Legalpedia Citation: (2024-01) Legalpedia 12705 (SC)

In the Supreme Court of Nigeria

Fri Jan 12, 2024

Suit Number: SC.185/2018

CORAM

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

PARTIES

THE REGISTERED TRUSTEES OF MISSION HOUSE

APPELLANTS

1. ALL STATES TRUST BANK PLC (IN LIQUIDATION BY NIGERIA DEPOSIT INSURANCE CORPORATION)
2. PAUL TYOAPINE TSEGBA
3. CAD DEVELOPMENT NIGERIA LIMITED

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant who was invaded and trespassed leading to loss of assets and damages, vide an amended writ of summons and statement of claim, claimed against the Respondents special and general damages: N10,448,830 (Ten Million, Four Hundred and Forty-Eight Thousand, Eight Hundred and Thirty Naira only) being the value of property damaged by the defendants on 12th June, 2001, N3 million being raw cash in their office which they realized from a book launch, and general damages in the sum of N9,551,170.00 (Nine Million, Five Hundred and Fifty-One Thousand One Hundred and Seventy Naira only).

The trial Court delivered its judgment in favour of the Appellant and awarded special damages as prayed with the sum of N1,000,000.00 as general damages for the two invasions of the plaintiff’s premises on 11th May, 2001 and 12th June, 2001. Costs at N10,000.00 was also awarded to the Plaintiff against the defendants jointly and or severally.

Not unnaturally, the 1st Respondent did not take kindly to the judgment of the trial Court, thus appealed to the Court below. However, the Appellant challenged the competence of the said appeal, and it was accordingly struck out by the Court below. The 1st Respondent was later granted an extension of time by the Court below to file a fresh appeal, which was eventually filed and duly entered as No. CA/MK/159/2015. The 2nd and 3rd Respondents equally appealed against the said judgment of the trial Court.

The Court below heard the appeal and delivered its judgment to the effect that on the whole, the appeal succeeds but in part and is therefore allowed in part. The award of the sum of N10,448,830.00 as special damages against the appellants was set aside. In its stead, the claim for the said sum of money was refused for being based on hearsay evidence. The remainder of the decision of the trial Court including the award of the sum of N1,000,000.00 as general damages for trespass was affirmed. No cost was awarded.

The Appellant was utterly dissatisfied with the aforementioned judgment of the Court below (in Appeal No. CA/J/214/2009), thus filed the sister appeal No. SC.324/2018.

What’s more, on 02/02/2018, the Court below equally delivered its judgment in the sister appeal No. CA/MK/159/2015 filed by the 1st Respondent (herein) against the same judgment of the trial Court in suit No. MHC/MK/143/2001, and accordingly held to the conclusive effect that the Appeal succeeds in part and it is therefore allowed in part. The sum of N10,448,830.00 (Ten Million, Four Hundred and Forty-eight Thousand, Eight Hundred and Thirty Naira only) awarded as special damages to the 1st Respondent against the Appellant was set aside, as the court declared that same was not proved by credible evidence acceptable in law, having been based on hearsay evidence. The other decisions of the trial Court inclusive of the award of the sum of N1,000,000.00 (One Million Naira only) jointly and severally to the 1st Respondent as general damages for trespass was affirmed. Parties were ordered to bear their cost.

Aggrieved, the Appellant filed the instant appeal.

 

HELD

Appeal allowed

ISSUES

 Whether the Court below acted without jurisdiction when it extended time for the 1st Respondent to appeal the decision of the trial Court and to have subsequently heard and determined the appeal arising therefrom?

 Whether the Court below was right in refusing to strike out ground 2 of the Notice and grounds of appeal and issue 2 of the 1st Respondent based on the said ground of appeal?

 Whether the Court below was wrong when it made a finding that Exhibit 2 is documentary hearsay and relied on that finding to set aside the award of special damages of N10,448,830.00 made by the trial Court?

 

RATIONES DECIDENDI

PRELIMINARY OBJECTION – THE ROOT AND EFFECT OF A SUCCESSFUL OBJECTION

Arguably, the term, preliminary objection, could originally be traced to International Law Practice and Procedure. Where raised in a case before an international Court or Tribunal, a preliminary objection, if upheld, would render any further proceedings before the Tribunal impossible or unnecessary. An objection challenging the jurisdiction of the Court or competence of the suit is a typical example of a preliminary objection. See BLACK’S LAW DICTIONARY, 11th edition 2019 @ 1290 & 1429. – Per I. M. M. Saulawa, JSC

ACTION/APPEAL – WHERE AN ACTION OR APPEAL HAS NOT BEEN PROPERLY INSTITUTED

The law and practice are well settled in our jurisprudence, that where an action or appeal has not been properly instituted, it has always been considered procedurally beneficial, and indeed prudent, to raise objection to the defect (in the action or appeal) prior to or at the hearing proceedings. See MARTINS VS. FEDERAL ADMINISTRATOR GENERAL (1962) 1 ALL NLR 120; (1962) 1 SCNLR 209; CHIEF ONWUKA KALU VS. CHIEF VICTOR ODILI (LPELR) – 1653 (SC) per Karibi Whyte, JSC @ 60 paragraphs E-G.

PRELIMINARY OBJECTION – WHERE AN APPLICATION BY WAY OF PRELIMINARY OBJECTION MAY BE MADE – MODE OF RAISING PRELIMINARY OBJECTIONS – WHERE A PARTY FAILS TO RAISE THE OBJECTION PRIOR TO THE TRIAL OR AT ANY OTHER STAGE OF APPEAL – EFFECT OF A SUCCESSFUL PRELIMINARY OBJECTION

It ought to be reiterated, at this material point in time, that an application by way of a preliminary objection for the termination (striking out or dismissal of suit) in limine may be purely on points of law and when there are no facts in dispute for the purpose of determining such objection. See FOKO VS. FOKO (1968) NMLR 441; WILLIAMS VS. WILLIAMS (2008) 10 NWLR (pt. 1095) 364; (2008) 34 NSCQRC (pt. 11) 864; per Musdapher, JSC (as then was) @ 17-18 paragraphs F-C; AREMO VS. ADEKANYE (2004) 13 NWLR (pt. 891) 572.

The mode of raising a preliminary objection has been firmly settled. It may be incorporated and argued in the Respondent’s brief by a formal separate notice or written objection or both. However, it is imperative for Respondent or Counsel thereof, with leave of Court, to allude to the objection prior to the hearing of the substantive appeal. See TIZA VS. BEGHA (2005) 15 NWLR (pt. 949) 616; (2005) 5 SCNJ 168 @ 178; NSIRIM VS. NSIRIM (1990) 5 SCNJ 174; (1990) 3 NWLR (pt. 138) 285; OKOLO VS. UBN LTD (1998) 2 NWLR (pt. 539) 618; AREWA TEXTILE PLC VS. ABDULLAHI (1998) 6 NWLR (pt. 554) 508; AJIDE VS. KELANI (1985) 3 NWLR (pt. 12) 248 @ 257-258; FAWEHINMI VS. NBA (NO.1) (1998) 2 NWLR (pt. 105) 494 @ 515-516; (1998) 4 SCNCJ 1; SALAMI VS. MOHAMMED (2000) 9 NWLR (pt. 673) 469; (2000) 6 SCNJ 281.

Undoubtedly, the implication of Respondent’s failure to raise the objection prior to the hearing or at any other stage of the appeal, is ominous; in that the Court may ignore and accordingly discountenance same. See NSIRIM VS. NSIRIM (supra) @ 296-297; OFORKIRE VS. MADUIKE (2003) 106 LRCN 799 @ 80-81; BEN VS. THE STATE (2006) LPELR – 770 (SC) per Ogbuagu, JSC @ 18 paragraphs A-F.

In AFRIBANK NIG. PLC VS. AKWARA (2006) LPELR – 199 (SC), this Court reiterated the trite doctrine that:

“Where a Court finds that a preliminary objection succeeds, there is no need going into the merits of appeal… So let the sleeping dog lie.”

Per Ogbuagu, JSC @ 43 paragraphs B-C. See also NEPA VS. ANGO (2001) 15 NWLR (pt. 737) 627 @ 645-646; AG FEDERATION VS. ANPP (2003) 12 SCNJ 67 @ 81; (2003) 18 NWLR (pt. 851) 182. – Per I. M. M. Saulawa, JSC

 

APPEAL – WHETHER AN APPEAL IS ENTERED ONCE THE RECORD OF APPEAL IS TRANSMITTED THERETO – WHERE THE RECORD OF APPEAL IS TRANSMITTED

The law is trite, that an appeal is entered in the apex Court once the record of appeal is transmitted thereto from the Court below.

