Judgment
MOHAMMED LAWAL GARBA, J.S.C. (Delivering the Leading Judgment): Being dissatisfied with the decision by the Court of Appeal, Kaduna Division, (Court below) to dismiss their appeal before it, in a judgment delivered on 16th January, 2015, the Appellants brought this further appeal on nine (9) grounds vide the Notice and Grounds of Appeal dated 27th February, 2015, but filed on 3rd March, 2015 and deemed on 9th October, 2017 (as shown at pages 546-553 of the Record of Appeal received in the Court on the 7th of April, 2015).
In line with the requirement in Order 6, Rule 5 of the Rules of the Court, learned counsel for the parties filed briefs of argument in support to their respective positions as follows:- 1. Appellants’ Brief filed on 13th November, 2017 deemed on the 9th October, 2017. 2. 1st Respondent’s Brief filed on 22nd November, 2017 along with Notice of Preliminary Objection on the competence of the appeal. 3. Appellants’ Reply Brief was filed on the 15th December, 2017.
The Briefs of Argument were adopted at the hearing of the appeal on the 17th January, 2022 by learned SAN, Mr. Kehinde Ogunwumiju for the Appellants, who also filed a list of Additional Authorities on that day, and Mr. S. J. Gani, Esq. for the 1st Respondent, Mr. O. Gbadeyan, Esq. who appeared for the 2nd-4th Respondents, informed the Court that he did not file a Brief of Argument in the appeal.
In the Appellant Brief, settled by A. T. Kehinde, SAN, five (5) issues are set out for determination at page 5, as follows:- “3.1 Whether the lower Court was justified in holding that the Tribunal gave judgment on the 20th April, 1999 after being satisfied that there had been due compliance with the order for substituted service of processes and following the application of the Claimant/Applicant’s counsel?
Grounds 5, 8&9. 3.2 Whether a party who is not aware of a proceeding against him/her in a Court or Tribunal could be bound by the Judgment or ruling of that Court or Tribunal under any law, rule of law or practice. Ground 4. 3.3 Whether the facts of the case of AREWA PAPER CONVERTERS LTD v. N.D.I.C. (2006) 7 S.C.N.J 457 are on all fours with the facts of the instant case to justify the blanket application of the judgment of the Supreme Court in that case in the instant case?
Grounds 6 & 7. 3.4 Whether the lone judgment of the lower Court delivered in chambers does not amount to a nullity in law? Grounds 1 & 2. 3.5 Whether the 16/1/2015, tile date the lone judgment was delivered in this suit can be said to be a juridical date in view of the Judicial State Union of Nigeria strike as at that date? Ground 3. ”
For the 1st Respondent, the preliminary objection was argued at pages 3-8 of the 1st Respondent Brief, challenging the jurisdiction of the Court to adjudicate over the appeal on the ground that it is incompetent.
At paragraph 4.01 on page 9 of the Brief, the following three (3) issues are said to call for determination in the appeal:- “ISSUE NO. 1 Whether considering the facts of the case of Arewa Paper Conveters v. N.D.I.C (2006) 7 SCNJ 457 and the Failed bank (Recovery debts and Financial Malpractices in Banks) Decree 1994 as amended the lower Court was justified when it applied the ratio in the case of Arewa Paper Converters V.
N.D.I.C. and held that the appellants were served with the Court processes and therefore bound by the judgment of the Tribunal-Issues 1, 2 and 3 of the appellants’. (Grounds 4, 5, 6 ,7, 8 & 9) ISSUE NO. 2 Whether in the circumstances of this case the judgment of the lower Court delivered in chambers is a nullity. (Grounds 1 and 2). ISSUE NO. 3 Whether the judgment of the lower Court delivered on 16/1/2015 when the Judiciary Staff Union of Nigeria was on strike as a nullity. (Ground 3). ”
Due to the known fundamental and crucial nature of the issue or question touching on the jurisdiction of a Court, generally, to adjudicate over a case or matter, and the appellate Courts, to entertain and adjudicate over appeals, which is said to be both intrinsic in and extrinsic to judicial proceedings, the law prescribes that whenever it arises or is raised in the course of such proceedings (as all stages or steps of the judicial ladder), the Court before which it arises or is raised has the duty and obligation to consider and determine it first before proceeding with other issues or taking further steps in the case/appeal, if necessary.
See Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNL 296, Kotoye v. Saraki (1993) 5 NWLR (pt. 296) 710, Odofin v. Agu (1992) 3 NWLR (pt. 729) 350, Bakare v. A.G. Federation (1990) 5 NWLR (pt. 152) 516, NDIC v. CBN (2002) 7 NWLR (pt. 766) 271, Kalio v. Daniel-Kalio (1975) 2 SC, Salati v. Shehu (1986) 1 NWLR (pt. 15) 198.
An objection questioning or challenging the competence of an action/matter or appeal, as the case may be, goes to also attack or question the judicial power and authority of the Court, ie. the requisite jurisdiction or vires in law, of the Court, to adjudicate over the action/matter or appeal, on the merit, and so seeks to terminate it in limine. For that reason, it is prudent to first deal with and make a pronouncement on it before further steps are taken (if necessary) in the action/matter or appeal. In the case of Efet v. INEC (2011) 7 NWLR (pt. 1247) 423 the law was restated by I.T.
Muhammad, JSC (now CJN) that:- “It is trite law that where a Notice of Preliminary Objection is filed and moved before a Court of law, the Court is duty bound to consider the Preliminary Objection before venturing into the main appeal or cross-appeal, as the case may be. See AGBAREH & ANR v. MIMRA & ORS (2008) 1 SCNJ 24; ONYEMEH & ORS. v. EGUCHUSAM & ORS (1996) 4 SCNJ 235.” See in addition, A.G. Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (pt. 618) 187, NWLR (pt. 77) 157, Odu v. Agbor-Hemeson (2003) 1 NWLR (pt. 802) 624, GBARABE v. REG.
T.M.C.N. (2009) LPELR-8378, All States Trust Bank v. King Davidson Ent. Ltd. (2000) 12 N WLR (pt. 680) 298,Uba v. Yawe (2000) 8 NWLR (pt. 670) 739, Abiola v. Olawoye (2006) 13 N WLR (pt. 996) 1, wherein the position of the law was repeatedly stated.
I intend to, bowing to the established and recognized position of the law demonstrated above, consider the objection raised by the 1st Respondent to the competence of the appeal and jurisdiction of the Court to adjudicate on it, as contained on the Notice of Preliminary Objection mentioned earlier.
The grounds of the objection set out on the Notice of Preliminary Objection are that:- “1. There is no competent appeal as the matter was not commenced by due process of the law before the Federal High Court. 2. The two lower Courts have no power to entertain this matter as Courts of competent jurisdiction. 3. By Section 2 of the Tribunals (certain consequential Amendments e.t.c.) Decree No. 62 of 1999 the Federal High Court has no jurisdiction to entertain the matter. 4. The judgment of the Tribunal before the commencement of the Decree is preserved. 5.
The law does not give the lower Court the jurisdiction to entertain an appeal against the judgment of the failed banks Tribunal. 6. The appellants/applicants’ late father was supposed to appeal to the special appeal Tribunal within 21 days and he failed to do. 7. The judgment of the Federal High Court was given without jurisdiction, 8. This Court in Arewa Paper v. N.D.I.C (2006) 7 SCNJ 457 at 477 line 5 to 12 held that the Federal High Court lacked jurisdiction to entertain the matter to support any appeal.”
In arguing the objection at pages 3-8 of the 1st Respondent’s Brief, learned counsel, relying on the case of Petrojessica Ent. Ltd. v. Leventis Tech. Co. Ltd. (1992) I NWLR (pt. 244) 675 at 693, per Belgore, JSC, (Former CJN), submitted that the law is settled that the issue of jurisdiction of a Court can be raised at any time and at any stage of the proceedings of a case, in writing or even verbally, either by the parties or the Court suo motu.
