BIME VENTURES LTD V. LINPAK (NIG) LTD

CORAM

OLUKAYODE ARIWOOLA

UWANI MUSA ABBA AJI

MOHAMMED LAWAL GARBA

ADAMU JAURO

EMMANUEL AKOMAYE AGIM

PARTIES

BIME VENTURES LIMITED

APPELLANTS

LINPAK NIGERIA LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, COURT, JUDGMENT AND ORDER, JURISDICTION, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The Appeal is against the decision of the Court of Appeal, Lagos Division wherein the Court held amongst others; that the Deputy Sherriff of the High Court of Lagos State should take immediate possession of 20 Type A locked up shops at Awolowo Market, Olosa, Mushin, Lagos and vest same on the Defendant/Counter-claimant. Dissatisfied, with the order of the court, the Appellant appealed to the Supreme Court. The Appellant queried the order granted to the Respondent when it was not sought for. Thus, the exercise of Section 15 of the Court of Appeal Act by the lower Court was ultra vires.

HELD

Appeal Dismissed

ISSUES

Whether the learned justices of the Court of Appeal were right in relying on Section 15 of the Court of Appeal Act to order the Deputy Sheriff of the High Court of Lagos State to take immediate possession of Twenty Type A lock-up shops at Awolowo Market, Olosa, Mushin, Lagos State and vest same in the respondent.

RATIONES DECIDENDI

POWER OF THE COURT OF APPEAL –NATURE OF THE POWER OF THE COURT OF APPEAL UNDER SECTION 15 OF THE COURT OF APPEAL

“Now, Section 15 of the Court of Appeal Act provides that:-

“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by Court of competent jurisdiction.”

As can easily be observed, these provisions, for the purpose of this appeal, grants to the Court below, generally, full jurisdiction over the whole proceedings in an appeal, as if the proceedings had been instituted in that Court as a Court of first instance. In essence, the Court below is vested with the jurisdiction of the Court of first instance in dealing with an appeal against the decision of a lower Court. All the powers exercisable by the Court of first instance or a trial Court in a matter brought before it, are, by virtue of the provisions, vested in the Court below in appeals brought against the decisions of that 1st instance or trial Court as if the proceedings in the appeal had been commenced, initiated or instituted in the Court below as the Court of first instance or trial Court. The powers so vested in the Court below include, the power to re-hear the case in whole or in part, as the circumstances may warrant or as it may deem fit and to “make any order necessary for determination at the real question in controversy in the appeal.” PER M. L GARBA, J.S.C.

POWER OF THE COURT OF APPEAL – EXTENT OF THE POWER OF THE COURT OF APPEAL UNDER SECTION 15 OF THE COURT OF APPEAL

“In stating the extent of the powers conferred on the Court below by and under the provisions of Section 16 (15) of the Court of Appeal Act, this Court, (Full Court) per Onnoghen, JSC, in the case of Dapianlong v. Dariye (2007) 4 SC (pt. III) 118, (2007) 8 NWLR (pt. 1036) 332, had explained that:-

“It is clear from the above provisions that the powers conferred on the Court of Appeal by Section 16 of the Court of Appeal Act are very wide indeed as they enable the appellate Court to exercise all the powers of a Court of first instance. It is also settled law that Section 16 of the Court of Appeal Act can be involved in order to facilitate the speedy administration of justice, as it is designed to avoid multiplicity of proceedings and hearings. Instead of sending the case back to the trial Judge for; trial, Section 16, in an appropriate case. Empowers the Court of Appeal to assume jurisdiction of the trial Court and determine the real question in controversy between the parties so as to save much needed time in the administration of justice in this country.”

His Lordship, however, cautioned that:-

“…Section 16 is not an all-purpose or limitless power of the Court of Appeal to divest the High Court of the original jurisdiction conferred on it by law. It is settled law that the Court of Appeal cannot hide under Section 16 to expand its jurisdiction. The powers conferred on the Court of Appeal by Section 16 of the Court of Appeal Act are exercisable by that Court where certain fundamental conditionalities are met, such as:-

(a) Availability of the necessary materials to consider and adjudicate in the matter;

(b) The length of time between the disposal of the action at the trial Court and the hearing of the appeal;

(c) The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for rehearing and the hardship such an order would cause on either or both parties to the case.”

From this position of the law, in dealing with an appeal before it, the Court below, by dint of the provisions in Section 15 (or 16) of the Court of Appeal Act, possesses the full and all judicial powers and jurisdiction of first instance or trial Court to take appropriate steps, make necessary orders and give directives as if the appeal was a proceeding brought before it as a first instance or trial Court.

It was in line with the provision in Section 15 (or 16) of the Court of Appeal Act, that the Court of Appeal Rules, 2007 (applicable at the time the order complained of was made) in Order 6, Rule 2 (1) provided, inter alia, that:-

“All appeals shall be by way of rehearing … ”

In simple terms, by these provisions, all appeals brought before the Court below were to be dealt with or treated by way of re-hearing of the real issues or questions in controversy or dispute between the parties as presented in the case before the Court of first instance or trial Court and in respect of which that Court rendered its decision against which the appeal was filed. Unlike the Court of first instance or trial Court, though, the re-hearing of an appeal by the Court below is done and conducted on the printed Record of Proceedings of the actual trial or hearing at the first instance or trial Court transmitted from that Court to the Court below as the Record of the Appeal. The re-hearing of an appeal before the Court below is therefore, primarily, based on the printed record of what transpired, happened or occurred in the proceedings conducted by the first instance or trial Court forwarded for the purpose of prosecuting the appeal, to the Court below. Re-hearing by the Court below involves a review and consideration of the facts and all the material evidence produced by the parties before the first instance or trial Court, along with the evaluation of the evidence, inferences drawn from and findings made by that Court on the evidence as well as the decision/s reached in the case in line with the complaints made against the decision/s in the grounds of appeal, as contained in the pointed Record of Appeal. Therefore, except where necessary, the re-hearing in an appeal before the Court below does not mean or involve the hearing of witnesses or taking/receiving evidence.” PER. M. L GARBA, J.S.C.