CORAM
A.A. OKEKE FEDERAL HIGH COURT
PARTIES
HIEF GUY IKECHUKWU IKOKWU
ASSET MANAGEMENT CORPORATION OF NIGERIA
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondent filed a suit against the Appellant at the Federal High Court, in Suit No FHC/L/CS/1876/2014 in which the Court granted the Respondent’s claim. In reaction to this Order the Appellant filed a motion praying the court to vacate the order made in favour of the Respondent affecting the Appellant’s fund in Financial Institutions and to further allow the Appellant operate his accounts in line with Sections 49 (3) and 50 (2) of the AMCON Act, 2010. The Respondent upon being served with the process, instead of filing a counter affidavit filed a notice of preliminary objection on the ground that the application did not comply with direction 3.3 (1) (2) & (3) of the AMCON Practice Direction. The lower court in its ruling held that both the application of the Appellant and the Respondent’s preliminary objection were incompetent, hence the application was dismissed whilst the preliminary objection struck out. Dissatisfied with the ruling, the Appellant has appealed against same.
HELD
Appeal Allowed
ISSUES
Whether failure to commence debt recovery action against the Appellant within the statutory period of 14 days as provided by sections 49(3) and 50(2) of the AMCON Act, 2010 nullifies the order of the lower court made on 13th February 2015 for non-compliance? Whether the learned trial judge was right in holding that non- compliance with order 26 rule 11 of the Federal High Court (Civil Procedure) Rules 2009 was fatal to the Appellant’s application
RATIONES DECIDENDI
PRELIMINARY OBJECTION – DUTY ON COURT TO FIRST DETERMINE A PRELIMINARY OBJECTION BEFORE PROCEEDING WITH THE MERIT OF THE APPEAL
“Once there is a preliminary objection, a court will first determine same before looking at the merit of the appeal. See: Lotatex Nig. Ltd &Anor vs. Bank of Agriculture (2017) LPELR-43094 (CA); FBN Plc vs. T.S.A. Industries Ltd (2010) 4-7 SC (Pt.1) 243; NDP vs. INEC (2013) 6 NWLR (Pt.1350) 392”. –
FILING OF PROCESS – WHETHER A PARTY CAN BENEFIT FROM HIS FAILURE TO ACT TIMEOUSLY IN FILING ITS PROCESS
“The Respondent did not act on time to file the Claim and by law she cannot enjoy the benefit of her belated act. See Ballantyne vs. Ayi & Ors (2011) LPELR- 8825 (CA); Saleh vs. Monguno & Ors (2006)7 SC (Pt. II) 97. –
INTERLOCUTORY DECISION – CONDITION PRECEDENT FOR FILING AN APPEAL AGAINST AN INTERLOCUTORY DECISION WHERE THE GROUNDS CONSIST OF FACTS OR MIXED LAW AND FACT
“By the provision of Section 242 of the Constitution of the Federal Republic of Nigeria, the Appellant will need leave to appeal against interlocutory matter if it is based on fact or mixed law and fact. See Ajuwa &Anor vs. SPDC Nig. ltd (2011) 12 SC (Pt. IV) 118; Onwubuariri & Ors vs. Igboasoyi & Ors (2011) 3 NWLR (pt 1234) 357. In Nwosu &Anor vs. Offor (1997) 2 NWLR (pt 487) 274, the Supreme Court per Ogwuegbu, JSC as follows:
“Under the provisions of Section 220(1)(a) and (b) there is a general right of appeal as of right from the decision of the High Court to the Court of Appeal in all final decisions both in civil and criminal proceedings before the High sitting at first instance; and where the grounds of appeal involve questions of law alone in non-final decisions in both civil and criminal proceedings. Section 220(1)(b) is concerned with non-final or interlocutory decisions. See Ajani vs. Giwa (supra) and Rabiu vs. Kano State (supra). I have carefully examined the grounds of appeal. I am satisfied that the questions raised in them are of facts or at best, of mixed law and facts. Furthermore, the ruling in respect of which the grounds of appeal relate was not a final decision since it did not finally dispose of the rights of the parties in the suit. See Blay vs. Solomon (1947)12 WACA 175 @176; Bozson vs. Altrincham Urban District Council (1903)1 KB 547 and Akinsanya vs. U.B.A. Ltd (1986)4 NWLR (Pt. 35)273. The decision is interlocutory. Consequently, appeal on those grounds could not possibly have been as of right under Section 220 of the Constitution. An appeal on those grounds required leave under Section 221(1) of the Constitution.” –
INTERLOCUTORY APPEAL – INSTANCE WHERE THE REQUIREMENT OF OBTAINING THE LEAVE OF COURT IN FILING AN INTERLOCUTORY APPEAL WILL BE UNNECESSARY
“The appeal is obviously an interlocutory appeal. There is also no leave obtained by the Appellant before filing the appeal. The only ground under which this appeal will be competent before this court in the circumstance is, if the grounds of appeal are purely based on law or on question of law. In Dairo vs. Union Bank &Anor (2017)16 NWLR (Pt.1059) 99, Muhammad, JSC held:
“The settled principle of law on the validity of a notice of appeal is that when a ground of appeal involves a question of law, it alone can sustain that notice of appeal. Thus, by the provision of Section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 , such a ground of law confers right of appeal on an appellant without the necessity of seeking or obtaining leave from any court including this court or the court below.”
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GROUND OF LAW – MEANING OF GROUND OF LAW
“A ground of law alone is a ground that deals with purely issues dealing with the misunderstanding, interpretation and the application of the law. What stands for consideration in a ground of appeal dealing with law alone is a ground where the law is the main focus of the ground. In this regard, the centre of attraction in the appeal is the interpretation and the application of the law. Anything apart from that will amount to mix law and fact. In Ifediorah & Ors vs. Ume &Ors (1988)2 NWLR (Pt.74) 5, the apex court held:
“There is no doubt that it is always not easy to distinguish aground of appeal in law alone from that of mixed law and fact. One has to examine not only the bare wording of the ground, but also the relevant particulars supplied. It is only through that, that one can be able to ascertain whether the ground is a pure ground of law as couched or it is of mixed law and fact. The Supreme Court in its endeavor to minimise the difficulties being faced by the lower courts in this regard, has provided some useful guidelines in Ogbechie & Ors. v. Onochie & Ors.(1986) S.C. 54 wherein Eso, J.S.C., said-“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
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GROUND OF APPEAL – DISTINCTION BETWEEN A GROUND OF LAW AND A GROUND OF MIXED LAW AND FACTS
“As mentioned earlier an appeal on question of law alone is based on the law or the application of the law. If it goes into evaluate of facts before the application of the law, it will amount to mix law and fact. An appeal purely on law puts the law on the main burner for consideration. In Anoghalu & Ors vs. Oraelosi &Anor (1999) 10-12 SC 1; (1999) LPELR 496 (SC) at pages 16-19Ogundare JSC(of blessed memory) held thus extensively on this issue:
“In Metal Construction (West African) Ltd. vs. D. A. Migliore &Ors: in Re Miss C. Ogundare (1990) ANLR 142; (1990)1 NWLR (Pt. 126) 299 – this court examined at length, the phrases: “a question of law” and “a question of fact” and referred to a number of cases on the point. On question of law, this Court in that case, per Karibi-Whyte J.S.C.at pages 149-150 of the former report had this to say: “Generally considered, the term ‘question of law’ is capable of three different meanings. First it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in this sense is one predetermined and authoritatively answered by the law. The second meaning is as to what the law is. In this sense an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning. The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only. Thus any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge”
And on question of fact the learned Justice of this Court, at page 150, said:”Now turning to what is a question of fact it is easy to postulate that it is anything which falls outside the meaning of question of law. That will not be entirely correct, because there are exceptions. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact. A matter is generally held to be one of fact if it is one on which reasonable men may arrive at discrepant conclusions on the same evidence before them. When perception and evaluation of primary findings result in the conclusions in which a layman as well as a person instructed in the law give an acceptable opinion, it is a matter of fact. What are to persons trained in the law matters of fact, are often to laymen matters of opinion. In a narrow and more specific sense a question of fact does not include all questions that are not questions of law, but only some of them. It is opposed to a question of judicial discretion which is one of the exceptions.”Similarly, the apex court per Galadima, JSC in Njemanze vs. Njemanze (2013) 8 NWLR (Pt. 1356) 376 held thus:
“This Court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact. Some of these principles canbe summarized in the following manner:
(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower court of the law, or a misapplication of the law to the facts already proved or admitted.
