Whether Jurisdiction Can be Conferred on Court by Acquiescence

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 14th day of June, 2024

Before Their Lordships

Helen Moronkeji Ogunwumiju

Ibrahim Musa Mohammed Saulawa

Chioma Egondu Nwosu-Iheme

Haruna Simon Tsammani

Jamilu Yammama Tukur

Justices, Supreme Court

SC/504/2018

Between

.OMONOFEWO FRANCIS ONOITA                                         APPELLANT

                                                  And

1. TEXACO NIGERIA PLC                                         RESPONDENT    

(Lead Judgement delivered by Honourable Chioma Egondu Nwosu-Iheme, JSC)

Facts

By a Writ of Summons and Statement of Claim filed on 12th December, 2002, the original Claimant, late Mr Simeon Onoita, commenced an action against the Respondent at the High Court of Lagos State claiming amongst others, N100million as general damages for denial of his wages, salaries, allowances, retirement benefits and gratuity. He also sought special damages by way of his salaries from 1st July, 1994 to 31st December, 1995 and service benefits/pension, company provident funds and 25 years’ service award. 

Upon being served with the Originating Processes, the Respondent filed a Notice of Preliminary Objection in which it challenged the competence of the Appellant’s suit and the jurisdiction of the trial court to entertain the same, on the ground that the suit was statute barred. After arguments on the Notice of Preliminary Objection, the trial court struck it out and directed the Respondent to file its defence. The Respondent subsequently filed its statement of defence, in which it denied all the claims against it. During the trial, the original Claimant passed away and this necessitated his substitution with his son, the current Appellant, with an amendment of the Writ of Summons to reflect the substitution.  

At the end of the trial, the trial court delivered its judgement in which it dismissed the Appellant’s case, on the ground that the Appellant failed to prove his claims. Dissatisfied, the Appellant appealed to the Court of Appeal. The Respondent in its Respondent’s brief argued that the Appellant’s case was statute-barred, and the Court of Appeal in agreement with the Respondent dismissed the appeal for being statute barred. Still dissatisfied, the Appellant filed a further appeal at the Supreme Court.

Issue for Determination

The Supreme Court subsumed the issues raised by the parties into the following sole issue:

Whether the lower Court was right to have considered and determined the issue of statute of limitation raised by the Respondent

Arguments

Counsel for the Appellant argued that the issue of jurisdiction raised by the Respondent at the Court of Appeal, did not arise from any of the grounds contained in the Appellant’s amended Notice of Appeal and there was also no cross-appeal filed by the Respondent. He submitted that the Respondent was thus, precluded from raising or arguing it in its Respondent’s Brief. 

Counsel contended that the Court of Appeal erred in addressing the said issue of statute of limitation raised by the Respondent in its Respondent’s Brief, as the same had already been decided against the Respondent at the trial court and there had been no appeal filed by the Respondent against the said interlocutory decision. Counsel submitted that the Respondent was thus, bound by the trial court’s decision, and the Court of Appeal lacked the authority to reconsider it. Reliance was placed on the case of AKERE v GOVERNOR OF OYO STATE (2013) VOL 2 WRN 1-188. 

In response, Counsel for the Respondent argued that the Court of Appeal was empowered by Order 7 Rules 4 & 5 of the Court of Appeal Rules 2016, to address issues beyond the grounds of appeal raised by the Appellant. He cited ELENDU v INDEPENDENT NATIONAL ELECTORAL COMMISSION (2014) LPELR-22484 (CA). Counsel argued further that, the Appellant had ample opportunity to respond to the Respondent’s argument on the statute of limitation raised in the Respondent’s brief but chose not to do so, and as such, the Court of Appeal was within its authority to resolve the issue as it did.

