Abubakar a. Bagudu V. The Federal Republic of Nigeria & Ors. (2003)

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MUSA DATTIJO MUHAMMAD, J.C.A.

The appellant as plaintiff took out a writ against the respondents being defendants at the court below. This was on 15th November, 2001. And what was the writ for? It was for the following claims:

1.A declaration that the decision of the 1st and 2nd defendants to bring and the bring of criminal proceedings against the plaintiff are contrary to the provisions and effect of the Forfeiture Of Assets, Etc. (Certain Persons) Decree No.53 of 1999 and are therefore unlawful, illegal, null and void.

2.A declaration that all the counts in the criminal charges CR/21/2000, CR/22/2000, CA/23/200, and relating to the plaintiff are null and void in so far as they are contrary to the provisions and effect of the Forfeiture Of Assets, (Certain Persons) Decree No.53 of 1999.

3. A declaration that by virtue of the Forfeiture Of Assets, Etc. (Certain Persons) Decree No.53 of 1999 and in the circumstances which have happened, no criminal or civil proceedings can be commenced or continued in Nigeria or abroad against the plaintiff in connection with security votes, all monies returned by him and Mohammed Abacha to the 1st defendant, and all sums of monies specific in Part II of the Schedule to the said Decree.

4. An order for perpetual injunction restraining each of the defendants jointly and severally, whether acting by themselves, their servants or agents, from commencing, causing to be commenced, continuing, causing to be continued, or assisting with in any way whatsoever any criminal or civil proceedings in any other jurisdiction in the world against the plaintiff in connection with security votes, all monies returned by him and Mohammed Abacha to the 1st defendant, and all sums of specified in Part II of the Schedule to the Forfeiture Of Assets, Etc. (Certain Persons) Decree No. 53 of 1999.”

Parties shall from now on be called appellant and respondents respectively.

Respondents filed their statement of defence to the allegations made by the appellant in his statement of claim. Thereafter, respondents filed a preliminary objection as to the competence of appellant’s action. By extension, the jurisdiction of the trial court was thereby challenged. Arguments of counsel were heard. The court below upheld the objection of the respondents in its considered ruling of 28th May, 2002.

Appellant is aggrieved by the ruling. He has appealed to this court on seven grounds.
Both parties in the instant appeal have filed and exchanged

The appellant has formulated seven issues for our consideration in determining the appeal. These are:-
“1. Whether the respondents’ preliminary objection dated 13th February, 2002 and filed on the 14th February, 2002 was the proper application for arguments before the court on the 17th of April, 2002 or the so-called points of law raised in paragraph 7 of their statement of defence dated 4th January, 2002.
2. Whether the issue of exercise of power by the Attorney-General was an issue before the court for which the appellant ought to have responded.
3. Whether the grounds and affidavit in support before the court support the reliefs sought by the respondents.
4. Whether the basis of adjudication is the anticipation of issues raised or an application before the court.
5. Whether on the claims in this suit, the reliefs sought is strictly the issue of perceived illegality of the Attorney-General’s criminal proceedings before the High Court of Justice, Abuja for which the appellant could be said to have abused the process of the court by the filing of the suit.
6. Whether a court of co-ordinate jurisdiction can be said to lack jurisdiction in all suits before another and or the same court where the subject-matter or parties bear some similarities.
7. Whether there is any issue before the court on the cleanliness or otherwise of the appellant before the court to necessitate the aspersions cast by the learned trial Judge.”

The two issues formulated by the respondents are:-
“(1) Whether the learned trial Judge was right in law when he declined jurisdiction and struck-out the plaintiff/appellant’s suit on the basis of the defendants/respondents’ notice of preliminary objection.
(2) Whether the respondents’ filing of the notice of preliminary objection pursuant to the preliminary point of law raised on their statement of defence was right in law and/or at law.”

At the hearing of the appeal, parties adopted their briefs. They sought also to address this court in further stressing the points contained in the briefs. I find their address repetitive of the positions canvassed in the briefs.

Let me summarise the arguments canvassed by the appellant in urging us to allow the appeal.
Firstly, appellant’s counsel contends that the preliminary objection as to the competence of his suit was never before the court below on 17th April, 2002 when it was purported to be heard. It is argued that the respondents’ motion dated 4th January, 2002 as filed sought two reliefs from the court. Respondents prayed for enlargement of time to enable them file their statement of defence outside the time prescribed by rules of court. They also prayed that the statement of defence that had been so filed and served be deemed properly filed and served. Respondents’ third prayer, appellant submits, is for the point of law raised in paragraph seven of the respondents statement of defence to be set down for hearing. These requests came up for the court’s consideration on 27th February, 2002.

The court, appellant further contends, made the following two orders:-
(i) “Motion dated and filed on 4th January, 2002 asking for enlargement of time to file defendants’ statement of defence and deeming same as properly filed and served is hereby granted as prayed” and
(ii) “Motion is granted as prayed and the point of law set down for hearing on 11th April, 2002.”
Appellant has surmised that from the foregoing orders of the court, what was adjourned to 11th April, 2002 and eventually taken on 27th April, 2002 was the point of law contained in paragraph seven of the respondents’ statement of defence and not their preliminary objection that was filed on 14th February, 2002. The appellant in consequence submits that the objection considered and decided by the court inspite of content of paragraph 7 of respondents’ pleading was a resort to a procedure unknown to law. The procedure was to the detriment of the appellant. The lack of co-ordination and certainty in the conduct of proceedings by the court below had prejudiced the appellant’s cause.