(ii) Where a ground complains of a misunderstanding by the lower court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
(iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact. (iv) A ground which raises a question of pure fact isa ground of fact(v) Where the lower court finds that the particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law.
(vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the court. If there is a complaint about the assessment of the admissible evidence, the ground is that offact.
(vii) Where the lower court approached the constitution of a legal term of art in a statute on the erroneous basis that he statutory wording bears its ordinary meaning, the ground is that of law.
(viii) Where the lower court or tribunal applying the law to the facts in a process which requires the skills of a trained lawyer, this is a question of law.
(ix)Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of law. This is a ground of law.
(x)Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if seized of the issue, that conclusion is not an error in law.
(xi) Where the court of appeal finds such application to be wrong and decides to make its own findings such findings made by the court of appeal are issues of fact and not of law.
(xii) Where the court of appeal interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.
(xiii) A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a court of appeal or a further court of appeal).See the cases of Board Of Customs &. Excise vs. Barau(SC) 48 and Ogbechie vs. Onochie(1986) 3 SC 58 – 64, where this Court interpreted the provisions of section 213 (3) and 214 (3) of the constitution of the federal republic of Nigeria, in pari material with the instant provisions of section 233(2) and 232(2)(a) of the said constitution. Other cases relied on by the Appellant in which the basis or perimeters for deciding whether a ground of appeal raises questions of law alone or of mixed law and fact and of fact are as follows:
(i) Ojemen vs. Momodu (1983) 3 SC 173 at 207.
(ii) Rabiu vs. Attorney General Kano State (1980)8-11(SC) also (1982)2 NCLR 117.
(iii) Nwadike vs. Ibekwe (1987) 4 NWLR (Pt. 67).
(iv) Abidoye vs. Alawode (2001) 6 NWLR (Pt.709) 463 at 472.
(v) Ifediora V. Umeh (1988) 2 NWLR (Pt. 74)5.
(vi) Oforkire v. Maduike (2003)5 NWLR (Pt.812) 166 at 176.
(vii)Idowu V. State(2000) 12 NWLR (Pt. 680)48 at 68 – 69.
