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  • Continental Trust Bank Ltd. vs. Balogun
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  • 2003-07-07
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Continental Trust Bank Ltd. vs. Balogun

CONTINENTAL TRUST BANK LTD.

TYROL FOODS NIGERIA LTD.

TINA GEORGE INDUSTRIES LTD.

BASIL ABUSU MATER

CYPRIAN ONYENWE

AMECHI MADUEWEN

V

OTUNBA MICHAEL OLASUBOMI BALOGUN

FIRST CITY MONUMENT BANK LTD.

MRS. OLARONKE ATERE

 CITY SECURITIES LTD

THE CENTRAL BANK OF NIGERIA

 ATTORNEY-GENERAL FOR THE FEDERATION AND MINISTER FOR JUSTICE

( COURT OF APPEAL )

( LAGOS DIVISION )

G. A. OGUNTADE, JCA (Presided and Read the Lead Judgment) PIUS OLAYIWOLA ADEREMI, JCA

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA

CA/L/283/02

THURSDAY, 19TH DECEMBER, 2002 

APPEAL - Ground of appeal - When amounts to ground of law

APPEAL - Right of appeal - Decision of Federal High Court or State

High Court on proper interpretation of Order 25, rules 2(1) and 2(2) , Federal High Court Rules - Right of appeal therefrom

CONSTITUTIONAL LAW - Constitution, 1999, section 318(1) - Decision thereunder - Meaning of

COURT - Federal High Court or State High Court - Decision of - Right of appeal therefrom

COURT - Issue of jurisdiction - When raised - Rationale for first determining same - Whether court may consider contemporaneously with interlocutory application

COURT - Ruling - When verbose - Impropriety of

JUDGMENT AND ORDERS - Decision - Definition of - Section 318(1) of 1999 Constitution

JUDGMENT AND ORDERS - Ruling - Impropriety of court writing a verbose ruling

JURISDICTION - Issue of - When raised - Rationale for first determining same - Whether court may consider contemporaneously with merits of interlocutory application - When court prohibited from exercising such discretion within the provision of Order 25

PRACTICE AND PROCEDURE - Federal High Court Rules, Order 25 rules 2(1) and 2(2) - Construction and application of

PRACTICE AND PROCEDURE - Federal High Court Rules, Order 25 rules 2(1) and 2(2) - Interpretation or application of by trial court - Whether a decision - Whether appeal can lie therefrom

PRACTICE AND PROCEDURE - Issue of jurisdiction and merits of a pending application - Hearing of same together - Discretion of court to do so - Whether curtailed by Order 25, rule 2(2), Federal High Court Rules

WORDS AND PHRASES - ‘Decision’ - Meaning of

Issues:

1.            Whether or not the 3rd to 8th defendants/appellants’ motion on notice filed at the court below on 5th day of March, 2002 is not sufficient compliance with the condition stated in Order 25 , rule 2 of the Federal High Court (Civil Procedure) Rules 2002.

2.            Whether or not the learned trial Judge was right to hold that jurisdictional issue cannot be raised pursuant to provisions of Order 25, rule 2 of the Rules of the appellants’ application challenging jurisdiction yet to be argued.

3.            Whether or not the court below has discretion exercisable under the provisions of Order 25 rule 2 of the Rules when the points of law raised pursuant to Order 25 rule 2 of the Rules touch on jurisdiction of the court below?

4.            Whether or not the court below was right in deferring the

hearing of the appellants’ preliminary objection as to jurisdiction till the trial of the substantive suit?

Facts:

Plaintiffs/respondents filed an application for judicial review in the form of an order of certiorari, declaration and injunction against the 1st and 2nd respondents at the Federal High Court, Lagos. In the course of the proceedings before the lower court, appellants applied to be joined and later became 3rd to 8th defendants. Appellants subsequently filed an application pursuant to Order 25 rules 2(1) and 2(2) of the Federal High Court Rules asking for an order dismissing and/or striking out the plaintiffs’ motion on notice dated 26th November, 2001 for an application for judicial review.

One of the grounds on which the application was brought was that the court lacked jurisdiction to entertain the suit as it is presently constituted. The trial court refused the application and ruled that the preliminary objection be taken along with the substantive suit.

Dissatisfied, the 3rd to 8th appellants appealed against the ruling. The Court of Appeal considered Order 25 rules 2(1) and 2(2) of the Federal High Court Rules which provides:

“(1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.

(2) A point of law so raised may, by consent of parties or by  order of the court or a Judge in chambers on the application of either party be set down for hearing and disposed of at anytime before trial.”