OLUSEYI SOWEMIMO, SAN & ANOR V. ASSET MANAGEMENT CORPORATION OF NIGERIA

Legalpedia Citation: (2025-02) Legalpedia 26905 (SC)

In the Supreme Court of Nigeria

Fri Feb 21, 2025

Suit Number: SC.134/2019

CORAM

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Haruna Simon Tsammani Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya Justice of the Supreme Court of Nigeria

Mohammed Baba Idris Justice of the Supreme Court of Nigeria

PARTIES

1. OLUSEYI SOWEMIMO, SAN (Practicing in the name and style of Seyi Sowemimo & Co)
2. CHIEF ANSE AGU EZETAH (Practicing in the name and style of Law Agu Ezetah & Co)

APPELLANTS

1. ASSET MANAGEMENT CORPORATION OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, JURISDICTION, GROUNDS OF APPEAL, CIVIL PROCEDURE, PRACTICE AND PROCEDURE, PROFESSIONAL FEES, DEBT RECOVERY, SOLICITOR’S LIEN

SUMMARY OF FACTS

The Appellants, who were Plaintiffs at the trial Court, were appointed joint solicitors by Fidelity Bank Plc in December 2010 and instructed to recover a debt arising from a loan facility of US $7.5 million granted to a company and its personal guarantees. The Appellants initiated a recovery action against the debtors and after a two-year trial, judgment was entered in their favor in the sum of US $12,926,931 or N1,977,820,556.22 with interest at the rate of 21% per annum, which was upheld by the Court of Appeal.

Without the Appellants’ knowledge, the Respondent (Asset Management Corporation of Nigeria) bought the debt from Fidelity Bank Plc. The judgment debtors filed a Notice of Appeal at the Supreme Court, and the Appellants began making moves to prosecute the appeal. However, the Appellants later heard that the judgment debtors had commenced settlement with the Respondent. The Appellants were subsequently notified by Fidelity Bank Plc that the debt had been settled and that the Respondent had taken over the responsibility for counsel’s fees.

The Appellants were paid the sum of N61,961,380, which they claimed was only 25% of what they should have been paid as professional fees. All efforts by the Appellants to confirm the money recovered by the Respondent from the judgment debtors proved futile. The Appellants contended that they were entitled to 5% of N5.35 billion, which was the judgment debt as at May 2014.

The Respondent argued that the trial Court lacked jurisdiction to entertain the suit and that the Appellants had no reasonable cause of action. The Respondent’s witness stated that they owed no duty to notify the Appellants of their transaction with the judgment debtors and that they paid the Appellants 5% of the sum recovered from the judgment debtors, not 5% of the judgment debt.

The trial Court held in favor of the Appellants, declaring that they were entitled to 5% of the N5.35 billion judgment debt as at May 2014 and awarded the sum of N191 million in their favor. The Respondent appealed to the Court of Appeal, which allowed the appeal and set aside the judgment of the trial Court. Dissatisfied, the Appellants appealed to the Supreme Court.

HELD

1. The appeal was struck out.
2. The Supreme Court upheld the Respondent’s preliminary objection that all six grounds of appeal in the Appellants’ Notice of Appeal were either grounds of mixed law and facts or did not flow from the judgment of the Court of Appeal, and no leave was sought and obtained to file such grounds.
3. The Court held that it had no jurisdiction to entertain an appeal based on grounds of mixed law and facts without leave first sought and obtained from either the Court of Appeal or the Supreme Court, as required by Section 233(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
4. The Court did not determine the substantive issues raised in the appeal as it struck out the appeal for being incompetent.

ISSUES

1. Whether there was sufficient or cogent evidence before the Court to establish the existence of compromise or that the sum of N1.3 billion was what was actually received by the Respondent from the judgment debtors.
2. Whether the judgments secured by the Appellants gave rise to a solicitor’s lien on the judgment debt.
3. Whether the Respondent was at liberty to compromise on the fees due to the Appellants without their consent on the basis of Section 6(1)(e) of the Asset Management Corporation of Nigeria Act.

RATIONES DECIDENDI

GROUNDS OF APPEAL – DISTINCTION BETWEEN GROUNDS OF LAW ALONE AND GROUNDS OF MIXED LAW AND FACTS

It is to be noted that a ground of appeal does not translate into being a ground of law merely by the say so of the prospective Appellant. It is from the contents of the ground that the real colour of the ground, whether of law, mixed law and/or facts can be discerned. – Per MOHAMMED BABA IDRIS, J.S.C.

