Whether Objection to Appeal’s Competence Constitutes Abuse of Court Process

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 8th day of April, 2022

Before Their Lordships

Olukayode Ariwoola

  Ejembi Eko

      Uwani Musa Abba Aji

           Mohammed Lawal Garba

Adamu Jauro

       Justices, Supreme Court

SC./178/2015

Between

Appellants

1. Miss Lucia Taiwo Adeyemi

2. Miss Kehinde Patricia Adeyemi

3. Mr Charles Ademola Adeyemi

4. Mr Anthony Abayomi Adeyemi

And

Respondents

1. V.O. Achimu/NDIC

(Assurance Bank Nig. Ltd)

2. Mr Adepoju Adeyemi

3. Ms Olayinka Roberts

4. Mrs Olubunmi Laja

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The Appellants are the children of a certain Michael Babatunde Adeyemi, who was the 2nd Judgement Debtor in a suit before the Failed Banks Tribunal whose property was used by one Temple & Golders Ltd to secure some credit facilities from that Bank. The facilities were not settled or fully paid up to the time the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 was promulgated. The 1st Respondent, therefore, filed a claim before the Failed Banks Tribunal for the Recovery of the sum of N35,724,513.80 being the total debt of Temple & Golders Ltd and Michael Babatunde Adeyemi.

By an Order of the Tribunal, the originating processes were served on the Respondents by substituted means. The Respondents did not enter appearance to defend the action. Upon being satisfied that there had been due compliance with the Order for service of the processes on the Respondents, the Tribunal gave a default judgement in favour of the 1st Respondent, further to the application of its counsel.

Following the promulgation of Decree No. 62 of 1999, the 1st Respondent applied to the Federal High Court for the execution of the judgement of the Failed Banks Tribunal, but the 2nd Judgement Debtor, Mr Adeyemi, filed a motion for setting aside of the judgement of the Tribunal on ground of non-service. He also filed an application for stay of execution of the judgement. The said 2nd Judgement Debtor/Applicant died in 2003, and was substituted by the present Appellants. The Federal High Court refused the application to set aside the judgement of the Tribunal. The Appellants, therefore, appealed to the Court of Appeal against the Ruling of the Federal High Court.  At the appellate court, the 1st Respondent filed a Preliminary Objection challenging the Jurisdiction of the Court of Appeal to hear the appeal. The court upheld the Preliminary Objection. Dissatisfied with the decision of the Court of Appeal, the Appellants appealed to the Supreme Court, and the 1st Respondent filed a Notice of Preliminary Objection challenging the competence of the Appeal.

Issues for Determination 

Aside the Preliminary Objection to the competence of the appeal, the following issues were raised for determination by the court in the main appeal:

1. “Whether considering the facts of the case of Arewa Paper Converters v N.D.I.C and the Failed Bank (Recovery Debt and Financial Malpractices in Banks) Decree 1994 as amended, the lower court was justified when it applied the ratio in the case of Arewa Paper Converters v NDIC, to hold that the Appellants were served with the court processes and therefore, bound by the judgement of the Tribunal.

2. Whether in the circumstances of this case, the judgement of the lower court deli

3. Whether the judgement of the lower court delivered on 16/1/2015 when the Judiciary Staff Union of Nigeria was on strike, was a nullity”

Arguments

In arguing the Preliminary Objection, counsel for the 1st Respondent submitted that the issue of jurisdiction of a court can be raised at any time and at any stage of the proceedings of a case, in writing or even verbally, either by the parties or the court suo motu. Counsel argued that an appellate court has no jurisdiction to hear any appeal, unless it was vested by the Constitution or Statute. Counsel set out Section 240 of the 1999 Constitution on the jurisdiction of the Court of Appeal, while contending that the Failed Banks Tribunal is not one of the courts listed therein for that court to exercise jurisdiction as an appellate court. Counsel contended that the law is trite that, for an appellate court to exercise jurisdiction over an appeal, the lower court from which it emanated must also have the jurisdiction to entertain the matter, otherwise the appellate court would also lack the jurisdiction to entertain the appeal against the decision of that lower court. Counsel argued further that the judgement being preserved as a concluded matter, the jurisdiction of the trial court was to enforce it as provided for in Section 2(5) of the Decree, and it was not within the matters that can be determined by the trial court under Section 2 and 3 of the Decree since it was not a part-heard matter. Counsel relied on AREWA PAPER CONVERTERS LTD v NDIC LTD (2006) 7 SCNJ, 457 and submitted that the judgement of the Tribunal was delivered more than one month before the commencement of the Decree, and therefore, it was not available for the trial court to pick up and determine, it not being a part-heard matter for which new proceedings were to be commenced before the court. He also argued that the only option opened to the Appellants was to either apply before the Tribunal to set its judgement aside on ground of lack of service of process, or appeal against same within the time prescribed by Section 5(1) of the Decree, which they failed to do.