He said that the right of appeal is either constitutional or statutory and that an appellate Court has no jurisdiction to hear any appeal unless it was vested by the Constitution or statute, on the authority of Ehuwa v. Ondo State (2006) 12 SCJN, 259 at 267. Learned counsel sets out Section 240 of the Constitution on the jurisdiction of the Court below and contends that the Failed Banks Tribunal (the Tribunal) is not one of the Courts listed therein for that Court to have jurisdictions of the Tribunal. Still relying on Ehuwa v.
Ondo State (supra), Learned Counsel said the law is trite that for an appellate Court to exercise jurisdiction over an appeal, the lower Court from which it emanated must also have the jurisdiction to entertain the matter otherwise the appellate Court would also lack the jurisdiction to entertain the appeal against decision of that lower Court.
He then pointed out that this appeal emanated from the ruling of the Federal High Court (trial Court) dated 25th May, 2007 refusing to set aside the judgment of the Tribunal delivered on 20th April, 1999 and that the jurisdiction of the trial Court to hear matters from the Tribunal was derived from the provisions of the Tribunals (Certain Consequential Amendments, etc) Decree No. 62 of 1992 (the Decree), which was preserved by Section 2(4).
According to him, the judgment being preserved as a concluded matter, the jurisdiction of the trial Court was to enforce it as provided for in Section 2 (5) of the Decree and it was not within the matters that can be determined by that Court under Sections 2 and 3 of the Decree since it was not a part-heard matter. He cited the statement by this Court, per Mohammed, JSC in Arewa Paper Converters Ltd v.
N.D.I.C. (Nigerian Universal Bank) Ltd. (2006) 7 SCNJ, 457 at 474 and submitted that the judgment of the Tribunal was delivered more than one (1) month before the commencement of the Decree and therefore it was not available for the trial Court to pick up and determine under the jurisdiction, not being a part-heard matter for which new proceedings were to be commenced before it, relying on page 475, lines 5-15 of the case.
It is the contention of learned counsel that the only option opened to the Appellants was to either apply before the Tribunal to set its judgment aside on ground of lack of service of process or appeal against same within the time prescribed by Section 5 (1) of the Decree, which they failed to do.
That since the appeal has its roots from the decision of the Tribunal and so not properly placed before the trial Court, thereby affecting the entire proceedings of that Court and the Court below, it affects the competence of this Court to entertain the appeal on the ground that the two (2) lower Courts lacked jurisdiction to conduct the proceedings, once more, on the authority of Arewa Paper Converters v. N.D.I.C (supra). The Court is urged to uphold the objection and dismiss the appeal.
In the Appellants’ Reply Brief, settled by Mr. Ogunwumiju, SAN, the Court is called upon to dismiss the objection summarily because the grounds upon which it is premised are the same with those relied on in the objection before the Court below which was upheld, resulting in the present appeal.
The Learned silk pointed out that grounds 4-9 on the Appellants’ Notice of Appeal are challenging the decision by the Court below dismissing the Appellants’ appeal and so by raising the same grounds of objection which form the fulcrum of this appeal, the 1st Respondent is calling on the Court to delve into and decide the appeal at this stage. He contends that the 1st Respondent is, in essence, challenging the merit of the appeal and not its competence and is an abuse of the Court process, relying on CPC v. INEC (2013) All FWLR (pt. 665) 364 at 377, Ajayi v.
Adebiyi (2012) 11 NWLR (pt. 1310) 137 at 165 and Kwashi v. Pusnt (2010) 1 NWLR (pt. 1176) 518 at 526. In particular, the learned SAN argues that the objection is an abuse of Court process because the arguments canvassed therefore are the same with those made under the 1st Respondent’s issue 1 in the appeal, as was in the case of CPC v. INEC (supra).
RESOLUTION OF OBJECTION As may easily be observed from the submissions by the Learned SAN for the Appellants, he did not frontally respond to or answer the arguments of the Learned counsel for the 1st Respondent on the grounds of the objection challenging the competence of the appeal and in consequence, jurisdiction of the Court to adjudicate over it on the merit. Rather, all the arguments depict an objection to the objection by the 1st Respondent questioning the competence of the appeal.
Simply put, the Learned silk for the Appellants is only objecting to the preliminary objection filed by the 1st Respondent pursuant to the provisions of Order 2 Rule 9 (1) of the Rules of this Court to the hearing of the appeal. In General Electric Co. Ltd. v. Akande (2010) 18 NWLR (pt. 1225) 596, (2010) LPELR- 9356 (SC), Rhodes-Vivour, JSC, had stated that:- “Order 2 Rule 9 of the Supreme Court Rules allows a respondent to rely on a preliminary objection to the hearing of the appeal.
The purpose being to bring the hearing of the appeal to an end for being incompetent or fundamentally defective, consequently, a successful preliminary objection terminates the appeal. On being served with a preliminary objection, the appellant is expected to respond in a reply, reply brief. See Ogidi v. Egba (1999) 1 NWLR (pt. 621) page 42.” Again, in Efet v.
INEC (supra), Muhammad, JSC (now CJN) speaking on the purport of a preliminary objection, said:- “The aim/essence of a preliminary objection is to terminate at infancy, or as it were, to nip it at the bud without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, foreclose hearing on the matter in order to save time.” See Vaso v. Arewa Construction Ltd. & Ors. (2007) 6 SCNJ 416. See also SPDCN Ltd. v. Amadi (2011) LPELR-3204 (SC), Adelekan v. Eculine N. (2006) 12 NWLR (pt. 993) 33.
In these premises therefore, a preliminary objection to the hearing of an appeal filed pursuant to the provisions of Order 2, Rule 9(1) of the Rules of this Court is directed and targeted at preventing the hearing, consideration and determination of the appeal on the merit on the ground/s that it does not meet or satisfy and so is not supported by provisions of the relevant law; substantive or procedural, to be rendered fundamentally defective and therefore incompetent.
It is meant to avoid embarking on hearing/conduct of judicial proceedings that may turn out, eventually, to be an exercise in futility because the appeal is incompetent and thereby, in consequence, robs the Court of the requisite jurisdiction to adjudicate over it.
A Notice of Preliminary Objection to the hearing of an appeal (or any action/matter) is a preemptic and pro-active step taken by a Respondent to the appeal to forestall the hearing on the merit because it offends or violates the law in a fundamental way so as to render it legally defective and not permitted by the law.
Since, as stated and shown earlier, a challenge to the competence of an appeal goes to and affects the competence and jurisdiction of the appellate Court to adjudicate over the appeal, because competence is one of the essential elements of jurisdiction, the law permits and allows that the challenge, question or issue may and can be raised at any stage of the proceedings of the appeal either by the parties or the Court on its own motion, i.e. suo motu. See Madukolu v. Nkemdilim (1962) 2 SCNJ l, R, 341 Ogbuanyinya v. Okudo (1979) 6-9 SC, 32, Bronik Motors Ltd. v.
Wema Bank Ltd. (1983) 7 SC, 158, U. D. U. S. v. Kraus Thompson Org. Ltd. (2001) 15 NWLR (pt. 376) 305, Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 46.
A serious, genuine and real challenge to the competence of an appeal on any cognizable ground/s of law by way of an objection to the hearing of the appeal, cannot be said to and does not constitute or amount to an abuse of the Court process, since it is a special procedure expressly provided for by the Rules of the Court.
The issue questioning or challenging the competence of an appeal, and as a matter of judicial course, involves and attacks the jurisdiction of the appellate Court to adjudicate over the appeal on the merit, is one that defies any formality or technical procedure as it can be raised at any stage of the proceedings, anyhow; i.e. in writing or verbally/orally and by one of the parties or the Court in its own motion, as stated above. Obaseki, JSC, speaking for this Court in the case of Captain Chacharos v.
Ekimpex Ltd. (1988) 1 SC, 161, (1988) 1 NWLR (pl. 68) 88, had said that:- “The issue of jurisdiction is one that escapes the checks and balances and indeed, the rigid rules of pleadings. It can be raised at any stage of proceedings either in the Court of 1st instance or on appeal and if successful, brings the proceedings to an end.” The position was restated and affirmed by the Court in the latter case of Military Governor, Ondo State v. Kolawole (2008) 5 SCNJ, 37, that:- “…by whatever name or under any shade, the issue of jurisdiction can be raised at any stage.
