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Lower court is to adjourn sine die pending determination of appeal (2)

By Editor   |   11 August 2015   |   1:13 am  

law11IN THE COURT OF APPEAL IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS ON THURSDAY THE 7th DAY OF MAY 2015 BEFORE THEIR LORDSHIPS SIDI DAUDA BAGE JUSTICE, COURT OF APPEAL TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JUSTICE, COURT OF APPEAL APPEAL NO. CA/L/465/2014 BETWEEN CHRISTOPHER N. OKEKE APPELLANT AND CADBURY NIGERIA PLC RESPONDENT

In his reply brief, Appellant’s Counsel submitted that the Respondent’s submission on the provision of Rule 2 (8) of the Code of Conduct for Judicial Officers relied upon by the Respondent and that the rule permits a judicial officer to make statements in the course of his official duties or explain for public or private information the procedure of the court.

Counsel submitted that since the issues and fact in SC/763/2013 is distinct from those in the case leading to the present appeal, what was required of the learned trial judge was to distinguish (and not comment on) the facts and issues in the two suits. Counsel further submitted that the doctrine of stare-decisis applies to decided cases and not pending cases as argued by Respondent and the cases cited by the Respondent on the point are not apposite to the facts and circumstances of the instant case.

It is also the submission of counsel that a judgment of a court remains valid and binding until set aside by a competent court and that even if the case of the Appellant herein is predicated in the decision of this court in Appeal No CA/L/ 13/2009 as alleged by the Respondent, the decision of this court in that case remains binding until set aside by the Supreme Court. He cited AYOADE v SPRING BANK (incomplete citation).

In resolving the issues in this appeal, I intend to consider issue 1 on its own and issues 2- 3 together. Issue one is a complaint that the lower court was wrong to have declined jurisdiction by striking out the proceedings without considering and determining the issue presented before it for determination. The fundamental nature of jurisdiction in the adjudication process can never be over-emphasized. Where a court proceeds with a matter in respect of which it lacks jurisdiction, such proceeding no matter how well conducted, is a nullity. See OHAKIM v AGBASO [2010] 19 NWLR (PT 1226) 172; OLOFU v ITODO [2010] 18 NWLR (PT 1225) 545.

It is also trite that it is the Plaintiff’s claim in a matter that determines the jurisdiction of the court. This position of law was adumbrated by Supreme Court in SAVANNAH BANK OF NIG LTD v PAN ATLANTIC SHIPPIN & TRANSPORT AGENCIES LTD & ANOR [1987] 1 NWLR (PT 49) 212, PER COKER JSC thus: “It is an elementary principle for the determination of jurisdiction to consider the subject matter of the claim as endorsed in the writ of summons.

In Adeyemi & Ors v Opeyori (1976) 1 FNLR 149, the Supreme Court stated the position clearly when it said that: “it is a fundamental principle of law that it is the claim of the Plaintiff that determines the jurisdiction of the court which entertains the claim.” This is because the court can only exercise jurisdiction to hear and determine the subject matter of the claim before it, where such subject matter was within its jurisdiction and there was no feature in the case which precluded it from the exercise of its jurisdiction. That is that the claim before the court must also be competent in the sense that it came before the court initiated by due process of law, and upon fulfillment of the necessary condition precedent to the exercise of jurisdiction- see Madukolu & Ors v Nkemdilim & Ors. (1962) 1 All NLR 587, 595.”

To this extent, it will be necessary to set out the reliefs sought by the Appellant as per his originating summons before the lower court in order to determine whether or not the lower court rightly decline jurisdiction.

No doubt, the reliefs sought by the Appellant as reproduced above clearly bothers on his purported disqualification and removal by the respondent as a director of the Respondent’s company. I have not the slightest doubt that the reliefs sought falls within the ambit of the jurisdiction of the court relating to the acts ‘arising from the
operation of the Companies and Allied Matters Act’. Section 251 of the 1999 of the Constitution of the Federal Republic of Nigeria (as amended) provides for the exclusive civil jurisdiction of the Federal High Court in respect of matters stated under Subsection 1 thereof.

