Alhaji Shehu Bakule V. Tanerewa Nigeria Limited (1994)

LawGlobal-Hub Lead Judgment Report

MAMMUD MOHAMMED, J.C.A. 

The respondent in this appeal as the plaintiff had sued the appellant and one other as defendants before the High Court of Justice Kano claiming among others the following reliefs:-
“(i) The refund of the sum of N500,000.00 (Five Hundred Thousand Naira) paid by the plaintiff to the defendants as deposit for the supply of hides and skin (goats and rams).
(ii) The sum of N50,000.00 (Fifty Thousand Naira) as general damages.
(iii) The sum of N50,000.00 (Fifty Thousand Naira as demurrage)
(iv) 10% court interest
(v) Costs.

The writ of summons was dated 28th November, 1990 and the case before Tijjani Abdullahi J. (as he then was) for hearing and determination. While the case was pending before Tijjani Abdullahi J., the appellant on 4th February, 1991 brought a motion on notice to strike out the respondent’s action for want of jurisdiction by the trial Kano High Court. In a considered ruling delivered on 5th March, 1991, the trial Judge dismissed the application and ordered pleadings. The case then proceeded to hearing with some of the plaintiffs’ witnesses giving evidence. However the case could not be disposed of by Abdullahi J. because of his transfer to Jigawa State on its creation. The case was then reassigned to B.S. Adamu J. before whom the proceedings in the case commenced de novo. The Appellant then filed another application dated 22/1/1992 to strike out the respondent’s action for want of jurisdiction by the trial court. The Ruling of the lower court of 19/3/1992 by Adamu J. is the subject of this appeal. It is clear from the Ruling that the learned trial Judge without actually deciding on the appellant’s challenge to his jurisdiction by granting or refusing the application, went into the merits of the case to some extent and ordered the defendant to transport the stocks of the Hides and Skin the subject of the action back to the Sokoto State High Court within 30 days after the two parties had jointly taken stocks of the subject matter of the action. The action of the learned trial Judge in his Ruling which he said was aimed at doing substantial justice to the parties reads in part on pages 6 and 7 as follows:-
“Thirdly the question of competence of the court to hear the case and result of a decision given where the court has no jurisdiction are not in dispute. So the point is well taken care of in this ruling.
Finally the court has carefully observed that all these rules and decided case will not offer any solution in the present case. The court had to resort to the provisions of the High Court Civil Procedure Law No.3 which provides that “where the matter arises of which no adequate provisions are made in the Rules the court shall adopt such procedure as will in its view do substantial justice between the parties concerned.”
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The facts revealed that the skins have now been found to be of (sic) quality and the plaintiff informed the defendants accordingly. He claims for his money and the defendants wanted to be paid the balance of their money. The matter was subsequently taken to courts in Sokoto and Kano. The plaintiff refused to return the skins to Sokoto and ask for his money which right he had since the time he discovered the breach up to today. He did not do so for reasons best known to him. The defendants sued in Sokoto and they can never be able to establish their claims without the skins which are now in Kano.

The defendants have in fact not prosecuted their case at Sokoto that the case had to (sic) strike off for lack of diligent prosecution. While the plaintiff is vigorously pursuing his case here in Kano, the defendants are always asking the court to strike out the action for lack of jurisdiction.

The court in Kano State can only assume jurisdiction when the defendants either directly or impliedly submit before (sic) the court in Sokoto State will never get the chance to hear the case properly when the subject matter of disagreement remained in Kano State. Meanwhile the defendants are in custody of the N500,000.00 (half a Million Naira) belonging to the plaintiff leaving him with skins of doubtful quality kept in his warehouse. Thus while the defendants are enjoying the turnover or interests of this large sum of money, the plaintiff is saddled with a congested warehouse while his money is continuously being utilized by his adversary.”

The learned trial Judge in the same Ruling referred to Or. 47 R.1 of the High Court Civil Procedure Rules and the general prayer in the appellant’s application asking for any other order as the court may deem fit to make in the circumstances observed:-
“In view of the above mentioned provisions, prayers, legal authorities and decided cases, the courts in its view of doing justice to the parties and finding solution to the present clumsy situation,”
and then proceeded to make the following orders:-
“1. That the stock of all the skins supplied to the plaintiff by the defendants now in the plaintiff’s store/warehouse should be listed, counted and signed in the presence of the plaintiff and the defendants or their agents.
2. That the defendants should arrange for the transportation of the skins in issue to Sokoto the cost will be borned by the parties and must ensure that the same quality and quantity of the skins have been delivered to court in Sokoto for deciding on the quality, quantity and costs of the items. This order must be carried out before 30 days from the date of this Ruling.
3. That if the defendants have refused either to take count of the skins or to take same to Sokoto within 30 days from the date of this ruling they will be regarded as having submitted to the jurisdiction of the court in Kano State and the trial will commence immediately.
4. That this (sic) orders are not in respect of Order 10 Rule 6 and so any party not satisfied with the Ruling has the right to appeal before the hearing of the case commences before this High Court.”

