CORAM
MARY UKAEGO PETER-ODILI
JOHN INYANG OKORO
AMINA ADAMU AUGIE
ABDU ABOKI
IBRAHIM MOHAMMED MUSA SAULAWA
PARTIES
UNIVERSAL PROPERTIES LTD APPELLANTS
PINNACLE COMMERCIAL BANK & ORS RESPONDENTS
AREA(S) OF LAW
APPEAL, ACTION, COURT, JURISDICTION, PRACTICE AND PROCEDURE, COMPANY LAW
SUMMARY OF FACTS
The 1st Respondent commenced an action at the High Court of Lagos State, against the 2nd and 3rd Respondents, by a special endorsed Writ of Summons, claiming the sum of N5,417,746.43 (Five million four hundred and seventeen thousand, seven hundred and forty-six naira, forty-three kobo only), interest on the said sum at 34% until judgment and thereafter until satisfied, resulting from a credit facility which it extended to the 1st Defendant and was guaranteed by the 2nd Defendant. Judgment was given in favour of the 1st Respondent but was not satisfied. The 1st Respondent, because of the inability of the 2nd and 3rd Respondents to satisfy their indebtedness, applied and sold the immovable properties of the 3rd Respondent known as 12A and 12B Ladipo Oluwole Street, Lagos.
The Appellant and 4th Respondent, upon becoming aware of the existence of the judgment including steps taken by the 1st Respondent to levy execution upon the properties of the 3rd Respondent, applied and were joined as parties to the suit. The 4th Respondent claimed it had an interest and mortgage over the property. Subsequent upon being joined, the Appellant applied to the trial Court for extension of time to apply to set aside the sale of their alleged properties by the 1st Respondent in the execution of the judgment against the 2nd and 3rd Respondents, an order setting aside the sale of the said properties and certificate of sale issued pursuant to the sale. The aforestated application was refused and dismissed by the learned trial Judge.
The Appellant being dissatisfied with the ruling of the trial Court, appealed against the said decision to the Court of Appeal, Lagos Division. The Court dismissed the appeal for want of diligent prosecution.
Dissatisfied, Appellant appealed to the Supreme Court. However, the 1st Respondent filed a preliminary objection against the hearing of the appeal.
HELD
Appeal Struck out
ISSUES
1.Whether the Honourable Court of Appeal was right to dismiss the appeal filed by the appellant for lack of diligent prosecution. 2.Whether the appellant was granted an opportunity to be fairly heard by the Court of Appeal in the determination of Appeal No. CA/L/394/2011 filed by the appellant.
RATIONES DECIDENDI
NOTICE(S) OF APPEAL – IMPORTANCE OF A NOTICE OF APPEAL – EFFECT OF A DEFECT IN A NOTICE OF APPEAL
“It is not in doubt that a notice of appeal, being an originating process in an appeal process, is a very important document. It is the foundation of an appeal. If it is defective, the appellate Court has no choice than to strike it out on the ground that it is incompetent. I need to emphasis that the question of whether or not a proper notice of appeal has been filed in Court is a question which touches on the jurisdiction of the appellate Court. If no proper Notice has been filed, then there is no appeal for the Court to entertain. See FBN PLC v TSA Industries Ltd (2011) 15 NWLR (pt. 1216) 247, Anadi v Okoti (1972) 7 SC page 57, Central Bank of Nigeria v Okojie (2004) 10 NWLR (pt. 882) 488, Olarenwaju v BON Ltd (1994) 8 NWLR (pt. 364) 622, Abubakar v Waziri (2008) 14 NWLR (pt. 1108) 507.” – Per OKORO, JSC
LEAVE OF COURT/LEAVE TO APPEAL – WHETHER LEAVE OF COURT IS REQUIRED TO FILE AN APPEAL AGAINST A COMPANY UNDERGOING LIQUIDATION – EFFECT OF FAILURE TO SEEK LEAVE
“In the instant appeal, the contention of the 1st Respondent is that the Notice of Appeal dated and filed by the Appellant on 12th May, 2008 is incompetent, being a process filed to commence action against a company undergoing liquidation at the material time but without the leave of this Court being first sought and obtained vide Section 417 of the Companies and Allied Matters Act (CAMA) 1990 being the Act in force at the time of filing this appeal. Let me quickly state that Section 417 of Companies and Allied Matters Act, 1990 is in all fours with Section 580 of Companies and Allied Matters Act, 2020. Now Section 417 of Companies and Allied Matters Act, 1990 provides: –
“… if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company except by leave of the Court.”