In response to the 1st Respondent’s Preliminary Objection, counsel submitted on behalf of the Appellants that the court should dismiss the objection summarily, because the grounds upon which it is premised are the same as those relied on in the objection before the court below which was upheld, resulting in the present appeal and by raising the same grounds of objection which forms the fulcrum of this appeal, the 1st Respondent is calling on the court to delve into and decide the appeal at this stage. Counsel contended that the 1st Respondent is, in essence, challenging the merit of the appeal and not its competence, and it is an abuse of the court process. He relied on CPC v INEC (2013) ALL FWLR (Pt. 665) 364,  in support of his position.

Court’s Judgement and Rationale

In deciding the Preliminary Objection, the Supreme Court held that a Notice of Preliminary Objection to the hearing of an appeal (or any action/matter) is a pre-emptive and pro-active step taken by a Respondent to the appeal to forestall its hearing on the merit, because it offends or violates the law in a fundamental way to render it legally defective and not permitted by the law. A challenge to the competence of an appeal goes to and affects the competence and jurisdiction of the appellate court to adjudicate over the appeal, because competence is one of the essential elements of jurisdiction, the law permits and allows the challenge, question or issue may and can be raised at any stage of the proceedings of the appeal either by the parties or the court on its own motion – MADUKOLU v NKEMDILIM (1962) 2 SCNJ 1. A serious, genuine, and real challenge to the competence of an appeal on any cognisable grounds of law by way of an objection to the hearing of the appeal, cannot be said to and does not constitute or amount to an abuse of the court process, since it is a special procedure expressly provided for by the Rules of Court. The mere fact that the issue of jurisdiction of the trial court to entertain and adjudicate over the Appellants’ application, in this appeal, is the fulcrum of the appeal, does not prevent the challenge to the competence of the appeal by way of a Preliminary Objection and rather than being an abuse, it is a prudent procedure for dealing with the appeal holistically and comprehensively since the same issue of jurisdiction is the sub-stratum of both the appeal and the objection.

The court held further that undoubtedly, the facts as narrated and found by the court in AREWA PAPER CONVERTERS LTD v NDIC, are not only identical but quite similar with those of the instant case as found by the court below in the judgement appealed against. The principles stated therein are apposite authority under the principles or doctrine of stare decisis or judicial precedent, as enunciated by this court in OBIEUWEBI v CBN. Since the facts in the AREWA case are substantially identical and similar to those in the Appellant’s case, the court below was not only right, but had the judicial obligation and duty to follow and apply the decision in the earlier case to the Appellant’s case.

Their Lordships of the Supreme Court emphasised that, by the provisions of Section 5(2) of the Decree 18 and the commencement of Decree 62, a decision/judgement of the Tribunal in a concluded matter is not only final, but extant and sacrosanct, as a decision of a competent court of law, and cannot be interfered with or set aside by any court of law including the Federal High Court, in the absence of express provisions of the law vesting the requisite power and authority or jurisdiction on it to do so. This decision of the court in AREWA PAPER CONVERTERS LTD v NDIC on the jurisdiction of the Federal High Court to entertain an application to set aside a judgement delivered in a concluded matter by the Tribunal before the commencement of Decree 62, is not only apposite but precise to apply to the Appellants’ application at the trial court, for an order setting aside the judgement of the Tribunal in question. The court below was therefore, “firma terra”, and right to have relied on and followed the decision in upholding the objection by the 1st Respondent to the competence of the appeal before it, on the ground of lack/want of jurisdiction on the part of the trial court to entertain and adjudicate over the Appellant’s application to set aside the judgement of the Tribunal.

Appeal Dismissed.

Representation

Kehinde Ogunwumiju, SAN with Tunde Ahmed Adejumo for the Appellants

S.J. Gani for the 1st Respondent.

O. Gbadeyan, with Ibrahim Idris for the 2nd, 3rd and 4th Respondents.