Adiele Ndubuisi V The StateOctober 30, 2018
Lagos State Government & Anor V Beneficial Endowment LtdNovember 6, 2018
APPEAL NO: SC. 402/2016
AREAS OF LAW: APPEAL, COMPANY LAW, COURT, INTERPRETATION OF STATUTE, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS:
Following an acquisition of Oceanic Bank Plc by the Appellant, the Appellant embarked on a process of recovery of huge sums of monies owed by the Respondent as a result of the credit facilities. Sometimes in July, 2013, the Respondent, through the Chairman of Honeywell Group Limited, proposed the payment of the sum of 3.5 Billion out of the N5.5 billion owed by the Respondent and other sister companies under the Honeywell Group Limited and same was accepted by the Appellant on certain conditions, part of which was the payment of the sum of N500 million immediately and the balance before the Central Bank of Nigeria(CBN) examiners left the bank on inspection as was clearly stated in the letters exchanged by the parties on the 22nd July, 2013 which is based on the “in principle agreement”. The Respondent however defaulted in the repayment of the indebtedness and after series of correspondences and proposals by the Respondent urging the Appellant to accept the said sum of N3.5 billion as full payment to settle the indebtedness and which proposal was not agreeable to the Appellant given the failure of the Respondent to honour the “in principle agreement”, the Respondent instituted an action in the Federal High Court , Lagos Division, wherein it sought inter alia, specific performance of “in principle agreement” of 22nd July, 2015. The trial court made an order for the parties to maintain status quo ante bellum. Consequently, the Appellant filed a petition for winding up of the Respondent and applications for interim/interlocutory reliefs seeking to preserve the assets and funds of the Respondent pending the appointment of a provisional liquidator and the hearing of the petition before the lower court. The petition for winding up and the ex-parte application for interim reliefs towards preserving the assets/funds of the Respondent was heard by J.T. Tsosho who declined to grant same but directed that the Respondent put the Appellant on notice and adjourned the suit. The Appellant filed a notice of discontinuance of the petition. However on the 9th of November, 2015, the Appellant filed a fresh petition for winding up against the Respondent and also filed another motion ex-parte seeking an interim order for the preservation of the Assets/funds of the Respondent and same was assigned to another judge who granted the reliefs sought. Upon being notified of the grant to the ex-parte orders, the Respondent filed a motion on notice seeking the order of the court to discharge the ex-parte orders so granted and dismiss the petition before it on grounds of abuse of court process amongst others. The Appellant filed a counter affidavit to oppose the said motion and also filed a motion on notice seeking the order of court to dismiss the said motion on notice for being an abuse of process. Both applications were heard together and the court declined to vacate or discharge all the interim orders made but rather varied them. The trial court also refused to grant the Appellant’s application to dismiss the Respondent’s motion. Dissatisfied with the ruling, the Respondent filed an appeal before the Court of Appeal while the Appellant filed a Notice of Cross appeal and a Notice of preliminary objection to the hearing of the Appeal. The lower court allowed the appeal and set aside the ruling of the trial court. The lower court also set aside the interim order of injunction made by the trial court as a consequential order and struck out the Appellant’s Cross-Appeal and ordered that the petition be transferred to another Judge for hearing. Dissatisfied with the lower court’s judgment, the Appellant has filed the instant appeal.
ISSUES FOR DETERMINATION:
- Whether the grounds as contained in the Respondent’s Notice of Appeal against an interlocutory decision of the Trial Court dated the 4th day of December, 2015 were competent to warrant the hearing of the entire APPEAL filed by the Respondent on the merit as done by the Lower Court, the Court of Appeal?
- Whether the APPEAL filed by the Respondent at the Lower Court was against the ex -parte order of the Lower court made on the 27th day of October, 2015 which order was varied by the Trial Court pursuant to its ruling of 4th December, 2015 and consequently, ceased to be in existence?
- Whether by a community reading of the Companies Winding – up Rules 2001, Section 411(1) of the Companies and Allied Matters Act, 2004, the extant Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Supreme Court’s decision in Provisional Liquidator Tapp Industries v Tapp Industries Ltd (1995) 5 NWLR (pt 393) page 9, ex -parte orders are permissible under the Companies Winding – up Rules, 2001?
- Whether the Court of Appeal by virtue of section 15 of the Court of Appeal Act Cap C 36 Laws of the Federation of Nigeria, 2004 is not bound to hear, determine and make pronouncement on the issue of abuse of court process validly submitted to it by the parties herein?
