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Whether preliminary objection on jurisdiction can be considered at end of trial

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NIGERIAN PORT AUTHORITY v. MR. SAM NMEJE & ORS
 
CITATION: (2020) LPELR-51849(CA)
 
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar

ON FRIDAY, 4TH DECEMBER, 2020
Suit No: CA/C/269/2018
 
Before Their Lordships:
MOJEED ADEKUNLE OWOADE Justice, Court of Appeal
HAMMA AKAWU BARKA                      Justice, Court of Appeal
MUHAMMED LAWAL SHUAIBU.  Justice, Court of Appeal 

Between
 
NIGERIAN PORT AUTHORITY –
Appellant(s) 

And
 
1. MR. SAM NMEJE
2. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
3. THE ATTORNEY-GENERAL OF THE FEDERATION OF NIGERIA
4. THE MINISTER OF TRANSPORT 
5. BUREAU OF PUBLIC PROCUREMENT
6. CALABAR CHANNEL MANAGEMENT LIMITED
7. NIGER GLOBAL ENGINEERING & TECHNICAL COMPANY LIMITED 
(FOR ITSELF AND ON BEHALF OF THE OTHER MEMBERS OF THE CONSORTIUM) –
Respondent(s)

LEADING JUDGMENT DELIVERED BY MUHAMMED LAWALSHUAIBU, J.C.A.
FACTS
By a notice of preliminary objection filed on 14/6/2018 and brought pursuant to Section 6(6) of the 1999 Constitution (as amended) the appellant (as 4th Defendant) prayed the Federal High Court sitting at Calabar for the dismissal of the 7th Defendant/Respondent’s counter-claim for being statute barred and for failure to properly serve pre-action notice.
 
At the Court’s resumed sitting on 6th June, 2018 when the Appellant’s counsel informed the Court of her readiness to move the said notice of preliminary objection challenging the competence of the 7th respondent’s counter-claim. Learned trial judge ruled that the preliminary objection of the Appellant challenging the competence of the 7th respondent’s counter-claim shall be taken at the end of the trial.
 
Dissatisfied with the ruling, appellant appealed to the Court of Appeal. The 6th and 7th respondents incorporated in their briefs of argument preliminary objections, challenging the competence of the appellant’s notice of appeal.
 
Issue for determination
The Court of Appeal determined the appeal on the sole issue of whether the learned trial judge was right in his ruling that he would consider the appellant’s objection at the end of the trial of the substantive suit.

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Appellant’s submission
The appellant submitted that when an action such as the 7th respondent’s counter-claim is statute-barred, the right of action is removed, and thus the action becomes incompetent and unenforceable. He contended that the appellant’s objection was predicated on the jurisdiction of the Court to entertain the matter which goes beyond the rules of any Court. Counsel cited MADUKOLU V. NKEMDILIM (1962)2 SCN NLR 341, and hosts of other cases to buttress the point that the issue of jurisdiction is so important that a Court is bound at any stage to terminate proceedings if it becomes manifest that they are incompetent.

Learned Counsel further submitted that assuming without conceding that the appellant’s objection was even made pursuant to Order 16 of the Federal High Court (Civil Procedure) Rules 2009, the fact that parties consented to hearing of the said preliminary objection that touches on the jurisdiction of the lower Court to entertain the matter, the trial judge ought to have been persuaded to hear same before going into trial. He cited Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009 and the cases of DAPIANLONG V. DARIYE (2007) 8 NWLR (Pt. 1036) 332 at 406 and A.G LAGOS STATE V. A.G., FEDERATION (2014) 9 NWLR (Pt. 1412) 217 in submitting that it is only in matters commenced by originating summons that the hearing of objection to jurisdiction can be combined with the substantive matter.
 
6th respondent’s submission
The 6th respondent contended that the appellant having simultaneously applied under Order 16, Rule 2 of the Federal High Court (Civil Procedure) Rules 2009 for the points of law to be heard before trial, the trial judge was therefore right when in the exercise of his discretion ordered that the objection be taken after trial. Counsel submitted that the appellant having not appealed against the aspect of the lower Court’s ruling that the objection was made pursuant to, Order 16 of the Federal High Court (Civil Procedure) Rules 2009, her argument goes to no issue and is liable to be struck out. He cited N.B.C. PLC V. UBANI (2014) 4 NWLR (Pt. 1398) 421 at 467 and NNPC V. CLIFCO (NIG) LTD (2011) 10 NWLR (Pt. 1255) 209 at 233 to the effect that where a party has erroneously premised his case on an issue which by its clear ambit does not cover his case, his argument under the said issue should be discountenanced.

He submitted that by virtue of Order 29 Rules 4and 5 of the Federal High Court (Civil Procedure) Rules 2009 an application challenging the jurisdiction of the Court should be made within twenty-one days after service on the defendant of the originating process, failing which such application can only be taken at the conclusion of the trial and that the appellant’s preliminary objection was filed seventy (70) days after it was served with the counter-claim and thus, the trial judge was right when he ordered the preliminary objection to be taken at the conclusion of the trial.

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7th respondent’s submission
The 7th respondent contended that apart from the fact that the appellant’s preliminary objection was filed outside the twenty-one mandatory periods, the said objection is such that could be taken after the conclusion of the trial.
 
6th and 7th respondent’s submissions on their preliminary objection challenging the competence of the appellant’s notice of appeal
The 6th respondent contended that ground 1 of the appellant’s notice of appeal is not related to the ruling of the lower Court and that any ground of appeal from which no issue has been distilled and upon which no argument has been canvassed, is deemed abandoned by the appellant. Counsel cited DANIEL V. F.R.N. (2015) 13 NWLR (Pt. 14250) 119 at 131 and F.R.N. V. DAIRO (2015)6 NWLR (Pt. 1454) 141 at 165.

