Ma’aji Galadima v. Alhaji Adamu Tambai & Ors

 I have had the advantage of reading in draft the judgment just delivered by my learned brother Belgore, JSC and I agree with him.
The proceedings leading to this appeal was commenced in the Area Court No.1, Zaria-City. The claim of the plaintiff is in respect of farmland. The Zaria City Area Court No.1 granted the plaintiffs reliefs and the defendants being dissatisfied appealed to the Upper Area Court, Ikara. One of the grounds of appeal argued by their counsel in that court was that the Zaria City Area Court lacked jurisdiction to hear and determine the claim in that the piece of land the subject matter of the claim is situate in Ikara Local Government Area. The Upper Area Court allowed their appeal on the merits and did not pronounce on the issue of jurisdiction.

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The plaintiff was dissatisfied and appealed to the High Court, Zaria. The High Court sitting in its appellate jurisdiction upheld the decision of the Upper Area Court, Ikara and made certain consequential orders. The issue of jurisdiction was not raised in the High Court. On a further appeal by the plaintiff to the court of Appeal, Kaduna Division, the defendants filed a notice of preliminary objection to the appeal pursuant to Order 3 Rule 15 of the Court of Appeal Rules, 1981 as amended. The court below ordered the parties to file briefs of argument in respect of the preliminary objection and briefs were accordingly filed and served.
In their brief of argument, the respondents/applicants submitted one issue for the determination of the court below, namely:
“Whether having regard to the provisions of Sections 19(3) of the Area Courts Law No.2 of 1967 together with the Area Courts (Jurisdiction) Notice 1977 of Kaduna State vis-a vis the Supreme Court of Nigeria decision in Alhaji Hashima Garba Matari and 6 others v. Ahamadu, Dangaladima and 1 other (1993) 2 SCNJ 122 at 137; (1993) 3 NWLR (Pt.281) 266 the Area Court No.1 Zaria City has jurisdiction.to hear and determine the plaintiff/appellant’s claim, to wit being some parcel of farmlands situate at Tashan Filani, Anguwan Bakutaje Kunkumi Gwanki at Makarfi in Ikara Local Government.”

In a considered judgment, the court below concluded thus:
“In the light of the foregoing authorities I am of the considered view that having regard to the provisions of S.19(3) of the Area Courts Law No.2 of 1967 together with the Area Courts (Jurisdiction) Notice 1977 Kaduna State vis-a-vis the Supreme Court decision in Alhaji Hashim Garba Matari & 6 ors. v. Ahmadu Dangaladima & 1 or. (supra) at p.137, the Area Court No.1 Zaria city has no jurisdiction to hear and determine the plaintiff/appellant’s claim, to it being the same parcel of farmland situate at Tashan Filani, Anguwan Bakutaje Gwanki at Makarfi in Ikara Local Government.
Thus taking a cue from the authorities reviewed above, this court is empowered by S. 73 (1) of the Evidence Act to take judicial notice of the Area courts (Jurisdiction) Notice 1977. That being the case the jurisdiction of Zaria City Area Court No. 1 is limited within Zaria Local Government hence the court is not competent to adjudicate on farmland situated in Kunkum in Makarfi District in the then Ikara Local Government … In sum, the preliminary objection is allowed. Since the trial court and the proceedings and judgment based on same in the High Court have been declared a nullity, the present appeal being another proceeding resulting from invalid exercise (sic)

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jurisdiction, is also a nullity. Consequently the appeal is dismissed …..”
The plaintiff has further appealed to this court against the decision of the court below. From the grounds of appeal filed, three issues for determination are identified. They are as follows:
“1. Whether the respondents in this instant appeal, in their effort to set aside all the judgments of the High Court, Upper Area Court and trial Zaria City Area Court can in their capacity as respondents in the Court of Appeal, employ the avenue of a notice of preliminary objection to achieve its desire and cause (as it eventually succeeded in doing) the Court of Appeal to dismiss the appeal and set aside all the judgments of the lower courts?
2. Whether in the peculiar circumstances of this appeal, the issue of the jurisdiction of the trial court which one way or the other would have an effect on the judgments of all the other courts could completely be raised after the same issue had been raised inter-alia before the Upper Area Court which discountenanced same and decided the appeal on the merits and the respondent failed to appeal against such a treatment by the Upper Area Court?