It has been further decided by this Court that in determining whether a ground of appeal includes question of law alone or of mixed law and fact, both the ground of appeal and the particulars of error or of misdirection shall be thoroughly examined to see whether it is ground of law alone or mixed law and of fact. See U.B.A vs. GMBH (1989) 3 NWLR (Pt. 110) at 389 to 390”
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GROUND OF APPEAL – LEGAL CONSEQUENCES AND DISTINCTION BETWEEN AN APPEAL DECLARED INCOMPETENT FOR GROUNDS OF JURISDICTION AND AN APPEAL DECLARED INCOMPETENT FOR NONCOMPLIANCE
“There is a difference between an appeal been declared incompetent for grounds of jurisdiction and an appeal declared incompetent for noncompliance. The legal consequences of both are different. An appeal which is incompetent on grounds of jurisdiction is completely struck out and cannot be amended in any way as all proceeding based on it will be a nullity. On the other hand if it is based on incompetent on grounds of noncompliance, it can be amended because on the face of the law, it is a mere irregularity which can be regularized”. –
RULES OF COURT – WHETHER THE RULES OF COURT WOULD GOVERN A SITUATION NOT PROVIDED FOR BY STATUTE
“In the circumstance, I am in agreement with the lower court that once the AMCON Acts and Practice Direction does not make provision for the time frame to file a motion for vacating of an ex-parte order, the rules governing the court with jurisdiction in AMCON matters will govern such a situation not covered by the AMCON Acts and Practice Direction. In this circumstance, the Federal High Court (Civil Procedure) Rule 2009 which has made provision for a period of 7 days for a party against whom an ex-parte orders has been made to bring a motion to challenge same will apply. The law has made provision for the party to seek for leave should the application to vacate the order is not made within 7 days. See; Aso Timdoz Nig. Ltd &Ors vs. Timdozs Eng. Nig Ltd (2005)9 NWLR (Pt.929) 189”. –
CONSEQUENTIAL ORDER – POWER OF THE COURT TO MAKE CONSEQUENTIAL ORDER IN THE INTEREST OF JUSTICE
“A court of law exists to do justice and this is justices in its substantial sense and not in its technical sense. When parties approach a court, it is the expectation of the parties that one of them will win while the other will lose. In other words, one of the parties will go home rejoicing and the other unhappy. It is not very likely to have a win, win situation in a matter litigated before a court. This is why in appropriate cases; a court is empowered to make consequential order basically to meet the justice of the case. In Noekoer vs. Executive Governor of Plateau State &Ors (2018) LPELR (SC), the apex court per Sanusi, JSC at page 20-21 held:
“It is trite law, that a Court has inherent power to make consequential order. A consequential order is simply one which flows directly and naturally from the decision or order made on issues litigated upon and inevitably consequent upon it. See; Akapo vs. Hakeem-Habeeb [1992] 2 NWLR (Pt. 247) 266 or (1992)7 SCNJ 119 or (1992) LPELR 325 (SC).A consequential order is one which gives effect to a judgment or order to which it is consequential. See Funduk Engineering Ltd vs. Mcarthur &Ors (1996) 7 NWLR (Pt. 459) 153; Obayagbona vs. Obazee (1972) SC 247; Odofin &Anor vs. Agu &Anor (1992) NWLR (Pt.229) 350. Every Court, be it of first instant or appellate has the power and in fact has the duty and obligation to make any consequential order in the interest of justice and it is irrelevant and of no moment that the particular order was not specifically asked for by either party to the proceedings or appeal. See: Prince Yahaya Adigun &Orsvs. Attorney General of Oyo State &Ors (1987) 1 NWLR (Pt.53) 678 at 710; Chief Ebenezer &Ors vs. S.K. Owodunni &Anor (1987) 2 NWLR (Pt. 57) 367.”
In this regard, the apex court also upheld this power on the lower court to make consequential orders. In Layinka & Ors vs. Gegele (1993)3 NWLR (Pt.283) 518 Ogundare, JSC held as follows:
“I hold the view that the learned trial Judge made the consequential order in the interest of justice which he was entitled to do. In the case of Garba vs. University of Maiduguri (1986) 1 NWLR(Pt.18) 550 Obaseki J.S.C., agreed that the High Court has power to grant consequential orders not specifically prayed for. Also by Order 34 Rule 1 of the Kwara State High Court (Civil Procedure Rules)1975, the High Court may in all cases and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”
See also Ezeonwu vs. Onyechi & Ors (1996)3 NWLR (Pt.438) 499; Eyigbede vs. Iyaji (2013) 11 NWLR (Pt.1365) 407”. –
CASES CITED
Not Available
STATUTES REFERRED TO
Asset Management Corporation of Nigeria Act, 2010|Constitution of the Federal Republic of Nigeria, 1999|Federal High Court (Civil Procedure) Rules 2009|