Alims Nigeria (Limited) Vs United Bank Of Africa (2013)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFOLABI FABIYI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Benin Division delivered on 6th June, 2006 wherein the judgment of the High Court of Justice, Auchi, Edo State delivered on 1st August, 2003, was affirmed.
At the on-set, the appellant as plaintiff filed an action against the respondent in Suit No. HAU/72/95 wherein, it claimed, inter alia, as follows:-
“(1) A declaration that the Deed of Floating Debenture executed between the plaintiff and the defendant dated the 25th day of November, 1996 and registered as Instrument No.25 at page 25 in volume 714 of the Lands Registry in the office at Benin-City, do not allow the defendant to unilaterally alter the status of the debt from loan to overdraft thus attracting higher interest.
(2) A declaration that the defendant’s computation of interest on the facilities granted to the plaintiff, is arbitrary and without legal basis.
(3) Injunction restraining the defendant, its servant and/or agents from carrying out its threats to enforce its rights in the deed of floating debenture and legal mortgage.”
On 24th November, 2000, all the three reliefs were granted by the trial Judge – Okunega, J. The respondent’s counter-claim in the same suit was dismissed. The respondent in that suit felt unhappy and appealed to the Court of Appeal vide the Notice of Appeal dated 20th December, 2000 and filed on 24th January, 2001.
Later on, the appellant filed another action, an Originating Summons to wit: Suit No. HAU/15/2003 against the respondent wherein it claimed the following reliefs:-
“(i) A declaration that the plaintiff is entitled to a release of its property registered as No. 25 at page 25 in volume 714 of the Lands Registry in the office at Benin-city which was a subject of litigation at the High Court of Justice, Auchi in Suit No. HAU/72/95 ALLIMS NIGERIA LTD. VS. UNITED BANK FOR AFRICA PLC decided by Hon. Justice Aliu Okunega on the 25th day of November, 2000 and presently being retained in the custody of the defendant.
(ii) An order of this Honourable court directing the defendant to release to the plaintiff forthwith the aforementioned title deeds.”
The Originating Summons was supported by an affidavit of 12 paragraphs deposed to by one Alhaji Idris Momodu, appellant’s Chairman/Managing Director. A copy of the judgment of Okunega, J. was attached and marked as Exhibit ‘A’. On 1st August, 2003, Idahosa, J. struck out the later suit on ground of lack of jurisdiction to pronounce on the earlier judgment in Suit No. HAU/72/95, inter alia, which happened to be subject of appeal before the Court of Appeal.
The appellant felt unhappy and appealed to the court below which heard the appeal and dismissed same on 6th June, 2006. It is against the judgment of the Court of Appeal that the appellant has further appealed to this court. The appellant’s Notice of Appeal, dated 16th June, 2006, which carries one ground of appeal, was filed on 19th June, 2006. The ground of appeal without the attendant particular reads as follows:-
“(1) The Court of Appeal misdirected itself when it held that the learned trial judge could suo motu raise the issue of jurisdiction in the instant case and therefore declined to interpret an earlier judgment of the trial court.”
On 22nd October, 2012 when this appeal was heard, learned counsel on each side of the divide adopted and relied on the brief of argument filed on behalf of his client. The appellant’s counsel urged that the appeal be allowed while the respondent’s counsel urged that same be dismissed. There was no shred of further oral submission by any of them.
On behalf of the appellant, the sole issue for determination, couched with remarkable brevity, reads as follows:-
“Whether an appeal without more as in the instant case constitutes a stay of execution.”
On behalf of the respondent, the only issue for determination, as decoded, reads as follows:-
“Whether the lower court was right in dismissing, as it did, the appellant’s appeal, on the ground that the court of first instance rightly, suo motu, raised and declined jurisdiction to pronounce on a judgment the subject of an appeal.”
In the brief of argument settled by Chief Charles Adogah, the appellant’s sole issue was argued. It was observed that it is not in dispute that the appellant’s action against the respondent at the trial court for the determination of its indebtedness to the respondent was in its favour. Also not in doubt, is the fact that the respondent appealed against the said judgment. He felt that the only issue which arises for resolution is whether the appellant’s subsequent action for the release of its title deed arising from its success in the earlier case was premature and therefore deprives the trial court of powers to exercise its jurisdiction in determining the legal rights of the parties.
Learned counsel observed that the lower court correctly reviewed the law and the authorities relating to stay of execution. He felt that the lower court fell into the grave error of assuming that either of the parties applied for a stay of execution of the judgment. He opined that none of the parties could have applied for stay of execution of the judgment. He maintained that no authority was cited to the court below that the appellant which had judgment in its favour in respect of the main action at the trial court challenging its indebtedness to the respondent could not demand the release of its title document.
Learned counsel opined that an issue he considered a mole hill has turned out to be a mountain one and the appellant is still being deprived of the fruits of its judgment.
