COMPAGINE GENERALE DE GEOPHSIQUE V. AMINU.

CORAM

ADOLPHUS GODWIN KARIBI- WHYTE

ADOLPHUS GODWIN KARIBI- WHYTE

ADOLPHUS GODWIN KARIBI- WHYTE

PARTIES

COMPAGINE GENERALE DE GEOPHSIQUE (CGG) NIG. LTD

MOSES AMINU

AREA(S) OF LAW

SUMMARY OF FACTS

SUMMARY OF FACTS

The Plaintiff/Respondent was an employee of the Defendant/Appellant who in the course of his employment, suffered severe injuries on his wrist. After an operation, the wrist became virtually useless. The Plaintiff/Respondent instituted an action against the Defendant/Appellant at the trial court claiming the sum of N5,000,000.00 (Five Million Naira) as special and general damages for the negligence and injuries he suffered while in the course of duty in the Defendant/Appellant’s company when all attempts to convince the company to pay compensation failed. After service of the originating process on the Defendant/Appellant, he entered Conditional Appearance on the 1st of November 1999. Notwithstanding the fact that Defendant/Appellant’s appearance was unresolved the Plaintiff/Respondent filed a Motion on Notice on 4/1/99 under Order 27 Rule 7 of the High Court (Civil Procedure) Rules of Bendel State 1988 (applicable in Delta State) for an order of Court entering final judgment for the Plaintiff/Respondent in default of the Defendant/Appellant to file its statement of defence. The trial court subsequently entered final judgment for the Plaintiff/Respondent. The Defendant/Appellant filed applications seeking for extension of time to set aside the default judgment, the writ of attachment and to stop further execution. The learned trial judge found the application to be unmeritorious and struck it out. Dissatisfied with the refusal of the learned trial judge to set aside the default judgment the Defendant/Appellant lodged an appeal in the Court of Appeal Benin Division where the appeal was allowed and the court ordered the default judgment of the lower court dated 17/11/1999 and the orders dated 11/4/2000 to be set aside. The court also ordered the suit be sent back to the High Court of Delta State for trial de novo by a judge other than Onajite-Kuejubola J. Aggrieved by the decision of the Court of Appeal he appealed to this court.

HELD

Appeal Dismissed

ISSUES

1. Whether the Court of Appeal ought not to have resolved the issue of jurisdiction and refrain from remitting same to the High Court?

2. Whether the Court of Appeal ought not to have struck out this suit for want of jurisdiction?

RATIONES DECIDENDI

GROUNDS OF APPEAL – GROUNDS OF APPEAL NEED TO CHALLENGE THE RATIO DECIDENDI OF DECISION APPEALED AGAINST- FAILURE TO OBTAIN LEAVE TO RAISE FRESH ISSUE ON APPEAL RENDERS THE APPLICATION INCOMPETENT

“The position of the law is that grounds of appeal are filed against a decision. It must challenge the ratio of the case. Put in another way, it must be connected with the disagreement between the parties. Issues of fact or law not considered and pronounced on by the trial court are fresh issues that can only be heard by an appellate court after leave of the court is obtained. Failure to obtain leave renders the application to raise fresh issues on appeal incompetent. The application would be thrown out. See Timothy v. FRN (2012) 6SC (pt.iii) P.159, Intercontinental Bank Plc v. Olam(Nig) Ltd (2013)1-2 SC (pt.iii)P.52, Onyemaizu v. Ojiako & anor (2010) 1-2 SC p.41, Adim v. NBC Ltd & anor (2010) 3-5 SC (pt.iii)p. 155.”

ISSUE OF JURISDICTION – JURISDICTION CAN BE RAISED FOR THE FIRST TIME IN THE APPELLATE COURTS AND THERE IS NO NEED TO SEEK LEAVE OF COURT BEFORE RAISING IT

“Jurisdiction is a question of law that can be raised for the first time in the Court of Appeal or the Supreme Court and there is no need to seek leave before raising it for the first time on appeal. It can be raised informally, but it is desirable that some process is filed so that the adverse party is not taken by surprise. See Obiakor v. State (2002) 10 NWLR (pt.776) P.612, Gaji v. Paye (2003) 5 SC p.53.”

ISSUE OF JURISDICTION – JURISDICTION CAN BE FILED AND ARGUED WITH OR WITHOUT THE LEAVE OF THE COURT

“The issue on jurisdiction can thus be filed and argued with or without the leave of the court, even if it is being raised as a fresh issue on appeal. The defendant/appellant was right to raise the issue of jurisdiction in the Court of Appeal without obtaining leave. Heavy reliance was placed on the case of CGC (Nig) Ltd v. Ogu (2005) 8 NWLR (pt.927) p.366.”

CONDITIONAL APPEARANCE – MEANING OF CONDITIONAL APPEARANCE

“The entry of conditional appearance is an appearance under protest and usually means an appearance to object to the courts jurisdiction.”

NOTICE OF PROCEEDINGS – FAILURE TO GIVE NOTICE OF PROCEEDINGS TO THE OPPOSING PARTY RENDERS THE PROCEEDINGS VOID

“Failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the court has no jurisdiction to entertain a case where any of the parties was not served process. See Obimonure v. Erinosho (1966) 1ANLR p.250, Scott-Emuakpori v. Ukaube (1975) 2SC p.41, Haruna v. Ladeinde (1987) 4NWLR (Pt.67) P.941.”