3. Whether the issue of jurisdiction raised herein can be taken suo-motu by the Court of Appeal and if answered in the affirmative, what is the appropriate consequential order to make in the circumstances?”
   The sum total of the complaint of the plaintiff/appellant is that the defendants could not by way of preliminary objection attack the judgments of the courts below.
   It was submitted by the appellant’s counsel that the defendants/respondents should have cross-appealed and that Order 3 Rule 15(1) of the Court of Appeal Rules did not avail them because the notice of preliminary objection contemplated by Rule 15(1) of Order 3 can only affect the hearing of the appeal and cannot constitute the means by which the appeal can be heard and disposed of Order 3 Rule 15(1) under which the notice of preliminary objection was filed provides:
   “15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with seven copies thereof with the Registrar within the same time.”
   I do not agree with the contention of Mr. Daudu, Senior Advocate of Nigeria who is appearing for the appellant that the above rule applies only where a respondent intends to challenge the competence of an appeal. In a situation

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where the trial is a nullity because the trial court lacked jurisdiction to adjudicate on the subject-matter in dispute, I have no doubt that an appellate court which can raise the point suo motu if the parties failed to do so, will decline to entertain the question when raised in a notice of preliminary objection.
The learned Senior Advocate of Nigeria further submitted that the respondents would have filed a cross-appeal. It would have been neater if they did so. However since the issue raised in the notice of preliminary objection was based’ on lack of jurisdiction of the trial court, I do not think that this court will object to the manner the question was brought before the court below since none of the parties was wronged by the order made by that court declaring the proceedings a nullity.

Furthermore, the appellant is not contending that the Area Court No.1, Zaria City had jurisdiction to hear and determine the suit. His quarrel is as to the procedure adopted by the respondents to get rid of the invalid proceedings.
It is well settled in many decisions of this court that a court is competent when the subject matter of the case is within jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. See Madukolu & Ors. v. Nkenzdilim (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt.4)587. 
As the land in dispute is outside the jurisdiction of Area Court No.1, Zaria City which has no power to hear and determine the suit or exercise any judicial power over it, the decision reached by it is a nullity.
The respondents relied on Sections 3(1)(2)(4)(6) and 19 of the Area Courts Law No.2 of Kaduna State and the Area Courts (Jurisdiction) Notice, 1977 of Kaduna State. Reliance was also placed by the respondents on the case of Matari & Ors. v. Dangaladima & Or. (1993) 3 NWLR (Pt.281) 266 which was decided by this court. The facts of that case are practically on all fours with those of the present proceedings. In that case, the land in dispute is in Matari in Soba District which is within the jurisdiction of Soba Area Court. The Zaria City Area Court heard and determined the suit as was done in the present proceedings. This court interpreted the provisions of the Area Courts Law, 1967 of Kaduna State and the Area Courts (Jurisdiction) Notice, 1977 made by the Chief Judge of Kaduna State by virtue of the powers conferred on him by the said Area Courts Law and came to the conclusion that the Zaria City Area Court had no jurisdiction to adjudicate on the land dispute and declared the decision of the Zaria City Area Court a nullity.
I do not intend to interpret those provisions again. I fully endorse that decision.

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The “point of law raised in the notice of preliminary objection being an issue of jurisdiction, can be raised at any stage of the proceedings including on appeal.
In conclusion, the proceedings of the Area Court No.1, Zaria City and all subsequent proceedings based on the decision of the said court are a nullity. See Macfoy v. U.A.C. Ltd. (1961) 3 All E.R. 1169.
For the reasons I have given in this judgment and the fuller reasons in the lead judgment of my learned brother Belgore, JSC. I also dismiss this appeal. I subscribe to the order as to costs made by him in the lead judgment.

Having been privileged to read in draft the leading judgment of my learned brother Belgore, JSC just read, I entirely agree with him that this appeal has no merit and must therefore fail.

The High Court (per Coomasie, J. as he then was) , in its appellate jurisdiction indeed never adverted to issue of jurisdiction of the trial court – the Zaria City Area Court 1, albeit that it was by way of preliminary objection the issue of jurisdiction was raised. As I associate with the view my learned brother Belgore, JSC holds that the appellants were in no way surprised or embarrassed, I too dismiss this appeal and make no order as to costs.

This is a straightforward appeal in the sense that although its subject-matter is land, the issue before us is manifestly shorn of the complexities, such as traditional history and the like, which generally characterise litigations involving land. The suit is a high-flier making its unenviable journey through the gamut of our judicial hierarchical system: from Area Court No.1 in Zaria City, then on appeal to Ikara Upper Area Court, and on further appeal, undauntedly, it arrived at the superior court of record, i.e. the High Court of Justice, Kaduna State in exercise of its appellate jurisdiction. One of the parties remained thoroughly dissatisfied with the judgment of the High Court and hence a further appeal to the Court of Appeal. The controversy regrettably was not put to rest there hence the further appeal to the Supreme Court -the court of last resort in the land. By and large, the only issue that exercised various courts that entertained this case was purely jurisdictional as to whether the land suit was properly before the trial court.
It is against this background that this appeal would be cursorily disposed of. As earlier stated, this case was initiated at the Area Court No. 1 Zaria City. There could be no doubt whatsoever that the land in dispute is situate at Kunkumi in Makarfi District of the then Ikara Local Government. The real issue

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before the trial Area Court, according to the plaintiff/appellant, was a claim for the return of the farmland loaned to the respondents’ respective fathers whereas the defendants/respondents contended that they inherited the said land in dispute from their various fathers. The trial court found for the plaintiff.
The defendants appealed against this decision to the Upper Area Court, Ikara. This court set aside the decision of the trial court without attending to the issue of jurisdiction of the trial court raised at the appeal.
The plaintiff in turn appealed to the High court, Kaduna wherein, inter alia, failure to hear some of the defendants ‘ witnesses at the trial was raised. The learned presiding Judge of the Kaduna High Court found no difficulty in ordering a retrial without adverting completely to the issue of jurisdiction. Dissatisfied, the plaintiff appealed to the Court of Appeal, Kaduna Division. In that court, learned counsel for the respondents neither cross-appealed nor filed respondents’ notice of appeal but raised the issue of jurisdiction by way of preliminary objection. Consequent to this, the Court of Appeal ordered both parties to file and exchange briefs of argument. This they did.

In the unanimous ruling, the court upheld the preliminary objection and held that the trial court lacked jurisdiction to entertain the suit and therefore the retrial ordered by the High Court was void and amounted to a nullity, so also the proceedings leading to the appeal before it. Accordingly, it dismissed the appeal.
The appellant has appealed against this order of the lower court to this court. Both counsel filed and exchanged briefs of argument. Appellant postulated the following issues for determination, to wit,
“1. Whether the respondents in this instant appeal, in their effort to set aside all the judgments of the High Court, Upper Area Court and trial Zaria City Area Court can in their capacity as respondents in the Court of Appeal, employ the avenue of a notice of preliminary objection to achieve its desire and cause (as it eventually succeeded in doing) the Court of Appeal to dismiss the appeal and set aside all the judgments of the lower courts?
2. Whether in the peculiar circumstances of this appeal, the issue of the jurisdiction of the trial court which one way or the other would have an effect on the judgments of all the other courts could completely be raised after the same issues (sic) had been raised inter-alia before the Upper Area Court which discountenanced same and decided the appeal on the merits and the respondent failed to appeal against such a treatment by the Upper Area Court?
3. Whether the issue of jurisdiction raised herein can be taken suo-motu by

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the Court of Appeal and if answered in the affirmative, what is the appropriate consequential order to make in the circumstances?”
The respondents, on their part, identified a lone issue for determination:
“Whether the Court of Appeal pursuant to the cumulative effects of Section 16 of the Court of Appeal Act together with Order 1 Rule 20 (5) and Order 3 Rule 23 of the Court of Appeal Rules 1981 had the power and jurisdiction to dismiss the appellant’s appeal on the basis of the respondents’ preliminary objection alone without a cross-appeal”.
It is manifest that the issue of jurisdiction was raised at the Ikara Upper Area Court. Even though that court found for the respondent- as appellants, in its judgment, it made no pronouncement of the issue of jurisdiction. Similarly, the Kaduna High Court reached its own decision without reference whatsoever to the question of jurisdiction. But, as already observed, the matter was not squarely raised on appeal, not even by a cross-appeal, not by respondents’ notice of appeal; it was contested by way of a preliminary objection.

Appellant’s learned counsel, Mr. J.B. Daudu, SAN while appearing not to have questioned the belated raising of the issue of jurisdiction, nevertheless he forcefully submitted it was erroneous for the respondents to have raised the issue of jurisdiction by way of preliminary objection rather than by filing a cross-appeal or filing a respondents’ notice. To counsel, in his submission, an appeal cannot be summarily disposed of by a preliminary objection except by either of the other two modes urged by him. Counsel strongly relied on Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt.216) 124. On the contrary, Mr. J. Abbas-Ibrahim, learned respondents’ counsel, with no less force, submitted that since the matter of in controversy related to the jurisdiction of the trial court it could be properly and rightly raised at any stage of the trial and even by way of a preliminary objection.
The crux of the complaint in this appeal is that the trial Area Court No.1 in Zaria City was the wrong venue for commencing the land suit. Clearly, it is a jurisdictional issue. Issue on the court’s jurisdiction is very pivotal and fundamental. Because of its fundamental nature, on the authorities, it can be raised at any stage of the trial or even on appeal, and even before the apex court. The reason for this latitude to jurisdiction issue is obvious. A court that lacked jurisdiction to entertain a suit, either as a trial or appellate court, is incompetent to pronounce a judgment in respect of any aspect of the matter in controversy before it. Time never runs against a court to decide on the issue of jurisdiction. The consequence of a court continuing a case where it lacks jurisdiction is, as it were, like the court embarking on a frolic which would

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indisputably result in a nullity for which an appellate court, so invited, would have no compunction whatsoever to declare null and void. Jurisdictional question, be it in criminal or civil matter, has this same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any court Once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of court for questioning a decision of the court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is unwittingly to postpone the doom’s-day. See Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550, Ezomo v. Oyakhime (1985) 1 NWLR (pt.2) 195, State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33, Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 57 and Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659.
It is necessary to caution that whenever there is a challenge to jurisdiction the court should expeditiously attend to it in limine, particularly if the case is at the trial stage and even if the case is at the appeal stage, as is the case in the appeal in hand.

Finally, it is important to state that jurisdictional issue being so pivotal can be raised suo motu by the court so long as the parties are accorded the opportunity to react to the issue.
No doubt, the proper way for the respondents to question any aspect of a judgment that is substantially in his favour is to file a cross-appeal or file a respondent’s notice with regard to that complaint. A preliminary objection to the hearing of an appeal is a special procedure whereby a respondent may contend the competence of the appeal which, if upheld, has the effect of striking out the appeal. Such is the intendment of Order 2 Rule 9(1) of the Supreme Court Rules (as amended in 1999). Be that as it may, it seems quite clear that a challenge to the court’s jurisdiction is, as earlier noted, pivotally fundamental and can pass as sui generis in terms of the procedure adopted to raise it. In the instant case, the trial court’s jurisdiction was raised at the Court of Appeal rather irregularly by a preliminary objection. The Court of Appeal appreciating the enormity of the jurisdictional issues raised and did not allow it to be treated with such levity.
Rather, the court ordered that the parties should file briefs of argument so that the serious issue of jurisdiction of the trial court would be copiously ventilated and adequately considered by virtue of its expansive power under Section 16 of the Court of Appeal, Act, 1976 as well as Order 3 Rule 23 of the Court of

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Appeal Rules, 1981 as amended.
In the circumstances I am of opinion that the Court of appeal reached the right decision in dismissing the appeal before it. And from what I have said about the fate of this case when it wrongly originated at the Area Court No.1, Zaria City, it is also clear to me that the court lacked jurisdiction to entertain the suit. Consequently, all the proceedings in this case throughout its journey in the various courts were a mere exercise in futility.
It is for the foregoing reasons, and those of my learned brother Belgore, JSC, contained in the leading judgment that I, also would dismiss this appeal. I also abide by the order as to costs as contained in the leading judgment.

I have had the privilege of reading in draft the judgment of my learned brother Belgore JSC just delivered. I agree with the reasoning and conclusions reached therein and dismiss this appeal as being without merit. I however wish to emphasise the following points.
This appeal once again brings into focus the question of when and how to raise an issue of jurisdiction before an appeal court.

In this appeal the respondents raised the issue of jurisdiction of trial court in the Court of Appeal by way of Notice of Preliminary Objection. They neither filed a cross-appeal nor filed respondents’ notice on the issue. The Court of Appeal ordered both parties to file brief on the preliminary objection which was done and it heard arguments and adjourned for a ruling. In the ruling, which turned out to be the judgment of the court, per Okunola JCA concurred by Opene and Oduwole JJCA, the Court of Appeal held:-
“In consequence, I agree with the learned counsel to the respondents that the trial as well as the judgment of Zaria City Area Court No. 1 delivered on 7/4/90 in respect of the aforesaid farm land situated in Kunkumi in Makarfi District of the then Ikara Local Government amount to a nullity. In consequence thereof the order of retrial by the High Court is also void. In sum, the preliminary objection is also allowed. Since the trial court and the proceedings and judgment based on same in the High Court have been declared a nullity, the present appeal being another proceeding resulting from invalid exercise (sic) jurisdiction is also a nullity. Consequently the appeal is dismissed with N500.00 costs”.
The appellant appealed against this order to this court on 4 grounds, and in his brief of argument raised the following issues for the determination of this court:-
“1. Whether the respondents in this instant appeal, in their effort to set aside

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all the judgments of the High Court, Upper Area Court and trial Zaria city Area Court can in their capacity as respondents in the Court of Appeal, employ the avenue of notice of preliminary objection to achieve its desire and cause (as it eventually succeeded in doing) the Court of appeal to dismiss the appeal and set aside all the judgments of the lower courts?
2. Whether in the peculiar circumstances of this appeal, the issue of the jurisdiction of the trial court which one way or the other would have an effect on the judgments of all the other courts could completely be raised after the same issues had been raised inter alia before the upper area Court which discountenanced same and decided the appeal on the merits and the respondent failed to appeal against such a treatment by the Upper Area Court?
3. Whether the issue of jurisdiction raised herein can be taken suo motu by the court of Appeal and if answered in the affirmative, what is the appropriate consequential order to make in the circumstances?” .

The respondent formulated only one issue which reads:-
“Whether the Court of Appeal pursuant to the cumulative effects of Section 16 of the Court of Appeal act together with order 1 Rule 20 (5) and Order 3 Rule 23 of the Court of Appeal Rules 1981 had the power and jurisdiction to dismiss the appellant’s appeal on the basis of the respondents’ preliminary objection alone without a cross-appeal”.
I prefer to consider the issues set out by the appellant in the determination of this appeal. But in view of the fact that the main contention in this appeal is that the Court of Appeal dealt with the appeal before it through the avenue of preliminary objection, I shall take issues 1 and 2 together. .
…There is no dispute from the record of appeal and the history of the case as set out in the leading judgment, that the issue of jurisdiction of the trial Area Court was not raised in or considered by the High Court on appeal. The issue was only raised on appeal in the Upper Area Court, Ikara, but that court failed to adjudicate on that issue. In other words, the Ikara Upper Area Court said nothing about jurisdiction in its final judgment even though it reversed the decision of the trial Area Court.
In the Court of Appeal the respondents did not raise the issue of jurisdiction of the trial Area Court by way of cross-appeal or respondent’s notice. They only raised the issue by way of preliminary objection to the effect that “the appeal is incompetent in that the trial was nullity and void”.
It is trite law that the issue of jurisdiction can be taken up in the Supreme Court, or before the Court of Appeal or the High Court at any stage of the

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proceedings, even for the first time on appeal. See Barclays Bank Ltd. v. Central Bank of Nigeria (1976) 6 SC 175; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Ejiofodomi v. Okonkwo (1982) 11 SC 74; Swissair Transport Co. Ltd. v. African Continental Bank Ltd. (1991) 1 All NLR 37. It can also be raised by the court suo motu see Osadebay v. A. G. Bendel State (1991) 1 NWLR (Pt.169) 525; Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550; Okesuji v. Lawal(1991) 1 NWLR (Pt.170) 661; Kato v. C.B.N. (1991)9 NWLR (Pt.214) 126; Ezomo v. Oyakhire (1985) 1 NWLR (Pt.2) 195; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508.
The fundamental nature of the issue of jurisdiction in court proceedings has been echoed in many cases in this court. In the case of State v. Onagoruwa(1992) 2 NWLR (Pt.221) 33 at page 48, Uwais JSC (as he then was) said:-
“It has been said times without number that the issue of jurisdiction of a court is fundamental. Its being raised in the course of proceedings can neither be too early or premature nor be too late.

For if there is want of jurisdiction; the proceedings of the court will be affected by a fundamental vice and would be a nullity however well conducted the proceedings might otherwise be. See Oredoyin v. Arowolo (1989)4 NWLR (Pt.114) 172 at 187 and Onyema v. Oputa (1987) 3 NWLR (Pt.60) 259″. 
In a similar mood, in the case of Funduk Engineering Ltd. v. McArthur (1995) 4 NWLR (Pt.392) 640 at page 651, this court held:
“The issue of jurisdiction … is so fundamental that if the court below eventually …found that the trial court after all lacked jurisdiction, then the whole judgment which is the by-product of such a trial becomes a nullity, no matter how well conducted. See Madukolu & Sons v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341″ ..
This therefore makes it obvious that whenever the jurisdiction of a court is challenged or objected to in any proceedings and at any stage, it is the duty of that court to deal timeously with the challenge or objection before deciding on the next course of action. See Okafor v.A. G. Anambra State (1991) 6 NWLR (Pt.200) 659; Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.194) 652;Obikoya v. Registrar of Companies (1975) 4 SC 31; State v. Onagoruwa (supra).
  In this appeal the main contention of the learned counsel for the appellant if I understand him properly, is that while he has no objection to the respondent raising the issue of jurisdiction at that stage, his submission was that it was wrong to do so by way of preliminary objection instead of filing a cross-appeal or respondents’ notice on the matter. He argued that since the Court of

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Appeal, being a creature of statute, can only hear appeals filed before it, it cannot dispose of an appeal before it through the avenue of a preliminary objection. He cited the case of Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt.216) at 124. It would appear to me that his objection was on the procedure followed in filing the objection or challenge to the jurisdiction. There is therefore a technical mistake in bringing the issue of jurisdiction to the Court of Appeal by way of preliminary objection.
The substance of the preliminary objection filed by the respondent in the Court of Appeal, in my respectful view, is that since the trial court (Zaria City Area Court 1) lacks jurisdiction to entertain the matter, the Court of Appeal is not competent to entertain it. It is clearly a challenge to the jurisdiction of the Court of Appeal to hear the appeal.
In the case of State v. Onagoruwa (supra) Mr. Onagoruwa was indicted and prosecuted in the Lagos State High Court for stealing contrary to Section 390 of the Criminal Code. At the close of the prosecution case, he made a no-case submission which was overruled by the learned trial judge. He appealed against the ruling to the Court of Appeal and applied to the High Court for stay of the proceedings pending the determination of his appeal.

The High-Court refused the stay. He then filed the same application in the Court of Appeal. At the hearing of the application in the Court of Appeal, the learned counsel for the State raised a preliminary objection to the right of Mr. Onagoruwa to appeal against the ruling of the High Court, and submitted that the court had no jurisdiction to entertain the appeal and could not therefore grant any stay. The learned counsel for Mr. Onagoruwa submitted that the preliminary objection was premature and the matter ought not to be decided on preliminary objection. The Court of Appeal rule that the objection of the State was premature at that stage and that it ought to be raised when the briefs of argument were filed. The State appealed to this court.
This court heard and allowed the appeal. It also held that due to the fundamental nature of the issue of jurisdiction raised in the preliminary objection and the fact that the Court of Appeal ordered stay of proceedings without hearing the parties on the motion, the Court of Appeal must hear both the motion, and the preliminary objection on its jurisdiction to entertain the appeal. Uwais JSC (as he then was) on page 48 of the report said:-
“With respect, the Court of Appeal was therefore wrong when it held the view that the preliminary objection raised by the appellant on its jurisdiction to hear the appeal brought before it by the respondent was premature. The notice was to save it the trouble of toiling in futility should it indeed be without

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jurisdiction “. (italics mine)
The above would appear to me to be saying that a respondent in an appeal can properly raise an issue of jurisdiction of the appeal court to entertain the appeal before it and the court must hear the objection “to save it from toiling in futility”.
That is what the Court of Appeal did in the instant appeal after giving the parties the opportunity of filing a brief each on the objection itself. It is my respectful view that in any case where the challenge to the decision of the court is founded on lack of jurisdiction, the court is bound to consider such challenge which goes to the root of the matter showing that the court has acted without jurisdiction see Adeigbe v. Kushimo (1965) 1 All NLR 248.And a party to a litigation cannot in my view be shut out and the court precluded from entertaining a matter on “technical ground” particularly where the issue of jurisdiction is concerned. I do not however find the case of Orji v. Zaria Industries Ltd. (supra) of any relevance to the issue under consideration.

From the record of appeal, I am of the opinion that the Court of appeal has come to the correct decision in dismissing the appeal before it. I therefore answer issues 1 and 2 in the affirmative.
In view of what I have said above, I am clearly of the view that any issue which challenges the jurisdiction of a court can be raised by the court suo motu. A fortiori, the Court of Appeal could in this case, raise the issue articulated in the preliminary objection by itself and order as it did by virtue of the provisions of section 16 of the Court of Appeal Act 1976, and Order 3 rule 23 of the Court of Appeal Rules 1981 as amended.
For the above reasons, and those ably set out by my learned brother Belgore JSC in the leading judgment, I also dismiss this appeal and abide by the consequential orders made therein including the order as to costs.

Appeal dismissed.

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