The above provision is very clear and unambiguous. It means clearly that if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company undergoing liquidation. The intendment of the said provision is not to stop an aggrieved party from proceeding against the company which has been issued a winding up order or which a provisional liquidator has been appointed, but that leave of Court must be sought and obtained before commencing the action or proceedings. As was pointed out by the learned counsel for the 1st Respondent, the health status of the 1st Respondent including the fact that the 1st Respondent was under liquidation was fully known to the Appellant, which prior to the dismissal of the appeal by the Court below had admitted that the 1st Respondent was since under liquidation in paragraph 3(a) of the affidavit in support of the Motion on Notice dated 24th September, 2007 and filed on 25th September, 2007 seeking for leave to substitute the 1st Respondent with its liquidator – the Nigeria Deposit Insurance Corporation as found in page 412 of the record which states:-
“3(a) The 1st Respondent, Pinnacle Commercial Bank Limited has since been under liquidation by the Nigerian Deposit Insurance corporation whose head office is at Mamman Kontagora House, 23A Marina Lagos. Further, that all the assets and liabilities of the said 1st Respondent have been taken over by the said NDIC”.
The above position has not been denied by the Appellant. And in any case, the record of this Court and/or any other Court is binding on the Court and the parties. It is trite that a crucial fact which is admitted does not require further proof as no person would admit a fact which could work against his interest unless it is true. See Sapo v Sunmonu (2010) 11 NWLR (pt. 1205) 374, Adeusi v Adebayo (2012) 3 NWLR (pt. 1288) 534 at 558 paragraph B, INEC v Oshiomole (2009) 4 NWLR (pt.132) 607 at 662. It is my well considered view that as at the time the Appellant filed its notice of appeal in this case, it knew that the 1st Respondent was under liquidation and that a liquidator i.e. NDIC had been appointed. My Lords, the Appellant does not say it did not know that the 1st Respondent had fallen into liquidation and that a liquidator had been appointed. All it is saying is that the Supreme Court is not one of the Courts referred to in Section 417 of the CAMA, 1990. This, with due respect, is not correct. Section 650 of CAMA, 1990 which is retained in Section 868 of CAMA, 2020, defines “Court” or “the Court” as used in relation to a company under liquidation as ‘the Federal High Court, and to the extent to which application may be made to it as a Court includes the Court of Appeal and the Supreme Court of Nigeria.” Thus the argument of learned counsel for the Appellant that “Court” as used in Section 417 of CAMA, 1990 does not include the Court of Appeal and the Supreme Court, does not fly at all. It is my well considered opinion that the requirement of obtaining leave stipulated by Section 417 of CAMA, 1990 includes obtaining leave of the appropriate appellate Court to appeal against any decision made in any suit in which a company under liquidation is a party since Section 650 of CAMA defines Courts to include the Court of Appeal and the Supreme Court. Luckily for us, this is not the first time this Section of CAMA is to be considered by this Court. In Alex O. Onwuchekwa v Nigeria Deposit Insurance Corporation (Liquidator of Co-operative and Commerce Bank Nig. Ltd) (2002) 5 NWLR (pt. 760) 317, this Court held that by virtue of the provision of Section 417 of the Companies and Allied Matters Act, 1990, if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company except by leave of the Court. It added that what that section prohibits is action against the company without leave of Court and not the