It can be raised viva voce or the Court can raise it suo motu.” Then, in the famous case of State v. Onagoruwa (1992) 2 SCNJ, 1, it was stated that:- “It is never too late or premature to raise the issue of jurisdiction of the Court to entertain an action/matter and once raised, it should be settled first.” In addition, see Akegbe v. Ataga (1998) 1 NWLR (pt. 534) 459, 3rd Eye Comm. Ltd. v. Ishola (1999) 2 NWLR (pt. 592) 549 of 551, Amadi v. NNPC (2000) 6 SC, (pt. 1) 66, Ejiofodomi v. Okonkwo (1982) 11 SC, 74, Nuhu v. Ogele (2003) 12 SC (pt. 1) 732, (2003) 18 NWLR (pt. 852), NNPC v.
Orhiowasele (2013) 13 NWLR (pt. 1371) 211, Hamzat v. Sanni (2015) 5 NWLR (pt. 1453) 486, Boko v.
Nungwa (2019) 1 NWLR (pt. 1654) 395. The mere fact that the issue of jurisdiction of the trial Court to entertain and adjudicate over the Appellants’ application, in this appeal, is the fulcrum of the appeal, does not prevent the challenge to the competence of the appeal by way of a preliminary objection and rather than being an abuse, it is a prudent procedure for dealing with the appeal holistically and comprehensively since the same issue of jurisdiction is the substratum of both the appeal and the objection.
With the respect due to the learned SAN for the Appellants, the three (3) cases of CPC v. INEC (supra), Ajayi v. Adebiyi (supra) and Kwashi v. Pusmut (supra) relied on for the submission on the propriety of a preliminary objection which raises same issues as in the appeal, are not apposite in the present appeal for the simple but, very crucial and fundamental fact, that the objections in those cases did not go to challenge or question the jurisdiction of the trial Courts to entertain and adjudicate on the actions and appeals in question.
On that basis, the Courts did not find it appropriate to consider the objections before determination of the appeals since their jurisdiction to entertain and adjudicate over the appeals on the merit, was not questioned or challenged by the objections raised therein, unlike in this appeal. The general principles stated in the aforenamed cases are not therefore applicable to the objection raised by the 1st Respondent to the competence of the Appellants’ appeal and the jurisdiction of the Court to adjudicate over it on the merit.
The above position apart, and as it is, raising an objection to an objection is an aberration, strange, alien and a total misconception because it is not supported and is not supportable by any established and accepted principles of procedure and practice in our judicial jurisprudence. It is wanting in and lacks legal basis to be a cognisable judicial process. Manson v. Halliburton Energy Services Ltd. (2007) 2 NWLR (pt. 1018) 211, 227-8, Ojo v. A. G. Oyo State (2008) 15 NWLR (pt 1 1 10) 309 at 312, Kolawole Ind. Ltd. v. A.G. Federation (2011) LPELR-9096.
The objection to the preliminary objection by the Appellants is liable to be and is discountenanced.
Now I return to the merit of the preliminary objection raised to the competence of the appeal. The learned counsel for the 1st Respondent is right, for the law is firmly settled, that the jurisdiction of any Court established by law; including the Constitution, is expressly vested or conferred by the law or the Constitution, as the case may be, under or by which it was established and/or any other relevant statute. Hon. Justice D. D. Adekeye, JSC, in the lead judgment of this Court, in Hon. Egharevba v. Hon.
Eribo & Ors. (2010) 9 NWLR (pt. 1199) 44, (2010) LPELR – 9716 (SC) at 23, stated the law that:- “Under the Nigerian Legal System, Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts - they also cloak the Courts with the powers and jurisdiction of adjudication. If the Constitution, Decrees, Act, Laws and Edicts do not grant jurisdiction to a Court or Tribunal, the Court and parties cannot by agreement endow it with jurisdiction. As no matter how well and properly conducted the proceedings, once there is a defect in competence, it is a nullity and an exercise in futility.
Moreover, since Courts are creatures of statutes, their jurisdiction is therefore confined, limited and circumscribed by the statutes creating them. A statute creating it.” See also Adetayo v. Ademola (2010) 15 NWLR (pt. 1215) 16, (2010) LPELR - 155 (SC), where Mahmud Mohammed, JSC (later CJN) speaking for the Court, re-stated that: “The law is trite that the jurisdiction of any Court is derived from the statute creating the Court or from any other statute specifically conferring such jurisdiction on the Court.
The fundamental nature of jurisdiction is that it does not exist in a vacuum because all Courts of law derive their power, authority and therefore jurisdiction either under the Constitution or under specific statutes. See Lekwot v. Judicial Tribunal (1997) 8 NWLR (pt. 515) 22. In this respect, no Court can assume jurisdiction in the absence of having been constitutionally or statutorily empowered to do so.” See also Okolo v. Union Bank of Nigeria Ltd. (2004) 1 SC (pt. 1) 1, (2004) 3 N WLR (pt. 859) 87, A.G., Rivers State v. A.G. Akwa Ibom State (2011) 8 NWLR (1248) 31.
The jurisdiction of a Court to entertain and adjudicate over a matter, action or appeal, as the case may be, is therefore, a matter of strict and hard law which can neither be presumed nor acquiesced to by parties or assumed by the Court without express provisions of the relevant statutes vesting or conferring same. The Hon. Justice Niki Tobi, JSC in the case of Onwudiwe v.
FRN (2006) 4 SC (pt. 11) 70, (2006) 10 NWLR (pt. 988) 382, stated the law, in his usual erudition, that:- “A party cannot beg or bargain jurisdiction into a matter before a Court of law; so too the reverse party cannot beg or bargain jurisdiction outside or out of the matter. Jurisdiction is an exact law that has to be applied exactly to any given case. It is either that a Court has jurisdiction in a matter or it has not. There is no halfway to this straight and unambiguous law.
To that extent, jurisdiction looks almost like an exact formula in calcidus, although it is devoid of actual figures and numbers. See also Basinco Motors Ltd. v. Woermann-Line (2009) 13 NWLR (pt. 1157) 149 LPELR-756 (SC). In the same vein, neither the parties to an action nor the Court can expand the parameters and/or limits of the jurisdiction specifically vested or conferred on it by the statutes. See A.G., Bendel State v. Aideyan (1989) SC, 127, SPDCN, Ltd. v. Isaiah (2001) 5 SC (pt. 11) l, (2001) 11 NWLR (pt. 723) 168, Oloruntoba-Oju v.
AbdulRaheem (2009) 13 NWLR (pt. 1 157) 83, (2009) LPELR-2596 (SC).
The law is now generally common knowledge that a Court is said to have jurisdiction to adjudicate over a matter when the following requirements are met or satisfied, together, on the authority of Madukolu v.
Nkemdilim (2002) SCNLR, 341, (1962) 1 All NLR, 162:- (a) It is properly constituted as to the numbers and qualifications of its members and no member is disqualified for any cognizable reason; (b) The subject matter in the action is within its jurisdiction and there is no feature in the action which prevents it from exercising the jurisdiction; and (c) The matter is brought and comes before the Court by due process of the law upon fulfilment of all conditions precedent to the exercise of its jurisdiction.
The law remains that where any of the aforenamed requirements is not met or satisfied, a Court cannot properly assume jurisdiction over a matter and conduct valid judicial proceedings in law. Skenconsult v. Ukey (1981) 1 SC, 6, A.G. Lagos State v. Dosunmu (1989) 3 NWLR (pt. 111) 552, Tukur v. Govt. of Gongola State (1989) 4 NWLR (pt. 117) 517, State v. Onagoruwa (1992) 2 SCNJ, 1, (1992) 1 NWLR (pt. 221) 33, stating and restating the principle established in Madukolu v. Nkemdilim.
