Jurisdiction can be raised on appeal without leave of court
IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 6TH DAY OF MARCH, 2015
BEFORE THEIR LORDSHIPS
M. S. MUNTAKA-COOMASSIE JUSTICE, SUPREME COURT
B. RHODES-VIVOUR JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
KUMAI BAYANG AKA’AHS JUSTICE, SUPREME COURT
CHIMA CENTUS NWEZE JUSTICE, SUPREME COURT
COMPAGNIE GENERALE DE DEFENDANT/ APPELLANT
GEOPHYSIQUE (CGG) NIG. LTD.
MOSES AMINU PLAINTIFF/RESPONDENT
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. The issue of jurisdiction can thus be filed with or without the leave of court.
So held the Supreme Court holden at Abuja in a unanimous leading judgment delivered by His lordship B. Rhodes-Vivour JSC with his learned brothers, M. S. Muntaka-Coomassie, Olukayode Ariwoola, Kumai Bayang Aka’ahs and Chima Centus Nweze JJSC concurring while dismissing the appeal. The parties were represented by D. I. Alaba for the Appellant and Oladejo Lamikanra SAN, T. Adebayo and E. Akwuruoha for the Respondent.
The Plaintiff was an employee of the Defendant. In the course of his employment he suffered severe injuries on his wrist. After an operation, the wrist became virtually useless. When all attempts by the Plaintiff to convince the Defendant to pay compensation failed he took out a writ of summons accompanied by statement of claim against the Defendant 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 company. After these originating processes were served on the Defendant, the Defendant entered conditional appearance on the 1st of November, 1999. Notwithstanding the fact that Defendant’s appearance was unresolved the Plaintiff 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: 1. An order of court entering final judgment for the Plaintiff in default of the Defendant/Respondent to file its statement of defence. And for such further order or orders that this honourable court may deem fit to make in the circumstances.
On the 17th day of November, 1999 apparently oblivious of conditional appearance entered by the Defendant, the learned trial judge, after hearing learned counsel for the Plaintiff, F.K. Ogbimi esq, entered final judgment for the Plaintiff in default of the Defendant to file its statement of defence. The Court ordered as follows: “Application granted as prayed. Final judgment is hereby entered in favour of the Plaintiff/Applicant in whose favour judgment is hereby entered in the sum of N5,000,000.00 (five Million Naira) against the Defendant based on special and general damages for negligence and injuries suffered by the Plaintiff in the course of his employment as an employee in the Defendant’s company. In order words judgment is entered for the Plaintiff as per Paragraph 37 of the statement of claim.”
In rapid succession, the Defendant filed applications asking for extension of time to set aside the default judgment. To set aside writ of attachment, to stop further execution etc. Finally on the 23rd of January, 2010 the trial judge heard a motion on notice brought under Order 37 Rule 9, Order 47 Rule 1 of the High Court Rules, and Section 30(1) of the 1999 Constitution for:
1. Extension of time within which Applicant can apply to set aside the default judgment dated 17/11/99. 2. Setting aside the said default for suit (sic) 3. An order setting aside the writ of attachment or execution, include attachment of Applicants vehicles, in execution of default judgment. 4. An order discontinuing further execution of Applicants properties. And on 11/4/2001 the learned trial judge found the application to be unmeritorious and struck it out with costs of
N1, 000 in favour of the Plaintiff/Respondent. Dissatisfied with the refusal of the learned trial judge to set aside the default judgment the Defendant/Appellant lodged an appeal.
