th April, 1999 and the writ of attachment and sale of his property in execution of the said judgment. Before the said motion was determined, Mr. Adeyemi died and the present Appellants were substituted and eventually, another motion of 30th June, 2006 for similar reliefs was filed and argued by the Appellants before the trial Court. In a ruling delivered on the 25th of May, 2007, the trial Court dismissed the Motion on the ground of lack of jurisdiction and being dissatisfied with that decision, the Appellants filed the appeal before the Court of Appeal, Kaduna Division, (Court below). In reaction to the said appeal, the 1st Respondent (herein) filed a preliminary objection on the 25th of June, 2014 challenging the competence of the appeal. Relying on the decision of this Court in Arewa Paper Converters Ltd. v. N.D.I.C. (supra) the Court below, in a judgment delivered on 16th January, 2015, upheld the objection and held that the Federal High Court lacked jurisdiction and vires to entertain and determine the application of the appellants before it.
Being dissatisfied with the decision by the Court below to dismiss their appeal before it, the Appellants brought this further appeal.
HELD
Appeal struck-out
ISSUES
1.Whether considering the facts of the case of Arewa Paper Converters v. N.D.I.C (2006) 7 SCNJ 457 and the Failed bank (Recovery debts and Financial Malpractices in Banks) Decree 1994 as amended the lower Court was justified when it applied the ratio in the case of Arewa Paper Converters V. N.D.I.C. and held that the appellants were served with the Court processes and therefore bound by the judgment of the Tribunal-Issues 1, 2 and 3 of the appellants’.
2.Whether in the circumstances of this case the judgment of the lower Court delivered in chambers is a nullity.
3.Whether the judgment of the lower Court delivered on 16/1/2015 when the Judiciary Staff Union of Nigeria was on strike as a nullity.
RATIONES DECIDENDI
JURISDICTION – WHETHER A PRELIMINARY OBJECTION CHALLENGING THE JURISDICTION OF A COURT MUST BE DETERMINED FIRST
“Due to the known fundamental and crucial nature of the issue or question touching on the jurisdiction of a Court, generally, to adjudicate over a case or matter, and the appellate Courts, to entertain and adjudicate over appeals, which is said to be both intrinsic in and extrinsic to judicial proceedings, the law prescribes that whenever it arises or is raised in the course of such proceedings (as all stages or steps of the judicial ladder), the Court before which it arises or is raised has the duty and obligation to consider and determine it first before proceeding with other issues or taking further steps in the case/appeal, if necessary. See Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNL 296, Kotoye v. Saraki (1993) 5 NWLR (pt. 296) 710, Odofin v. Agu (1992) 3 NWLR (pt. 729) 350, Bakare v. A.G. Federation (1990) 5 NWLR (pt. 152) 516, NDIC v. CBN (2002) 7 NWLR (pt. 766) 271, Kalio v. Daniel-Kalio (1975) 2 SC, Salati v. Shehu (1986) 1 NWLR (pt. 15) 198.
An objection questioning or challenging the competence of an action/matter or appeal, as the case may be, goes to also attack or question the judicial power and authority of the Court, i.e. the requisite jurisdiction or vires in law, of the Court, to adjudicate over the action/matter or appeal, on the merit, and so seeks to terminate it in limine. For that reason, it is prudent to first deal with and make a pronouncement on it before further steps are taken (if necessary) in the action/matter or appeal.
In the case of Efet v. INEC (2011) 7 NWLR (pt. 1247) 423 the law was restated by I.T. Muhammad, JSC (now CJN) that: –
“It is trite law that where a Notice of Preliminary Objection is filed and moved before a Court of law, the Court is duty bound to consider the Preliminary Objection before venturing into the main appeal or cross-appeal, as the case may be. See AGBAREH & ANR v. MIMRA & ORS (2008) 1 SCNJ 24; ONYEMEH & ORS. v. EGUCHUSAM & ORS (1996) 4 SCNJ 235.”
See in addition, A.G. Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (pt. 618) 187, NWLR (pt. 77) 157, Odu v. Agbor-Hemeson (2003) 1 NWLR (pt. 802) 624, GBARABE v. REG. T.M.C.N. (2009) LPELR-8378, All States Trust Bank v. King Davidson Ent. Ltd. (2000) 12 N WLR (pt. 680) 298, Uba v. Yawe (2000) 8 NWLR (pt. 670) 739, Abiola v. Olawoye (2006) 13 N WLR (pt. 996) 1, wherein the position of the law was repeatedly stated.”- Per GARBA, JSC
PRELIMINARY OBJECTION – PURPOSE OF A PRELIMINARY OBJECTION
“In General Electric Co. Ltd. v. Akande (2010) 18 NWLR (pt. 1225) 596, (2010) LPELR- 9356 (SC), Rhodes-Vivour, JSC, had stated that: –
“Order 2 Rule 9 of the Supreme Court Rules allows a respondent to rely on a preliminary objection to the hearing of the appeal. The purpose being to bring the hearing of the appeal to an end for being incompetent or fundamentally defective, consequently, a successful preliminary objection terminates the appeal. On being served with a preliminary objection, the appellant is expected to respond in a reply, reply brief. See Ogidi v. Egba (1999) 1 NWLR (pt. 621) page 42.”
Again, in Efet v. INEC (supra), Muhammad, JSC (now CJN) speaking on the purport of a preliminary objection, said: –
“The aim/essence of a preliminary objection is to terminate at infancy, or as it were, to nip it at the bud without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, foreclose hearing on the matter in order to save time.”
See Vaso v. Arewa Construction Ltd. & Ors. (2007) 6 SCNJ 416. See also SPDCN Ltd. v. Amadi (2011) LPELR-3204 (SC), Adelekan v. Eculine N. (2006) 12 NWLR (pt. 993) 33.
In these premises therefore, a preliminary objection to the hearing of an appeal filed pursuant to the provisions of Order 2, Rule 9(1) of the Rules of this Court is directed and targeted at preventing the hearing, consideration and determination of the appeal on the merit on the ground/s that it does not meet or satisfy and so is not supported by provisions of the relevant law; substantive or procedural, to be rendered fundamentally defective and therefore incompetent. It is meant to avoid embarking on hearing/conduct of judicial proceedings that may turn out, eventually, to be an exercise in futility because the appeal is incompetent and thereby, in consequence, robs the Court of the requisite jurisdiction to adjudicate over it.” Per GARBA, JSC
PRELIMINARY OBJECTION – MEANING OF PRELIMINARY OBJECTION – WHEN CAN A QUESTION OF JURISDICTION BE RAISED
“A Notice of Preliminary Objection to the hearing of an appeal (or any action/matter) is a preemptic and pro-active step taken by a Respondent to the appeal to forestall the hearing on the merit because it offends or violates the law in a fundamental way so as to render it legally defective and not permitted by the law. Since, as stated and shown earlier, a challenge to the competence of an appeal goes to and affects the competence and jurisdiction of the appellate Court to adjudicate over the appeal, because competence is one of the essential elements of jurisdiction, the law permits and allows that the challenge, question or issue may and can be raised at any stage of the proceedings of the appeal either by the parties or the Court on its own motion, i.e. suo motu. See Madukolu v. Nkemdilim (1962) 2 SCNJ l, R, 341 Ogbuanyinya v. Okudo (1979) 6-9 SC, 32, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 7 SC, 158, U. D. U. S. v. Kraus Thompson Org. Ltd. (2001) 15 NWLR (pt. 376) 305, Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 46.” – Per GARBA, JSC
JURISDICTION – COMPETENCE OF AN OBJECTION TO THE RAISING OF A PRELIMINARY OBJECTION
“The issue questioning or challenging the competence of an appeal, and as a matter of judicial course, involves and attacks the jurisdiction of the Appellate Court to adjudicate over the appeal on the merit, is one that defies any formality or technical procedure as it can be raised at any stage of the proceedings, anyhow; i.e. in writing or verbally/orally and by one of the parties or the Court in its own motion, as stated above. Obaseki, JSC, speaking for this Court in the case of Captain Chacharos v. Ekimpex Ltd. (1988) 1 SC, 161, (1988) 1 NWLR (pt. 68) 88, had said that: –
“The issue of jurisdiction is one that escapes the checks and balances and indeed, the rigid rules of pleadings. It can be raised at any stage of proceedings either in the Court of 1st instance or on appeal and if successful, brings the proceedings to an end.”
The position was restated and affirmed by the Court in the latter case of Military Governor, Ondo State v. Kolawole (2008) 5 SCNJ, 37, that: –
“…by whatever name or under any shade, the issue of jurisdiction can be raised at any stage. It can be raised viva voce or the Court can raise it suo motu.”
Then, in the famous case of State v. Onagoruwa (1992) 2 SCNJ, 1, it was stated that: –
“It is never too late or premature to raise the issue of jurisdiction of the Court to entertain an action/matter and once raised, it should be settled first.”
In addition, see Akegbe v. Ataga (1998) 1 NWLR (pt. 534) 459, 3rd Eye Comm. Ltd. v. Ishola (1999) 2 NWLR (pt. 592) 549 of 551, Amadi v. NNPC (2000) 6 SC, (pt. 1) 66, Ejiofodomi v. Okonkwo (1982) 11 SC, 74, Nuhu v. Ogele (2003) 12 SC (pt. 1) 732, (2003) 18 NWLR (pt. 852), NNPC v. Orhiowasele (2013) 13 NWLR (pt. 1371) 211, Hamzat v. Sanni (2015) 5 NWLR (pt. 1453) 486, Boko v. Nungwa (2019) 1 NWLR (pt. 1654) 395.