A brief restatement of the undisputed facts giving rise to this appeal will enable a full appreciation of the basis and grounds of objection raised to the competence of the appeal before this Court and its jurisdiction to adjudicate over it on the merit.
On the 20th of April, 1999, the Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Tribunal sifting at Kano, (the Tribunal) established by the Failed Banks Decree No. 18 of 1994 (Decree 18) entered a default judgment against the late father of the Appellants; Michael Babatunde Adeyemi, and two (2) other defendants in suit No. FBT/11/KN/CV/22/98.
Thereafter, the Tribunal was dissolved by the Tribunals (Certain Consequential Amendments, E.T.C) Decree 62 No. of 1999 (Decree 62) which also vested jurisdiction in the Federal High Court to, among others, hear part-heard matters pending before the Tribunal, try the offences created under the enactments specified in the schedule to the Decree and enforce any order, remand, decision or judgment made by the Tribunal; which were preserved thereunder, in accordance with the procedure of the Tribunal.
On the ground that he was not served with the initiating or any processes relating to the suit, the late Mr. Adeyemi filed a motion before the Federal High Court, Kano (trial Court) on the 30th of December, 1999 for orders to set aside the judgment of 20th April, 1999 and the writ of attachment and sale of his property in execution of the said judgment. Before the said motion was determined, Mr. Adeyemi died and the present Appellants were substituted and eventually, another motion of 30th of June, 2006 for similar reliefs was filed and argued by the Appellants before the trial Court.
In a ruling delivered on the 25th of May, 2007, the trial Court dismissed the motion on the primary ground of lack of jurisdiction and being dissatisfied with that decision, the Appellants filed the appeal before the Court below.
In reaction to the said appeal, the 1st Respondent (herein) filed a preliminary objection on the 25th of June, 2014 challenging the competence of the appeal on the grounds (as set out at pages 489-490 of the Record of Appeal) that:- “1. This Honourable Court has no Jurisdiction to entertain the appeal on the ground that the Federal High Court lacked jurisdiction because it is a matter that emanated from the concluded mater by the defunct Failed Bank Tribunal. 2.
The law is settled that an appellate Court cannot exercise jurisdiction in a matter once the lower Court is without jurisdiction: Ehuwa v. Ondo State (2006) 12 SCNJ 259. 3. Section 2 and 3 of the Tribunal (Certain Consequential Amendments e.t.c) decree No. 62 of 1999 the Federal High Court had no jurisdiction to entertain any concluded matter by the defunct failed Bank Tribunal. 4. The failed Bank Tribunal concluded this matter on the 20th day of April, 1999. 5. The Supreme Court in Arewa Paper v.
N.D.I.C. (2006) 7 457 at 477 line 5 to 12 held that that Federal High Court lacked jurisdiction to entertain the matter to support any appeal. 6. This Court in the unreported case of Chief Nath U. Onyeukwll v. N.D.I.C. Appeal No. CA/E/194/M/2006 affirmed the position of the Supreme Court.”
In the judgment appealed against, relying on the decision of this Court in Arewa Paper Converters Ltd. v. N.D. I. C. (supra) the Court below upheld the objection and stated, inter alia, (at page 528 of the Record of Appeal) that:- “…I hold that the Federal High Court lacked the jurisdiction and vires to entertain and determine the application of the appellants before it that led to this appeal, and that the whole proceedings before that Court amounted to nullity.
As far as this instant appeal is concerned therefore, it becomes obvious that this Court is not endowed with the jurisdiction to hear the same since obviously no valid proceedings have been brought before it. It definitely will not stand. See MACFOY v. U.A.C. (1962) AC 152.
The consequence is that the Preliminary Objection of the 1st respondent is meritorious and it is accordingly upheld by me. The appeal is struck out for want of jurisdiction by this Court.”
The arguments by the Learned SAN for the Appellants against the above decision by the Court below are canvassed under issue 3 in the Appellants’ Brief to the effect that the facts in the Arewa Paper Converters Ltd. v. N.D.I.C. were not identical or similar to those in the Appellants’ case to justify “THE BLANKET APPLICATION OF THE JUDGMENT OF THE SUPREME COURT IN THAT CASE ON THE INSTANT CASE.”
The cases of Clement v. Iwuanyanwu (1989) 3 NWLR (pt. 107) 39 at 54, paras C & D, Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (pt. 109) 250 at 275 paragraph B, Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 497 and Yabatech v. M.C. & D Ltd. (2014) 3 NWLR (pt. 1395) 616 at 659 were cited on when the principle of stare decisis or judicial precedence is applicable in later cases and it is argued that the facts in the two (2) cases are not on all fours or even close enough for the case of Arewa Paper Converters Ltd. v. N.D.I.C to be an authority in the Appellants’ case.
According to the Learned Senior Counsel, the dissimilarity between the two (2) cases is that in the other case, the Supreme Court found that the Appellant was indeed served with the originating processes of the Tribunal, citing pages 431, and 437 of the Report of Arewa Paper Converters Ltd case.
Now, I have calmly read the facts in the Arewa Paper Converters Ltd. v. N.D.I.C., also reported in (2006) 15 NWLR (pt. 1002) 404, as set out in the lead judgment by M.
Mohammed, JSC, and find same to be substantially similar to the facts of the Appellants’ case in the following respects:- (a) That the claims against the Defendants in the two cases were for recovery of debts owed to failed banks over which jurisdiction was vested in the Tribunal under the provisions of Decree 18. (b) That the Defendants in the two (2) cases did not appear nor file defences to the claims before the Tribunal in the course of the trial. (c) That the Tribunal in the two (2) cases entered default judgments against the Defendants. (d) That the Defendants in the two (2) cases did not appeal against the default judgments within the period of twenty-one (21) days from the date of judgment as stipulated in Section 5 (1) of Decree 18. (e) That the provisions of Section 5 (1) of Decree 18 made the judgments of the Tribunal final, where there was no appeal against same. (f) That the Tribunal was dissolved by Decree 62 which came into force on 28th May, 1999. (g) That in the two (2) cases, the Defendants approached the FHC for orders to set aside the judgments of the Tribunal and writs of attachment on the ground that they were not served with the originating processes after the commencement of Decree 62. (h) That the case of Arewa Paper Converters Ltd. v.
N.D.I.C. was decided on the primary issue of whether the Federal High Court and the Court of Appeal below had the requisite judicial power and authority or jurisdiction to entertain an application to set aside the judgment of the Tribunal in view of the provisions of Decrees 18 and 62, just like in the case of the Appellants.
It has been argued that in Arewa Paper Converters Ltd. v. N.D.I.C. this Court found that the Appellants therein was served with the originating summons whereas there was no evidence of such service in the Appellants’ case.
The statement by the Court in the case, at page 431 of the NWLR, relied on by the learned SAN in this appeal on the issue, was that:- “The undisputed fact agreed by the parties in this appeal, part of which I have earlier narrated in this judgment are that the proceedings of the Failed Banks Tribunal in the course of which the respondent’s application for substituted service on the appellant was heard and granted on 1-4-98, is not in dispute.
So also is the fact on the return of service by substituted means, the Tribunal heard the respondent’s suit in accordance with the rules of Court on the undefended list and delivered its judgment against the appellant on 24-4-98. ”
The facts found in this statement of the Court are that:- (1) The Respondents’ (therein) application for substituted service was heard and granted on the 1st of April, 1998, in the course of proceedings by the Tribunal, and (2) That on the return or service by substituted means, the Tribunal entered judgment under the undefended rules of Court against the Appellant therein.
In the Appellants’ case, pages 242-245 of the Record of Appeal show, beyond reasonable and plausible arguments:- (a) That the 1st Respondents’ application for substituted service of the originating processes on the late Mr. Adeyemi, was granted by the Tribunal on the 9th March, 1999, when the matter was relisted on the Cause list; (b) That on 30th March, 1999 because the order for substituted service was not served, the matter was adjourned by the Tribunal to the 20th April, 1999. (c) That on the 20th April, 1999; the return date for service by substituted means, Mr.