company proceeding against another person. This decision demolishes the Appellant’s argument that after all, it was the 1st Respondent that commenced the proceedings that gave rise to this appeal. See also Agro Allied Development Ent. Ltd v Northern Reefer & 2 Ors. (2009) 5-6 SC (pt. 1) 110. Learned counsel for the Appellant argued that because an appeal is a continuation of hearing of a case and as such, there was no need to obtain leave. This is, with respect, not tenable. It is my view that an appeal being a continuation of hearing does not remove the duty and burden imposed on the Appellant by law to comply with mandatory requirement of obtaining leave where the concerned company goes into liquidation as stipulated in Section 417 of CAMA, 1990. On the whole, I agree entirely with the learned counsel for the 1st Respondent that liquidation is a special circumstance which affects the concerned company and triggers the provision of Section 417 of CAMA, 1990, now Section 580 of CAMA, 2020 which makes it mandatory (by the use of the word “shall”) for leave of either the Court of Appeal or this Court to be sought and obtained by the Appellant for there to be a valid appeal. It is trite that where the law has stipulated in a mandatory provision applicable in specified circumstances, same must be given effect to. It is usually referred to as a condition precedent. This Court has properly elucidated the expression “condition precedent” in J. S Atolagbe & Ors v Alhaji Muhammadu Awuni & Ors. (1997) 9 NWLR (pt. 522) 537 at 565 per Uwais CJN thus:-
“Condition is a provision which makes the existence of a right dependent on the happening of an event; the right is then additional as opposed to an absolute right A true condition where the event on which the existence of the right depends is in the future uncertain, A “Condition Precedent” is one that delays the vesting of a right until the happening of an event”
By the same token in this case in hand, the seeking and obtaining of leave is the condition precedent that would first take place before the vesting of the right to approach this Court. The condition must be met before the Appellant’s right to ventilate in this Court would inure. See Attorney General of Kwara State & Anor v Alhaji Saka Adeyemo & Ors. (2016) LPELR-41147 (SC), Drexel Energy & Natural Resources Ltd & Ors. v Trans International Bank Ltd & Ors. (2008) 18 NWLR (pt. 1119) 388, Capt. Amadi v NNPC (2000) 10 NWLR (pt. 674) 76, Nigercare Development Company Limited v Adamawa State Water Board & Ors (2008) 8 NWLR (pt. 1093) 498. Finally, the Appellant, having failed to obtain leave as prescribed in Section 417 of the CAMA, 1990 before filing this appeal, the said notice of appeal is incompetent and liable to be struck out. Once the law has stipulated the procedure for achieving an end, same has to be complied with. A litigant who fails to observe such provision cannot activate the jurisdiction of this Court as you cannot put something on nothing and expect it to stand. It will certainly and surely collapse. See Macfoy v U.A.C. (1961) 3 All ER 1169, Madukolu v Nkemdilim (1962) 2 SCNLR 341. This appeal commenced without the leave of this Court is null and void.” – Per OKORO, JSC
APPEAL – EFFECT OF AN APPEAL DISMISSED FOR WANT OF PROSECUTION DUE TO THE FAILURE OF APPELLANT TO FILE HIS BRIEF OF ARGUMENT
“In tackling the question of the implication of the Court of Appeal’s right to dismiss the appeal filed by the Appellant for lack of diligent prosecution, the Court is guided by the Court of Appeal Rules which Order 17 Rule 10 of the Rules of 2007 now Order 19 Rule 10 Court of Appeal, Rules, 2016 has provided for. It stipulated thus:-
“Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for what of prosecution.
(2) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution.”