The mere fact that the issue of jurisdiction of the trial Court to entertain and adjudicate over the Appellants’ application, in this appeal, is the fulcrum of the appeal, does not prevent the challenge to the competence of the appeal by way of a preliminary objection and rather than being an abuse, it is a prudent procedure for dealing with the appeal holistically and comprehensively since the same issue of jurisdiction is the substratum of both the appeal and the objection. With the respect due to the learned SAN for the Appellants, the three (3) cases of CPC v. INEC (supra), Ajayi v. Adebiyi (supra) and Kwashi v. Pusmut (supra) relied on for the submission on the propriety of a preliminary objection which raises same issues as in the appeal, are not apposite in the present appeal for the simple but, very crucial and fundamental fact, that the objections in those cases did not go to challenge or question the jurisdiction of the trial Courts to entertain and adjudicate on the actions and appeals in question. On that basis, the Courts did not find it appropriate to consider the objections before determination of the appeals since their jurisdiction to entertain and adjudicate over the appeals on the merit, was not questioned or challenged by the objections raised therein, unlike in this appeal.”- Per GARBA, JSC
PRELIMINARY OBJECTION – WHETHER AN OBJECTION CAN BE RAISED TO A PRELIMINARY OBJECTION
“The above position apart, and as it is, raising an objection to an objection is an aberration, strange, alien and a total misconception because it is not supported and is not supportable by any established and accepted principles of procedure and practice in our judicial jurisprudence. It is wanting in and lacks legal basis to be a cognisable judicial process. Manson v. Halliburton Energy Services Ltd. (2007) 2 NWLR (pt. 1018) 211, 227-8, Ojo v. A. G. Oyo State (2008) 15 NWLR (pt. 1110) 309 at 312, Kolawole Ind. Ltd. v. A.G. Federation (2011) LPELR-9096. The objection to the preliminary objection by the Appellants is liable to be and is discountenanced.” – Per GARBA, JSC
JURISDICTION – WHAT DETERMINES THE JURISDICTION OF A COURT
“The learned counsel for the 1st Respondent is right, for the law is firmly settled, that the jurisdiction of any Court established by law; including the Constitution, is expressly vested or conferred by the law or the Constitution, as the case may be, under or by which it was established and/or any other relevant statute. Hon. Justice D. D. Adekeye, JSC, in the lead judgment of this Court, in Hon. Egharevba v. Hon. Eribo & Ors. (2010) 9 NWLR (pt. 1199) 44, (2010) LPELR – 9716 (SC) at 23, stated the law that:-
“Under the Nigerian Legal System, Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts — they also cloak the Courts with the powers and jurisdiction of adjudication. If the Constitution, Decrees, Act, Laws and Edicts do not grant jurisdiction to a Court or Tribunal, the Court and parties cannot by agreement endow it with jurisdiction. As no matter how well and properly conducted the proceedings, once there is a defect in competence, it is a nullity and an exercise in futility. Moreover, since Courts are creatures of statutes, their jurisdiction is therefore confined, limited and circumscribed by the statutes creating them. A statute creating it.”
See also Adetayo v. Ademola (2010) 15 NWLR (pt. 1215) 16, (2010) LPELR — 155 (SC), where Mahmud Mohammed, JSC (later CJN) speaking for the Court, re-stated that:
“The law is trite that the jurisdiction of any Court is derived from the statute creating the Court or from any other statute specifically conferring such jurisdiction on the Court. The fundamental nature of jurisdiction is that it does not exist in a vacuum because all Courts of law derive their power, authority and therefore jurisdiction either under the Constitution or under specific statutes. See Lekwot v. Judicial Tribunal (1997) 8 NWLR (pt. 515) 22. In this respect, no Court can assume jurisdiction in the absence of having been constitutionally or statutorily empowered to do so.”
See also Okolo v. Union Bank of Nigeria Ltd. (2004) 1 SC (pt. 1) 1, (2004) 3 N WLR (pt. 859) 87, A.G., Rivers State v. A.G. Akwa Ibom State (2011) 8 NWLR (1248) 31.
The jurisdiction of a Court to entertain and adjudicate over a matter, action or appeal, as the case may be, is therefore, a matter of strict and hard law which can neither be presumed nor acquiesced to by parties or assumed by the Court without express provisions of the relevant statutes vesting or conferring same. The Hon. Justice Niki Tobi, JSC in the case of Onwudiwe v. FRN (2006) 4 SC (pt. 11) 70, (2006) 10 NWLR (pt. 988) 382, stated the law, in his usual erudition, that: –
“A party cannot beg or bargain jurisdiction into a matter before a Court of law; so too the reverse party cannot beg or bargain jurisdiction outside or out of the matter. Jurisdiction is an exact law that has to be applied exactly to any given case. It is either that a Court has jurisdiction in a matter or it has not. There is no halfway to this straight and unambiguous law. To that extent, jurisdiction looks almost like an exact formula in calcidus, although it is devoid of actual figures and numbers.
See also Basinco Motors Ltd. v. Woermann-Line (2009) 13 NWLR (pt. 1157) 149 LPELR-756 (SC). In the same vein, neither the parties to an action nor the Court can expand the parameters and/or limits of the jurisdiction specifically vested or conferred on it by the statutes. See A.G., Bendel State v. Aideyan (1989) SC, 127, SPDCN, Ltd. v. Isaiah (2001) 5 SC (pt. 11) l, (2001) 11 NWLR (pt. 723) 168, Oloruntoba-Oju v. AbdulRaheem (2009) 13 NWLR (pt. 1 157) 83, (2009) LPELR-2596 (SC).” – Per GARBA, JSC
JURISDICTION – ON WHEN A COURT HAS JURISDICTION TO ENTERTAIN A MATTER
“The law is now generally common knowledge that a Court is said to have jurisdiction to adjudicate over a matter when the following requirements are met or satisfied, together, on the authority of Madukolu v. Nkemdilim (2002) SCNLR, 341, (1962) 1 All NLR, 162: –
(a)It is properly constituted as to the numbers and qualifications of its members and no member is disqualified for any cognizable reason;
(b)The subject matter in the action is within its jurisdiction and there is no feature in the action which prevents it from exercising the jurisdiction; and
(c)The matter is brought and comes before the Court by due process of the law upon fulfilment of all conditions precedent to the exercise of its jurisdiction.
The law remains that where any of the aforenamed requirements is not met or satisfied, a Court cannot properly assume jurisdiction over a matter and conduct valid judicial proceedings in law. Skenconsult v. Ukey (1981) 1 SC, 6, A.G. Lagos State v. Dosunmu (1989) 3 NWLR (pt. 111) 552, Tukur v. Govt. of Gongola State (1989) 4 NWLR (pt. 117) 517, State v. Onagoruwa (1992) 2 SCNJ, 1, (1992) 1 NWLR (pt. 221) 33, stating and restating the principle established in Madukolu v. Nkemdilim.” – Per GARBA, JSC.
DOCTRINE OF STARE DECISIS/JUDICIAL PRECEDENCE – MEANING, NATURE AND PURPOSE OF THE DOCTRINE OF STARE DECISIS – HOW THE DOCTRINE OF STARE DECISIS IS APPLIED
“The principle of doctrine of “stare decisis” in our judicial jurisprudence, is a Latin phrase of a common law origin and it simply means “follow what has been decided” or “stand with what has been decided”, as a cardinal principle in the administration of justice that like cases should be decided alike. It is known that the facts of a case are very rarely, if at all, exactly the same with those of another case and so the principle does not require that the facts of two (2) cases must be exactly the same before it is applied. Infinitesimal, peripheral, inarticulate and minor differences in facts of two (2) cases do not hinder or prevent the application of the principle as the determinant factor is that the facts of a previous case are substantially and materially identical and similar to those of a latter case which calls for the application of the principle. In Adetoun Oladeji Nig. Ltd. v. N. B. PLC, (2007) 7 NWLR (pt. 1027) 415, Hon. Justice Niki Tobi, JSC, had put the position thus, at page 436: –
“It is the submission of learned counsel for the appellant that the Court of Appeal wrongly followed the decision of this Court in Mobil Oil (Nig.) Ltd. v. Akinfosile (supra). Counsel enumerated what he regarded as differences in paragraphs 4.24 and 4.25 of the appellant’s brief. At times when counsel distinguish cases to the minutest and infinitesimal way they do. I chuckle. While I can hardly blame them, considering their professional sentiments for the case of their clients, some of the distinctions are without distinction or deference. Factual distinctions or differences in cases can only avail a party when they are germane or material to the stare decisis of the case. I say this because stare decisis which means to abide by or adhere to decided cases, as a policy of Court to stand by precedent, is based on a certain state of facts which are substantially the same and here the word is substantial. This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without the unimportant details. This also means that the facts need not be on all fours in the sense of exactness or exactitude.
And I must say here that there can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis which has been built by the judicial system over the years does not say that the facts must be exactly the same. And so there could be inarticulate differences which will not necessarily be a poison in or to the application of the doctrine. One major criterion in the determination of the matter is that the fact of the previous case are major, substantial, and material to the facts of the current case begging for the application of the previous case.”
With respect to the Learned Senior Counsel for the Appellants, all he attempted to do in the arguments on the differences between the facts in Arewa Paper Converters Ltd. v. N.D.I.C. and the facts in Appellants’ case is to create a difference without distinction, a peripheral difference without substance for the purpose of the application of the principle or doctrine of stares decisis or judicial precedent as firmly established by the above judicial authorities.