Adeyemi was absent and did not file any defence and the Tribunal proceeded to enter default judgment against defendants in terms of the claim, as an undefended suit.
Undoubtedly, the facts as narrated and found by this Court in Arewa Paper Converters Ltd v. N.D.I.C. are not only identical, but “quite similar with those of the instant case” as found by Court below in the judgment appealed against, at page 523 of the Record of Appeal, for the principles stated therein to be apposite authority under the principle or doctrine of stare decisis or judicial precedence as enunciated by this Court in the cases of Clement v. Iwuanyanwu (supra) and Obiuweubi v. CBN (supra).
The principle of doctrine of “stare decisis” in our judicial jurisprudence, is a Latin phrase of a common law origin and it simply means “follow what has been decided” or “stand with what has been decided”, as a cardinal principle in the administration of justice that like cases should be decided alike. It is known that the facts of a case are very rarely, if at all, exactly the same with those of another case and so the principle does not require that the facts of two (2) cases must be exactly the same before it is applied.
Infinitesimal, peripheral, inarticulate and minor differences in facts of two (2) cases do not hinder or prevent the application of the principle as the determinant factor is that the facts of a previous case are substantially and materially identical and similar to those of a latter case which calls for the application of the principle. In Adetoun Oladeji Nig. Ltd. v. N. B. PLC, (2007) 7 NWLR (pt. 1027) 415, Hon.
Justice Niki Tobi, JSC, had put the position thus, at page 436:- “It is the submission of learned counsel for the appellant that the Court of Appeal wrongly followed the decision of this Court in Mobil Oil (Nig) Ltd. v. Akinfosile (supra). Counsel enumerated what he regarded as differences in paragraphs 4.24 and 4.25 of the appellant’s brief. At times when counsel distinguish cases to the minutest and infinitesimal way they do. I chuckle.
While I can hardly blame them, considering their professional sentiments for the case of their clients, some of the distinctions are without distinction or deference. Factual distinctions or differences in cases can only avail a party when they are germane or material to the stare decisis of the case. I say this because stare decisis which means to abide by or adhere to decided cases, as a policy of Court to stand by precedent, is based on a certain state of facts which are substantially the same and here the word is substantial.
This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without the unimportant details. This also means that the facts need not be on all fours in the sense of exactness or exactitude. And I must say here that there can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis which has been built by the judicial system over the years does not say that the facts must be exactly the same.
And so there could be inarticulate differences which will not necessarily be a poison in or to the application of the doctrine. One major criterion in the determination of the matter is that the fact of the previous case are major, substantial, and material to the facts of the current case begging for the application of the previous case.” With respect to the Learned Senior Counsel for the Appellants, all he attempted to do in the arguments on the differences between the facts in Arewa Paper Converters Ltd. v.
N.D.I.C. and the facts in Appellants’ case is to create a difference without distinction, a peripheral difference without substance for the purpose of the application of the principle or doctrine of stares decisis or judicial precedent as firmly established by the above judicial authorities. See also Ogbu v. Urum (1981) 4 SC, 7, Eperokun v. University of Lagos (1986) 4 NWLR (pt. 34) 162, State v. Ilorin (1989) 7 SCNLR, 94, 2 SC, 155.
The law is settled that the application of the principle of stare decisis and adherence to judicial precedence by the Courts is one aspect of judicial policy which provides for and ensures an orderly, certain, consistent and reliable development of legal rules in the administration of justice. The application or use of the doctrine or principle of stare decisis or judicial precedence is an indispensable tool in the determination of what the law is and attainment of certainty in the law at any given moment, which cannot be over-emphasized.
By the doctrine or principle, since the facts of the Arewa Paper Converters Ltd. v. N.D.I.C. are substantially identical and similar to those in the Appellants’ case, the Court below was not only right, but had the judicial obligation and duty to follow and apply it in the Appellants’ case. See R.E.A.N. Ltd. v. Aswain Text Ind. Ltd. (1991) 2 NWLR (pt. 176) 639, Atolagbe v. Awuni (1997) 7 SCNJ, 1 at 20 and 24, Olufeagba v. Abdul-Raheem (2009) 18 NWLR (pt. 1173) 384 at 442, Osakue v. F.C.E. (Technical) Asaba (2010) 2-3 SC (pt. 111) 158 at 180-181, Lead Merchant Bank Ltd. v.
P. (special) T.F. (2006) 5 NWLR (pt. 974) 463.
This Court in the case of Arewa Paper Converters Ltd. v. N.D.I.C., considered and applied the provisions of Sections 2 and 3 of Decree 62 in the determination of the preliminary objection to the jurisdiction of the Federal High Court to adjudicate over the application to set aside the judgment of the Tribunal, just as in the Preliminary Objection raised by the 1st Respondent herein.
The provisions are as follows:- “2(1) The Federal High Court or the High Court of a State, as the case may be, shall have jurisdiction to try the offences created under enactments specified in the Schedule to this Decree. (2) Accordingly, a Tribunal established in any of the enactments specified in the Schedule to this Decree is hereby dissolved. (3) A charge, claim or Court process filed before a Tribunal established under any of the enactments specified in the schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a State, as the case may be and such charge, claim and Court process shall be deemed amended as to title, venue, and such other matter as may be appropriate to give effect to this sub-section without further assurance than this Decree. (4) Any order, remand, decision or judgment made by a Tribunal before the commencement of this decree is hereby preserved. (5) A decision or judgment of a Tribunal made before the commencement of this Decree shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of the Decree. (6) Where before the commencement of this Decree, a matter has been concluded in a Tribunal and the Tribunal was for any reason whatsoever unable to deliver the judgment, the Judgment may be delivered by a Judge of the Federal High Provided that the judgment shall have been written. 3(1) Where any part heard matter is pending before any Tribunal on the date of the making of this Decree, the Judge: (a) may, if the parties to the proceeding agree in a civil cause, adopt the proceedings of the Tribunal concerned;
(b) shall, in a criminal case, try the matter de novo pursuant to this Decree. (2) All new proceedings shall be brought before the Court in accordance with the rules of procedure of the Court concerned.” As can easily be observed, the provisions are plain, clear, simple and in straightforward language to be entitled to be ascribed their ordinary meanings devoid of ambiguity in their construction as prescribed and established by a legion of pronouncements of this Court.
See Abioye v. Yakubu (1991) 6 SC, 72, (2091) 5 NWLR (pt. 190) 130, Egbe v. Alhaji (1990) 3 SC (pt. 1) 63, (2009) 1 NWLR (pt. 128) 546, Nigercare Dev. Co. Ltd. v. Adamawa State Water Board (2008) 2-3 SC (pt. II) 202, (2008) 9 NWLR (pt. 1093) 498, A.G. Federation v. Abubakar (2007) 6 SC (pt. II) 62, (2007) 10 NWLR (pt. 1041) 1, Udoh v. O.H.B. (1993) 7 SCNJ, 244, (1993) 1 NWLR (pt. 304) 139.
The provisions of Sections 2(1) vest jurisdiction on the Federal High Court to try the offences created under the enactments specified in the schedule to the Decree, which included offences under Decree 18, hitherto triable by the Tribunal which was dissolved by the provisions of Sub-section (2) of the Section.
By the provisions of Sub-section (4), any order, remand, decision or judgment made by the Tribunal before the commencement of the Decree was preserved and shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of the Decree, as provided for in Sub-section (5).
Sub-section (6) on its part, permits that a written, but undelivered judgment or decision of the Tribunal before the commencement of the Decree and its dissolution, be delivered by a Judge of the Federal High Court or the High Court of a State, as the case may be.
Here the authority, power and jurisdiction vested in or conferred on a Judge of the Federal High Court or the High Court of a State; as the case may be, over a concluded matter by the Tribunal in which a judgment was written, but was not delivered by the Tribunal before the commencement of the Decree, was to simply deliver the said undelivered judgment of the Tribunal, which was preserved by the provision of Sub-section (4) and to be enforced in accordance with the procedure or law relating to enforcement of a judgment of the Tribunal before the commencement of the Decree, as stipulated in sub-section (5).
