Central Bank Of Nigeria V. Ifeanyichukwu Okonkwo (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Lead Ruling)

This ruling is in respect of the preliminary objection raised in the instant appeal by the Respondent (hereafter simply referred to as “the Objector”), The preliminary objection has been raised by a process titled “Notice by Judgment Creditor/Respondent of his intention to rely upon preliminary objection” dated 8/4/2011 and filed on the same date (hereafter simply referred to as “Notice of P.O.”), brought pursuant to Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter simply referred to as “the Constitution”), and Order 10 Rule 1 of the Court of Appeal Rules, 2011 (hereafter simply referred to as “the Rules of the Court”), In the Notice of P.O., the Objector gave notice that at the hearing of the instant appeal, or any other application by the Appellant, he shall rely upon the following Preliminary Objection:-

“Praying the Honourable Court of Appeal for an Order striking out this Appeal initiated by a Notice of Appeal dated and filed on 3rd day of August, 2006, against the decision of the Federal High Court Enugu presided over by Honourable Justice .I. Allagoa J., dated 2nd day of August 2006. And Appellant’s Brief of Argument (purportedly) dated 21st August, 2008 and filed on 22nd August 2008; FOR WANT OF COMPETENCE AND JURISDICTION.”

The ground of the preliminary objection is that this Court lacks the jurisdiction to entertain the present appeal on ground of nullity to wit:

“1. The appeal initiated by Notice and Grounds of appeal dated and filed on 3/8/2006 against the decision of the trial court (Federal High Court, Enugu Division) delivered on 2/8/2006 dismissing the Garnishee/Appellant’s Motion for “setting aside the order absolute made in this case on 19th day of July, 2006 is a nullity, and the Court of Appeal lacks the jurisdiction to hear and determine same.

PROCESS IN THE RECORD RELIED UPON:

(i) Page 86-88 of the record, is the Motion on Notice by the Garnishee/Applicant dated and fired on 28/7/2006 praying for:

“Setting aside the Order Absolute made in this case on 19th day of July, 2006.”

(ii) Pages 207 – 219 of the record, is the Judgment of the trial court dated 2nd day of August, 2006 whereat at page 219, the learned trial Judge concluded thus:

“In the circumstances, the Motion filed by the Garnishee on the 28/7/2006 asking the court to set aside its Order Nisi fails and is hereby dismissed.”

(iii) Pages 89 – 94 of the record, is the incompetent Notice of Appeal dated and filed on 3/8/2006 against the trial court’s decision dated 2nd day of August 2006, a judgment given after the Honourable Court had become funtu (sic) officio having made the Garnishee Order Nisi absolute on 19/7/2006.

PARTICULARS:

(a) The decision dated 2/8/2006 (see: pages 207 – 219 of the record) appeared against, is made without jurisdiction therefore, is a nullity. Thus where the court has no jurisdiction, having become functus officio’ it’s (sic) judgment is null and void ‘ab initio’

(b) A court lacking the jurisdiction to entertain an action cannot dismiss it, but can only strike same out.