See also Ogbu v. Urum (1981) 4 SC, 7, Eperokun v. University of Lagos (1986) 4 NWLR (pt. 34) 162, State v. Ilorin (1989) 7 SCNLR, 94, 2 SC, 155. The law is settled that the application of the principle of stare decisis and adherence to judicial precedence by the Courts is one aspect of judicial policy which provides for and ensures an orderly, certain, consistent and reliable development of legal rules in the administration of justice. The application or use of the doctrine or principle of stare decisis or judicial precedence is an indispensable tool in the determination of what the law is and attainment of certainty in the law at any given moment, which cannot be over-emphasized. By the doctrine or principle, since the facts of the Arewa Paper Converters Ltd. v. N.D.I.C. are substantially identical and similar to those in the Appellants’ case, the Court below was not only right, but had the judicial obligation and duty to follow and apply it in the Appellants’ case. See R.E.A.N. Ltd. v. Aswain Text Ind. Ltd. (1991) 2 NWLR (pt. 176) 639, Atolagbe v. Awuni (1997) 7 SCNJ, 1 at 20 and 24, Olufeagba v. Abdul-Raheem (2009) 18 NWLR (pt. 1173) 384 at 442, Osakue v. F.C.E. (Technical) Asaba (2010) 2-3 SC (pt. 111) 158 at 180-181, Lead Merchant Bank Ltd. v. P. (special) T.F. (2006) 5 NWLR (pt. 974) 463.”- Per GARBA, JSC
TRIBUNALS (CERTAIN CONSEQUENTIAL AMENDMENTS, ETC.) DECREE NO. 62 OF 1999 – WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO SET ASIDE A FINAL JUDGMENT OF THE FAILED BANKS TRIBUNAL
“This Court in the case of Arewa Paper Converters Ltd. v. N.D.I.C., considered and applied the provisions of Sections 2 and 3 of Decree 62 in the determination of the preliminary objection to the jurisdiction of the Federal High Court to adjudicate over the application to set aside the judgment of the Tribunal, just as in the Preliminary Objection raised by the 1st Respondent herein. The provisions are as follows: –
“2 (1) The Federal High Court or the High Court of a State, as the case may be, shall have jurisdiction to try the offences created under enactments specified in the Schedule to this Decree.
(2) Accordingly, a Tribunal established in any of the enactments specified in the Schedule to this Decree is hereby dissolved.
(3) A charge, claim or Court process filed before a Tribunal established under any of the enactments specified in the schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a State, as the case may be and such charge, claim and Court process shall be deemed amended as to title, venue, and such other matter as may be appropriate to give effect to this sub-section without further assurance than this Decree.
(4) Any order, remand, decision or judgment made by a Tribunal before the commencement of this decree is hereby preserved.
(5) A decision or judgment of a Tribunal made before the commencement of this Decree shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of the Decree.
(6) Where before the commencement of this Decree, a matter has been concluded in a Tribunal and the Tribunal was for any reason whatsoever unable to deliver the judgment, the Judgment may be delivered by a Judge of the Federal High Provided that the judgment shall have been written.
3 (1) Where any part heard matter is pending before any Tribunal on the date of the making of this Decree, the Judge:
(a)may, if the parties to the proceeding agree in a civil cause, adopt the proceedings of the Tribunal concerned;
(b)shall, in a criminal case, try the matter de novo pursuant to this Decree.
(2) All new proceedings shall be brought before the Court in accordance with the rules of procedure of the Court concerned.”
As can easily be observed, the provisions are plain, clear, simple and in straightforward language to be entitled to be ascribed their ordinary meanings devoid of ambiguity in their construction as prescribed and established by a legion of pronouncements of this Court.
See Abioye v. Yakubu (1991) 6 SC, 72, (2019) 5 NWLR (pt. 190) 130, Egbe v. Alhaji (1990) 3 SC (pt. 1) 63, (2009) 1 NWLR (pt. 128) 546, Nigercare Dev. Co. Ltd. v. Adamawa State Water Board (2008) 2-3 SC (pt. II) 202, (2008) 9 NWLR (pt. 1093) 498, A.G. Federation v. Abubakar (2007) 6 SC (pt. II) 62, (2007) 10 NWLR (pt. 1041) 1, Udoh v. O.H.B. (1993) 7 SCNJ, 244, (1993) 1 NWLR (pt. 304) 139.
The provisions of Sections 2(1) vest jurisdiction on the Federal High Court to try the offences created under the enactments specified in the schedule to the Decree, which included offences under Decree 18, hitherto triable by the Tribunal which was dissolved by the provisions of Sub-section (2) of the Section. By the provisions of Sub-section (4), any order, remand, decision or judgment made by the Tribunal before the commencement of the Decree was preserved and shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of the Decree, as provided for in Sub-section (5). Sub-section (6) on its part, permits that a written, but undelivered judgment or decision of the Tribunal before the commencement of the Decree and its dissolution, be delivered by a Judge of the Federal High Court or the High Court of a State, as the case may be. Here the authority, power and jurisdiction vested in or conferred on a Judge of the Federal High Court or the High Court of a State; as the case may be, over a concluded matter by the Tribunal in which a judgment was written, but was not delivered by the Tribunal before the commencement of the Decree, was to simply deliver the said undelivered judgment of the Tribunal, which was preserved by the provision of Sub-section (4) and to be enforced in accordance with the procedure or law relating to enforcement of a judgment of the Tribunal before the commencement of the Decree, as stipulated in sub-section (5). It can easily be discerned from the community purport of the provisions in Section 2(2), (3), (4), (5) and (6), that the jurisdiction vested and conferred on the Federal High Court is to: –
(a)deliver a written judgment made by the Tribunal in a concluded matter, but which was not delivered by the Tribunal before the commencement of the Decree; and
(b)to enforce the judgment of the Tribunal in a concluded matter which was duly delivered by it and a written judgment which was not delivered by the Tribunal before the commencement of the Decree, but delivered by the Federal High Court in line with the provisions in Sub-section (6).
Clearly, the provisions in Section 2 (2), (3), (4), (5) and (6) of the Decree do not vest in the Federal High Court, the power, authority and jurisdiction to conduct valid proceedings in respect of or over the judgment/decision of the Tribunal delivered by it in a concluded matter before the commencement of the Decree, except to enforce such a judgment in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before commencement of the Decree. Specifically, the provisions do not confer on the Federal High Court, jurisdiction to entertain and adjudicate over proceedings which seek to question, challenge, attack the said judgment of the Tribunal on ground/s of any error/s; whether of law or facts which go to the validity of the judgment or any determined rights/obligations decided or determined therein. I have restated the law elsewhere before now, that the issue of jurisdiction of a Court of law to entertain and adjudicate over a case is a matter of hard law to be expressly conferred or vested in the Court before it can properly be assumed and exercised. See Nig. Reinsurance Corp. v. Cudjoe (2008) All FWLR (pt. 414) 1455.
A judgment delivered by the Tribunal in a concluded matter or a written judgment of the Tribunal which was not delivered before the commencement of Decree 62, is not a judgment of the Federal High Court over which it possesses the requisite jurisdiction to adjudicate and set aside on any alleged error therein. The judgment of the Tribunal in a concluded matter was/is preserved as an extant judgment of the Tribunal under the provisions of Section 2(4) which could only have been properly set aside either by the Tribunal itself or on appeal, by the Special Appeal Tribunal pursuant to the provisions of Section 5 (1) of Decree 18. Section 5(2) of the Decree 18 provides that: –
“The decision of the Special Appeal Tribunal shall be final, and, where there is no appeal, the decision of the Tribunal shall be final.”
By these express and unambiguous provisions, where an appeal was filed against the decision/judgment of the Tribunal, in a concluded matter, at the Special Appeal Tribunal, the decision of the Special Appeal Tribunal is respect of the appeal, shall be final.
Where however, there was no such appeal against the decision/judgment of the Tribunal filed in accordance with the requirements of the Decree 18, the decision/judgment of the Tribunal in a concluded matter, shall be final. In the Appellants’ case, there was no appeal to the Special Appeal Tribunal filed against the decision/judgment of the Tribunal in question, as provided for in Section 5 (1) of the Decree, before the commencement of Decree 62. Consequently, the decision/judgment remains final and extant as a decision of competent Tribunal or Court of law by virtue of the provisions of Section 5(2) of Decree 18 and from the 29th of May, 1999 when Decree No. 62 came into force. I shall emphasize that by dint of the provisions of Section 5 (2) of Decree 18 and the commencement of Decree 62, a decision/judgment of the Tribunal in a concluded matter is not only final, but extant and sacrosanct, as a decision of a competent Court of law, and cannot be interfered with or set aside by any Court of law, including the Federal High Court, in the absence of express provisions of the law vesting the requisite power and authority or jurisdiction on it to do so. The law does not permit or allow a Court to arrogate and vest itself the jurisdiction, that is not statutorily conferred on it over a matter. A.G., Lagos State v. Dosunmu (1989) 20 NSCC (pt. II) 545, (1989) 3 NWLR (pt. 111) 552, Ms. N.V. Scheep v. the M.V “S Araz’ (2000) 12 SC (pt. 1) 64, Lufthansa Airlines v. Odiese (2006).
In respect of a decision/judgment in a concluded matter which was delivered by the Tribunal or written but not delivered before the commencement of Decree 62, the only jurisdiction vested in a Judge of the Federal High Court is to deliver the written but undelivered judgment under Section 2 (6) and in the Federal High Court; to enforce the judgment as provided for in Sub-Section (5) of the same Section.
Then, as shown above, Section 3 of Decree 62, vested jurisdiction, specifically, on the Federal High Court in respect of part-heard matters before the Tribunal which were to be continued by it, adopting the proceedings of the Tribunal, if the parties in civil causes agree and to try the matter de novo, in a criminal case, as provided in Sub-section (1). Sub-Section (2) stipulates that all new proceedings on cases/matters triable by the Tribunal before the commencement of the Decree shall be brought before the Federal High Court in accordance with its rules of procedure.
The provisions of Section 3 are clearly not relevant to the Appellants’ case since it is/was not a part-heard matter, but involves a decision/judgment delivered by the Tribunal in a concluded matter before the commencement of Decree 62. The Appellants’ case is/was, also not “new proceedings” brought in the Federal High Court in accordance with its Rules.
This Court in the Arewa Paper Converters Ltd. v. N.D.I.C. case, comprehensively considered and emphatically determined the application of the provisions of Sections 2 and 3 of Decree 62 and Section 5 of Decree 18 to the judgment of the Tribunal in a concluded matter delivered before the commencement of Decree 62 and whether the Federal High Court has the jurisdiction to entertain and adjudicate over an application to set it aside on any ground, by a party thereto.
The conclusion decisively reached by the Court, in the lead judgment by Mohammed, JSC, was, inter alia,
“in other words, the case of the Appellant having been instituted, heard and determined by the Failed Banks Tribunal under the Failed Bank Decree No. 18 of 1994, before the amendment to divest the Tribunal of its jurisdiction, the appellant cannot now come before the Federal High Court which had taken over jurisdiction of the Tribunal with effect from 28th May, 1999 for any relief. This is because the right and obligation of the parties in this case had been effectively determined by the Tribunal under the repealed provisions of Decree 18 of 1994.
“When this situation, the Federal High Court has no jurisdiction to hear the application filed by the appellant which formed the basis of this appeal. Following this ouster of the jurisdiction, the judgment of the Failed Bank Tribunal against it being a judgment of a Court of competent jurisdiction against which there was no appeal, subsists. The rights created, preserved or determined in that judgment remain valid until set aside. However, the trial Federal High Court by virtue of the provisions of Decree No. 62 of 1999, is incompetent to vary and/or reject rights thus established by the Court of competent jurisdiction namely, the Failed Banks Tribunal. This means even if there were some errors in the judgment of the Tribunal against the appellant, it is for the competent Court to which an appeal lies against the judgment, in this case, the Special Appeal Tribunal, to correct it or so declare. The result of the proceedings undertaken in the absence of jurisdiction by the trial Court is of course obvious as the law on the situation is trite.”
This decision by the Court on the jurisdiction of the Federal High Court to entertain an application to set aside a judgment delivered in a concluded matter by the Failed Banks Tribunal before the commencement of Decree 62, is not only apposite but precise to apply to the Appellants’ application to the trial Court (Federal High Court) for an order to set aside the judgment of the Tribunal in question.
As demonstrated earlier, the material and relevant facts in the Appellants’ case and those in Arewa Paper Converters Ltd. v. N.D.I.C. are substantially similar and identical to ground and warrant the application of the principle or doctrine of stare decisis or judicial precedent by the Court below. The Court below was therefore “firma terra” i.e; on firm terrain of the law, and so right, to have relied on and followed the decision in Arewa Paper Converters Ltd. v. N.D.I.C. in upholding the objection by the 1st Respondent to the competence of the appeal before it on ground of lack/want of jurisdiction on the part of the trial Federal High Court to entertain and adjudicate over the Appellants’ application to set aside the judgment of the Tribunal in question. I endorse the finding by the Court below, which cannot be faulted in law, …” – Per GARBA, JSC
JURISDICTION – WHETHER THE SUPREME COURT WILL HAVE JURISDICTION IN AN APPEAL WHERE TWO LOWER COURTS LACK JURISDICTION
“The law is firmly settled that this Court lacks the competence and requisite jurisdiction to adjudicate, on the merit, an appeal arising from decisions in which the two (2) lower Courts lack the jurisdiction to adjudicate. See Nwoko v. Waoboshi (2020) 13 NWLR (pt. 1742) 395 at 400, Oni v. Fayemi (2020) 15 NWLR (pt. 1746) 59.
This position has effectively and completely subsumed the issue of the validity of the judgment delivered by the Court below raised in the Appellants’ Brief as issues 4 & 5. For that reason, the duty to consider and decide the said issues by the Court, abates. See Balogun v. Labiran (1988) 3 NWLR (pt. 80) 66, Okonji v. Njokanma (1991) 2 NWLR (pt. 202) 131, Cookey v. Fombo (2005) SC (pt. 11) 102 at 111, Uzuda v. Ebigah (2009) 15 NWLR (pt. 1163) 1 at 22, Onochie v. Odogwu (2006) 2 SCNJ, 96 at 117.” – Per GARBA, JSC
TRIBUNALS (CERTAIN CONSEQUENTIAL AMENDMENTS, ETC.) DECREE NO. 62 OF 1999 – WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO SET ASIDE A FINAL JUDGMENT OF THE FAILED BANKS TRIBUNAL
“The decision of this Court in AREWA PAPER CONVERTERS LTD v. N.D.I.C (2006) 7 SCNJ 457, forming the fulcrum of the preliminary objection of the 1st Respondent had lucidly interpreted Sections 2 & 3 of the Decree No. 62 of 1979 as they relate to the jurisdiction of the Federal High Court in further relationship to matters already concluded by the Failed Banks Tribunal. Decree No. 62, 1999 never made the Federal High Court the successor-in-jurisdiction to the Special Appeal Tribunal, that was by law vested the appellate jurisdiction to review the decision of the Failed Banks Tribunal. It will therefore be ultra vires the Federal High Court to assume or arrogate to itself such review, supervisory or appellate jurisdiction never conferred on it by statute.
In the AREWA PAPER CONVERTERS LTD. v. NDIC CASE (supra) this Court (per Mohammed, JSC) had put it poignantly, without ambiguity, that —
“the Federal High Court has no jurisdiction to hear the application filed by the appellant which formed the basis of this appeal. Following this ouster of the jurisdiction, the judgment of the Failed Bank Tribunal — being a Court of competent jurisdiction against which there was no appeal subsists. The rights created, preserved or determined in that judgment remain valid until set aside. However, the trial Federal High Court by virtue of the provisions of Decree No. 62 of 1999, is incompetent to vary and/or reject rights thus established by the Court of competent jurisdiction namely the Failed Bank Tribunal. This means even if there were some errors in the judgment of the Tribunal against the appellant, it is for the competent Court to which an appeal lies against the judgment, in this case, the Special Appeal Tribunal, to correct it or so declare. The result of proceedings undertaken in the absence of jurisdiction by the trial Court is, of course obvious as the law on the situation is trite.
What constitutes jurisdiction is the power to embark on the cause at all and not the decision rendered therein. That is: what is material is the power to hear and determine, and not the correctness of the decision: B. U. EKA — Judicial Control of Administrative Process in Nigeria (2001 Ed), page 66. It is on this basis that this Court, in MADUKOLU v. NKEMDILIM (2002) SCNLR 341; (1962) 1 ALL NLR 162, declared that jurisdiction is extrinsic to the cause or matter.
Decree No. 62 of 1999, from its date of commencement on 28th May, 1999, had swept away not only the Failed Banks Tribunal but also the Special Appeals Tribunal. The Appellant having not appealed the decision against him to the Special Appeals Tribunal nor applied to the Failed Banks Tribunal to set aside its decision before the commencement date of Decree No. 62, 1999 was left, thereafter, without any Court of competent jurisdiction to entertain his application seeking the setting aside of the decision of the Failed Banks Tribunal delivered on 20th April, 1999. The 1999 Constitution (the commencement date of which is 29th May 1999) does not, in Section 240 thereof, make the Court of Appeal (established by Section 238 of the same Constitution) the successor in jurisdiction of the Special Appeals Tribunal. The statute establishing the Failed Bank Tribunal and the Special Appeals Tribunal did not intend that the Failed Banks Tribunal would review its own decisions. It clearly preserved the principle that the Failed Banks Tribunal would be functus officio as regards its own final decisions. Therefore, since it was only for purposes of matters part heard by the Failed Banks Tribunal that the Federal High Court was empowered, by Decree No. 62 of 1999, to take over; it will, clearly, be overstretching the argument to contend that the Federal High Court was empowered to review and/or set aside subsisting final decisions of the Failed Banks Tribunal.” – Per EKO, JSC
APPEAL, ACTION, PRACTICE AND PROCEDURE
EFFECT OF AN APPEAL OR A SUIT FILED WITHOUT A LAW BACKING IT
“In my firm view of the application, the subject of this appeal was brought by the Appellant without any iota of law backing it. That is what, on authority of R-BENKAY NIG. LTD v. CADBURY NIG. LTD (2012) 9 NWLR (pt. 1306) 596, rendered the said application a gross abuse of the Court’s process.” – Per EKO, JSC
PRELIMINARY OBJECTION – EFFECT OF RESPONDING TO A PRELIMINARY OBJECTION WITH AN OBJECTION
“In continuation of the same abuse of process the Appellant; upon the 1st Respondent’s Notice of Preliminary Objection to the competence of the appeal, filed his “objection” to the preliminary objection. I have not seen any principle of law on which the Appellant proceeded on this reckless process. The recklessness of the process, filed without an iota of law, renders the said objection to preliminary objection a further gross abuse of Court’s process.” – Per EKO, JSC
TRIBUNALS (CERTAIN CONSEQUENTIAL AMENDMENTS, ETC.) DECREE NO. 62 OF 1999 – WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO SET ASIDE A FINAL JUDGMENT OF THE FAILED BANKS TRIBUNAL
“By virtue of Sections 2 and 3 of the Tribunals (Certain Consequential Amendments etc.) Decree No. 62 of 1999, the jurisdiction of the Federal High Court in matters concluded by the Failed Banks Tribunals is limited to the enforcement of judgments delivered by the Tribunals, but does not extend to re-opening, reviewing or setting aside the judgments. See AREWA PAPER CONVERTERS LTD v. NDIC (2006) 7 SCNJ 457.”- Per JAURO, JSC
JURISDICTION – WHAT DETERMINES THE JURISDICTION OF A COURT – WHETHER A COURT/TRIBUNAL CAN EXPAND ITS JURISDICTION
“It is settled that jurisdiction of Courts is donated and limited by the Constitution and/or statutes. Where the Constitution or statute does not clothe a Court with jurisdiction over a matter, neither the Court itself nor parties before it can confer jurisdiction on the Court to adjudicate over such a matter, whatever the nature, be it an application, a suit or an appeal. No Court or Tribunal has the power to widen the extent of jurisdiction conferred on it by the Constitution and/or statute. See DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR-43710 (SC); KAWAWU & ANOR V. PDP & ORS (2016) LPELR-41387 (SC); PDP vs OKOROCHA & ORS (2012) LPELR-7832 (SC). Applying the principle to the present appeal, the Tribunals (Certain Consequential Amendments etc.) Decree did not confer jurisdiction on the Federal High Court to set aside the concluded decisions of the Failed Bank Tribunal. It therefore follows that the proceedings before the trial Federal High Court as well as the lower Court amount to nothing but a nullity, an exercise in futility. By extension, this Court also lacks the competence to adjudicate over this appeal.” – Per JAURO, JSC
JURISDICTION – WHETHER A PRELIMINARY OBJECTION CHALLENGING THE JURISDICTION OF A COURT MUST BE DETERMINED FIRST
“Due to the known fundamental and crucial nature of the issue or question touching on the jurisdiction of a Court, generally, to adjudicate over a case or matter, and the appellate Courts, to entertain and adjudicate over appeals, which is said to be both intrinsic in and extrinsic to judicial proceedings, the law prescribes that whenever it arises or is raised in the course of such proceedings (as all stages or steps of the judicial ladder), the Court before which it arises or is raised has the duty and obligation to consider and determine it first before proceeding with other issues or taking further steps in the case/appeal, if necessary. See Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNL 296, Kotoye v. Saraki (1993) 5 NWLR (pt. 296) 710, Odofin v. Agu (1992) 3 NWLR (pt. 729) 350, Bakare v. A.G. Federation (1990) 5 NWLR (pt. 152) 516, NDIC v. CBN (2002) 7 NWLR (pt. 766) 271, Kalio v. Daniel-Kalio (1975) 2 SC, Salati v. Shehu (1986) 1 NWLR (pt. 15) 198.
An objection questioning or challenging the competence of an action/matter or appeal, as the case may be, goes to also attack or question the judicial power and authority of the Court, i.e. the requisite jurisdiction or vires in law, of the Court, to adjudicate over the action/matter or appeal, on the merit, and so seeks to terminate it in limine. For that reason, it is prudent to first deal with and make a pronouncement on it before further steps are taken (if necessary) in the action/matter or appeal.
In the case of Efet v. INEC (2011) 7 NWLR (pt. 1247) 423 the law was restated by I.T. Muhammad, JSC (now CJN) that: –
“It is trite law that where a Notice of Preliminary Objection is filed and moved before a Court of law, the Court is duty bound to consider the Preliminary Objection before venturing into the main appeal or cross-appeal, as the case may be. See AGBAREH & ANR v. MIMRA & ORS (2008) 1 SCNJ 24; ONYEMEH & ORS. v. EGUCHUSAM & ORS (1996) 4 SCNJ 235.”
See in addition, A.G. Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (pt. 618) 187, NWLR (pt. 77) 157, Odu v. Agbor-Hemeson (2003) 1 NWLR (pt. 802) 624, GBARABE v. REG. T.M.C.N. (2009) LPELR-8378, All States Trust Bank v. King Davidson Ent. Ltd. (2000) 12 N WLR (pt. 680) 298, Uba v. Yawe (2000) 8 NWLR (pt. 670) 739, Abiola v. Olawoye (2006) 13 N WLR (pt. 996) 1, wherein the position of the law was repeatedly stated.”- Per GARBA, JSC
PRELIMINARY OBJECTION – PURPOSE OF A PRELIMINARY OBJECTION
“In General Electric Co. Ltd. v. Akande (2010) 18 NWLR (pt. 1225) 596, (2010) LPELR- 9356 (SC), Rhodes-Vivour, JSC, had stated that: –
“Order 2 Rule 9 of the Supreme Court Rules allows a respondent to rely on a preliminary objection to the hearing of the appeal. The purpose being to bring the hearing of the appeal to an end for being incompetent or fundamentally defective, consequently, a successful preliminary objection terminates the appeal. On being served with a preliminary objection, the appellant is expected to respond in a reply, reply brief. See Ogidi v. Egba (1999) 1 NWLR (pt. 621) page 42.”
Again, in Efet v. INEC (supra), Muhammad, JSC (now CJN) speaking on the purport of a preliminary objection, said: –
“The aim/essence of a preliminary objection is to terminate at infancy, or as it were, to nip it at the bud without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, foreclose hearing on the matter in order to save time.”
See Vaso v. Arewa Construction Ltd. & Ors. (2007) 6 SCNJ 416. See also SPDCN Ltd. v. Amadi (2011) LPELR-3204 (SC), Adelekan v. Eculine N. (2006) 12 NWLR (pt. 993) 33.
In these premises therefore, a preliminary objection to the hearing of an appeal filed pursuant to the provisions of Order 2, Rule 9(1) of the Rules of this Court is directed and targeted at preventing the hearing, consideration and determination of the appeal on the merit on the ground/s that it does not meet or satisfy and so is not supported by provisions of the relevant law; substantive or procedural, to be rendered fundamentally defective and therefore incompetent. It is meant to avoid embarking on hearing/conduct of judicial proceedings that may turn out, eventually, to be an exercise in futility because the appeal is incompetent and thereby, in consequence, robs the Court of the requisite jurisdiction to adjudicate over it.” Per GARBA, JSC
PRELIMINARY OBJECTION – MEANING OF PRELIMINARY OBJECTION – WHEN CAN A QUESTION OF JURISDICTION BE RAISED
“A Notice of Preliminary Objection to the hearing of an appeal (or any action/matter) is a preemptic and pro-active step taken by a Respondent to the appeal to forestall the hearing on the merit because it offends or violates the law in a fundamental way so as to render it legally defective and not permitted by the law. Since, as stated and shown earlier, a challenge to the competence of an appeal goes to and affects the competence and jurisdiction of the appellate Court to adjudicate over the appeal, because competence is one of the essential elements of jurisdiction, the law permits and allows that the challenge, question or issue may and can be raised at any stage of the proceedings of the appeal either by the parties or the Court on its own motion, i.e. suo motu. See Madukolu v. Nkemdilim (1962) 2 SCNJ l, R, 341 Ogbuanyinya v. Okudo (1979) 6-9 SC, 32, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 7 SC, 158, U. D. U. S. v. Kraus Thompson Org. Ltd. (2001) 15 NWLR (pt. 376) 305, Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 46.” – Per GARBA, JSC
JURISDICTION – COMPETENCE OF AN OBJECTION TO THE RAISING OF A PRELIMINARY OBJECTION
“The issue questioning or challenging the competence of an appeal, and as a matter of judicial course, involves and attacks the jurisdiction of the Appellate Court to adjudicate over the appeal on the merit, is one that defies any formality or technical procedure as it can be raised at any stage of the proceedings, anyhow; i.e. in writing or verbally/orally and by one of the parties or the Court in its own motion, as stated above. Obaseki, JSC, speaking for this Court in the case of Captain Chacharos v. Ekimpex Ltd. (1988) 1 SC, 161, (1988) 1 NWLR (pt. 68) 88, had said that: –
“The issue of jurisdiction is one that escapes the checks and balances and indeed, the rigid rules of pleadings. It can be raised at any stage of proceedings either in the Court of 1st instance or on appeal and if successful, brings the proceedings to an end.”
The position was restated and affirmed by the Court in the latter case of Military Governor, Ondo State v. Kolawole (2008) 5 SCNJ, 37, that: –
“…by whatever name or under any shade, the issue of jurisdiction can be raised at any stage. It can be raised viva voce or the Court can raise it suo motu.”
Then, in the famous case of State v. Onagoruwa (1992) 2 SCNJ, 1, it was stated that: –
“It is never too late or premature to raise the issue of jurisdiction of the Court to entertain an action/matter and once raised, it should be settled first.”
In addition, see Akegbe v. Ataga (1998) 1 NWLR (pt. 534) 459, 3rd Eye Comm. Ltd. v. Ishola (1999) 2 NWLR (pt. 592) 549 of 551, Amadi v. NNPC (2000) 6 SC, (pt. 1) 66, Ejiofodomi v. Okonkwo (1982) 11 SC, 74, Nuhu v. Ogele (2003) 12 SC (pt. 1) 732, (2003) 18 NWLR (pt. 852), NNPC v. Orhiowasele (2013) 13 NWLR (pt. 1371) 211, Hamzat v. Sanni (2015) 5 NWLR (pt. 1453) 486, Boko v. Nungwa (2019) 1 NWLR (pt. 1654) 395.