It can easily be discerned from the community purport of the provisions in Section 2(2), (3), (4), (5) and (6), that the jurisdiction vested and conferred on the Federal High Court is to:- (a) deliver a written judgment made by the Tribunal in a concluded matter, but which was not delivered by the Tribunal before the commencement of the Decree; and (b) to enforce the judgment of the Tribunal in a concluded matter which was duly delivered by it and a written judgment which was not delivered by the Tribunal before the commencement of the Decree, but delivered by the Federal High Court in line with the provisions in Sub-section (6).
Clearly, the provisions in Section 2 (2), (3), (4), (5) and (6) of the Decree do not vest in the Federal High Court, the power, authority and jurisdiction to conduct valid proceedings in respect of or over the judgment/decision of the Tribunal delivered by it in a concluded matter before the commencement of the Decree, except to enforce such a judgment in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before commencement of the Decree.
Specifically, the provisions do not confer on the Federal High Court, jurisdiction to entertain and adjudicate over proceedings which seek to question, challenge, attack the said judgment of the Tribunal on ground/s of any error/s; whether of law or facts which go to the validity of the judgment or any determined rights/obligations decided or determined therein.
I have restated the law elsewhere before now, that the issue of jurisdiction of a Court of law to entertain and adjudicate over a case is a matter of hard law to be expressly conferred or vested in the Court before it can properly be assumed and exercised. See Nig. Reinsurance Corp. v.
Cudjoe (2008) All FWLR (pt. 414) 1455. A judgment delivered by the Tribunal in a concluded matter or a written judgment of the Tribunal which was not delivered before the commencement of Decree 62, is not a judgment of the Federal High Court over which it possesses the requisite jurisdiction to adjudicate and set aside on any alleged error therein.
The judgment of the Tribunal in a concluded matter was/is preserved as an extant judgment of the Tribunal under the provisions of Section 2(4) which could only have been properly set aside either by the Tribunal itself or on appeal, by the Special Appeal Tribunal pursuant to the provisions of Section 5 (1) of Decree 18.
Section 5(2) of the Decree 18 provides that:- “The decision of the Special Appeal Tribunal shall be final, and, where there is no appeal, the decision of the Tribunal shall be final.” By these express and unambiguous provisions, where an appeal was filed against the decision/judgment of the Tribunal, in a concluded matter, at the Special Appeal Tribunal, the decision of the Special Appeal Tribunal is respect of the appeal, shall be final. Where however, there was no such appeal against the decision/judgment of the Tribunal filed in accordance with the requirements of the Decree 18, the decision/judgment of the Tribunal in a concluded matter, shall be final.
In the Appellants’ case, there was no appeal to the Special Appeal Tribunal filed against the decision/judgment of the Tribunal in question, as provided for in Section 5 (1) of the Decree, before the commencement of Decree 62. Consequently, the decision/judgment remains final and extant as a decision of competent Tribunal or Court of law by virtue of the provisions of Section 5(2) of Decree 18 and from the 29th of May, 1999 when Decree No. 62 came into force.
I shall emphasize that by dint of the provisions of Section 5 (2) of Decree 18 and the commencement of Decree 62, a decision/judgment of the Tribunal in a concluded matter is not only final, but extant and sacrosanct, as a decision of a competent Court of law, and cannot be interfered with or set aside by any Court of law, including the Federal High Court, in the absence of express provisions of the law vesting the requisite power and authority or jurisdiction on it to do so.
The law does not permit or allow a Court to arrogate and vest itself the jurisdiction, that is not statutorily conferred on it over a matter. A.G., Lagos State v. Dosunmu (1989) 20 NSCC (pt. II) 545, (1989) 3 NWLR (pt. 111) 552, Ms. N.V. Scheep v. the M.V “S Araz’ (2000) 12 SC (pt. 1) 64, Lufthansa Airlines v. Odiese (2006).
In respect of a decision/judgment in a concluded matter which was delivered by the Tribunal or written but not delivered before the commencement of Decree 62, the only jurisdiction vested in a Judge of the Federal High Court is to deliver the written but undelivered judgment under Section 2 (6) and in the Federal High Court; to enforce the judgment as provided for in Sub-Section (5) of the same Section.
Then, as shown above, Section 3 of Decree 62, vested jurisdiction, specifically, on the Federal High Court in respect of part-heard matters before the Tribunal which were to be continued by it, adopting the proceedings of the Tribunal, if the parties in civil causes agree and to try the matter de novo, in a criminal case, as provided in Sub-section (1). Sub-Section (2) stipulates that all new proceedings on cases/matters triable by the Tribunal before the commencement of the Decree shall be brought before the Federal High Court in accordance with its rules of procedure.
The provisions of Section 3 are clearly not relevant to the Appellants’ case since it is/was not a part-heard matter, but involves a decision/judgment delivered by the Tribunal in a concluded matter before the commencement of Decree 62. The Appellants’ case is/was, also not “new proceedings” brought in the Federal High Court in accordance with its Rules. This Court in the Arewa Paper Converters Ltd. v.
N.D.I.C. case, comprehensively considered and emphatically determined the application of the provisions of Sections 2 and 3 of Decree 62 and Section 5 of Decree 18 to the judgment of the Tribunal in a concluded matter delivered before the commencement of Decree 62 and whether the Federal High Court has the jurisdiction to entertain and adjudicate over an application to set it aside on any ground, by a party thereto.
The conclusion decisively reached by the Court, in the lead judgment by Mohammed, JSC, was, inter alia, “in other words, the case of the Appellant having been instituted, heard and determined by the Failed Banks Tribunal under the Failed Bank Decree No. 18 of 1994, before the amendment to divest the Tribunal of its jurisdiction, the appellant cannot now come before the Federal High Court which had taken over jurisdiction of the Tribunal with effect from 28th May, 1999 for any relief.
This is because the right and obligation of the parties in this case had been effectively determined by the Tribunal under the repealed provisions of Decree 18 of 1994. “When this situation, the Federal High Court has no jurisdiction to hear the application filed by the appellant which formed the basis of this appeal. Following this ouster of the jurisdiction, the judgment of the Failed Bank Tribunal against it being a judgment of a Court of competent jurisdiction against which there was no appeal, subsists.
The rights created, preserved or determined in that judgment remain valid until set aside. However, the trial Federal High Court by virtue of the provisions of Decree No. 62 of 1999, is incompetent to vary and/or reject rights thus established by the Court of competent jurisdiction namely, the Failed Banks Tribunal. This means even if there were some errors in the judgment of the Tribunal against the appellant, it is for the competent Court to which an appeal lies against the judgment, in this case, the Special Appeal Tribunal, to correct it or so declare.
The result of the proceedings undertaken in the absence of jurisdiction by the trial Court is of course obvious as the law on the situation is trite.” This decision by the Court on the jurisdiction of the Federal High Court to entertain an application to set aside a judgment delivered in a concluded matter by the Failed Banks Tribunal before the commencement of Decree 62, is not only apposite but precise to apply to the Appellants’ application to the trial Court (Federal High Court) for an order to set aside the judgment of the Tribunal in question.
As demonstrated earlier, the material and relevant facts in the Appellants’ case and those in Arewa Paper Converters Ltd. v. N.D.I.C. are substantially similar and identical to ground and warrant the application of the principle or doctrine of stare decisis or judicial precedent by the Court below. The Court below was therefore “firma terra” i.e; on firm terrain of the law, and so right, to have relied on and followed the decision in Arewa Paper Converters Ltd. v.
N.D.I.C. in upholding the objection by the 1st Respondent to the competence of the appeal before it on ground of lack/want of jurisdiction on the part of the trial Federal High Court to entertain and adjudicate over the Appellants’ application to set aside the judgment of the Tribunal in question. I endorse the finding by the Court below, which cannot be faulted in law, that:- “I find the facts of that case to be quite similar with those of the instant case, in that there was a judgment of the Failed Banks Tribunal delivered against the appellant therein by the Kano zone ill Suit No.