In this instance, the Appellant had neglected to file his brief of argument within time despite the clear provisions of the Rules of the Court and the time and indulgence earlier given to it and the 5th Respondent applied to have the appeal dismissed for want of diligent prosecution. The Appellant filed a second application for extension of time to file its brief but withdrew the application on the date it came up for hearing. Since time was not further extended by the Court, as the Appellant’s counsel withdrew his second application for extension of time to file its brief of argument out of time, the purported brief filed out of time by the Appellant was incompetent. Counsel for the 5th Respondent moved his said application to dismiss the appeal for want of diligent prosecution, the Court granted same and the appeal stands dismissed as there was no brief of argument before the honourable Court. Since the Appellant’s brief, as rightly held by the Court of Appeal, was filed out of time and incompetent, the Respondent’s Briefs of Argument filed served no useful purpose there being no Appellant’s Brief of Argument to respond to. The Rules of the Court below on what the Court should do faced with a failure of the appellant to file the brief of argument are clear hence that failure would occasion a dismissal by the Court either suo motu or through the grant of an application by the Respondents for a dismissal. It needs be emphasised that the appellate Court is empowered and duty bound to ensure that parties comply with the Rules of Court in filing briefs. The implication of a dismissal in circumstances as above described is that the appeal stands dismissed for all time and cannot be relisted. See the cases of Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255; Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632 at 648 paras B-C (SC) Ajayi v. Omorogbe (1993) 6 NWLR (Pt. 301) 512 at 534 (SC); UBN Ltd. V. Odusote Book Stores Ltd (1995) 6 NWLR (Pt. 421) 538 at 576 (SC), (1995) 12 SCNJ 175; Tsokwa v. UTC (Nig) Ltd. (2000) 7 NWLR (Pt. 66) 654 at 660-661.; Adehi v. Atega (1995) 5 NWLR (Pt. 398) 65 at 66 (SC), (1995) 65 SCNJ 44; Ajayi v. Omorogbe (1993) 6 NWLR (Pt. 301) 512. The provision of Order 6 Rules 10 Court of Appeal Rules 2002 is similar to Order 17 Rule 10 Court of Appeal Rules 2007 and Order 19 Rule 10 Court of Appeal Rules 2016 and the decision of this Court in applying Order 6 Rule 10 Court of Appeal Rules 2002 should guide this Honourable Court in applying Order 19 Rule 10 Court of Appeal Rules 2019 in the instant case. See Asalu v. Dakan (2006) SC (Pt. II) 120 at 127-129; Chikwuka & Ors. v. Ezulike & Ors (1986) 5 NWLR (Pt. 901) 44 at 59, (2004) 5 SC; Kraus Thompson Org. v. N.I.P.SS (2004) 17 NWLR (Pt. 538) 367; Akujinwa v. Nwaonuma (1998) 11-12 SC 112, (1998) 13 NWLR (Pt. 583) 63; Ekpeto v. Wanogho (2004) 28 NWLR (Pt. 905) 395 at 412-413; Babayagi v. Bida (1998) 1 SCNJ 108 at 116. It is to be noted that sympathy has no place in the hearing of an appeal as there is the need to comply with the rules of the Court. See Asalu v. Dakan (2006) 5SC (Pt. 111) 120 at 129-131. Where there is non-compliance, an exercise of the Court’s power in accordance with the Rules made for doing justice cannot be labelled as improper or unjust. It is the duty of the Appellant to obey the rules of Court. It is also the duty of the Appellant to prosecute his case diligently. See Nueana v. Feda (2007) ALL NWLR (Pt. 376) 611 at 627 paras E-F(S), (2007) 11 NWLR (Pt. 1044) 59 at 79. In reiteration, parties to litigation need be reminded that rules of Court are instruments of justice and when they are applied as the case at hand, pandering to sentiments have no place. Therefore, a recourse to the doctrine of fair hearing in the situation is akin to pouring water on top of a stone as the fair hearing concept is not available to indolent or lazy litigants who push to foist a fait accomplish on the Court and other parties by wilfully disobeying the rules even after indulgences have been granted them as Appellant has done. I rely on Newswatch Communications Ltd v Atta (2006) All FWLR (pt. 318) 580 at 601. The Appellant refused to prosecute the appeal he filed since year 2001 wherefore the Court of Appeal had to put an end to the Appellant’s antics in keeping Order 17 Rule 10 of the Court of Appeal Rules 2007. It was the 5th Respondent that compiled records of appeal and yet the appellant did not file his brief of argument. The 5th Respondent’s counsel letter Exhibit Attached to pages by the 5th Respondent’s counsel to state that the Appellant had refused to comply with the Court Order and that the Respondent was suffering from injustice because of the delay caused by the Appellant’s counsel. Evidently, the Appellant was in possession of the property in dispute, it is posited that this is an appropriate case in which the indolence of the Appellant’s counsel was visited on the Appellant who stood to benefit from the delay while remaining in possession of the property that had been sold to the Respondents in execution of the judgment of the High Court of Lagos State. The Appellants’ counsel at the Court of Appeal objected to the Respondents’ application for dismissal of the appeal but the Court took the trouble to consider the merit of the application and opposition thereto. It follows that the Appellant who failed or neglected to file his brief of argument certainly has not complied with the necessary condition for hearing of his appeal and cannot cry that there was a lack of fair hearing. See Chime v Ude (1996) 7 NWLR (pt. 461) 379; Oyeyipo v Oyinloye (1987) 1 NWLR (pt. 50); First Bank of Nig. Ltd v T.S.A. Ind. Ltd (2007) All FWLR (pt. 352) 1719 at 1745 (CA). The Court of Appeal, in applying the provision of Order 17 of Court of Appeal Rules 2007 in this case, ensured that the Appellant had been given the opportunity of being heard. The Court, in applying the rules of Court, had created for the Appellant an environment of fair hearing but the Appellant failed to utilise the abundant opportunity given by the Rules and the Court. See, Eke v. Ogbonda (2007) ALL FWLR (Pt. 351) 1456 at 1479; BCC LT. V. Imani & Sons Ltd & Shell Trustees Ltd (2007) ALL FWLR (Pt. 348) 806 at 817. Therefore, the Appellant herein, who refused to make good use of the opportunity for fair hearing but engaged in delay tactics, pranks and antics, cannot complain thereafter of a breach of fair hearing in the circumstances. The non-compliance with the order of the Court of Appeal by the appellant’s counsel was not due to mistake of law but a factual blunder which the Appellant as owner of the facts of the case must accept full responsibility and not pass the buck to counsel. See National Inland Waterway Authority v. the Shell Petroleum Dev. Co. Ltd (2008) Vol. 49 WRN 1 at 19 lines 25-35 per Tobi, JSC.” – Per PETER-ODILI, JSC.
DISMISSAL OF APPEAL – WHAT THE COURT WILL CONSIDER IN DISMISSING A CASE FOR WANT OF DILIGENT PROSECUTION
“Where the Court has the discretion to dismiss an appeal for want of diligent prosecution, the Court can look into the conduct of the party in breach of the rule right from the time the writ was issued as an appeal in law is a continuation of the original cause of action. Ajayi v Omoregbe (1993) 6 NWLR (Pt. 310) 512 at 527. The Learned Justices of the Court of Appeal rightly considered the Appellant’s conduct in their ruling before dismissing the appeal of the appellant in this case.” – Per PETER-ODILI, JSC.