RIGHT OF APPEAL – CONSTITUTIONAL REQUIREMENTS FOR APPEAL AS OF RIGHT TO THE SUPREME COURT

The right of appeal to the Supreme Court against the decision of the Court of Appeal as of right is provided under Section 233(2) of the 1999 Constitution… Other than as provided in sub Section 2 of Section 233 above, the National Assembly has not made any law enlarging the scope of the right of appeal as of right. In all other cases the appeal must be with either the leave of the Court of Appeal or the Supreme Court as the case may be, as provided in Section 233(3) of the 1999 Constitution which also read: ‘3. Subject to the provisions of Subsection (2) of this section an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.’ – Per MOHAMMED BABA IDRIS, J.S.C.

REQUIREMENT OF LEAVE – CONSEQUENCE OF FAILURE TO OBTAIN LEAVE FOR GROUNDS OF MIXED LAW AND FACTS

The absence of that leave has rendered this appeal incompetent as such leave is a condition precedent for a valid appeal, thereby robbing this Court of the jurisdiction to entertain this matter. – Per MOHAMMED BABA IDRIS, J.S.C.

APPELLATE JURISDICTION – DETERMINATION OF THE NATURE OF GROUNDS OF APPEAL

A ground is not a ground of law simply because the appellant calls it so, it is the content of the ground that will indicate what it really is. – Per MOHAMMED BABA IDRIS, J.S.C.

JURISDICTION OF THE SUPREME COURT – CONSTITUTIONAL LIMITATIONS ON APPELLATE JURISDICTION

As this Court has no jurisdiction to entertain appeals from decision of the Federal Court of Appeal on grounds which involve questions of facts or mixed law and fact without leave either of the Federal Court of Appeal or this Court, this Court has a heavy constitutional duty to examine and study the grounds in support of appeal before it carefully, and satisfy itself that they are those in respect of which it has jurisdiction to entertain commencing with the hearing of the appeal. – Per MOHAMMED BABA IDRIS, J.S.C.

EVALUATION OF GROUNDS OF APPEAL – DUTY OF THE COURT TO SCRUTINIZE GROUNDS OF APPEAL

From the above cited cases, it is clear that this Court does not take lightly or adopt a lenient approach when there is an objection as to whether the notice of appeal contains grounds of mixed law and fact and no leave is sought and obtained. The offending grounds of appeal must be struck out in totality. – Per MOHAMMED BABA IDRIS, J.S.C.

PRELIMINARY OBJECTION TO JURISDICTION – EFFECT OF INCOMPETENT GROUNDS OF APPEAL

There being no competent notice of appeal surviving the appeal itself it should justifiably be struck out. – Per MOHAMMED BABA IDRIS, J.S.C.

APPELLATE JURISDICTION – REQUIREMENT OF LEAVE FOR GROUNDS OF FACT OR MIXED LAW AND FACT

The appellate jurisdiction of this Court on questions of fact only exists where there has been leave of the Court of Appeal or of this Court. No appeal on questions of fact lies to this Court without such leave. In other words, where question of fact has been brought before this Court without leave, the Court has no jurisdiction. – Per HARUNA SIMON TSAMMANI, J.S.C. (quoting Akpasubi v Umweni (1982) 11 SC 113)

CONDITION PRECEDENT TO VALIDITY OF APPEAL – REQUIREMENT OF LEAVE FOR CERTAIN GROUNDS

So, where an appeal is to be with leave, but none was obtained, the condition precedent to the validity of such appeal has not been fulfilled, and the appeal is incompetent, and the appellate Court has no jurisdiction. – Per HARUNA SIMON TSAMMANI, J.S.C. (quoting Akpasubi v Umweni (1982) 11 SC 113)

RECORD OF APPEAL – BINDING NATURE OF THE RECORD OF APPEAL

It is the position of the law that an appellate Court is bound by the record of appeal. – Per MOHAMMED BABA IDRIS, J.S.C.

GROUNDS OF APPEAL – REQUIREMENT THAT GROUNDS MUST FLOW FROM THE JUDGMENT APPEALED AGAINST

“Grounds of appeal must flow from the ratio of the judgment appealed against. The grounds of appeal are therefore incompetent having not been drawn from the ratio of the judgment appealed against. They are liable to be struck out and they are accordingly struck out.– Per MOHAMMED BABA IDRIS, J.S.C.

INCOMPETENT APPEAL – CONSEQUENCE OF ALL GROUNDS BEING STRUCK OUT

Where leave of Court is required to appeal and it is not obtained, such an appeal will be mired in the quicksand of an indelible incompetence… In the absence of obtaining the required leave of Court, those grounds of appeal and, by an extension, the appeal, are plagued by an irremediable incompetence. – Per OBANDE FESTUS OGBUINYA, J.S.C.

CLASSIFICATION OF RIGHT OF APPEAL – CONSTITUTIONAL CATEGORIZATION OF APPEALS

The Constitution, the grund norm and fons et origo of our laws, has characterised right of appeal into two segments, videlicet: appeal as of right and appeal with leave. – Per OBANDE FESTUS OGBUINYA, J.S.C.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Asset Management Corporation of Nigeria Act 2010

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