The mere fact that the issue of jurisdiction of the trial Court to entertain and adjudicate over the Appellants’ application, in this appeal, is the fulcrum of the appeal, does not prevent the challenge to the competence of the appeal by way of a preliminary objection and rather than being an abuse, it is a prudent procedure for dealing with the appeal holistically and comprehensively since the same issue of jurisdiction is the substratum of both the appeal and the objection. With the respect due to the learned SAN for the Appellants, the three (3) cases of CPC v. INEC (supra), Ajayi v. Adebiyi (supra) and Kwashi v. Pusmut (supra) relied on for the submission on the propriety of a preliminary objection which raises same issues as in the appeal, are not apposite in the present appeal for the simple but, very crucial and fundamental fact, that the objections in those cases did not go to challenge or question the jurisdiction of the trial Courts to entertain and adjudicate on the actions and appeals in question. On that basis, the Courts did not find it appropriate to consider the objections before determination of the appeals since their jurisdiction to entertain and adjudicate over the appeals on the merit, was not questioned or challenged by the objections raised therein, unlike in this appeal.”- Per GARBA, JSC
PRELIMINARY OBJECTION – WHETHER AN OBJECTION CAN BE RAISED TO A PRELIMINARY OBJECTION
“The above position apart, and as it is, raising an objection to an objection is an aberration, strange, alien and a total misconception because it is not supported and is not supportable by any established and accepted principles of procedure and practice in our judicial jurisprudence. It is wanting in and lacks legal basis to be a cognisable judicial process. Manson v. Halliburton Energy Services Ltd. (2007) 2 NWLR (pt. 1018) 211, 227-8, Ojo v. A. G. Oyo State (2008) 15 NWLR (pt. 1110) 309 at 312, Kolawole Ind. Ltd. v. A.G. Federation (2011) LPELR-9096. The objection to the preliminary objection by the Appellants is liable to be and is discountenanced.” – Per GARBA, JSC
JURISDICTION – WHAT DETERMINES THE JURISDICTION OF A COURT
“The learned counsel for the 1st Respondent is right, for the law is firmly settled, that the jurisdiction of any Court established by law; including the Constitution, is expressly vested or conferred by the law or the Constitution, as the case may be, under or by which it was established and/or any other relevant statute. Hon. Justice D. D. Adekeye, JSC, in the lead judgment of this Court, in Hon. Egharevba v. Hon. Eribo & Ors. (2010) 9 NWLR (pt. 1199) 44, (2010) LPELR – 9716 (SC) at 23, stated the law that:-
“Under the Nigerian Legal System, Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts — they also cloak the Courts with the powers and jurisdiction of adjudication. If the Constitution, Decrees, Act, Laws and Edicts do not grant jurisdiction to a Court or Tribunal, the Court and parties cannot by agreement endow it with jurisdiction. As no matter how well and properly conducted the proceedings, once there is a defect in competence, it is a nullity and an exercise in futility. Moreover, since Courts are creatures of statutes, their jurisdiction is therefore confined, limited and circumscribed by the statutes creating them. A statute creating it.”
See also Adetayo v. Ademola (2010) 15 NWLR (pt. 1215) 16, (2010) LPELR — 155 (SC), where Mahmud Mohammed, JSC (later CJN) speaking for the Court, re-stated that:
“The law is trite that the jurisdiction of any Court is derived from the statute creating the Court or from any other statute specifically conferring such jurisdiction on the Court. The fundamental nature of jurisdiction is that it does not exist in a vacuum because all Courts of law derive their power, authority and therefore jurisdiction either under the Constitution or under specific statutes. See Lekwot v. Judicial Tribunal (1997) 8 NWLR (pt. 515) 22. In this respect, no Court can assume jurisdiction in the absence of having been constitutionally or statutorily empowered to do so.”
See also Okolo v. Union Bank of Nigeria Ltd. (2004) 1 SC (pt. 1) 1, (2004) 3 N WLR (pt. 859) 87, A.G., Rivers State v. A.G. Akwa Ibom State (2011) 8 NWLR (1248) 31.
The jurisdiction of a Court to entertain and adjudicate over a matter, action or appeal, as the case may be, is therefore, a matter of strict and hard law which can neither be presumed nor acquiesced to by parties or assumed by the Court without express provisions of the relevant statutes vesting or conferring same. The Hon. Justice Niki Tobi, JSC in the case of Onwudiwe v. FRN (2006) 4 SC (pt. 11) 70, (2006) 10 NWLR (pt. 988) 382, stated the law, in his usual erudition, that: –
“A party cannot beg or bargain jurisdiction into a matter before a Court of law; so too the reverse party cannot beg or bargain jurisdiction outside or out of the matter. Jurisdiction is an exact law that has to be applied exactly to any given case. It is either that a Court has jurisdiction in a matter or it has not. There is no halfway to this straight and unambiguous law. To that extent, jurisdiction looks almost like an exact formula in calcidus, although it is devoid of actual figures and numbers.
See also Basinco Motors Ltd. v. Woermann-Line (2009) 13 NWLR (pt. 1157) 149 LPELR-756 (SC). In the same vein, neither the parties to an action nor the Court can expand the parameters and/or limits of the jurisdiction specifically vested or conferred on it by the statutes. See A.G., Bendel State v. Aideyan (1989) SC, 127, SPDCN, Ltd. v. Isaiah (2001) 5 SC (pt. 11) l, (2001) 11 NWLR (pt. 723) 168, Oloruntoba-Oju v. AbdulRaheem (2009) 13 NWLR (pt. 1 157) 83, (2009) LPELR-2596 (SC).” – Per GARBA, JSC
JURISDICTION – ON WHEN A COURT HAS JURISDICTION TO ENTERTAIN A MATTER
“The law is now generally common knowledge that a Court is said to have jurisdiction to adjudicate over a matter when the following requirements are met or satisfied, together, on the authority of Madukolu v. Nkemdilim (2002) SCNLR, 341, (1962) 1 All NLR, 162: –
(a)It is properly constituted as to the numbers and qualifications of its members and no member is disqualified for any cognizable reason;
(b)The subject matter in the action is within its jurisdiction and there is no feature in the action which prevents it from exercising the jurisdiction; and
(c)The matter is brought and comes before the Court by due process of the law upon fulfilment of all conditions precedent to the exercise of its jurisdiction.
The law remains that where any of the aforenamed requirements is not met or satisfied, a Court cannot properly assume jurisdiction over a matter and conduct valid judicial proceedings in law. Skenconsult v. Ukey (1981) 1 SC, 6, A.G. Lagos State v. Dosunmu (1989) 3 NWLR (pt. 111) 552, Tukur v. Govt. of Gongola State (1989) 4 NWLR (pt. 117) 517, State v. Onagoruwa (1992) 2 SCNJ, 1, (1992) 1 NWLR (pt. 221) 33, stating and restating the principle established in Madukolu v. Nkemdilim.” – Per GARBA, JSC.
DOCTRINE OF STARE DECISIS/JUDICIAL PRECEDENCE – MEANING, NATURE AND PURPOSE OF THE DOCTRINE OF STARE DECISIS – HOW THE DOCTRINE OF STARE DECISIS IS APPLIED
“The principle of doctrine of “stare decisis” in our judicial jurisprudence, is a Latin phrase of a common law origin and it simply means “follow what has been decided” or “stand with what has been decided”, as a cardinal principle in the administration of justice that like cases should be decided alike. It is known that the facts of a case are very rarely, if at all, exactly the same with those of another case and so the principle does not require that the facts of two (2) cases must be exactly the same before it is applied. Infinitesimal, peripheral, inarticulate and minor differences in facts of two (2) cases do not hinder or prevent the application of the principle as the determinant factor is that the facts of a previous case are substantially and materially identical and similar to those of a latter case which calls for the application of the principle. In Adetoun Oladeji Nig. Ltd. v. N. B. PLC, (2007) 7 NWLR (pt. 1027) 415, Hon. Justice Niki Tobi, JSC, had put the position thus, at page 436: –
“It is the submission of learned counsel for the appellant that the Court of Appeal wrongly followed the decision of this Court in Mobil Oil (Nig.) Ltd. v. Akinfosile (supra). Counsel enumerated what he regarded as differences in paragraphs 4.24 and 4.25 of the appellant’s brief. At times when counsel distinguish cases to the minutest and infinitesimal way they do. I chuckle. While I can hardly blame them, considering their professional sentiments for the case of their clients, some of the distinctions are without distinction or deference. Factual distinctions or differences in cases can only avail a party when they are germane or material to the stare decisis of the case. I say this because stare decisis which means to abide by or adhere to decided cases, as a policy of Court to stand by precedent, is based on a certain state of facts which are substantially the same and here the word is substantial. This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without the unimportant details. This also means that the facts need not be on all fours in the sense of exactness or exactitude.
And I must say here that there can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis which has been built by the judicial system over the years does not say that the facts must be exactly the same. And so there could be inarticulate differences which will not necessarily be a poison in or to the application of the doctrine. One major criterion in the determination of the matter is that the fact of the previous case are major, substantial, and material to the facts of the current case begging for the application of the previous case.”
With respect to the Learned Senior Counsel for the Appellants, all he attempted to do in the arguments on the differences between the facts in Arewa Paper Converters Ltd. v. N.D.I.C. and the facts in Appellants’ case is to create a difference without distinction, a peripheral difference without substance for the purpose of the application of the principle or doctrine of stares decisis or judicial precedent as firmly established by the above judicial authorities.
See also Ogbu v. Urum (1981) 4 SC, 7, Eperokun v. University of Lagos (1986) 4 NWLR (pt. 34) 162, State v. Ilorin (1989) 7 SCNLR, 94, 2 SC, 155. The law is settled that the application of the principle of stare decisis and adherence to judicial precedence by the Courts is one aspect of judicial policy which provides for and ensures an orderly, certain, consistent and reliable development of legal rules in the administration of justice. The application or use of the doctrine or principle of stare decisis or judicial precedence is an indispensable tool in the determination of what the law is and attainment of certainty in the law at any given moment, which cannot be over-emphasized. By the doctrine or principle, since the facts of the Arewa Paper Converters Ltd. v. N.D.I.C. are substantially identical and similar to those in the Appellants’ case, the Court below was not only right, but had the judicial obligation and duty to follow and apply it in the Appellants’ case. See R.E.A.N. Ltd. v. Aswain Text Ind. Ltd. (1991) 2 NWLR (pt. 176) 639, Atolagbe v. Awuni (1997) 7 SCNJ, 1 at 20 and 24, Olufeagba v. Abdul-Raheem (2009) 18 NWLR (pt. 1173) 384 at 442, Osakue v. F.C.E. (Technical) Asaba (2010) 2-3 SC (pt. 111) 158 at 180-181, Lead Merchant Bank Ltd. v. P. (special) T.F. (2006) 5 NWLR (pt. 974) 463.”– Per GARBA, JSC
TRIBUNALS (CERTAIN CONSEQUENTIAL AMENDMENTS, ETC.) DECREE NO. 62 OF 1999 – WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO SET ASIDE A FINAL JUDGMENT OF THE FAILED BANKS TRIBUNAL
“This Court in the case of Arewa Paper Converters Ltd. v. N.D.I.C., considered and applied the provisions of Sections 2 and 3 of Decree 62 in the determination of the preliminary objection to the jurisdiction of the Federal High Court to adjudicate over the application to set aside the judgment of the Tribunal, just as in the Preliminary Objection raised by the 1st Respondent herein. The provisions are as follows: –
“2 (1) The Federal High Court or the High Court of a State, as the case may be, shall have jurisdiction to try the offences created under enactments specified in the Schedule to this Decree.