- Whether the Court of Appeal was right to strike out the appellant’s Cross Appeal solely on the grounds that the granting of prayer 1 of the Respondent’s Motion on Notice at the Lower Court dated the 23rd day of November, 2015 by the Court of Appeal made the sole issue submitted in the Cross- Appeal a moot point
REPLY BRIEF – FUNCTION OF A REPLY BRIEF
“I need to emphasize that the function of a reply brief is to answer the arguments in the respondent’s brief which were not taken in the appellants’ brief. It is not meant to be a repetition of the arguments in the Appellants’ brief. It is not an opportunity to re-emphasize the arguments in the Appellants’ brief. The reply brief filed by the Appellant in this appeal, does not seem to deal with fresh issues raised in the Respondent’s brief but a repetition of argument already contained in the Appellant’s brief. This is not the purpose of a reply brief. See Abdullahi v Military Administrator, Kaduna State & ors (2009) 15 NWLR (pt 1165) 417, (2009) LPELR – 27 (SC) Oguanuhu & ors y Chiegboka (2013) 6 NWLR (pt 1351) 588, (2013) LPELR – 19980 (SC), Onwudigwe v Federal Republic of Nigeria (2006) 10 NWLR (pt 988) 382, (2006) LPELR – 2715 (SC).” PER J. I. OKORO, J.S.C.
RIGHT OF APPEAL – EXTENT TO THE EXERCISE OF A CONSTITUTIONAL RIGHT OF APPEAL
“The law is trite that the right to appeal against the judgment or decision/order of a court is constitutional and/or regulated by some statute. It is therefore within the province of the law that the exercise of such right must be within the bounds of the enabling law. That right is not exercised at large. A constitutional right of appeal must be exercised within the bounds of the constitution”. PER J. I. OKORO, J.S.C.
APPEAL AS OF RIGHT- INSTANCES WHERE AN APPEAL SHALL LIE AS OF RIGHT FROM DECISIONS OF THE HIGH COURT TO THE COURT OF APPEAL
“”241(1) An appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings
(f) Decisions made or given by the Federal High Court or a high court………..
(ii) Where an injunction or the appointment of a receiver is concerned
Section 241(1) of the 1999 Constitution reproduced above provides circumstances in which an appeal shall lie as of right from decisions of the Federal High Court or a high court to the Court of Appeal. Such instances include (1) final decision in any civil or criminal proceedings before the Federal High Court or a high court sitting at first instance; (2) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings (3) decisions in any civil or criminal proceedings on questions as to the interpretation or application of the Constitution (4) where an injunction or the appointment of a receiver is granted or refused amongst others.” PER J. I. OKORO, J.S.C.
APPEAL AS OF RIGHT- INSTANCES WHERE AN APPEAL SHALL LIE AS OF RIGHT FROM DECISIONS OF THE FEDERAL HIGH COURT TO THE COURT OF APPEAL
“By section 241(1) (b) of the 1999 Constitution, appeals lie from the Federal High Court or a high court to the Court of Appeal as of right where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings”. PER J. I. OKORO, J.S.C.
GROUNDS OF APPEAL- WAYS TO DETERMINE WHETHER A GROUND OF APPEAL RAISES QUESTION OF LAW ALONE OR OF MIXED LAW AND FACTS
“In determining whether a ground of appeal raises question of law alone or of mixed law and facts, the court is required to examine thoroughly the ground of appeal together with its particulars, in order to see whether the ground reveals a misunderstanding of the law by the lower court or a- misapplication of the law to the facts already proved or admitted, in which case it would be a question of law. Where, however, the ground is such that would require questioning the evaluation of facts by the lower court before the application of the law that would amount to question of mixed law and fact. A ground of appeal which raises facts, which needed to be determined either way, is a ground of fact.” PER J. I. OKORO, J.S.C.
GROUND OF LAW- INSTANCE WHERE A GROUND OF APPEAL INVOLVES A QUESTION OF LAW
“A complaint in a ground of appeal in this court of a failure of the Court of Appeal to discharge a judicial duty of considering and pronouncing on the issues raised before it, involves a question of law. See generally Nwadike v Ibekwe (1987) 4 NWLR (pt 67) 718, Obatoyinbo & anor v Oshatoba & anor (1996) 5 NWLR (pt 450) 531, Ogbechie v Onochie (9186) 2 NWLR (pt 23) 484, Njemanze v Njemanze (2013) 8 NWLR (pt 1356) 376, FBN v TSA Industries Ltd (2010) 15 NWLR (pt 1216) 247, Comex Ltd v NAB Ltd (1997) 3 NWLR (pt 496) 643.” PER J. I. OKORO, J.S.C.
