O. N. Nwokoro V. Thomas Azipu Ashue (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State, Obudu Judicial Division which was delivered on the 22nd day of October, 2007. By the said judgment the trial Judge granted the Respondent’s claims and dismissed the Appellant’s counter-claim.

Before this court briefs have been filed and exchanged. In the appellant’s brief of argument the following three issues have been formulated for the determination of this appeal:-

ISSUE1:- Whether the court below was right in assuming jurisdiction to entertain the Respondent’s claim when the said claim was statute-barred. (Based on ground 2)

ISSUE 2:- Whether the court below was right in granting the Respondent’s claim having regard to the claim before the court. (Based on grounds 1, 3, 4, 5, 7, 9, 10 and 11.)

ISSUE 3:- Whether the court below was right in refusing to grant the appellant’s counter claim having regard to the evidence before the court.

On the other hand the Respondent in the Respondent’s brief of argument has framed the following issues for determination:-

1. Whether the appellants can competently raise the issue of jurisdiction for the first time based on the Limitation Law when the defence was not raised at the trial in the lower court.
2. Whether the trial court was right to have granted the relief sought by the plaintiff/Respondent as against those sought by the Defendants/counter claimants/Appellants.

It is clear that in both briefs of the appellant and the Respondent issues of jurisdiction and evaluation of evidence have been raised. However I will consider the issues as formulated in the appellant’s brief of argument.

The first issue therein is whether the court below was right in assuming jurisdiction to entertain the Respondent’s claim when the said claim was statute-barred.

As correctly submitted by the appellant, the issue of jurisdiction is very fundamental and that it is the very basis upon which a court tries a case. That lack of jurisdiction robs a court of the competence to hear and decide a matter. The issue whether a court has jurisdiction can be raised at any time be it at the Court of Appeal or Supreme Court relying on several authorities including the statement of the apex court in PETROJECSSICA ENTERPRISES LTD VS LEVENTIS TECHNICAL COMPANY LIMITED (1992) 5 NWLR (pt 244) 675; 693 E-F where it stated as follows:-

“The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal Calabar or to this courts: a fortiori the court can suo motu raise it.”

The appellant has reiterated that the appellant is at liberty to raise the issue of jurisdiction in this Court although it was not raised at the court below. Thus in ARAKA VS. EJEAGWU (2000) 15 NWLR (pt 692) 684-709 F- H the Supreme Court held that it is well settled that an appellate Court will not allow a fresh point of law to be taken before it if such a point was not pronounced upon by the Court below. That in the same vein, an appellant will not be allowed to raise on appeal, a question which was not raised, tried or considered by the trial Court but where the question, involves substantial points of law, substantial, and it is plain that no further evidence could have been adduced which would affect the decision on them, the court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice. He has added that the issue of jurisdiction is one which the court will allow to be raised for the first time on appeal as in the instant case.

Also the Supreme Court in ARAKA VS. EJEAGWU (supra) at 710 E-G as follows:-

“A Court is said to be competent to adjudicate upon an action when:-