It is equally trite, that once the record of appeal is transmitted thereby signifying the entering of the appeal in the apex Court, the Court below automatically becomes functus officio, thus devoid of the fundamental jurisdictional competence to hear and determine any application or question pertaining to the appeal in-question. Undoubtedly, at that crucial stage, the Court lacks jurisdictional competence to make any order regarding the res in the appeal. See EZEOKAFOR VS. EZEILO (1999) 9 NWLR (pt. 619) 519 @524 paragraphs E-F; MACFOY VS. UAC LTD (1962) AC 152; DAKAN VS. ASALU (2015) 13 NWLR (pt.1475) 47 @ 70 paragraphs B-C; DINGYADI VS. INEC (NO. 2) (2010) 18 NWLR (pt. 1224) 154 @ 201 paragraphs c-D; NNAJI VS. CHUKWU (1988) 3 NWLR (pt.81) 184 @ 208; BESTMAN VS. WHYTE (2020) 6 NWLR (pt. 1719) 136 @ 154 paragraphs C-D; ODOM VS. PDP (2015) 6 NWLR (pt. 1456) 527 @ 570 paragraphs A- C. – Per I. M. M. Saulawa, JSC

 

LEAVE TO APPEAL – WHERE THERE IS NO APPEAL AGAINIST THE LEAVE GRANTED AN APPELLANT TO APPEAL – WHETHER A COURT CAN SUO MOTU SET ASIDE AN ORDER THAT IS IRREGULARLY GRANTED – POWER OF A PARTY AFFECTED BY AN ORDER OF COURT THAT IS GRANTED IRREGULARLY

It’s equally not contentious, that the 1st Respondent did not deem it fit to appeal against the leave granted to the Appellant, thereby challenging the validity of the order of the Court. Thus, in the absence of any such appeal, the leave granted the Appellant subsisted, and still subsists. See EZEOKAFOR VS. EZEILO (supra), wherein this Court aptly held:

Obviously, neither the Court of Appeal nor the Respondent can presume the invalidity of a subsisting order of a Court of competent jurisdiction the rule being that an order of Court of competent jurisdiction subsists until set aside.

Per Achike, JSC @ 21 paragraphs D-E; KIGO (NIG) LTD VS. HOLMAN BROS (NIG) LTD (1980) 5-7 SC per ESO, JSC, OKAFOR VS. AG ANAMBRA STATE (1991) NWLR (pt. 20) 659.

The Law is settled, that where an order of the Court is invalid on the ground that it’s so irregularly granted, thereby rendered a nullity or void, the Court suo motu has inherent jurisdiction to set it aside. Likewise, the party affected by such order can take appropriate steps, either by way of appeal or motion to set aside such an invalid order. However, it is desirable that the parties to the case, or the counsel thereof, must be accorded an opportunity to be heard prior to setting aside of the said order, otherwise any pronouncement upon the voidity or invalidity of the order would breach the fundamental doctrine of fair hearing. See COLE VS. MATTINS (1968); All NLR 16 MACFOY VS. UAC LTD (1961) UKPE 49; (1961) 3 All ER 1169; (1962) AC 152, per Lord Denning, MR. – Per I. M. M. Saulawa, JSC

 

PRELIMINARY OBJECTION – WHERE AN APPLICATION BY WAY OF PRELIMINARY OBJECTION MAY BE USED – CONDUCT OF A PARTY APPLYING FOR THE STRIKING OUT OF AN APPEAL WHERE FACTS ARE IN ISSUE

Indeed, the law is trite, that an application by way of preliminary objection for the striking out of an appeal in limine may be on points of law, and when there are no facts in dispute to determine such objection.

However, where facts are in dispute (as in the instant case), the application ought to be by way of a motion on notice, and not preliminary objection. See FOKO VS. FOKO (1968) NMLR 441; OKEREKE VS. JAMES (2012) LPELR – 9347 (SC), where-in this Court aptly reiterated the trite fundamental principle:

A preliminary objection deals strictly with law, so no affidavit is necessary, but when facts are in issue, an affidavit would be necessary. A preliminary objection is filed against the hearing of the appeal, the clear intention being to contend that the appeal is incompetent or fundamentally defective. Consequently, if it succeeds the hearing of the appeal abates, where a respondent’s objection it successful would no Notice should be filed.