FBT/KNZ/CV/242 on 24/4/98. The case was heard under Failed Banks Decree No. 18 of 1994 before it amendment to confer jurisdiction on the Federal High Court in respect of such cases through the Tribunals (Certain Consequential Amendments etc) Decree N. 62 of 1999. The appellant did not appeal against the judgment and did not file any application before the Failed Banks Tribunal which went into extinction on 28/5/99 with applied to the Federal High Court for order setting aside the judgment of the Failed Banks Tribunal on the ground of irregular service.
Although the learned silk in the instant case has submitted that the application resulting in this appeal was not brought under Decree No. 62 or 1999, but under the Constitution of Federal Republic of Nigeria; 1999 (as amended) the Court of Appeal Act and the inherent jurisdiction of this Court, it was held per Mohammed JSC (as he then was) at page 33 of the case of Arewa Paper Converters Ltd. v. NDIC (Nig.
Universal Bank) Ltd. (supra) that “Coming back to the appeal filed by the appellant against the decision of the Federal High Court in exercise of its jurisdiction under Section 2 and 3 of Decree No. 62 of 1999 dismissing the appellant’s application, the right of appeal does not stem out of or derive exclusively from the provisions of the 1999 Constitution as argued by the appellant.
The true position is that the right of appeal of the appellant from the decision of the Federal High Court on a matter originating from the decision of a Failed Banks Tribunal with effect from 28/5/99 to the Court of Appeal lies in Section 7(1) of Decree No. 62 of 1999”.
It was held at pages 32-33 that:- “The appellant not having availed itself of the remedies at its disposal under Decree No. 18 of 1994 before the amendment to either apply before the Tribunal to set aside its judgment given against the appellant in suit No.
FBT/KNZ/CV/242/98 on 24/4/98, on grounds of improper service or appeal against the judgment within the time prescribed by Section 5(1) of the Decree is no longer clothed with any right to seek remedy before the Federal High Court under the new dispensation brought about by Decree No. 62 which on its commencement on 28/5/99 swept away not only the Failed Banks Tribunal but also the Special Appeal Tribunal front which the appellant ought to have sought remedy on appeal.
Since there is no provision in Section 2 and 3 of Decree No. 62 of 1999 to deal with any matter already heard and disposed of by the dissolved Tribunal, the Federal High Court clearly is without jurisdiction to entertain and determine the appellant’s application… … Following this ouster of the jurisdiction of the Federal High Court, to entertain the appellant’s application, the judgment of the Failed Banks Tribunal against it being a judgment of a Court of competent jurisdiction against which there was no appeal subsists.
The rights created, preserved or determined in that judgment remain valid until set aside. However, the trial Federal High Court by virtue of the provisions of Decree No. 62 of 1999 is incompetent to vary and/or reject rights thus established by the Court of competent jurisdiction namely the Failed Banks Tribunal. This means even if there were some errors in the judgment of the Tribunal against the appellant, it is for the competent Court to which an appeal lies against the judgment, in this case the Special Appeal Tribunal to correct it or so declare.
The result of the proceedings undertaken in the absence of jurisdiction by the trial Court is of course obvious as the law on the situation is trite.” The foregoing far-reaching findings and holdings by the Supreme Court in the Arewa Paper Converter case are directly applicable to the instant case where the appellants neglected to appeal against the decision of the Failed Banks Tribunal to the Special Appeal Tribunal or to apply to the Failed Banks Tribunal for setting aside of its judgment delivered on 20th April, 1998 but waited till 12th June, 1999 before approaching the Federal High Court for setting aside of the judgment which application for setting aside does not relate to, or form a pending part-heard matter before the Tribunal as at 29th May, 1999 when Decree No. 62 came into effect.”
In the result, I find merit in the Preliminary Objection raised by the 1st Respondent to the competence of this appeal and the jurisdiction of the Court to adjudicate over it on the merit on ground of lack of jurisdiction on the part of the trial Court and the Court below over the Appellants’ application and appeal, respectively. The law is firmly settled that this Court lacks the competence and requisite jurisdiction to adjudicate, on the merit, an appeal arising from decisions in which the two (2) lower Courts lack the jurisdiction to adjudicate. See Nwoko v.
Waoboshi (2020) 13 NWLR (pt. 1742) 395 at 400, Oni v. Fayemi (2020) 15 NWLR (pt. 1746) 59. This position has effectively and completely subsumed the issue of the validity of the judgment delivered by the Court below raised in the Appellants’ Brief as issues 4 & 5. For that reason, the duty to consider and decide the said issues by the Court, abates. See Balogun v. Labiran (1988) 3 NWLR (pt. 80) 66, Okonji v. Njokanma (1991) 2 NWLR (pt. 202) 131, Cookey v. Fombo (2005) SC (pt. 11) 102 at 111, Uzuda v. Ebigah (2009) 15 NWLR (pt. 1163) 1 at 22, Onochie v. Odogwu (2006) 2 SCNJ, 96 at 117.
In the final result, for being incompetent, thereby depriving the Court of the necessary jurisdiction to adjudicate over it on the merit, the appeal is struck out.
Parties shall bear their respective costs of prosecution the appeal.
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OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the lead judgment of my learned brother M.L. Garba, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal is incompetent and deserves to be struck out, Accordingly, it is struck out by me. Appeal struck out.
EJEMBI EKO, J.S.C.: There is hardly anything I could possibly and meaningfully add to the judgment just delivered by my learned bother, MOHAMMED LAWAL GARBA, JSC in this appeal. Accordingly, I endorse the judgment and adopt all the consequential orders made therein. I need only add a few words in support thereof.
The decision of this Court in AREWA PAPER CONVERTERS LTD v. N.D.I.C (2006) 7 SCNJ 457, forming the fulcrum of the preliminary objection of the 1st Respondent had lucidly interpreted Sections 2 & 3 of the Decree No. 62 of 1979 as they relate to the jurisdiction of the Federal High Court in further relationship to matters already concluded by the Failed Banks Tribunal. Decree No. 62, 1999 never made the Federal High Court the successor-in-jurisdiction to the Special Appeal Tribunal, that was by law vested the appellate jurisdiction to review the decision of the Failed Banks Tribunal.
It will therefore be ultra vires the Federal High Court to assume or arrogate to itself such review, supervisory or appellate jurisdiction never conferred on it by statute. In the AREWA PAPER CONVERTERS LTD. v. NDIC CASE (supra) this Court (per Mohammed, JSC) had put it poignantly, without ambiguity, that - “the Federal High Court has no jurisdiction to hear the application filed by the appellant which formed the basis of this appeal.
Following this ouster of the jurisdiction, the judgment of the Failed Bank Tribunal - being a Court of competent jurisdiction against which there was no appeal subsists. The rights created, preserved or determined in that judgment remain valid until set aside. However, the trial Federal High Court by virtue of the provisions of Decree No. 62 of 1999, is incompetent to vary and/or reject rights thus established by the Court of competent jurisdiction namely the Failed Bank Tribunal.
This means even if there were some errors in the judgment of the Tribunal against the appellant, it is for the competent Court to which an appeal lies against the judgment, in this case, the Special Appeal Tribunal, to correct it or so declare. The result of proceedings undertaken in the absence of jurisdiction by the trial Court is, of course obvious as the law on the situation is trite. What constitutes jurisdiction is the power to embark on the cause at all and not the decision rendered therein.
That is: what is material is the power to hear and determine, and not the correctness of the decision: B. U. EKA - Judicial Control of Administrative Process in Nigeria (2001 Ed), page 66. It is on this basis that this Court, in MADUKOLU v. NKEMDILIM (2002) SCNLR 341; (1962) 1 ALL NLR 162, declared that jurisdiction is extrinsic to the cause or matter. Decree No. 62 of 1999, from its date of commencement on 28th May, 1999, had swept away not only the Failed Banks Tribunal but also the Special Appeals Tribunal.