The 6th respondent further contended, along with the 7th respondent, that ground 2 is a ground of mixed law and facts which also challenge an interlocutory decision of a Court on the exercise of the lower Court’s discretion and thus the leave of Court ought to have been sought and obtained. Reliance was placed on Section 242 (1) of the 1999 Constitution (as amended) and the cases ofF.B.N. PLC. V. ABRAHAM (2008) 18 NWLR (Pt. 1118) 172 at 189 GARUBA V. OMOKHODION (2011) 14 NWLR (Pt. 269) 145 and IDRIS V. AGUMAGU (2015) 13 NWLR (Pt. 1477) 441 at 474 – 475
 
Appellant’s reply to respondents’ submissions on their preliminary objection
The appellant contended that on the authority of LABIYI V. ANRETIOLA (1992) 8 NWLR (Pt. 258) 139, a number of grounds could where appropriate be formulated into a single issue and that the single issue for determination was distilled from the two grounds of appeal. He further submitted that once an appeal is as of right, whether interlocutory or final, the appellant does not require the leave of the lower Court or the Court of Appeal to appeal. He cited Section 241 (1) (b) of the 1999 Constitution (as amended) and the cases of KULAK TRADE & INDUSTRIES PLC. V. THE TUG BOAT M/V JAPAUL B. & ANOR (2011) 9NWLR (Pt. 1251) 133 at 149 and ORAEKWE V. CHUKWUKA (2012) 1 NWLR (Pt. 1280) 169 to buttress that a ground of appeal against a decision of the High Court whether final or interlocutory which involves question of law alone and is filed within time does not require leave to appeal.

The appellant submitted further that where the ground complains of the lower Court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore one of law alone.

In response to the 7th respondent, the appellant also submitted that the complaints in the appellant’s grounds of appeal are about misapplication of the law, namely Order 16, Rule 2 (1) of the Federal High Court (Civil procedure) Rules, 2009 and therefore grounds of law which require no leave of Court to appeal. He submitted that in order to hear the Appellant’s objection at the conclusion of hearing, the learned trial judge did not need to resolve any dispute on any issue of facts because the facts were not in dispute and thus, the appellant did not need to obtain leave to file the appeal.
 
Resolution of issues in the preliminary objection
The Court of Appeal first considered the 6th and 7th respondents’ preliminary objection and held that on the issue of, whether the grounds of appeal particularly ground 1 relate to the ruling of the trial Court now on appeal, that the law is settled that a ground of appeal as well as the issue distilled from it for the determination of an appeal must relate to the decision being appealed against. See NYAKO V. ADAMAWA STATE HOUSE OF ASSEMBLY (2017) 6 NWLR (Pt. 1562) 347 and AJAOKUTA STEEL CO. LTD V. G.I. & S. LTD (2019) 8 NWLR (Pt. 1674) 213 at 226. The purpose of the grounds alleged is to isolate and accentuate for attack the basis of the reasoning of the decision challenged. See AQUA LTD V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (Pt.  91) 622 and SARAKI V. KOTOYE (1992) 9 NWLR (prt 264) 156 at 1983 – 184. Ground 1 of the Appellant’s notice of appeal clearly attacks the basis of the learned trial judge’s reasoning of his decision to take the Appellant’s preliminary objection at the conclusion of hearing of the substantive suit. Thus it is within the ruling challenged.

x
 
On the second issue of whether the grounds of appeal are of mixed laws and facts wherein leave is required, the Court held that a ground of appeal does not translate into a ground of law or fact or mixed law and facts because it is so couched. To decipher whether a ground of appeal is of law or fact or mixed law and fact a Court has the duty to thoroughly and assiduously examine the ground with its accompanying particulars. See EHINLANWO V. OKE (2008)16 NWLR (Pt. 1113) 357, and GENERAL ELECTRIC CO. V. AKANDE (2010) 18 NWLR (prt 1225) 596. An examination of the particulars to ground 2 reveals that the appellant’s complaint is predicated on a misapplication of the law which does not need any leave of Court. The Court also held that although an appellant is required to obtain the leave of the lower Court or of this Court to appeal against an interlocutory decision of the trial Court, in this case, the ground(s) of appeal by the appellant in the interlocutory appeal is purely a question of law alone. Thus the Appellant’s ground 2 can be raised without leave.
 
Resolution of the substantive issues
On the issue of whether the learned trial judge was right in his ruling that he would consider the appellant’s objection at the end of the trial of the substantive suit, the Court held that the issue of jurisdiction could be raised at any time even before an appellate Court. Also preliminary objection where raised by a party should firstly be determined before determining the substantive suit if the need to do so arises. See OKOROCHA V. UBA PLC (2018)17 NWLR (prt 1649) 441.The Court further held that the rules of Court cannot regulate when and how issues of jurisdiction can be raised particularly where the issue involves jurisdiction as a matter of substantive law. See B.P.E. V. DANGOTE CEMENT PLC (2020) 5 NWLR (prt 1717) 322.
 
Held
The Court allowed the appeal. The case was remitted to the Chief Judge of the Federal High Court for hearing of the Appellant’s preliminary objection before hearing the 7th respondent’s counter-claim should the need arise.
 
Appearances
IFEANYI EQUASI, ESQ.

For Appellant(s)
Compiled by LawPavilion

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In this article:
lawMUHAMMED LAWALSHUAIBU
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