Sylvanus Emeka Madubuike & Ors. V. Romanus Elochukwu Madubuike (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Ruling)

On the 20th day of June, 2011, this court suo motu raised the issue of this court’s jurisdiction to hear and determine the substantive appeal as presently constituted when the suit that led to the appeal originated from the Enugu Division of the Federal High Court. To this effect written addresses were ordered by the court. The appellants’ written address dated 12/7/11 was filed on 14/7/11 while the Respondent’s written address was dated and filed on 1/8/11.

When this court was addressed on 24/10/11 Emeka Kalu Esq adopted and relied upon his written address on behalf of the appellants so did Mr. Anugo Offor Esq on behalf of the Respondent. Prior to this date, the Court of Appeal Ilorin Division was faced with the same question which led to the matter being adjourned sine die before the creation of this division of the court.

The Respondent had taken out this action vide a writ of summons and claim dated 74th day of October, 1994, filed on 14th day of October, 1994, pages 2-4 vol. 1 of the printed records. The proceedings were commenced at the Federal High Court Enugu Division against the 1st – 8th Defendants and five others not parties to this appeal. As a result, the Respondent as plaintiff subsequently amended his statement of claim.

The 1st – 8th Appellants as Defendants filed their statement of defence dated 23/4/04 on the 29th day of April, 2004. The trial commenced at the Federal High Court, Enugu Division before Allagoa, J on 19th day of June, 2007 and continued, the defence commenced, the matter was adjourned to 26th May, 2008 for continuation of defence. Before the said date, the presiding judge was transferred to Ado Ekiti Division of the Federal High Court. Before the adjourned date, 26/5/08, the Honourable Chief Judge of the Federal High Court vide a fiat dated 21/4/08 ordered that the case be continued and concluded by Allagoa, J now sitting in the Ado Ekiti Judicial Division of the Federal High Court.

The court proceeded and concluded the matter and entered judgment against the Appellants who subsequently applied that the judgment be set aside. The application for setting aside, was dismissed and the appellants appealed against the judgment.

The Appellants are contending that the learned trial judge over looked the fact that the matter was an assigned suit from the Enugu Division of the Federal High Court which ought to be treated as such but, which was heard as if the matter originated from the Ado Ekiti Judicial Division of the Federal High Court in heading the processes relating to the Enugu Division as Ado Ekiti Judicial Division.

It was submitted by the learned counsel to the appellants that the presiding judge deliberately headed the proceedings as such. Further, that Ilorin Division of this court directed that an application be brought before Allagoa, J to correct this error which resulted in the application dated 20/1/10 which was dismissed on 23/2/10.

It was submitted that the Ado Ekiti Division of this court is the proper court to hear the appeal, reliance was placed on the case of GOVERNMENT of GONGOLA STATE V. TUKUR (1987) NWLR (PT.47) PAGE 102 PARTICULARLY PAGES 103 – 104 PARAGRAPHS A – C. We were urged to utilize our powers under Section 15 of the court of Appeal Act to correct the errors made by the trial court. Also relied upon is the case of AUBERGINE V. H.N.B. LTD (2002) 28 WRN 114 at 121 line 35, and the case of OHAKIM & ANOR V. AGBASO & 4 ORS (2010) 6-7 SC 85 at 93-94 particularly lines 30-15 in urging us to hold that Ado Ekiti Division of this court is the only court with the jurisdiction to hear and determine this appeal.

In the Respondent’s written address it was submitted that this court lacks the jurisdiction to hear this appeal. The conditions that govern the jurisdiction of a court to entertain a matter were enumerated as in the cases of MADUKOLUM VS. NKEMDILIM (1962) 2 SCNLR 34 and AJAO V. OBELE (2005) 5 NWLR (PT 918) 400 at 414-415 paragraphs H-C RATIO 11. The conditions are that:

a. The proper parties are before the court

b. The subject matter falls within the jurisdiction of the court and there is no feature preventing the court from exercising jurisdiction.

c. The composition of the court as to members and qualifications.

d. The suit is commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction.