⦿ CASE SUMMARY OF:
Compagnie Generale De Geophysique (NIGLT) CGG Nig Ltd v. Moses Aminu (2015) – SC
⦿ LITE HOLDING
Conditional appearance is entered to protest a feature in a case.
A Court of Law will be stripped off jurisdiction where a party in the suit is not filed a process.
⦿AREA OF LAW
– Administrative Law.
– Conditional appearance.
– Default judgement.
– Filing proper processes.
Compagnie Generale De Geophysique (NIGLT) CGG Nig Ltd
(2015) JELR 48750 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
OLABODE RHODES-VIVOUR, J.S.C.
* FOR THE APPELLANT
– Mr. D. I. Ajaba
* FOR THE RESPONDENT
– Mr. D. Lamikanra
⦿ FACT (as relating to the issues)
The Appellant as plaintiff filed a suit before the Trial Court. The respondent as defendant was not served and hence entered a conditional appearance to protest the non-service. The Trial Court notwithstanding entered a default judgement in favour of the Appellant.
The respondent then appealed to the Court of Appeal which allowed its’ appeal and remitted the case back to the Trial Court.
The Appellant being dissatisfied has appealed to this Court.
1. Whether in the light of the fact that jurisdiction being a fresh point, not previously canvassed in the court of trial, the court below was wrong to have remitted the entire suit back to the court of trial for “trial de novo” which trial would necessarily include the consideration of the issue of jurisdiction.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED, WITH N100,000 COST]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE RESPONDENT. THE SUPREME COURT HELD THAT THE TRIAL COURT WAS RIGHT TO HAVE REMIT THE CASE BACK TO THE TRIAL COURT.
i. The issue on jurisdiction can thus be filed and argued with or without the leave of the court, even if it is being raised as a fresh issue on appeal. The defendant/appellant was right to raise the issue of jurisdiction in the Court of Appeal without obtaining leave.
ii. All the proceedings in the trial High Court are void, complete nullities. That explains why the Court of Appeal remitted the case back to the trial High Court for trial de novo, so that the defendant/appellant would have an opportunity to defend the suit brought against him.
iii. Can it be said that the Court of Appeal was right to remit the matter to the High Court for trial de novo? The answer is a resounding YES. Jurisdiction is a question of law which can be taken by the trial court or an appeal court provided the parties are properly before the court. In this case the defendant/appellant complains that he was not served originating processes. The Court of Appeal agreed with the defendant/appellant. There is no appeal from the decision of the Court of Appeal which stated clearly that the defendant/appellant was not served originating processes. In the absence of an appeal, the decision of the Court of Appeal is inviolate.
iv. In the light of the finding by the Court of Appeal, no court has jurisdiction to make pronouncements on an issue in which the defendant/appellant ought to be a party but was not, because he was not served originating processes. That explains why this court cannot decide the proper court to hear the plaintiff/respondents claim, and why agreeing with the Court of Appeal that the case be remitted for trial de novo is correct. When the case goes back to the trial court, the appellant would be properly served with the originating process. It is only then that parties are properly before the court, and the court would now have jurisdiction to hear any issue. It must be elementary now that parties (i.e. plaintiff and defendant) must be properly before the court before the court can entertain an application to decide which is the proper court to hear the case or indeed any application.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Madukolu and Ors. v. Nkemdilim (1962) 2 NSCC p.374 this court per Bairamain FJ made some observations on jurisdiction and the competence of a court. His lordship said that a court is competent when – 1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and 2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Issues of fact or law not considered and pronounced on by the trial court are fresh issues that can only be heard by an appellate court after leave of the court is obtained. Failure to obtain leave renders the application to raise fresh issues on appeal incompetent. The application would be thrown out. – RHODES-VIVOUR, J.S.C. Generale v. Aminu (2015)
Once again, before the issue of jurisdiction of a court to hear a matter or indeed any application is heard, the parties must be properly before the court. In line with the decision in Madukolu v. Nkemdilim (supra) non service of originating processes on the defendant is clearly a feature in the case which prevents the trial court and this court from exercising its jurisdiction to decide the proper court to hear the plaintiff/respondents case. – RHODES-VIVOUR, J.S.C. Generale v. Aminu (2015)
By the provisions of Section 22 of the Supreme Court Act this Court is conferred with jurisdiction to make any order necessary for the determination of the real question in controversy in an appeal as if the matter is prosecuted in the Supreme Court as a court of first instance. By this Section the court can make or give an order that the court below can make without sending the case back for a retrial. The section can only be invoked if there is no feature in the case which prevents this court from exercising its wide jurisdiction; and if the proceedings in the court below justify invoking the said Section 22. In view of the fact, and position of the law that no court has jurisdiction over a party not served in proceedings that are not ex-parte proceedings, this court cannot exercise its jurisdiction under Section 22 supra since the defendant/appellant is not properly before the court. The fundamental feature of non service of process denies this court from exercising jurisdiction. – RHODES-VIVOUR, J.S.C. Generale v. Aminu (2015)
The position of the law is that grounds of appeal are filed against a decision. It must challenge the ratio of the case. Put in another way, it must be connected with the disagreement between the parties. – RHODES-VIVOUR, J.S.C. Generale v. Aminu (2015)
The defendant/appellant entered a conditional appearance in the trial court. The entry of conditional appearance is an appearance under protest and usually means an appearance to object to the courts jurisdiction. – RHODES-VIVOUR, J.S.C. Generale v. Aminu (2015)
It has been said in a plethora of cases that failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the court has no jurisdiction to entertain a case where any of the parties was not served process. – RHODES-VIVOUR, J.S.C. Generale v. Aminu (2015)
I earlier on in this judgment alluded to the fact that the defendant/appellant entered a conditional appearance and I explained that the entry of conditional appearance is an appearance under protest and usually means an appearance to object to the court’s jurisdiction, in this case the non service of originating processes on the defendant/appellant. The issue of conditional appearance must be addressed by the trial judge before he proceeds to hear any application. It is only when the defendant is properly served originating process that his appearance becomes unconditional by implication and the court becomes competent to hear and resolve the issue of proper court to hear the merits of the case. – RHODES-VIVOUR, J.S.C. Generale v. Aminu (2015)