COMPETENCE OF COURT – INGREDIENTS THAT DETERMINES THE COMPETENCE OF A COURT

In Madukolu &ors. v. NKemdilim (1962) 2NSCC p.374 this court per Bairamain FJ made some observations on jurisdiction and the competence of a court. His lordship said that a court is competent when-
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”

JURISDICTION OF COURT – PARTIES MUST PROPERLY BE BEFORE THE COURT FOR THE COURT TO ENTERTAIN AN APPLICATION IN DECIDING THE PROPER COURT TO HEAR THE CASE

“It must be elementary now that parties (i.e plaintiff and defendant) must be properly before the court before the court can entertain an application to decide which is the proper court to hear the case or indeed any application.”

JURISDICTION OF THE SUPREME COURT- JURISDICTION OF THE SUPREME COURT AS A COURT OF FIRST INSTANCE- SECTION 22 OF THE SUPREME COURT ACT

“By the provisions of section 22 of the Supreme Court Act this court is conferred with jurisdiction to make any order necessary for the determination of the real question in controversy in an appeal as if the matter is prosecuted in the Supreme Court as a court of first instance. By this section the court can make or give on order that the court below canmake without sending the case back for a retrial. The section can only be invoked if there is no feature in the case which prevents this court from exercising its wide jurisdiction; and if the proceedings in the court below justify invoking the said section 22 (supra) See Ucha v. Elechi (2012) ALL FWLR (pt.628) p.237,Inakoju v. Adeleke (2007) 1SC (Pt.i) p.128, Daprainlong v. Dariye (2007)4SC (pt.iii) P.I 63 ,Imonikhe v. A.G. Bendel State (1992) 7SCNJ (pt.i) P-197.”

JURISDICTION OF COURT – WHETHER A COURT HAS JURISDICTION OVER A PARTY NOT SERVED IN PROCEEDINGS THAT ARE NOT EX PARTE PROCEEDINGS

“No court has jurisdiction over a party not served in proceedings that are not ex parte proceedings. The court cannot exercise its jurisdiction under section 22 supra since the
Defendant/appellant is not properly before the court. The fundamental feature of non service of process denies this court from exercising jurisdiction.”

EFFECT OF NON SERVICE OF ORIGINATING PROCESSES – NON SERVICE OF ORIGINATING PROCESSES ON THE DEFENDANT PREVENTS THE COURTS FROM EXERCISING JURISDICTION IN DECIDING THE PROPER COURT TO HEAR THE PLAINTIFF/RESPONDENT CASE

“Non- service of originating processes on the defendant is clearly a feature in the case which prevents the trial court and this court from exercising its jurisdiction to decide the proper court to hear the plaintiff/respondent’s case.”

SERVICE OF ORIGINATING PROCESS – SERVICE OF ORIGINATING PROCESS ON A DEFENDANT IS A CONDITION PRECEDENT TO ANY EFFECTIVE ADJUDICATION BETWEEN THE PARTIES TO A CASE

“Issue of service of the originating process on the defendant is a condition precedent to any effective adjudication between the parties to the case. See: Madukolu vs Nkemdilim(1962) 2 SCNLR 342; Nwabueze vs Okoye(1988) 4 NWLR (Part 91) 664.”

NON SERVICE OF COURT PROCESSES – A COMPLIANT ON LACK OF FAIR HEARING OCCASIONED BY FAILURE OF SERVICE OF THE WRIT, DEPRIVES AN APPELLATE COURT OF THE JURISDICTION IN DETERMINING THE PROPER COURT TO ENTERTAIN THE ACTION

“If there was irregular service of the Writ, e.g where the service is effected on the Branch Office and not the headquarters of the company or where the service is done on an employee and not a principal officer of the company, the irregular service can be waived but in a situation where the appellant complains of lack of fair hearing because of failure of service of the Writ, an appellate court without first settling the issue of service of the Writ, cannot delve into the issue of the proper court to entertain the action.”

JURISDICTION OF A COURT – A COURT MUST HAVE JURISDICTION TO HEAR A CASE, BEFORE IT CAN PROCEED TO RULE ON WHETHER SUCH JURISDICTION IS EXCLUDED BY STATUTE

“A court must be imbued with jurisdiction to hear a case before it can proceed to rule on whether that jurisdiction is excluded by statute like the one the appellant is seeking to raise in this appeal. In other words, a court must first establish that the defendant is aware of the suit against him or it before proceeding to entertain the defendant’s objection to the jurisdiction of the Court.”

FAILURE OF SERVICE OF PROCESS – FAILURE OF SERVICE OF PROCESS ON A PARTY WHO IS SUPPOSED TO BE SERVED IS A FUNDAMENTAL VICE

“The law has long been settled that where service of processes is not effected on a party, who is supposed to be served, before a Court makes an order against him, such an order is afflicted with a fundamental vice and he is entitled ex debito justitiae, to have the order set aside, Eke v Oghonda(2007) All FWLR (pt. 351) 1456, 1452.”

CASES CITED

NONE|

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria

High Court (Civil Procedure) Rules of Bendel State 1988 (applicable in Delta State)

Supreme Court Act

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