Indeed the defendant/appellant who was not satisfied with these orders had appealed to this Court against the Ruling in his notice of appeal dated 1st April, 1992 containing 5 grounds of appeal. The grounds without some of their particulars read:-
(a) “The learned trial Judge erred in law when after holding that the Kano High Court lacked jurisdiction to entertain the suit No. K/646/90 made consequential orders the effect of which may indirectly confer jurisdiction again by default.
(b) The learned trial Judge erred in law when he ordered that the goods subject matter of dispute in suit No. K/646/90 over which he held his court had no jurisdiction should be transported back to Sokoto with the expenses partly paid for by the 2nd defendant/appellant.
(c) The learned trial Judge erred in law when (sic) it takes upon himself to exercise a jurisdiction which he does not possess.
Particulars Of Error
The learned trial Judge having found that his court lack jurisdiction to entertain the suit, all other decisions and/or orders made except for striking out amounted to a nullity See Peenok Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1 at 68 – 69.
(d) The learned trial Judge erred in law, when (sic) it held as follows:
“That if the defendants have refused either to (sic) to the court of skins or to take same to Sokoto within 30 days from the date of this Ruling they will be regarded as having submitted to the jurisdiction of the court in Kano State and the trial will commence immediately.”
(e) The learned trial Judge erred in law when (sic) it relied on Order 47 Rule 1 of the Kano State High Court Civil Procedure Rules 1988 and went on a voyage of discovery or/and turned his court into a charitable institution.”

The appellant’s brief of argument filed out of time with the leave of this Court had raised 3 issues for determination. They are:-
1. “Whether a court which lacks jurisdiction to entertain a suit before it may still make consequential orders, the effect of which may indirectly confer jurisdiction again on the same court.
2. Whether a court which lacks jurisdiction to entertain a suit has any other power over the matter except making an order striking out same except where there is statutory power to make any other order or orders.
3. Whether the High Court, Kano can confer jurisdiction on itself where non exists by relying on Order 47 Rule 1 of the Kano High Court (Civil Procedure) Rules 1988.”

The respondents’ brief also filed after an extension of time granted by this Court on 22/3/94 contains a preliminary observation on the incompleteness of the record of the appeal in addition to notice of preliminary objection to the competence of the appeal on the following grounds –
(a) “The decision of the learned trial Judge is interlocutory decision which can only be appealed against with leave as provided in Section 220 & 221 of the 1979 Constitution as amended and Section 15 of the Court of Appeal Act, 1976.
(b) No leave was obtained either in the lower court or in this Honourable Court.
(c) The appeal was filed outside the statutory period of 14 days as prescribed by Section 25 of the Court of Appeal Act 1976.
(d) Arising from (a) and (b) above the appeal is incompetent and ought to be struck out.

Three issues for determination were also identified in the respondents’ brief of argument. These issues are:-
1. “Whether or not the appellant’s application dated 22nd January, 1992, the ruling in respect of which is the subject of this appeal was an abuse of the process of the court and ought not to have been entertained in the first place for want of jurisdiction.
2. If the answer to issue 1 above is in the negative, whether the ruling aforesaid contained a decision which could be appealed against.
3. Whether in all the circumstances of the case, the matter can properly be heard and determined by B.S. Adamu J.”

Consequent upon the preliminary objection raised in the respondents’ brief of argument, a Reply brief was filed by the appellant on 5/4/94 in answer to the preliminary matters raised.

I shall first take up the preliminary matters in the respective briefs of the parties. It was argued by the respondent that the record of this appeal is not complete in the absence of the Ruling of Tijjani Abdullahi J of 5/3/91 which is still in force and against which there was no appeal before the substantive case started de novo before Adamu J. The appellant had however submitted that the ruling of Abdullahi J. is not necessary for the determination of this appeal as that ruling was not conclusive on the issue of jurisdiction. That the case having started de novo before Adamu J., all previous proceedings before Abdullabi J. including the ruling are nullified on the authority of Odi v. Osafile (1987) 2 NWLR (Pt. 57) 510 at 512.

This appeal is against the ruling or decision of Adamu J. delivered on 19/3/92. Surely the ruling of Abdullahi J., which is part of the proceedings in the substantive case that were terminated on the transfer of Abdullahi J. to Jigawa State cannot be relevant in this appeal which is part of fresh proceedings in the case began de novo before another Judge Adamu J. The effect of starting the case afresh before Adamu J. is to sweep clean all previous proceedings in the case before Abdullahi J. See Odi v. Osafile (supra). Any of the parties therefore is free to bring afresh any application including the type the subject of this appeal. For this reason, the ruling of Abdullahi J. of 5/3/91 having been given in a previous proceedings before the case between the parties started afresh before Adamu J. is not a necessary record for the purpose of this appeal.

The respondent had also raised a preliminary objection to the competence of this appeal mainly on the ground that it was an appeal against interlocutory decision of the lower court filed out of the 14 days period prescribed by law and without the leave of the lower court or this court having been first sought and obtained. Although a number of authorities were cited by learned counsel on both sides in the respective briefs of argument of the parties to support or oppose this preliminary objection, I do not intend to go into them because the arguments were based on the assumed decision of the lower court that it had no jurisdiction to hear the substantive action. Although the application of the appellant before the trial court was a challenge to the jurisdiction of that court, the court did not in fact decide on the issue of whether or not it had jurisdiction to hear the plaintiff’s/respondent’s claim before going into the merits of the case without trial, though, so as to do what the learned trial Judge regarded as substantial justice to the parties. The orders made by the learned trial Judge directing the parties to take stock of the skins the subject matter of the action and transport the same back to Sokoto for the High Court there to decide on the quantity, quality and cost of the same were clearly meant to bring to an end or terminate the case between the parties in the substantive Suit No. K/646//90 then pending at the lower court before the motion challenging the jurisdiction of the court was filed by the appellant. The orders were not interlocutory because the decision had completely left the issue of jurisdiction which was the subject of the motion undecided. Therefore since the respondent’s preliminary objection on this ground was predicated on the assumption that the decision of the lower court the subject of this appeal was the determination of the issue of jurisdiction when in fact it was not, the basis of the objection is no longer valid as the learned trial Judge did not in fact rule on the interlocutory application to give his decision an interlocutory status. In this respect the preliminary objection by the respondent to the competence of this appeal based on the ground that the decision of the lower court was an interlocutory decision is indeed misconceived.