(2) Accordingly, a Tribunal established in any of the enactments specified in the Schedule to this Decree is hereby dissolved.
(3) A charge, claim or Court process filed before a Tribunal established under any of the enactments specified in the schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a State, as the case may be and such charge, claim and Court process shall be deemed amended as to title, venue, and such other matter as may be appropriate to give effect to this sub-section without further assurance than this Decree.
(4) Any order, remand, decision or judgment made by a Tribunal before the commencement of this decree is hereby preserved.
(5) A decision or judgment of a Tribunal made before the commencement of this Decree shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of the Decree.
(6) Where before the commencement of this Decree, a matter has been concluded in a Tribunal and the Tribunal was for any reason whatsoever unable to deliver the judgment, the Judgment may be delivered by a Judge of the Federal High Provided that the judgment shall have been written.
3 (1) Where any part heard matter is pending before any Tribunal on the date of the making of this Decree, the Judge:
(a)may, if the parties to the proceeding agree in a civil cause, adopt the proceedings of the Tribunal concerned;
(b)shall, in a criminal case, try the matter de novo pursuant to this Decree.
(2) All new proceedings shall be brought before the Court in accordance with the rules of procedure of the Court concerned.”
As can easily be observed, the provisions are plain, clear, simple and in straightforward language to be entitled to be ascribed their ordinary meanings devoid of ambiguity in their construction as prescribed and established by a legion of pronouncements of this Court.
See Abioye v. Yakubu (1991) 6 SC, 72, (2019) 5 NWLR (pt. 190) 130, Egbe v. Alhaji (1990) 3 SC (pt. 1) 63, (2009) 1 NWLR (pt. 128) 546, Nigercare Dev. Co. Ltd. v. Adamawa State Water Board (2008) 2-3 SC (pt. II) 202, (2008) 9 NWLR (pt. 1093) 498, A.G. Federation v. Abubakar (2007) 6 SC (pt. II) 62, (2007) 10 NWLR (pt. 1041) 1, Udoh v. O.H.B. (1993) 7 SCNJ, 244, (1993) 1 NWLR (pt. 304) 139.
The provisions of Sections 2(1) vest jurisdiction on the Federal High Court to try the offences created under the enactments specified in the schedule to the Decree, which included offences under Decree 18, hitherto triable by the Tribunal which was dissolved by the provisions of Sub-section (2) of the Section. By the provisions of Sub-section (4), any order, remand, decision or judgment made by the Tribunal before the commencement of the Decree was preserved and shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of the Decree, as provided for in Sub-section (5). Sub-section (6) on its part, permits that a written, but undelivered judgment or decision of the Tribunal before the commencement of the Decree and its dissolution, be delivered by a Judge of the Federal High Court or the High Court of a State, as the case may be. Here the authority, power and jurisdiction vested in or conferred on a Judge of the Federal High Court or the High Court of a State; as the case may be, over a concluded matter by the Tribunal in which a judgment was written, but was not delivered by the Tribunal before the commencement of the Decree, was to simply deliver the said undelivered judgment of the Tribunal, which was preserved by the provision of Sub-section (4) and to be enforced in accordance with the procedure or law relating to enforcement of a judgment of the Tribunal before the commencement of the Decree, as stipulated in sub-section (5). It can easily be discerned from the community purport of the provisions in Section 2(2), (3), (4), (5) and (6), that the jurisdiction vested and conferred on the Federal High Court is to: –
(a)deliver a written judgment made by the Tribunal in a concluded matter, but which was not delivered by the Tribunal before the commencement of the Decree; and
(b)to enforce the judgment of the Tribunal in a concluded matter which was duly delivered by it and a written judgment which was not delivered by the Tribunal before the commencement of the Decree, but delivered by the Federal High Court in line with the provisions in Sub-section (6).
Clearly, the provisions in Section 2 (2), (3), (4), (5) and (6) of the Decree do not vest in the Federal High Court, the power, authority and jurisdiction to conduct valid proceedings in respect of or over the judgment/decision of the Tribunal delivered by it in a concluded matter before the commencement of the Decree, except to enforce such a judgment in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before commencement of the Decree. Specifically, the provisions do not confer on the Federal High Court, jurisdiction to entertain and adjudicate over proceedings which seek to question, challenge, attack the said judgment of the Tribunal on ground/s of any error/s; whether of law or facts which go to the validity of the judgment or any determined rights/obligations decided or determined therein. I have restated the law elsewhere before now, that the issue of jurisdiction of a Court of law to entertain and adjudicate over a case is a matter of hard law to be expressly conferred or vested in the Court before it can properly be assumed and exercised. See Nig. Reinsurance Corp. v. Cudjoe (2008) All FWLR (pt. 414) 1455.
A judgment delivered by the Tribunal in a concluded matter or a written judgment of the Tribunal which was not delivered before the commencement of Decree 62, is not a judgment of the Federal High Court over which it possesses the requisite jurisdiction to adjudicate and set aside on any alleged error therein. The judgment of the Tribunal in a concluded matter was/is preserved as an extant judgment of the Tribunal under the provisions of Section 2(4) which could only have been properly set aside either by the Tribunal itself or on appeal, by the Special Appeal Tribunal pursuant to the provisions of Section 5 (1) of Decree 18. Section 5(2) of the Decree 18 provides that: –
“The decision of the Special Appeal Tribunal shall be final, and, where there is no appeal, the decision of the Tribunal shall be final.”
By these express and unambiguous provisions, where an appeal was filed against the decision/judgment of the Tribunal, in a concluded matter, at the Special Appeal Tribunal, the decision of the Special Appeal Tribunal is respect of the appeal, shall be final.
Where however, there was no such appeal against the decision/judgment of the Tribunal filed in accordance with the requirements of the Decree 18, the decision/judgment of the Tribunal in a concluded matter, shall be final. In the Appellants’ case, there was no appeal to the Special Appeal Tribunal filed against the decision/judgment of the Tribunal in question, as provided for in Section 5 (1) of the Decree, before the commencement of Decree 62. Consequently, the decision/judgment remains final and extant as a decision of competent Tribunal or Court of law by virtue of the provisions of Section 5(2) of Decree 18 and from the 29th of May, 1999 when Decree No. 62 came into force. I shall emphasize that by dint of the provisions of Section 5 (2) of Decree 18 and the commencement of Decree 62, a decision/judgment of the Tribunal in a concluded matter is not only final, but extant and sacrosanct, as a decision of a competent Court of law, and cannot be interfered with or set aside by any Court of law, including the Federal High Court, in the absence of express provisions of the law vesting the requisite power and authority or jurisdiction on it to do so. The law does not permit or allow a Court to arrogate and vest itself the jurisdiction, that is not statutorily conferred on it over a matter. A.G., Lagos State v. Dosunmu (1989) 20 NSCC (pt. II) 545, (1989) 3 NWLR (pt. 111) 552, Ms. N.V. Scheep v. the M.V “S Araz’ (2000) 12 SC (pt. 1) 64, Lufthansa Airlines v. Odiese (2006).
In respect of a decision/judgment in a concluded matter which was delivered by the Tribunal or written but not delivered before the commencement of Decree 62, the only jurisdiction vested in a Judge of the Federal High Court is to deliver the written but undelivered judgment under Section 2 (6) and in the Federal High Court; to enforce the judgment as provided for in Sub-Section (5) of the same Section.
Then, as shown above, Section 3 of Decree 62, vested jurisdiction, specifically, on the Federal High Court in respect of part-heard matters before the Tribunal which were to be continued by it, adopting the proceedings of the Tribunal, if the parties in civil causes agree and to try the matter de novo, in a criminal case, as provided in Sub-section (1). Sub-Section (2) stipulates that all new proceedings on cases/matters triable by the Tribunal before the commencement of the Decree shall be brought before the Federal High Court in accordance with its rules of procedure.
The provisions of Section 3 are clearly not relevant to the Appellants’ case since it is/was not a part-heard matter, but involves a decision/judgment delivered by the Tribunal in a concluded matter before the commencement of Decree 62. The Appellants’ case is/was, also not “new proceedings” brought in the Federal High Court in accordance with its Rules.
This Court in the Arewa Paper Converters Ltd. v. N.D.I.C. case, comprehensively considered and emphatically determined the application of the provisions of Sections 2 and 3 of Decree 62 and Section 5 of Decree 18 to the judgment of the Tribunal in a concluded matter delivered before the commencement of Decree 62 and whether the Federal High Court has the jurisdiction to entertain and adjudicate over an application to set it aside on any ground, by a party thereto.
The conclusion decisively reached by the Court, in the lead judgment by Mohammed, JSC, was, inter alia,
“in other words, the case of the Appellant having been instituted, heard and determined by the Failed Banks Tribunal under the Failed Bank Decree No. 18 of 1994, before the amendment to divest the Tribunal of its jurisdiction, the appellant cannot now come before the Federal High Court which had taken over jurisdiction of the Tribunal with effect from 28th May, 1999 for any relief. This is because the right and obligation of the parties in this case had been effectively determined by the Tribunal under the repealed provisions of Decree 18 of 1994.
“When this situation, the Federal High Court has no jurisdiction to hear the application filed by the appellant which formed the basis of this appeal. Following this ouster of the jurisdiction, the judgment of the Failed Bank Tribunal against it being a judgment of a Court of competent jurisdiction against which there was no appeal, subsists. The rights created, preserved or determined in that judgment remain valid until set aside. However, the trial Federal High Court by virtue of the provisions of Decree No. 62 of 1999, is incompetent to vary and/or reject rights thus established by the Court of competent jurisdiction namely, the Failed Banks Tribunal. This means even if there were some errors in the judgment of the Tribunal against the appellant, it is for the competent Court to which an appeal lies against the judgment, in this case, the Special Appeal Tribunal, to correct it or so declare. The result of the proceedings undertaken in the absence of jurisdiction by the trial Court is of course obvious as the law on the situation is trite.”
This decision by the Court on the jurisdiction of the Federal High Court to entertain an application to set aside a judgment delivered in a concluded matter by the Failed Banks Tribunal before the commencement of Decree 62, is not only apposite but precise to apply to the Appellants’ application to the trial Court (Federal High Court) for an order to set aside the judgment of the Tribunal in question.
As demonstrated earlier, the material and relevant facts in the Appellants’ case and those in Arewa Paper Converters Ltd. v. N.D.I.C. are substantially similar and identical to ground and warrant the application of the principle or doctrine of stare decisis or judicial precedent by the Court below. The Court below was therefore “firma terra” i.e; on firm terrain of the law, and so right, to have relied on and followed the decision in Arewa Paper Converters Ltd. v. N.D.I.C. in upholding the objection by the 1st Respondent to the competence of the appeal before it on ground of lack/want of jurisdiction on the part of the trial Federal High Court to entertain and adjudicate over the Appellants’ application to set aside the judgment of the Tribunal in question. I endorse the finding by the Court below, which cannot be faulted in law, …” – Per GARBA, JSC
JURISDICTION – WHETHER THE SUPREME COURT WILL HAVE JURISDICTION IN AN APPEAL WHERE TWO LOWER COURTS LACK JURISDICTION
“The law is firmly settled that this Court lacks the competence and requisite jurisdiction to adjudicate, on the merit, an appeal arising from decisions in which the two (2) lower Courts lack the jurisdiction to adjudicate. See Nwoko v. Waoboshi (2020) 13 NWLR (pt. 1742) 395 at 400, Oni v. Fayemi (2020) 15 NWLR (pt. 1746) 59.
This position has effectively and completely subsumed the issue of the validity of the judgment delivered by the Court below raised in the Appellants’ Brief as issues 4 & 5. For that reason, the duty to consider and decide the said issues by the Court, abates. See Balogun v. Labiran (1988) 3 NWLR (pt. 80) 66, Okonji v. Njokanma (1991) 2 NWLR (pt. 202) 131, Cooey v. Fombo (2005) SC (pt. 11) 102 at 111, Uzuda v. Ebigah (2009) 15 NWLR (pt. 1163) 1 at 22, Onochie v. Odogwu (2006) 2 SCNJ, 96 at 117.” – Per GARBA, JSC
TRIBUNALS (CERTAIN CONSEQUENTIAL AMENDMENTS, ETC.) DECREE NO. 62 OF 1999 – WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO SET ASIDE A FINAL JUDGMENT OF THE FAILED BANKS TRIBUNAL
“The decision of this Court in AREWA PAPER CONVERTERS LTD v. N.D.I.C (2006) 7 SCNJ 457, forming the fulcrum of the preliminary objection of the 1st Respondent had lucidly interpreted Sections 2 & 3 of the Decree No. 62 of 1979 as they relate to the jurisdiction of the Federal High Court in further relationship to matters already concluded by the Failed Banks Tribunal. Decree No. 62, 1999 never made the Federal High Court the successor-in-jurisdiction to the Special Appeal Tribunal, that was by law vested the appellate jurisdiction to review the decision of the Failed Banks Tribunal. It will therefore be ultra vires the Federal High Court to assume or arrogate to itself such review, supervisory or appellate jurisdiction never conferred on it by statute.
In the AREWA PAPER CONVERTERS LTD. v. NDIC CASE (supra) this Court (per Mohammed, JSC) had put it poignantly, without ambiguity, that —
“the Federal High Court has no jurisdiction to hear the application filed by the appellant which formed the basis of this appeal. Following this ouster of the jurisdiction, the judgment of the Failed Bank Tribunal — being a Court of competent jurisdiction against which there was no appeal subsists. The rights created, preserved or determined in that judgment remain valid until set aside. However, the trial Federal High Court by virtue of the provisions of Decree No. 62 of 1999, is incompetent to vary and/or reject rights thus established by the Court of competent jurisdiction namely the Failed Bank Tribunal. This means even if there were some errors in the judgment of the Tribunal against the appellant, it is for the competent Court to which an appeal lies against the judgment, in this case, the Special Appeal Tribunal, to correct it or so declare. The result of proceedings undertaken in the absence of jurisdiction by the trial Court is, of course obvious as the law on the situation is trite.
What constitutes jurisdiction is the power to embark on the cause at all and not the decision rendered therein. That is: what is material is the power to hear and determine, and not the correctness of the decision: B. U. EKA — Judicial Control of Administrative Process in Nigeria (2001 Ed), page 66. It is on this basis that this Court, in MADUKOLU v. NKEMDILIM (2002) SCNLR 341; (1962) 1 ALL NLR 162, declared that jurisdiction is extrinsic to the cause or matter.
Decree No. 62 of 1999, from its date of commencement on 28th May, 1999, had swept away not only the Failed Banks Tribunal but also the Special Appeals Tribunal. The Appellant having not appealed the decision against him to the Special Appeals Tribunal nor applied to the Failed Banks Tribunal to set aside its decision before the commencement date of Decree No. 62, 1999 was left, thereafter, without any Court of competent jurisdiction to entertain his application seeking the setting aside of the decision of the Failed Banks Tribunal delivered on 20th April, 1999. The 1999 Constitution (the commencement date of which is 29th May 1999) does not, in Section 240 thereof, make the Court of Appeal (established by Section 238 of the same Constitution) the successor in jurisdiction of the Special Appeals Tribunal. The statute establishing the Failed Bank Tribunal and the Special Appeals Tribunal did not intend that the Failed Banks Tribunal would review its own decisions. It clearly preserved the principle that the Failed Banks Tribunal would be functus officio as regards its own final decisions. Therefore, since it was only for purposes of matters part heard by the Failed Banks Tribunal that the Federal High Court was empowered, by Decree No. 62 of 1999, to take over; it will, clearly, be overstretching the argument to contend that the Federal High Court was empowered to review and/or set aside subsisting final decisions of the Failed Banks Tribunal.” – Per EKO, JSC
EFFECT OF AN APPEAL OR A SUIT FILED WITHOUT A LAW BACKING IT
“In my firm view of the application, the subject of this appeal was brought by the Appellant without any iota of law backing it. That is what, on authority of R-BENKAY NIG. LTD v. CADBURY NIG. LTD (2012) 9 NWLR (pt. 1306) 596, rendered the said application a gross abuse of the Court’s process.” – Per EKO, JSC
PRELIMINARY OBJECTION – EFFECT OF RESPONDING TO A PRELIMINARY OBJECTION WITH AN OBJECTION
“In continuation of the same abuse of process the Appellant; upon the 1st Respondent’s Notice of Preliminary Objection to the competence of the appeal, filed his “objection” to the preliminary objection. I have not seen any principle of law on which the Appellant proceeded on this reckless process. The recklessness of the process, filed without an iota of law, renders the said objection to preliminary objection a further gross abuse of Court’s process.” – Per EKO, JSC
TRIBUNALS (CERTAIN CONSEQUENTIAL AMENDMENTS, ETC.) DECREE NO. 62 OF 1999 – WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO SET ASIDE A FINAL JUDGMENT OF THE FAILED BANKS TRIBUNAL
“By virtue of Sections 2 and 3 of the Tribunals (Certain Consequential Amendments etc.) Decree No. 62 of 1999, the jurisdiction of the Federal High Court in matters concluded by the Failed Banks Tribunals is limited to the enforcement of judgments delivered by the Tribunals, but does not extend to re-opening, reviewing or setting aside the judgments. See AREWA PAPER CONVERTERS LTD v. NDIC (2006) 7 SCNJ 457.”- Per JAURO, JSC
JURISDICTION – WHAT DETERMINES THE JURISDICTION OF A COURT – WHETHER A COURT/TRIBUNAL CAN EXPAND ITS JURISDICTION
“It is settled that jurisdiction of Courts is donated and limited by the Constitution and/or statutes. Where the Constitution or statute does not clothe a Court with jurisdiction over a matter, neither the Court itself nor parties before it can confer jurisdiction on the Court to adjudicate over such a matter, whatever the nature, be it an application, a suit or an appeal. No Court or Tribunal has the power to widen the extent of jurisdiction conferred on it by the Constitution and/or statute. See DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR-43710 (SC); KAWAWU & ANOR V. PDP & ORS (2016) LPELR-41387 (SC); PDP vs OKOROCHA & ORS (2012) LPELR-7832 (SC). Applying the principle to the present appeal, the Tribunals (Certain Consequential Amendments etc.) Decree did not confer jurisdiction on the Federal High Court to set aside the concluded decisions of the Failed Bank Tribunal. It therefore follows that the proceedings before the trial Federal High Court as well as the lower Court amount to nothing but a nullity, an exercise in futility. By extension, this Court also lacks the competence to adjudicate over this appeal.” – Per JAURO, JSC
CASES CITED
Not Available
STATUTES REFERRED TO
Failed Banks Decree No. 18 of 1994
Tribunals (Certain Consequential Amendments, etc.) Decree No. 62 of 1999
1999 Constitution of the Federal Republic of Nigeria
