Continental Trust Bank Ltd. & Ors V. Otunba Michael Olasubomi Balogun & Ors (2002)

LawGlobal-Hub Lead Judgment Report

A. OGUNTADE, J.C.A.

The 1st to 4th respondents were the plaintiffs/applicants before the Federal High Court in Suit NO.FHC/L/CS/995/2001 where they brought an application for judicial review in the form of an Order of Certiorari, Declaration and injunction against the 1st and 2nd respondents. It was alleged that the 1st and 2nd respondents had improperly taken some decisions against the plaintiffs/applicants (i.e. 1st to 4th respondents) without affording them the opportunity to be heard.

In the course of the proceedings before the lower court, the appellants applied to be made parties to the proceedings, a request which was granted by Sanyaolu J. They then became the 3rd to 8th respondents. On 5/3/02 they brought an application asking for the following orders:

“1. An order dismissing and or striking out the plaintiffs motion on notice dated 26th November 2001 for an application for judicial review.

2. And such further or other order of orders as this Honourable court may deem fit to make in the circumstances.”

The grounds relied upon for bringing the application were these:

“1. The plaintiffs’ motion on notice for judicial review as presently constituted is incompetent in law.

2. The reliefs sought by the plaintiffs on the Amended Statement are not justifiable under Judicial Review proceedings.
3. The plaintiffs motion on notice for Judicial Review amounts to an abuse of court process and is unknown to the Federal High Court Rules on Judicial Review of administrative decisions.
4. The conditions precedent to hearing of the plaintiffs’ motion on Notice for Judicial Review particular the conditions contained in Order 47 rule 5(4), 6(1) and 9(2) of the Federal High Court (civil procedure) Rules, 2000 have not been satisfied.
5. This Honourable Court has no jurisdiction to entertain this suit as it is presently constituted.”

On 14/5/02 the trial judge ruled on the application in these words: (at page 140 of the record of proceedings):

“In the exercise of my discretion as conferred by the said provision and having regard to the nature of the present case dealing with “Judicial Review”, I hereby rule that the preliminary objection filed herein by learned counsel for the 3rd – 8th Respondents/applicants be taken along with the substantive suit. This is without prejudice to the Respondents/applicants raising the issue of jurisdiction at the hearing of the substantive suit. ”

The 3rd to 8th respondents (now appellants) were dissatisfied with the ruling.

They have come on appeal against it. In the appellants’ brief, which was filed on their behalf, the issues for determination were formulated as follows:

“1. Whether or not the 3rd to 8th defendants/appellants’ motion on notice filed at the court below on 5th day of March 2002 is not sufficient compliance with the condition stated in Order 25 rule 2 of the Federal High Court (Civil Procedure) Rules 2002.

2. Whether or not the learned trial judge was right to hold that jurisdictional issue cannot be raised pursuant to provisions or order 25 rule 2 of the Rules of the appellants’ application challenging jurisdiction yet to be argued.
3. Whether or not the court below has discretion exercisable under the provisions of Order 25 rule 2 of the Rules when the points of law raised pursuant to Order 25 rule 2 of the Rules touch on jurisdiction of the court below.?
4. Whether or not the court below was right in differing the hearing of the appellants’ preliminary objection as to jurisdiction till the trial of the substantive suit?”

The 1st – 4th respondents had before this court on 9-10-02 filed a notice of the preliminary objection to the appeal. The objection reads:

“(i) There is not valid appeal before this Honourable Court because the order of the learned trial judge directing that the above named appellants/applicants – be taken along with the substantive suit “is not appealable as of right or at all.

(ii) Even if the said order is appealable no leave was sought for or obtained as required by law.”