MISTAKE OF COUNSEL – CIRCUMSTANCES IN WHICH A LITIGANT MAY BE PUNISHED FOR MISTAKE OF HIS COUNSEL
“Again to be said is that the Appellant who had been negligent in prosecuting his appeal, cannot hide behind the principle that counsel’s inadvertence should not be visited on him. This is because that principle is not open ended and not available to the Appellant whose conduct in the Court below fell short of what is expected. I would take solace in the case of NNPC v Samfadek & Sons Ltd (2018) 7 NWLR (pt. 1617) 1 at 10-11 per Eko, JSC thus: “Where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant cannot escape such blunders committed by his counsel and his client would take full credit. Neither mischief, ineptitude nor strategic blunders are envisaged by the rule that inadvertence of counsel should not be visited on the litigant The rule cannot be applied to foist injustice on another party. Nor will the rule apply in a clear case of abuse of Court’s process as in the instant case, Akanbi v Alao (1989) 3 NWLR (Pt. 108) referred to.” In this case, the Court below did not fall for the pranks of the Appellant’s counsel law clerk who deposed to an affidavit claiming that the Appellant’s Chief Executive Officer had bad health conditions without attaching a medical certificate or giving cogent evidence for the non- prosecution of the appeal. The Appellant is a limited liability company who has other principal officers who could prosecute the appeal, but no reason was adduced why any of them did not do so or even explain their failure to furnish counsel with the requisite information for prosecuting the Appellant’s appeal. From all fronts, the Appellant has not only been careless or negligent but engaged in antics to overreach the 5th Respondent. See University of Lagos v Aigoro (195) 1 SC (1985) 1 NWLR (pt. 1) 143.” – Per PETER-ODILI, JSC
PRELIMINARY OBJECTION – MEANING AND NATURE OF A PRELIMINARY OBJECTION
“A Preliminary Objection is an objection that if upheld, would render further proceedings before a Court impossible or unnecessary – Black’s Law Dictionary, 9th Ed. See also Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421, wherein this held- An objection in law portrays a formal opposition of an objector against the happenings of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A Preliminary Objection seeks to provide an initial objection before the actual commencement of the thing being objected to.” – Per AUGIE, JSC
NOTICE(S) OF APPEAL – IMPORTANCE OF A NOTICE OF APPEAL – EFFECT OF A DEFECTIVE NOTICE OF APPEAL
“The importance of a notice of appeal is enormous as it is the substratum of the appeal, and if the notice of appeal is defective, it must be struck out on the ground that it is incompetent – see First Bank V. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247.”- Per AUGIE, JSC
INTERPRETATION OF STATUTE – PRINCIPLES OF INTERPRETATION OF STATUTES WHERE THE WORDS USED ARE CLEAR AND UNAMBIGUOUS
“It is also settled that where the language used in the legislation or statute or Constitution is clear, explicit, and unambiguous, the Court must give effect to it as the words used speak for themselves – see Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227.” – Per AUGIE, JSC.
LEAVE TO APPEAL – WHETHER LEAVE OF COURT IS REQUIRED TO FILE AN APPEAL AGAINST A COMPANY UNDERGOING LIQUIDATION – EFFECT OF FAILURE TO SEEK LEAVE
“The said Section 417 says: If a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the Company except by leave of the Court. The operative words therein, as far as this appeal is concerned, are – no action shall be proceeded with against the Company “except by leave of the Court”. The words used in Section 417 of CAMA “speak for themselves”, and it follows, therefore, that since the Appellant failed to obtain leave of Court before filing this appeal, the Notice of Appeal is incompetent, and it must be struck out. In the circumstances, this appeal commenced without the leave of Court being sought and obtained, is null and void.” – Per AUGIE, JSC.
JURISDICTION – IMPORTANCE OF JURISDICTION AND EFFECT OF PROCEEDINGS CONDUCTED WHERE COURT LACKS JURISDICTION
“Jurisdiction is a fundamental necessity for any adjudication and it is a threshold matter which has received judicial attention. See: Idisi vs Ecodriil (Nig.) & Ors. (2016) LPELR- 4048 (SC), where Nweze, JSC in reemphasizing the importance of jurisdiction said thus:
“In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing. Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is simply a nullity.”
” – Per ABOKI, JSC
CASES CITED
STATUTES REFERRED TO
Companies and Allied Matters Act, 1990 Companies and Allied Matters Act, 2020 Court of Appeal, Rules, 2016