The respondent’s brief of argument was settled by Dr. S. S. Ameh, SAN. On behalf of the respondent, it was submitted that the jurisdiction of a court to entertain a suit is radical and fundamental to adjudication and can be raised at any stage of the proceedings, even for the first time, in the apex court. It can be raised either by the parties to the suit or by the court suo motu, based on the processes before the court. The case of Olutola v. University of Ilorin (2005) All FWLR (Pt. 245) 1154 was cited.
It was further submitted that the lower court was right when it held that the trial court rightly raised the point relating to jurisdiction suo motu.
It was observed that where an issue of jurisdiction is raised suo motu the court should invite the address of counsel on both sides, on the issue before deciding one way or the other. It was submitted that failure of the court to so invite the address of counsel, does not ipso facto render such decision a nullity unless it is shown that such decision is incorrect and/or occasioned a miscarriage of justice. The cases of Kato v. CBN (1991) 9 NWLR (Pt.214) 120 at 135 and Ima v. Okogbe (1993) 9 NWLR (Pt. 316) 159 at 178 were cited.
It was further submitted that the decision of the learned trial Judge in declining jurisdiction to pronounce and/or interpret its earlier judgment which is subject of an appeal, is correct in law. It was observed that the reasoning of the lower court on this point cannot be faulted in any way, as it is a known rule of practice which is generally accepted that the jurisdiction of the trial court to make an order in respect of its earlier judgment which is subject of an appeal, is clearly ousted.
Earlier in this judgment, I set out the sole ground for determination as couched on behalf of the appellant. It is of moment for me to revisit it here for emphasis and clear vision. It reads as follows:-
“The court of appeal misdirected itself when it held that the learned trial judge could suo motu raise the issue of jurisdiction in the instant case and therefore declined to interpret an earlier judgment of the trial court.”
On behalf of the appellant, an issue for determination, which has no bearing with the above reproduced ground of appeal, was formulated. It reads as follows:-
“Whether an appeal without more as in the instant case constitutes a stay of execution.”
It is glaring that the above issue, as couched, flies in the face of the sole ground of appeal. The issue, as decoded, cannot be reconciled with the ground of appeal. Furthermore, the point relating to jurisdiction was neither canvassed in the appellant’s brief of argument; nor in oral submission by counsel when the appeal was heard on 22nd October, 2012. Ordinarily, the appellant should have filed a Reply brief of argument. But none was filed.
It is basic that where no issue is formulated from a ground of appeal; or no relevant issue is distilled from same, as in this matter, the ground is deemed abandoned under our law. Such a ground is liable to be struck out. See: S. Udoechi v. J. L. Alinarat (2000) FWLR (Pt. 22) 2003 at 210; Alhaji Abudu W. Akibu v. Alhaja Muniratu Oduntan & Ors. (2000) 7 SCNJ 189; Sparkling Breweries Ltd. & Anr. v. Union Bank Ltd. (2001) 7 SCNJ 321.
Furthermore, since there is no shred of argument on behalf of the appellant with respect to issue of jurisdiction, the argument advanced on behalf of the respondent is deemed as having been conceded.
It is now clear that the issue of jurisdiction is a threshold one which can be taken at any stage of the proceedings; even before the apex court for the first time. It can be raised by any of the parties or by the court suo motu. Where there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction, the judex has the duty to raise it suo motu, if the parties fail to draw the attention of the court to it. In such a situation where the judex raises it suo motu, it is proper to invite the address of both counsel before deciding one way or the other. However, failure of the court to so invite the address of counsel, does not, ipso facto, render such a decision a nullity unless it is shown that the decision is incorrect or occasioned a miscarriage of justice. See: Olutola v. University of Ilorin (supra), Kato v. CBN (supra), Ima v. Okobe (supra), Ejowhomu v. Edok-Eter Mandilas Ltd (1986) 5 NWLR (Pt.39) 1.
Jurisdiction is very fundamental. It should be determined at the earliest opportunity when raised. If a court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508.
With respect to the issue of jurisdiction, the learned trial judge, at page 40 of the transcript record of appeal found as follows:-
“I have carefully considered the originating summons and the submissions of learned counsel. I have also considered the supporting affidavit as well as the counter affidavit.
Clearly this court has no jurisdiction to pronounce on the judgment, i.e. Exhibit A of the supporting affidavit. That judgment is now the subject of an appeal.
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In the interest of justice, it is my view that the parties should remain where they are pending the hearing and determination of the pending appeal. To order the release of the plaintiff’s title documents at this stage will render nugatory the decision of the Court of Appeal in the event that defendant’s appeal succeeds.
On the other hand, if the appeal fails, the title documents could always be released.
In the circumstances, it is my considered opinion that the reliefs sought are premature and cannot be granted at this stage ——–.”