The above provision of the Constitution evidently deals with any question relating to removal of a person as a director of a company, as in the instant case, which is a matter that has to do with the operation of a company. I have seen the reliefs sought and the judgment of this court reported in CHRISTOPHER OKEKE v SEC & ORS (2013) LPELR – CA/L/ 13/2009 decided on Tuesday 29th January 2013. It is a suit between Christopher Okeke (the Appellant herein) against the SEC, Administrative Proceedings Committee of the SEC and Amos. I Azi (Secretary, Administrative Proceedings Committee) as 1st, 2nd and 3rd Respondent respectively.

This Court in that case held that the 1st Respondents lacked the competence or jurisdiction to entertain or adjudicate over allegation concerning the misstatement in the published accounts of Cadbury Nigeria Plc (the Respondent herein) between 2002 – 2005 as detailed in the hearing notice dated 7th May 2007 reference no. SEC/I&E/ APC/ 51/VDI/002A and the memorandum of facts attached thereto as allegation touched and concerned matters arising from the operation of-the Companies and Allied Matters Act, Cap C20, LFN -2004; a matter reserved exclusively to the Federal High Court by virtue of Section 251 (1) (e) of the 1999 Constitution of the Federal Republic of Nigeria (20 11 as amended) and that the
Indictment and trial of the Appellant by the Respondents based on the allegations leveled against him have been undertaken in breach of the Appellant’s constitutional right to fair hearing and null and void.

The above decision was appealed against by the Respondent and is still pending before the Supreme Court. In comparison to t he instant suit filed at the Federal High Court leading to the present appeal before this court, the Appellant is only asking for the court to determine if the Respondent followed the laid down procedure under the law in removing him as a director. This in my view does not touch on the issue in the appeal pending before Supreme Court.

Even if the Respondent sought to remove the Appellant by virtue of the reasons given by SEC or any reason at all, the question that comes up is: would that preclude the application of the laid down procedure enumerated under CAMA? The questions formulated for determination and reliefs sought by the Appellant in the Originating Summons filed at the lower court is with respect to the disqualification and removal of the Appellant by the Respondent as a director of the Respondent.

This undoubtedly relates to matters which the Constitution has conferred exclusive civil jurisdiction on the Federal High Court. See Section 251 (1) (e) of the Constitution; YALAJU-AMAYE v A.R.E.C LTD (1990) 6 SC 157; SEVEN-UPBOTTLING Co. LTD & 2 ORS v ABIOLA & SONS [1996] 7 NWLR (PT 463) 714; AKINBOBOLA & SONS v PLISSON FISKO LTD
[1986] 4 NWLR (PT 37) 621.

This is the crux of the matter in the lower court culminating in this appeal and this is what should be the parameter with which a decision is to be given in the instant case. By striking out the suit, the lower court failed to safeguard the case in the event that the Appellant’s case is caught up by the statute of limitation and the uncertain time frame within which the case would be decided on appeal.

Even if the lower court feels that the instant case is dependent on the outcome of the appeal pending before the Supreme Court in SC/763/2013, it ought to have adjourned sine die until the appeal is settled. From the foregoing, it is apparent that the learned trial judge erred in law when he declined jurisdiction in respect of the questions presented before it for determination which clearly bothers on matters which are within the exclusive jurisdiction of the Federal High Court.

To this extent, this issue is resolved in favour of the Appellant. Perhaps, having resolved the first issue in favour of the Appellant, it is apparent that any discussion on Issues two and three will purely be academic having held that the learned trial judge erred when he declined jurisdiction and struck out the Appellant’s suit before it.

In the light of the above, I allow the appeal; the judgment of the Federal High Court Lagos Judicial Division, Per Idris J. delivered on 24th of January 2014 is hereby set aside. I hereby order that the matter be remitted back to the Chief Judge of the Federal High Court for re-assignment to another judge for hearing and determination of the suit. I make no order as to cost.



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