Legalpedia Citation: (2025-06) Legalpedia 09720 (CA)

In the Court of Appeal

Holden at Kaduna

Tue Jun 3, 2025

Suit Number: CA/K/141/2022

CORAM

Onyekachi Aja Otisi -Justice of the Court of Appeal

Sybil Onyeji Nwaka Gbagi-Justice of the Court of Appeal

Muslim Sule Hassan-Justice of the Court of Appeal

PARTIES

1.SARAT NIG LIMITED & ANOR

2. AMADUN GARI

APPELLANTS

1.RAILWAY PROPERTY MANAGEMENT LIMITED & ANOR

2.THE PRINCIPAL DISTRICT COURT OF KADUNA STATE (DAURA ROAD)

RESPONDENTS

AREA(S) OF LAW

AREAS OF LAW: CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, JUDICIAL REVIEW, JURISDICTION, PRELIMINARY OBJECTIONS, CIVIL PROCEDURE, DISCRETIONARY POWERS, PREROGATIVE ORDERS, CERTIORARI, APPEAL, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 1st Respondent (Railway Property Management Limited) sued the Appellants before the 2nd Respondent (The Principal District Court of Kaduna State) in Case No. KDC/965CV/2018 over ownership of land. The Appellants filed a notice of preliminary objection on 4th November, 2020, challenging the jurisdiction of the 2nd Respondent to hear the case. The objection was argued and adjourned for ruling. However, on the date set for ruling, the 2nd Respondent declined to determine the preliminary objection but ruled that the Appellants could raise the objection again in a final address after close of trial.

Aggrieved by this decision, the Appellants applied to the Kaduna State High Court for judicial review by way of certiorari to quash the proceedings and decision of the 2nd Respondent dated 4th February, 2021. The High Court heard the motion for judicial review and by its decision of 31st January, 2022, dismissed the Appellants’ application for judicial review. The Appellants, dissatisfied with this decision, appealed to the Court of Appeal on three grounds, which were consolidated into a single issue for determination.

HELD

1. The appeal was dismissed for lacking merit.
2. The decision of the Kaduna State High Court delivered on 31st January, 2022, dismissing the Appellants’ application for judicial review was affirmed.
3. The Court held that the 2nd Respondent (District Court) had discretion to reserve ruling on the preliminary objection to the final judgment stage.
4. The Court found that no injustice was occasioned to the Appellants by the District Court’s decision to defer determination of the preliminary objection.
5. The Court held that the matter was not properly brought by way of judicial review, as the appropriate method was to appeal the order of the 2nd Respondent.

ISSUES

1. Whether the lower Court was right in its determination that the District Court has the power to proceed with the trial without determining the issue of jurisdiction raised by the Appellants vide a Notice of Preliminary Objection before the District Court. (Culled from grounds 1, 2 and 3 of the Notice of Appeal)?

RATIONES DECIDENDI

PRELIMINARY OBJECTIONS – COURT’S DISCRETION TO DEFER DETERMINATION:

“The 2nd respondent clearly has discretion to reserve ruling on the notice of preliminary objection raised by the Appellants to the final judgment, that does not in any way say the Court will not first determine the preliminary objection before going into the substantive suit.” – Per MUSLIM SULE HASSAN, J.C.A.

JURISDICTION – FUNDAMENTAL PRINCIPLE:

“Jurisdiction is the competence of a Court to entertain a pending action and where a Court lacks same, all its action will amount to a nullity.” – Per MUSLIM SULE HASSAN, J.C.A.

JUDICIAL DISCRETION – CHALLENGE TO EXERCISE OF DISCRETION:

“The only basis on which the exercise of the discretion of a Court will be challenged is where same is manifestly perverse and have obviously occasioned a party grave miscarriage of justice.” – Per MUSLIM SULE HASSAN, J.C.A.

PRELIMINARY OBJECTIONS – PROCEDURE FOR HEARING WITH SUBSTANTIVE SUIT:

“While it is true that when a preliminary objection to the jurisdiction of a Court has been filed, the Court is enjoined to first hear and determine the Preliminary Objection, for the sake of saving precious judicial time and reducing cost of litigation, together with the substantive suit. When that is done, the Court will first rule on the Preliminary Objection and if it succeeds, the suit will be determined and the Court need not pronounce on the substantive suit. Where the objector is overruled, the Court will proceed to consider and pronounce on the Substantive Matter.” – Per TSAMMANI, JCA (now JSC) in GBADEBO & Anor v. OYENITUN & ORS

PRELIMINARY OBJECTIONS – COURT’S DISCRETION IN HEARING PROCEDURE:

“In any case, the decision on whether or not to hear parties on an objection to its jurisdiction separate from hearing of the suit on the merits, lies in the discretion of the Court.” – Per RHODES-VIVOUR, JSC in Central Bank of Nigeria v. Dr. Erastus B.O. Akingbola & Anor

PRELIMINARY OBJECTIONS – WHEN TO BE TAKEN FIRST:

“To my mind, where the Defendant questions the jurisdiction of the Court by filing a Preliminary Objection, the Preliminary Objection may be taken with the Substantive Suit but where the Substantive Suit (Originating Motion) entails the likelihood of taking oral evidence, the Preliminary Objection ought to be taken first.” – Per RHODES-VIVOUR, JSC in Central Bank of Nigeria v. Dr. Erastus B.O. Akingbola & Anor

JUDICIAL REVIEW – DEFINITION AND SCOPE:

“Judicial review/judicial control is a special procedure whereby the Court exercises supervisory jurisdiction over acts or omissions of tribunals or public bodies in public law.” – Per MUSLIM SULE HASSAN, J.C.A.

JUDICIAL REVIEW – NATURE OF APPLICATION:

“It is a procedure where a person aggrieved by any administrative act or omission or judicial or quasi-judicial proceedings of an inferior Court or tribunal may apply to the High Court for any of the prerogative orders of mandamus, prohibition or certiorari or a declaration or an injunction or damages.” – Per ALEMULOKE v. PRES. AND IB. S/E.C.C.

JUDICIAL REVIEW – DISTINCTION FROM APPEAL:

“Judicial review is not an appeal; the Court must not substitute its judgment for that of the public body whose decision is being reviewed; the correct focus is not upon the decision but the way it was breached; what matters is legality and not correctness of the decision; and the reviewing Court is concerned with the merits of a target activity.” – Per ABDULLAHI v. GOV. KANO STATE

JUDICIAL REVIEW – PURPOSE AND FUNCTION:

“Judicial review is employed to check mate the modus operandi of lower Court by the High Court.” – Per NWAOGWUGWU v. FRN

JUDICIAL ADMINISTRATION – PREFERENCE FOR MERIT-BASED DETERMINATION:

This is more so that the law now encourages matters to be heard on the merit, so if the 2nd Respondent exercised her discretion to determine the objection of the appellants with the substantive matter of the 1st respondent, it was well with the judicial discretion of the 2nd Respondent.” – Per MUSLIM SULE HASSAN, J.C.A.

JURISDICTION – WHEN COURT GAINS COMPETENCE:

“When the competence of a Court is attacked, it only has competence after it has determined that it has competence.” – Per MUSLIM SULE HASSAN, J.C.A.

APPEAL VERSUS JUDICIAL REVIEW – APPROPRIATE REMEDIAL PROCEDURE:

“I completely agree with the trial High Court that the matter was not properly brought by way of judicial review, as the appropriate method was to appeal the order of the 2nd respondent.” – Per MUSLIM SULE HASSAN, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)
• Kaduna State High Court Civil Procedure Rules 2007
• Court of Appeal Rules

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