The Appellant having not appealed the decision against him to the Special Appeals Tribunal nor applied to the Failed Banks Tribunal to set aside its decision before the commencement date of Decree No. 62, 1999 was left, thereafter, without any Court of competent jurisdiction to entertain his application seeking the setting aside of the decision of the Failed Banks Tribunal delivered on 20th April, 1999.
The 1999 Constitution (the commencement date of which is 29th May 1999) does not, in Section 240 thereof, make the Court of Appeal (established by Section 238 of the same Constitution) the successor in jurisdiction of the Special Appeals Tribunal. The statute establishing the Failed Bank Tribunal and the Special Appeals Tribunal did not intend that the Failed Banks Tribunal would review its own decisions. It clearly preserved the principle that the Failed Banks Tribunal would be functus officio as regards its own final decisions.
Therefore, since it was only for purposes of matters part heard by the Failed Banks Tribunal that the Federal High Court was empowered, by Decree No. 62 of 1999, to take over; it will, clearly, be overstretching the argument to contend that the Federal High Court was empowered to review and/or set aside subsisting final decisions of the Failed Banks Tribunal. In my firm view of the application, the subject of this appeal was brought by the Appellant without any iota of law backing it. That is what, on authority of R-BENKAY NIG. LTD v. CADBURY NIG.
LTD (2012) 9 NWLR (pt. 1306) 596, rendered the said application a gross abuse of the Court’s process.
In continuation of the same abuse of process the Appellant; upon the 1st Respondent’s Notice of Preliminary Objection to the competence of the appeal, filed his “objection” to the preliminary objection. I have not seen any principle of law on which the Appellant proceeded on this reckless process. The recklessness of the process, filed without an iota of law, renders the said objection to preliminary objection a further gross abuse of Court’s process.
Finally, the Preliminary Objection of the 1st Respondent is meritorious. The appeal of the Appellant, being incompetent, is hereby struck out.
UWANI MUSA ABBA AJI, J.S.C.: I was advanced a draft copy of the lead judgment by my learned brother, Mohammed Lawal Garba, JSC, just delivered and I agree that the appeal be struck out.
The competence of the Appellants’ appeal was resisted by a preliminary objection filed by the 1st Respondent thus:
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1. There is no competent appeal as the matter was not commenced by due process of the law before the Federal High Court. 2. The two lower Courts have no power to entertain this matter as Courts of competent jurisdiction. 3. By Section 2 of the Tribunals (Certain Consequential Amendments etc.) Decree No.62 of 1999, the Federal High Court has no jurisdiction to entertain the matter. 4. The judgment of the Tribunal before the commencement of the Decree is preserved. 5. The law does not give the lower Court jurisdiction to entertain appeal against the judgment of the Failed Banks Tribunal. 6.
The Appellants/Applicants’ late father was supposed to appeal to the Special Appeal Tribunal within 21 days and he failed to do so. 7. The judgment of the Federal High Court was given without jurisdiction. 8, This Court in Arewa Paper v. N.D.I.C (2006) 7 SCNJ 457 at 477 lines 5 to 12 held that the Federal High Court lacked jurisdiction to entertain the matter to support any appeal.
The facts in the present appeal are on all fours with the case in AREWA PAPER CONVERTERS LTD. V. N.D.I.C. (NIG. UNIVERSAL BANK LTD.) (2006) LPELR-548(SC) (Pp. 21-24, paras. G-E), wherein Per MAHMUD MOHAMMED, JSC, held: “On close examination, the answer of course is in the negative on the face of the judgment of the Failed Banks Tribunal delivered against the appellant in suit No. FBT/KNZ /CV/242/98 since 24-4-98.
As the case of the appellant was not being commenced as a new proceeding before the Federal High Court under the provisions of Decree No. 62 of 1999, that Court cannot be clothed with the jurisdiction to entertain and determine the claim… In other words, the case of the appellant having been instituted, heard and determined by the Failed Banks Tribunal under the Failed Banks Decree No. 18 of 1994, before the amendment to divest the Tribunal of its jurisdiction, the appellant cannot now come before the Federal High Court which had taken over the jurisdiction of the Tribunal with effect from 28-5-99 for any relief.
This is because the rights and obligation of the parties, in this case, had been effectively determined by the Tribunal under the repealed provisions of Decree 18 of 1994 Section 5… The appellant not having availed itself of the remedies at its disposal under Decree No. 18 of 1994 before the amendment to either apply before the Tribunal to set aside its judgment given against the appellant in suit No.
FBT/KNZ/CV/242/98 on 24-4-98, on grounds of improper service, or appeal against the judgment within the time prescribed by Section 5(1) of the Decree, the appellant is no longer clothed with any right to seek remedy before the Federal High Court under the new dispensation brought about by Decree No.62 which on its commencement on 28-5-99, swept away not only the Failed Banks Tribunal but also the Special Appeal Tribunal to which the appellant ought to have sought remedy on appeal.
Since there is no provision in Sections 2 and 3 of Decree No. 62 of 99 to deal with any matter already heard and disposed of by the dissolved Tribunal, the Federal High Court clearly is without jurisdiction to entertain and determine the appellant’s application.
In this respect, the issue of whether or not the judgment of the Tribunal against the appellant was final in the absence of any appeal against it within 21 days which was heavily flogged by the parties before this Court, is no longer important on the face of the clear provisions of Sections 2 and 3 of Decree No. 62 of 99 which conferred jurisdiction on the Federal High Court. With this situation, the Federal High Court has no jurisdiction to hear the application filed by the appellant which formed the basis of this appeal.
Following this ouster of the jurisdiction of the Federal High Court to entertain the appellant’s application, the judgment of the Failed Banks Tribunal against it being a judgment of a Court of competent jurisdiction against which there was no appeal, subsists. The rights created, preserved or determined in that judgment remain valid until set aside.” Based therefore on the facts that gave rise to the instant appeal, the Appellants have lost their right to appeal since the Federal High Court does not have the jurisdiction to have entertained their case in an appellate capacity.
The 1st Respondent’s preliminary objection is therefore sustained and the instant appeal is hereby struck out.
ADAMU JAURO, J.S.C.: I read in draft, the lead judgment of my learned brother, Mohammed Lawal Garba, JSC just delivered. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal is incompetent and ought to be struck out.
This appeal is against the judgment of the lower Court which affirmed the judgment of the Federal High Court wherein the Appellants’ application to set aside the judgment of the defunct Failed Banks Tribunal in suit No. FBT/11/KN/CV/22/98 was refused.
By virtue of Sections 2 and 3 of the Tribunals (Certain Consequential Amendments etc.) Decree No. 62 of 1999, the jurisdiction of the Federal High Court in matters concluded by the Failed Banks Tribunals is limited to the enforcement of judgments delivered by the Tribunals, but does not extend to re-opening, reviewing or setting aside the judgments. See AREWA PAPER CONVERTERS LTD v. NDIC (2006) 7 SCNJ 457. It is settled that jurisdiction of Courts is donated and limited by the Constitution and/or statutes.
Where the Constitution or statute does not clothe a Court with jurisdiction over a matter, neither the Court itself nor parties before it can confer jurisdiction on the Court to adjudicate over such a matter, whatever the nature, be it an application, a suit or an appeal. No Court or Tribunal has the power to widen the extent of jurisdiction conferred on it by the Constitution and/or statute. See DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR-43710 (SC); KAWAWU & ANOR V. PDP & ORS (2016) LPELR-41387 (SC); PDP vs OKOROCHA & ORS (2012) LPELR-7832 (SC).
Applying the principle to the present appeal, the Tribunals (Certain Consequential Amendments etc.) Decree did not confer jurisdiction on the Federal High Court to set aside the concluded decisions of the Failed Bank Tribunal. It therefore follows that the proceedings before the trial Federal High Court as well as the lower Court amount to nothing but a nullity, an exercise in futility. By extension, this Court also lacks the competence to adjudicate over this appeal.
For the reasons set out above and of course, the more elaborate ones enunciated in the lead judgment, I uphold the 1st Respondent’s preliminary objection. I hold that the appeal is incompetent and it is hereby struck out. I abide by the orders made in the lead judgment.