THE STATE V. ONAGORUWA

• Pages: 161-179

THE STATE V. ONAGORUWA

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161

THE STATE V. ONAGORUWA

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THE STATE

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APPELLANT

V

10 DR. OLU ONAGORUWA

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RESPONDENT

APPEAL No. SC. 59/1991.

SUPREME COURT OF NIGERIA

UWAIS,

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J.S.C.

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KARIBI-WHYTE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

AKPATA,

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J.S.C.

7th February, 1992.

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Appeal - No case submission - Ruling on it - Whether appealable.

Constitution - Fundamental human rights - Audi alterem partem rule - Incoreorated

••Nr,

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Lli

S.33 of the Constitutional provision of fair hearing - infringement of the nite "-`What

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amounts to - Stay of proceedings - Application on the questiOn of - Where parties not

heard on the application - Whether amounts to denial offair heNing.

Legislation - S.16 of Court of Appeal Act, 1976 - Whether confer jurisdiction.

Practice and Procedure - Preliminary objection as to jurisdiction of court - When it may be

raised - When raised - Court not entitled to defer the issue - Lack of jurisdiction by court

- Effect on exercise of adjudication. Determination of jurisdiction of court - Where

evidence is taken - To he limited ro the issue of jurisdiction - Application for stay of

proceedings - Party to move motion before court - Failure of - Application not to be

granted - Issues for determination - When formulated - To circumscribe the grounds of

appeal.

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ISSUES:

1.

How may the courts treat the issue of jUrisdiction when it is raised?

2.

Whether it is proper for the Court of Appeal to grant application to stay

proceedings without hearing parties on the issue of its jurisdiction to stay

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proceedings of a lower court?

3.

Whether an appellate court can regard a preliminary objection as to its

jurisdiction as premature?

FACTS: •

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The respondent was charged on information with the offence of stealing in the

High Court of Lagos. He pleaded not guilty. At the close of the case for the

prosecution, his counsel submitted that the prosecution had not made out

aprima

facie

case against him in respect of the offence charged. He applied that the

accused be accordingly discharged. The learned trial judge in his ruling, rejected

50 the submission. He held that the prosecution had made out a

prima facie

case.

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162

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NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

He called upon the accused to make his defence. The accused dissatisfied with

the ruling, appealed to the Court of Appeal and moved a motion before the learned

trial judge for stay of further proceedings pending the determination of the appeal

on the no case ruling by the Court of Appeal. His application to the trial Court for

stay of proceedings pending the appeal was refused. Pursuant to his appeal to 5

the Court of Appeal, he applied to that Court for stay of proceedings. The appellant

raised a preliminary objection to the hearing of the application. The Court of Appeal

held that the objection was premature and therefore disallowed it. The application

for stay of further proceeding was granted. This ruling led to the present appeal

by the appellant to the Supreme Court.

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HELD:

1.

Jurisdiction is a serious matter when raised in any court. Sometimes it is

apparent on the record that issue of jurisdiction is involved e.g. when a matter

goes before the Court of Appeal straight from the Magistrate Court, in a case

of this nature the court must address it

suo motu

even if the counsel of the

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parties fail to advert to it. Sometimes question is latent and once raised by any

of the parties, it must be addressed first by the court, because if a court should

embark on a trial without jurisdiction, its exercise will be a nullity. (See p.167,

lines 25 - 32).

2.

The red light to court to be cautious is the issue of jurisdiction and it must be

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settled by proper hearing of the parties before further proceedings in the matter

can be embarked upon. Similarly, there are occsions after a matter has been

before the court for long before the issue of jurisdiction arises - some in the

middle of the entire proceedings or towards its tail end, in that case the

jurisdiction must first be settled before proceeding further. It is therefore never

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too late to raise the issues of jurisdiction. (See

p.167, lines 32 - 42).

Per

KARIB1-WHYTE, J.S.C:

3.

Issues for determination in an appeal must be so formulated as to circumscribe

the grounds of appeal. The issues formulated should not go beyond the

grounds of appeal complained of against the judgment of the court.

(See

p.171, lines 36 - 39).

4.

Section 16 of the Court of Appeal Act, 1976 does not confer jurisdiction, but

enables the court to exercise powers with respect to jurisdiction vested by

statute. Similarly, order 1 rule 20 Rules of Court made on the assumption that

the court has jurisdiction do not confer jurisdiction.

(See p.175, lines 7 - 10).

5.

No decision can be regarded as valid unless the trial judge or court has heard

both sides in the conflict. It is accordingly a denial of fair trial and a direct

infringement of the

audi alteram partem

rule to determine an application without

hearing the opponent of the party to the action. The violation of the rule of

audi

alteram partem per se

lies in the breach of the fundamental human right. Once

the right is violated, it is irrelevant whether a decision made subsequentthereto

is correct. Fair hearing lies in the procedure followed in the determination of

the case, not in the correctness of the decision.

(See p.177, lines 2 -

3, 5 -

7,

12 - 18).

Per

NNAEMEKA-AGU, J.S.C:

6.

Sometimes, it becomes necessary for a court of trial to take some evi-

dence in order to enable it to determine the issue of jurisdiction duly

raised. But emphatically such evidence ought to be limited to the issue of

jurisdiction. It is wrong in principle to postpone a ruling on it until the hear-

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