The Court of Appeal (Benin City Division) heard the appeal and in a considered judgment delivered on the 6th day of December, 2005 allowed the appeal and ordered as follows: “The default judgment of the lower court dated 17/11/99 and the orders dated 11/4/2000 are hereby set aside. The suit No. HCH/14/99 is sent back to the High Court of Delta State for trial de novo by a judge other than Onajite Kuejubola J. This appeal is against that judgment. Briefs of argument were filed and exchanged. The Appellant filed an Appellant brief and a reply brief on the 11th day of April, 2006 and the 12th of March, 2007 respectively. The Respondents brief was filed on the 12th day of July, 2006. Learned counsel for the Appellant formulated two issues for determination. They are: 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. Learned counsel for the Respondent formulated a sole issue for determination. It reads: 1. Whether in the light of the fact that jurisdiction being a fresh point, not previously canvassed in the court of trial, the court below was wrong to have remitted the entire suit back to the court of trial for “trial de novo” which trial would necessarily include the consideration of the issue of jurisdiction. I have examined the issues presented by both sides for determination of the appeal. I am satisfied that both set of issues ask the same questions. I shall in the circumstances consider the two issues formulated by the Appellant and they shall be taken together. At the hearing of the appeal on the 16th day of December, 2014 learned counsel for the Appellant, Mr. D.I. Alaba adopted the Appellants brief and reply filed on 11/4/06 and 12/3/07 respectively and urged this court to allow the appeal. Learned counsel for the Respondent, Mr. D. Lamikanra, SAN adopted the Respondent’s brief filed on 16/12/14 and urged this court to dismiss the appeal and affirm the judgment of the Court of Appeal.
The concluding part of the judgment of the Court of Appeal reads as follows: “In summary I hold that there is no proof of service on the writ of summons and/or the motion for judgment on the Appellant. The failure of the court below to consider the Appellant’s statement of claim is a breach of the Appellants right to a fair hearing. The appeal is meritorious and is hereby allowed. The default judgment of the lower court dated 17/11/99 and the orders dated 11/4/2000 are hereby set aside. The suit No. HCH/14/99 is sent back to the High Court of Delta State for trial de novo by a judge other than Onajite Kuejubola J………”
The two issues formulated by the Appellant which shall be considered in this appeal reads:
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. What is the issue of jurisdiction that the Court of, Appeal ought to have resolved?
The Appellant annexed a statement of defence to his application to set aside the default judgment. The issue of jurisdiction was raised in the statement of defence. The application was refused by the trial court. No pronouncement was made on the issue of jurisdiction raised in the statement of defence. On appeal, the Court of Appeal set aside the judgment (allowed the appeal) by setting aside the default judgment and remitting the case to the trial court for trial de novo. Before the Court of Appeal was a preliminary objection on the issue of jurisdiction of the trial court sitting in Delta State to try the case. The Court of Appeal refused to hear the issue of jurisdiction. The court said: “A decision on the preliminary objection on the issue of jurisdiction will necessarily involve a pronouncement on same material points in the case. This would preempt the trial court in case of hearing de novo and jeopardize the interest of one of the parties,” That explains the issue of jurisdiction that the Court of Appeal refused to address. Learned counsel for the Appellant submitted that the Court of Appeal ought to have invoked Section 16 of the Court of Appeal Act and determine the issue of jurisdiction. He argued that the Delta State High Court lacks jurisdiction to try this suit as it is clear that the Respondent’s injuries arose from his job as a redriller during seismic and other oil exploration operations, and it was in the course of his work that he was injured. He submitted that by Section 251(n) of the Constitution, only the Federal High Court has jurisdiction to try the case as the cause of action is from mines, and minerals. He urged this court to invoke Section 22 of the Supreme Court Act, set aside the judgment of the Court of Appeal and strike out suit No.HCH/14/99 for want to jurisdiction. Reliance was placed on: C.G.G. Nig Ltd. v. Ogu (2005) 2 S.C. (Pt. II) 50. Replicando, learned counsel for the Respondent observed that the issue of jurisdiction was not raised in the trial court, contending that it can only be raised on appeal as a fresh point after leave of court must have been obtained. Reliance was placed on: Ejiofodomi v. Okonkwo (1982) 11 S.C. (Reprint) 30; C.G.G. (Niq) Ltd. v. Ogu (2005) 2 S.C. (Pt. II) 50. He urged this court to uphold the decision of the Court of Appeal which ordered that the case be sent back to the trial court for trial de novo.
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