Adeyemi & Ors v. Achimu/NDIC (Assurance Bank Nigeria Limited) & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

MOHAMMED LAWAL GARBA, J.S.C. (Delivering the Lead 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.