Rfg Limited & Anor V. Skye Bank Plc. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the Honourable justice R. I. B Adebiyi sitting at the High Court of Lagos State, Lagos Judicial Division delivered on the 6th day of November, 2007. The facts that led to the appeal are as follows:

The Claimant, now the Respondent by a writ of summons dated 6th of December 2006 instituted an action against the 1st and 3rd Defendants, now Appellants and one other defendant at the trial court claiming the following reliefs.

1. The sum of N39,386,000.25 (Thirty Nine Million, Three Hundred and Eighty Six Thousand Naira and Twenty Five Kobo only) being the sum outstanding against the Defendants on a credit facility of N30,000,000 (Thirty Million Naira Only) extended to the Defendants by the Claimant on or about February 28, 2003
2. Interest on the said sum of N39, 386,000.25 (Thirty Nine Million, Three Hundred and Eighty Six Thousand Naira and Twenty Five Kobo only) at the rate of 22.5% per annum from the 1st day of August 2004 until judgment is given in this suit and thereafter at the rate of 7% per annum until the entire debt is fully paid up
3. The sum of N200,000 (Two Hundred Thousand Naira Only) as cost of the suit

The 1st and 3rd Defendants now Appellants, by a Preliminary Objection dated the 29th day of June 2007 challenged the jurisdiction of the trial court to hear the suit on the ground of improper service of the originating Processes’ on the 6th of November, 2007, the matter was called for hearing and the Claimant’s counsel sought the leave of the court to move an exparte application filed the previous day for extension of time within which to seek leave to renew the Writ of summons, an order renewing the writ of summons and an order to serve on the Defendants the renewed writ by substituted means.

The trial court granted this application and struck out the preliminary objection of the Appellants. Being dissatisfied with the ruling of the court, the Appellants have brought this appeal. The Appellants’ brief dated 25th of March, 2010 was filed on the 26th of March, 2010.

The Appellants’ reply brief dated 15th of July 2010 was filed on the 19th of July, 2010 and deemed filed on the 8th of February, 2011. The Respondent’s brief dated 6th of May, 2010 was filed on the 7th of May, 2010.

Counsel to the Appellants, Jennifer Aburime identified four issues for determination as follows:

1. Whether the Learned trial judge lacked the jurisdiction to and thus erred in law when she proceeded to hear and determine the Respondent/Claimant’s ex parte application dated the 2nd of November, 2007 and its Counsel’s oral application for an order setting aside the service at all and purportedly make orders and granted the reliefs sought thereby in spite of the 1st and 3rd Defendants, subsisting Notice of Preliminary objection dated 29th of June 2007 challenging the jurisdiction of the court to entertain further Proceedings in the suit’
2. Whether the Learned trial Judge breached the rules of natural justice and fair hearing when she heard and determined the Respondent claimant’s applications ex-parte and as a result over reached the defendants’ application and subsequently striking same out without hearing the 1st and 3rd defendants particularly in the face of a request for an adjournment within the prescribed limits of the rules of court.
3. Whether the Learned trial judge was right in determining an application ex-parte on a date fixed for the hearing of a Preliminary Objection, moreso as both parties were present in Court on the said day.
4. Whether the consequential orders made by the learned trial Judge were valid in law.

The Respondent’s Counsel, Fayo Adeleye adopted all the issues as canvassed by the Appellants’ counsel.

ISSUE ONE

Counsel to the Appellants submitted that the issue of jurisdiction is foundational and goes to the root of adjudication and that non-service of originating process is a defect that affects the jurisdiction of the court. She cited NNPG V. O. E. NIG LTD (2008) 8 NWLR Pt.1090 pg.583 @ 593; SPDCN v. GOODLUCK (2008) 14 NWLR Pt.1107 Pg. 294; OBIMONURE V. ERINOSHO & ANOTHER (1966) NSCC290; KENNEDY V. INEC (2009) 1 NWLR Pt.1123 Pg.614; DENR VS. TRANS INT’L BANK LTD (2008) 18 NWLR Pt. 1119 Pg.399.

Counsel then argued that the trial court was wrong in entertaining the Respondents ex parte application when there was still a subsisting preliminary objection on the jurisdiction of the court. Counsel cited ACCESS BANK Plc V. U. L. O. CONSULT LTD (2009) 12 NWLR Pt. 1156 Pg. 534 where it was held that in the event of pendency of various applications of a party and notwithstanding the propriety of the applications, it behoves the learned trial judge to first sort out the one challenging the jurisdiction of the court. Counsel then argued that the trial court erred in excising jurisdiction to entertain the Respondent’s application because failure to serve was a substantial defect which rendered the whole proceeding a nullity and not a mere technicality. Counsel cited AKPAJI V. UDEMBA (2009) 6 NWLR Pt.1138 P9.545.

Counsel submitted that at the worst, the trial court could have taken both the Appellants’ and the Respondent’s applications simultaneously to ensure fair hearing. Counsel cited LASDPC V. ADOLD STAMN INT’L LTD (2005) 2 NWLR Pt. 910 Pg.603.

In reply, counsel to the Respondent attempted to differentiate between jurisdiction and competence of a court. He submitted that the jurisdiction of a court is the power of the court to adjudicate on a matter as clearly stated in the Constitution or enabling statute. Counsel admitted that it is trite law that the issue of jurisdiction is crucial. He however submitted that not every infraction on the competence of a court will rob a court of its capacity to exercise jurisdiction. He cited NWAKA V. H.O.S. EBONYI STATE (2008) 3 NWLR pt.1073 Pg. 156 at 160; ANSA V. R.T.P.C.N. (2008) 7 NWLR pt.1086 Pg.421 at 428; I.T.P.P. LTD V. UBN PLC (2006) 12 NWLR Pt. 995 Pg. 483 at 488

Counsel explained that for a court to determine whether a particular infarction robs the court of jurisdiction, it has to determine whether the infraction robs it of its substantive or procedural competence. Counsel argued that if it is procedural, as in this case, then it can be cured. Counsel cited MOBIL PRODUCING NIGERIA ULTD V. LASEPA (2002) 18 NWLR Pt.798 Pg.1 at 32; ETI-OSA LOCAL GOVERNMENT v. JEGEDE (20071 10 NWLR Pt. 1043 Pg.537 at 555