Additionally, Counsel maintained that the Appellant’s contention that the issue of statute of limitation had been determined by the trial court at interlocutory stage does not hold water, in view of the provisions of Order 20 Rule 10 of the Court of Appeal Rules 2016. He submitted that notwithstanding the fact that the trial court had made a pronouncement at interlocutory stage on the issue of statute of limitation, the interlocutory decision does not preclude the Court of Appeal from disregarding the said ruling; independently addressing the jurisdictional issue of statute of limitation and giving its own judgement as it deems fit. Counsel supported his argument with the judicial precedent in IKOMI v AGBEYEGBE 12 WACA 375 at 381.

Court’s Judgement and Rationale

Resolving the sole issue, the Supreme Court reiterated the long settled principle of law that once an issue is one of jurisdiction and/ or competence, it can be raised and determined even suo motu by the court, without the need to call parties to address it. The Apex Court referred to CHRISTOPHER OBUEKE & 3 ORS v NSUDE NWANKWO NNAMCHI & 2 ORS (2006) ALL FWLR (PT. 313) 195.

The Supreme Court held that a Court’s innate obligation to consider a jurisdictional issue would not be afflicted by rules of court, conduct of the parties, or even an express submission to jurisdiction by a Defendant. The Apex Court held that the question or issue of whether or not an action is statute barred is one touching on jurisdiction and of a fundamental class which can be raised for the first time even orally before the Apex Court.

On the Appellant’s argument regarding the Respondent’s failure to appeal the interlocutory decision of the trial court, the Apex Court held that jurisdiction cannot be conferred on a court by agreement or acquiescence of the parties, neither can a party waive lack of jurisdiction of the court; hence, the failure to appeal an interlocutory decision on jurisdiction, does not preclude a higher court from addressing the issue if it is found that jurisdiction is lacking. The Supreme Court referred to its decisions inMOBIL PRODUCING NIG UNLIMITED v MONOKPO (2023) 18 NWLR (PT. 852) 346 at 434-455, PARAS E-A and A–G RIVERS STATE v A-G FED (2019) 1 NWLR (PT. 1652) 53 at 67 PARAS B – F. The Apex Court held that although failure to appeal a decision may be considered an act of acquiescing to that decision, however, this is inapplicable to jurisdictional issues, and not even such an act of acquiescence can eventuate jurisdiction where it is found to be lacking. Their Lordships affirmed that the Court of Appeal acted correctly in considering the statute of limitation raised by the Respondent in its brief, despite the Respondent not appealing the trial court’s interlocutory decision on the same issue. 

Addressing the Appellant’s argument that the issue of the statute of limitation was not included in the grounds of appeal in the Appellant’s Notice of Appeal before the Court of Appeal, the Supreme Court held that jurisdiction being a fundamental issue that transcends the boundaries of regulations and procedural provisions, is very much in a class of its own, divorced from the limitations which attend other non-radical issues. The Apex Court held that Order 4 Rule 4 of the Court of Appeal Rules, 2021 indeed, empowers the Court of Appeal to make any order on such terms it thinks just, to ensure the determination of the merits of the real question in controversy between the parties, notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the lower court, or by any particular party to the proceedings in the lower Court, or that any ground for allowing the appeal or for affirming or varying the decision of the lower Court is not specified in such a notice. 

The Apex Court referred to its earlier decision in SHELL NIG.EXPLORATION & PRODUCTION CO. (NIG.) LTD. v F.I.R.S. (2021) 17 NWLR (Pt. 1806) 545 at 575 – 576 Paras G -D, that “All what the Appellant needs to do is to raise the issue of Jurisdiction in his brief, so as to give the Respondent an opportunity to respond.”, and held that the Respondent having raised the issue in its brief, had given the Appellant an opportunity to respond to the issue through a reply brief, but the Appellant failed to utilise the chance. 

The Apex Court held that an issue of jurisdiction once raised must be determined, and non-compliance with the rules of court in raising it cannot even prevent a court from considering and determining it in the interest of substantial justice, and to avoid a situation where a decision given without jurisdiction continues to subsist to the disrepute of the court and due process of law.

Appeal Dismissed.

Representation 

Ejeta Otuoniyo with O. J. F Tiemi for the Appellant.

Adeyemi Pitan for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR) (An affiliate of Babalakin & Co.)