Per Rhodes Vivour, JSC @ 6-7 paragraphs G-B. – Per I. M. M. Saulawa, JSC

 

JURISDICTION – MEANING OF JURISDICTION – THE IMPORTANCE OF JURISDICTION – WHEN THE ISSUE OF JURISDICTION MAY BE RAISED – THE EFFECT OF THE ABSENCE OF JURISDICTION

The term jurisdiction literally denotes the power or authority of a Court of law or tribunal to entertain and determine a dispute between parties. Jurisdiction could be likened to blood that gives life to the survival of an action in a Court of law or tribunal:

[A]nd without jurisdiction, the action would be like an animal that has been drained of its blood, it would cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.

See UTIH VS. ONOYIVWE (1991) INWLR (pt. 166) 166 per Bello, CJN @ 46 paragraphs C-D.

The jurisdiction of our Courts and Tribunals is fundamentally derived from the Constitution. The fundamental nature of jurisdiction cannot be overemphasized. That’s the very basis for saying that jurisdiction can be raised at any stage of proceeding be it at the trial, on appeal via the Courts below up to the apex Courts. Afortiori, due to its indispensability, jurisdiction can be raised by the parties, or even suo motu by the Court itself. As aptly reiterated by this Court in PETROJESSICA ENT. LTD VS LEVENTIS TECH CO. LTD (1992) LPELR-2915 (SC):

It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise an issue of justice so as to save time and costs and to avoid a trial in nullity.

Per Belgory, JSC (as then was) @ 23-24 paragraphs G-B; OSADEBAY VS. AG BENDEL STATE (1991) 1 NWLR (pt. 169) 525; OWONIBOYS TECH. SERVICES LTD VS. JOHN HOLT LTD (1991) 6 NWLR (pt. 199) 550; OKESUJI VS. LAWAL (1991) 1 NWLR (pt. 170) 661; KATTO VS. CBN (1991) 9 NWLR (pt. 214) 126; UTIH VS. ONOYIVWE (1991) 1 NWLR (pt. 166) 166 per Bello ON @ 46 paragraphs C-D.

Undoubtedly, the effect of absence or lack of jurisdiction of Court in any given matter is ominous. This is absolutely so, because where it’s obvious that a Court or tribunal lacks jurisdiction, it cannot enforce its coercive powers. The Courts coercive powers are based upon the existence of its legal jurisdiction to exercise the judicial powers accorded thereto under Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See AKINBOBOLA VS. PLISSON FISKO NIG. LTD (1991) NWLR (pt. 167) 270; (1991) 1 SCNJ 129; (1991) 1 SC (pt. 11) 1; (1991) LPELR – 343 (SC) per Karibi Whyte, JSC @ 21 paragraphs B-G; MADUKOLU VS. NKEMDILIM (1962) 2 NSCC 371 per Bairamian, FJSC @ 50- 55. – Per I. M. M. Saulawa, JSC

 

INTERPRETATION – THE ESSENCE OF INTERPRETING A STATUTE – WHERE A STATUTE LAYS DOWN A PROCEDURE FOR DOING A PARTICULAR THING

The primary object of interpreting a statute is to discover the intention of the law-maker through the words used in the statute. See ABIOYE VS. YAKUBU (1991) 5 NWLR (pt. 190) 130; (1991) All NLR 1; (1991) 6 SC 72; (1991) LPELR-43 (SC) per Karibi Whyte, JSC @ 116 paragraphs B-C; IFEZUE VS. MBADUGHA (1984) 1 SCNLR 427; ESTATE OF SOULE VS. JOHNSON (1974) 12 SC 121.

The law is settled, that where the words of a statute are crystal clear and unambiguous, they should be accorded their plain and ordinary grammatical meaning. See ABIOYE VS. YAKUBU (1991) LPELR-43 (SC) per Obaseki, JSC @ 116 paragraphs C-D.

Indeed, this Court has reiterated in a plethora of authorities the laid down principles regarding the interpretation of statute or rules of Court. It is firmly established, that where a statute lays down a procedure for doing a thing, that procedure ought to strictly be complied with unless there are circumstances warranting it to be waived or deviated therefrom. See NWANKWO VS. YAR’ADUA (2010) 12 NWLR (pt. 1209) 518 SC @ 42 paragraphs B-F; CIB PLC VS. AG ANAMBRA STATE (1992) 10 SCNJ 37 @ 162; BUHARI VS. YUSUF (2003) 6 SC (pt. 11) 156; (2003) 4 NWLR (pt. 841) 446 @ 492. – Per I. M. M. Saulawa, JSC

 

S. 588 (1) CAMA 2020 – THE POWERS/DUTY OF LIQUIDATORS ACCORDING TO S. 588 (1) CAMA 2020

In the instant case, this Court has had the privilege of interpreting the said provision of Section 425(1) of CAMA (which is in pari materia with Section 588(1) of CAMA 2020 supra) in the case of IN RE: AMOLEGBE (2014) 8NWLR (PT. 1408) 76:

By looking soberly at the provision of Section 425(1)(a) set out above, one may ask: whether the NDIC as the provisional liquidator of the 1st Respondent can bring or defend any action or other legal proceedings in the name and on behalf of the 1st Respondent. It is clear from the same provision that a liquidator in a winding up by the Court (which the NDIC is by law deemed to have been as appointed) can bring or defend any action or other proceedings in the name and on behalf of the 1st Respondent (to subrogated) subject only to the condition, i.e sanction of the Court or committee of inspection is sought and obtained by the liquidator, no legal action or proceedings can be brought or defended by the liquidator.

See also OREDOLA OKEYA TRADING CO. VS. BCCI (2014) LPELR-22011 SC.

Undoubtedly, the NDIC having failed to seek and obtain the necessary leave as required by Section 425 of CAMA 1990 (now Section 599(1) of CAMA 2020), the application and appeal filed by the NDIC is rendered incompetent and liable to be struck out. In essence, the Court lacked the necessary jurisdiction to entertain and determine the appeal before it. See NALSA AND TEAM ASSOCIATES VS. NNPC (1991) 8 NWLR (pt. 212) 652; NYAMBI VS. OSADIM (1997) 2 NWLR (pt. 485) 1 et al. – Per I. M. M. Saulawa, JSC

 

APPEAL – THE REQUIREMENTS FOR A VALID GROUND OF APPEAL AND ISSUES DISTILLED THEREFROM

The principle governing the validity or competence of a ground of appeal and the issue distilled therefrom is well settled. A ground of appeal and afortiori, the issues for determination derived therefrom, must relate to the decision appealed against as well as a challenge to the validity of the ratio decidendi (decision). See EGBE VS. ALHAJI (1990) 1 NWLR (pt. 128) 546 @ 590. – Per I. M. M. Saulawa, JSC

ADMISSIBILITY – WHETHER ADMISSIBILITY OF EVIDENCE AS A NEW ISSUE ON APPEAL REQUIRES LEAVE OF COURT

Ironically, however, the question of admissibility or otherwise of Exhibit 2 never cropped up or raised at the trial. Thus, it’s an entirely new issue raised on appeal, which required the leave of Court. – Per I. M. M. Saulawa, JSC

 

SUO MOTU – CONDUCT OF COURTS WHERE AN ISSUE IS RAISED SUO MOTU

…the finding of the Court below on the issue was made suo motu without according the parties especially the Appellant to address on the point. The said finding amounts to breaching the Appellant’s right to fair hearing, as cherishingly enshrined in Section 36(1) of the 1999, Constitution, as amended (supra). See COLE VS. MATTINS (1968) ALL NLR 161.

Indeed, not too long ago, this Court had the privilege of reiterating the importance of the trite fundamental right to fair hearing to administration of justice. That’s the case of MUSA MUHAMMAD USMAN OBE VS. MURTALA ABDULLAHI ABUBAKAR & 5 ORS (Appeal No. SC/CV/248/2023), judgment delivered on 31/3/2023, wherein this Court aptly remarked:

My noble Lords, we have frequently reiterated, that it is most desirable that where a Court, as in the present case, after hearing argument of Counsel, deems it expedient that the matter before it can in fact be decided on a sheer technical point upon which it has not been addressed, then it behooves the Court to invite the Counsel to address it thereupon. As aptly once reiterated by this Court in COLE VS. MATTINS (1968) All NWLR 161:

It is our view only after so acting that a Court should adjudicate on a technical point taken by the Court itself particularly when the defect if there is one, could be cured if the Court in its discretion, gives leave to amend

Per Lewis, FJSC @ 244.

Per Saulawa, JSC @ 22. – Per I. M. M. Saulawa, JSC

 

CASES CITED

Non Available

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Companies And Allied Matters Act, 1990 
3. Companies And Allied Matters Act, 2020
   

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