On the issue of jurisdiction, the court below at page 70 of the record, in affirming the position taken by the trial court, pronounced as follows:-
“In the instant case, it is my considered view that the learned trial judge was right when he declined to assume jurisdiction over the case. Circumstances dictate, where owing to a pending relevant appeal, the hearing of a case would work injustice or constitute an exercise in futility, prudence dictates that the proper course of action open to the court would be to decline to assume jurisdiction pending the determination of the pending appeal and the learned trial judge was right to have done so.”
I feel strongly that the decision of the learned trial judge in declining jurisdiction to pronounce and/or interpret the earlier judgment which is subject of an appeal is correct in law. The reasoning of the lower court on the point cannot, in any respect, be faulted. It is generally known and accepted as a rule of practice that the jurisdiction of the trial court to make an order in respect of its earlier judgment which is subject of an appeal is clearly ousted. It is also ‘premature’ to release the title document – the res or subject matter of an appeal already entered in the Court of Appeal. The trial court was right and in order when it raised the issue of jurisdiction suo motu. The court below rightly affirmed same. And no miscarriage of justice has been pinpointed.
With respect to the point relating to stay of execution, which has no relationship or bearing with the ground of appeal, same was tersely canvassed on behalf of the appellant. On behalf of the respondent, it was submitted that the appellant’s counsel was in grave error when he submitted that because the respondent did not apply for a stay of declaratory judgment of the court in Suit No. HAU/72/95, then the trial court was wrong to decline jurisdiction to pronounce on its earlier judgment already appealed against. It was further submitted that the respondent is not under any duty to apply for a stay of a declaratory judgment before exercising its right of appeal against the judgment. It was stressed that a declaratory judgment has nothing in it capable of being stayed. The cases of Awoniyi v. Registered Trustees, Amorc (2000) FWLR (Pt.25) 1592 and Okoya v. Santilli (1990) 2 NWLR (Pt.131) 172 at 213 were cited.
It was submitted that the appellant never claimed against the respondent in the earlier case the release of its title deeds and the court will not make the practice of granting a plaintiff a relief he did not seek or award him a relief in excess of what he claimed.
It is basic that there can be no execution of declaratory orders as there is, in its real essence, nothing to stay. The judgment of the trial court in suit No. HAU/72/95 was basically declaratory and there was nothing in it which required application for stay of execution. The cases of Awoniyi v. Registered Trustee, Amorc (supra) and Okoya v. Santilli (supra) both cited by the respondent’s senior counsel are apt. The respondent rightly exercised its right of appeal. It was not under any obligation to ask for stay of execution.
Furthermore, the appellant never claimed against the respondent in the earlier suit, for the release of its title documents. Same was never decreed in its favour as a court does not make it a practice to grant a relief not claimed. This is because the court is not a Father Christmas or a charitable organisation. The appellant cannot obtain through the back door what he did not claim in its suit. See: Egonu v. Egonu (1978) 11-12 SC 111 at 133; Babatunde Ajayi v. Texaco Nig. Ltd. (1978) 9 – 10 SC 1 at 27; Etim Ekpenyong v. Inyang Nyong (1975) 2 SC 71 at 80 and Edebiri v. Edebiri (1997) 4 SCNJ 177; (1997) 4 NWLR (Pt. 498) 165.
The above has clinched arguments tersely raised on behalf of the appellant in respect of stay of execution issue which, in the main, did not tally with ground of appeal that borders on complaint relating to jurisdiction.
Finally, on behalf of the respondent, it was submitted that the appellant has not shown any cause why this court should disturb the concurrent findings of the two lower courts. Again, the appellant’s counsel did not say a word in reaction to this valid submission.
The learned trial judge was perfectly right in declining jurisdiction to interfere with the res in the suit which is subject of an appeal in the court below. Prudence and due employment of judicial and judicious discretion support same. The court below, in its wisdom, affirmed same. The concurrent findings of the two courts below are not in any way perverse. No miscarriage of justice has been identified and none can be traced in the prevailing circumstance of this matter. I shall not interfere. See: Seatrade v. Awolaja (2002) 2 SC (Pt.1) 35; Oduntan v. Akibu (2000) 7 SC (Pt.2) 106; Anaeze v. Anyaso (1993) 5 NWLR (Pt.291) 1; Seven-Up Bottling Co. v. Adewale (2004) 4 NWLR (Pt.862) 183 and Fajemirokun v. C.B. Nig Ltd. (2009) 5 NWLR (Pt.1135) 588 at 599.
I come to the conclusion that the appeal is devoid of merit. It is hereby dismissed as the judgment of the Court of Appeal handed out on 6th June, 2006 is hereby affirmed. The appellant shall pay =N=50,000:00 costs to the respondent.
SC.303/2006