CAN A PRELIMINARY OBJECTION TOUCHING ON THE JURISDICTION OF THE COURT OR COMPETENCE OF A SUIT BE CONSIDERED AT THE END OF THE TRIAL OF THE SUBSTANTIVE SUIT?

CASE TITLE: N.P.A. V. NMEJE & ORS (2020) LPELR-51849(CA)

JUDGMENT DATE: 4TH DECEMBER, 2020

PRACTICE AREA:  CIVIL PROCEDURE.

LEAD JUDGMENT: MUHAMMED LAWAL SHUAIBU, J.C.A.

SUMMARY OF JUDGMENT

INTRODUCTION: 
This appeal borders on Civil Procedure.

FACTS: 

This appeal is against the interlocutory ruling of the Federal High Court sitting at Calabar delivered on 6th June 2018.

By a notice of preliminary objection filed on 14/6/2018 and brought pursuant to Section 6(6) of the 1999 Constitution (as amended) the appellant as 4th defendant prayed the Federal High Court for the dismissal of the 7th defendant/respondent’s counter-claim on the following grounds:-
(i) The 7th defendant’s counter-claim against the 4th defendant is in law not enforceable because the action is statute-barred by virtue of Section 2(a) of the Public Officers Protection Act Cap. 41 Laws of the Federation of Nigeria, 2010.
(ii) The 7th defendant did not serve on the 4th defendant any pre-action notice as required by Section 93 of the Nigerian Ports Authority Act Cap N126 Laws of the Federation of Nigeria, 2010 before the commencement of this action against the 4th defendant.

(iii) The purported pre-action notice dated 16th May 2017 issued by the 7th defendant’s solicitors, Martin Aguda & Co. was not served in accordance with the provision of Section 93 of the Nigerian Ports Authority Act which requires that a pre-action notice issued pursuant to Section 92 of the Act be served by delivering it to the Managing Director, or sending it by registered post addressed to the managing director at the head office of the Authority

(iv) The said purported pre-action notice issued by the 7th defendant’s solicitors was not delivered to the Managing Director of the 4th defendant.

At the resumed sitting of the Federal High Court on 6th June 2018 when the appellant’s counsel informed the Court of her readiness to move the said notice of preliminary objection challenging the competence of the 7th respondent’s counter-claim, learned trial judge ruled that the preliminary objection of the appellant challenging the competence of the 7th respondent’s counter-claim be taken at the end of the trial. Dissatisfied with the ruling, the appellant appealed to the Court of Appeal.

ISSUES: 

The Court determined the appeal on this sole issue couched as follows:

“Whether the learned trial judge was right in his ruling that he would consider the appellant’s objection at the end of the trial of the substantive suit.”

DECISION/HELD: 
On the whole, the Court found merit in the appeal and accordingly allowed same. The ruling of the Federal High Court was set aside. The case was remitted to the Chief Judge of the Federal High Court for hearing of the Appellant’s preliminary objection which touches on the jurisdiction of the Court before hearing the 7th respondent’s counterclaim should the need arise.

RATIOS:

• PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION – Whether a preliminary objection which touches on the jurisdiction of the Court/competence of a suit can be considered at the end of the trial of the substantive suit
• APPEAL – GROUND(S) OF APPEAL – When ground(s) of appeal will be held to relate to the decision appealed against