APPEALS- WHETHER AN APPELLATE COURT IS AT LIBERTY TO OVERRULE THE DECISION OF A TRIAL COURT WHEN HEARING AN APPEAL
“The law is trite that appeals to appellate courts are by way of rehearing and in hearing an appeal, the appellate court should consider the materials before the trial court and should not hesitate to overrule his decision even on facts where, after giving due regards to the advantage which the trial court has of seeking the witness, it is clear the decision is wrong. See Ihunwo v Ihunwo & ors (2013) 8 NWLR (pt 1357) 550, Registered Trustees of Airline Operators of Nigeria v Nigeria Airspace Management Agency (2014) 8 NWLR (pt 1408) 1.” PER J. I. OKORO, J.S.C.
CLEAR AND UNAMBIGUOUS WORDS OF A STATUTE – DUTY OF COURTS IN THE INTERPRETATION OF CLEAR AND UNAMBIGUOUS WORDS IN A STATUTE
“The law is well settled that in interpreting statutes, the courts should always give them their ordinary meaning. Where it is clear, unambiguous and direct to the point, any addition or subtraction will be sequel to introducing an illegal back door amendment. See Skye Bank Pic v Victor Anaeman Iwu (2017) LPELR -42595 (SC), Onyema & ors v Oputa & anor (1987) LPELR- 2736 (SC), Board of Customs & Excise v Barau (1982) 10 SC 48, (1982) LPELR – 786 (SC).” PER J. I. OKORO, J.S.C.
SERVICE OF A MOTION IN A WINDING UP PETITION – STIPULATED TIME FOR SERVICE OF A MOTION ON AN AFFECTED PARTY IN A WINDING UP PETITION
“Rule 4 of the Winding Up Rules states clearly that motions can be filed in winding up petitions. However, where a where a motion in winding up petition seeks an order against any person such motion must be served on the named party at least five clear days before the hearing.” PER J. I. OKORO, J.S.C.
“SHALL”- HOW TO CONSTRUE “SHALL” WHEN USED IN A STATUTE
“The word “shall” used in Rule 4 connotes mandatoriness and does not leave room for permissiveness. It is trite that where the word “shall” is used in a statute, there is no room for adjustment. It must be done and obeyed. See Ugwu v Ararume (2007) All FWLR (pt 377) 807 at 857; Ogidi v State (2005) 5 NWLR (pt 918) 286 at 327.” PER J. I. OKORO, J.S.C.
ACADEMIC EXERCISE -DUTY ON COURTS NOT TO ENGAGE IN ACADEMIC EXERCISE
Courts are not set up to engage its precious judicial time in academic exercise.
In Salik v Idris & ors (2014) 15 NWLR (pt 1429) 36, (2014) LPELR – 22909 (SC) at pages 39 – 40 paragraphs F – C, this court made it clear that:-
“When a Judge restrains himself from deciding issues in a case or the whole case because his effort would amount to an academic exercise, all that his Lordship is saying is that if he decides the suit it would end with a hallow victory. A victory with no value whatsoever. A victory that cannot be enforced. That explains why in a plethora of cases it has been said that courts should not engage in academic exercise, rather, courts should restrict judicial time to determine live issues.”
See also Oyeneye v Odugbesan (1972) 4 SC 244, Adelaja & ors v Alade & anor (1999) 6 NWLR (pt 608) 544, Bhojawani v Bhohwani (1996) 6 NWLR (pt 457) 663, Bamigboye v Unilorin (1999) 10 NWLR (PT 622) 290”. PER J. I. OKORO, J.S.C.
WINDING UP PROCEEDINGS- WHETHER APPLICATION FOR AN ORDER OF INJUNCTION AFFECTING THE RIGHTS AND OBLIGATIONS OF PARTIES CAN BE MOVED EX-PARTE IN A WINDING UP PROCEEDINGS
“May I state it without equivocation that application for orders of injunction affecting the rights and obligations of parties cannot be moved ex-parte in winding up proceedings. Parties must be put on notice.” PER J. I. OKORO, J.S.C.
GROUND OF APPEAL – WHETHER THE FAILURE OF A COURT TO PRONOUNCE ON EACH OF THE ISSUES PLACED BEFORE IT IS A MATTER OF LAW OR OF MIXED LAW AND FACT
“The point has to be made that the failure of a court to make specific pronouncement on each of the issues placed before it is a matter of pure law and not an exercise of discretion which would have taken it into the arena of mixed law and facts. I rely on Brawal Shipping Ltd v F.I. Onwandike Co. Ltd (2000) 11 NWLR (Pt.678) 387 at 403.” PER M. U. PETER-ODILI, J.S.C.
STATUTES REFERRED TO:
Companies and Allied Matters Act, Cap C20 Laws of the Federation of Nigeria, 2004.
Companies Winding Up Rules 2011
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Court of Appeal Act Cap C 36 Laws of the Federation of Nigeria, 2004
Federal High Court (Civil Procedure) Rules 2009