Chinedu Ukwu V. Road Transport Employers Association Of Nigeria & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Federal High Court sitting in Calabar delivered on 31st November, 2008. The Appellant was dissatisfied hence this appeal. In brief, the 2nd Respondent’s counsel had filed a Preliminary Objection challenging the jurisdiction of the Federal High Court Calabar, to hear the motion on Notice as the suit was brought outside, the mandatory period of 14 days.

See Order 1 Rule 1 (2) of the Fundamental Rights (Enforcement) Procedure Rules 1979. Counsel had sought to argue the Preliminary Objection before the motion on notice. However the trial Judge ordered the parties to file their various arguments, in respect of the motion on notice so that all the arguments would be taken together.

The 2nd Respondent was aggrieved and filed his notice and 2 grounds of appeal on 7th November, 2008.

The Appellant filed his brief on 29th January, 2009 and articulated 2 issues for determination as follows:

“1. Whether the Federal High Court, Calabar was right in not hearing and deciding the Preliminary Objection filed by the 2nd Respondent challenging its jurisdiction before proceeding to order the 2nd Respondent to file his Counter Affidavit in the suit and his Written Address to the Applicant’s Motion Ex-Parte dated 29th September, 2008 and the Applicant’s counsel to file his Written Address in respect of his Motion on Notice?

2. Whether the Order of the Federal High Court, Calabar on 3rd November, 2008 that the 2nd Respondent should file and serve his Counter Affidavit and Written Address to the Applicant’s Motion Ex-Parte are valid in view of the fact that the Applicant’s suit is ex-facie a nullity?”

The 2nd Respondent filed his brief on 8th June, 2009 and articulated only one issue for determination namely:

“Whether in the circumstances of this case there was a decision of the lower court to warrant or sustain this Appeal.”

The two issues articulated by the Appellant would be treated together. The Appellant’s Learned Counsel submitted that where the jurisdiction of the court is challenged, the court is duty bound to determine that issue first before proceeding to hear the substantive suit. See Olutola v. UNILORIN (2005) 3 WRN page 22 where the Supreme Court held:

There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the court and to the parties so to do. See also Arence v. Nwofia (2000) 4 NWLR pt 653 page 464 where the Court of Appeal held:

“… A party who thinks that a Court Process is brought without jurisdiction has the remedy to file an objection with a view of terminating the process in limine. The Court must hear listen to him and rule one way or the other”

Counsel submitted that the order of the Federal High Court on 3rd November, 2008 amounted to a refusal of the Preliminary Objection of the Appellant to its jurisdiction. See Owerri Municipal Council & Ors. v. Innocent Onuoho & Ors. (2010) All FWLR pt 538 page 896. See also Attorney General Lagos State v. Dosunmu (1988) TWLR pt 1 page 1 where the Supreme Court held:

“… jurisdiction is a radical and crucial question of competence. Either the court has jurisdiction to hear the case or it has not. If it has no jurisdiction, the proceedings are and remain a nullity however well conducted and brilliantly decided they might otherwise have been”.

See Olutola v. UNILORIN (Supra) where it was further held as follows: