AFROCATS NIGERIA COMPANY LIMITED & ANOR v. SKYE BANK PLC & ANOR
On Friday, the 8th day of December, 2017
CA/B/190/2010Before Their Lordships
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
Before Their Lordships
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. AFROCATS NIGERIA CO. LTD
2. AFROPLASTIC NIGERIA LTD –Appellants
AND
1. SKYE BANK PLC
(SUBSTITUTED BY ORDER OF COURT DATED 14/10/2015)
2. ALHAJI R.O. GIWA-OSAGIE –Respondents
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PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Lagos Division delivered on the 25th day of April, 2007, wherein His lordship entered judgment in favour of the Respondents who were Plaintiffs in that Court.
It is imperative to note that this matter was filed at the Federal High Court, Benin City and Hon. Justice I.N. Auta commenced hearing of the matter before he was transferred to the Lagos Division. His Lordship had to conclude the matter at the Lagos Division upon a Fiat issued to that effect.
SUMMARY OF RELEVANT FACTS
The facts giving rise to this appeal as gleaned from the record of appeal are as follows: by a Deed of Debenture dated 10th day of December, 1996 the 1st Respondent then known as Afri Bank Plc extended a loan facility to the 1st Appellant to the tune of Sixty Million Naira. The 2nd Appellant was surety to the loan. While the 1st Respondent contends that the entire amount was drawn down, the 1st Appellant on its part said only Forty Million Naira was drawn down.
According to the Appellants, as at 30th day of June 1999, the Appellants were indebted to the 1st Respondent to the tune of N36,202,020.46. Following a series of demands, both in writing and orally, the 1st Respondent in exercise of its powers under the Deed of Debenture appointed the 2nd Respondent as Receiver as regards the assets of the 2nd Respondent.
By a writ of Summons dated 4th day of November, 1999 the Respondents as Plaintiffs instituted a suit at the Federal High Court Benin Division claiming some declaratory and injunctive reliefs principally for the Court to declare that they have the powers to appoint the 2nd Respondent as Receiver and to restrain the Appellants from interfering with the duties of the 2nd Respondent. The suit was heard, on the part of the Respondents, on the basis of a Statement of Claim dated 20th day of April, 2002 and an Amended Reply dated 22nd day of November 2006. On its part, the Appellants filed a further Amended joint statement of defence dated 3rd day of October 2006.
At the hearing of the matter, both parties called two witnesses and counsel filed written address. In a considered judgment, the Hon. Judge entered judgment for the Plaintiffs/Respondents. The instant Appeal is an off shoot of the said judgment.
By an Amended Notice of Appeal dated 29th day of October, 2015 but filed on 3rd day of November 2015, the Appellants filed the following Grounds of Appeal. The Grounds of Appeal are reproduced hereunder, though without their particulars:
GROUND ONE:
The learned judge of the lower Court erred in law by failing to take cognizance of the oral and documentary evidence adduced by the Defendants/Appellants to show that the 1st Defendants/Appellants had repaid a sum in excess of the sum claimed by the 1st Plaintiff/Respondent before the purported appointment of the 2nd Plaintiff/Appellant as a Receiver/Manger.
GROUND TWO:
The learned judge of the lower Court completely misconstrued the provisions of clauses 10 and 11 of Exhibit A (the Deed of Debenture) and wrongly held that The 2nd Plaintiff is therefore rightly appointed as a Receiver/Manager of the 2nd Defendant
GROUND THREE:
The learned judge of the lower Court erred in law when he held that The Court is in total agreement with the submission of the Plaintiff counsel that the 1st Plaintiff can enforce the provisions of Exhibit A despite the fact that it did not execute the document but executed in its favour by the Defendant.
GROUND FOUR:
The learned judge of the lower Court erred in law when he admitted Exhibit E in evidence and ascribed the status of an admission of the alleged indebtedness to the document.
GROUND FIVE:
The learned judge of the lower Court erred in law when he held that the lower Court had jurisdiction to entertain the case.
GROUND SIX:
The learned judge of the lower Court was biased against the Appellants and their counsel.
GROUND SEVEN:
The learned judge of the lower Court erred in law when he held that I have considered the reply filed by the Defendants and find that they are not replies on point of law or on issues raised by the Plaintiff in his final address. The Court therefore will not consider them in this judgment, they are accordingly struck out.
From the above Grounds of Appeal, the Appellants distilled the following issues for determination:
One: Whether a proper evaluation of the oral and documentary
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evidence adduced on behalf of the Appellants would not have shown that the 1st Appellant had repaid a sum of money in excess of the amount claimed by the 1st Respondent before the appointment of the 2nd Respondent as a Receiver/Manager (Ground 1).
Two: Whether or not the 2nd Respondent was validly appointed as a Receiver/Manager of the 1st Appellant under and by virtue of the Deed of Debenture (Exhibit A) Ground 2.
Three: Whether the lower Court was right in concluding that the 1st Respondent could enforce the provisions of Exhibit A despite not being a party thereto and not having executed same (Ground 3).
Four: Whether the lower Court was right when he admitted Exhibit E in evidence and ascribed the status of an admission of the alleged indebtedness to the document (Ground 4).
Five: Whether the trial Court was right in holding that it had jurisdiction to entertain the case (Ground 5).
Six: Whether it was not a misdirection which occasioned a miscarriage of justice for the trial Court to hold that the Reply filed on behalf of the appellants was incompetent (Ground 7).
On its part, the Respondents in a Brief of
Argument dated 1st day of April 2017, filed on 7th day of April, 2017 but deemed as properly filed on 10th day of April 2017, distilled two issues for determination, to wit:
One: whether or not the trial Court was right when it held that the Respondents were entitled to judgment (Grounds 1,2,3,4 and 7).
Two: Whether or not the trial Court had jurisdiction to hear and determine the Respondents??? case.
NOTICE OF PRELIMINARY OBJECTION:
The Respondents in their Brief of Argument raised a preliminary objection predicated on two issues, (a). That ground one and issue one raised from it does not relate to or arise from the judgment of the trial Court; (b) Particular (b) of ground 5 of the Notice of Appeal is incongruous.
Arguing the first point, learned counsel to the Respondents contended that Ground one of the Appellants Notice of Appeal did not attack/challenge the judgment of the trial Court. He opined that Ground one has no bearing whatsoever to the judgment being appealed against. Counsel cited the cases of AKPAN V. BOB (2010) 17 NWLR (PT.1223) 421 @ 464 to highlight the instances from which a ground of Appeal can arise.He submitted that Ground one of the Notice of Appeal neither challenged the inaction or omission of the Court nor does it arise from the text of the decision appealed against, or from the procedure under which the decision was rendered.
Arguing further, learned counsel stated that the issue of whether oral and documentary evidence showed that the Appellants paid a sum in excess of that claimed before the appointment of 2nd Respondent as Receiver/Manager was never canvassed at the lower Court nor was it pleaded by the Appellants.
Flowing from the submission above, counsel cited AMADI V. ORISAKWE (1997) 7 NWLR (PT.511) 161 @ 170, and GARUBA V. OMOKHODION (2011) 14 NWLR (PT.1269) 145 @ 177 to urge that issue one distilled from Ground one be dismissed as incompetent.
Proffering argument on the second point of objection, learned counsel to the Respondents contended that the essence of particulars in a ground of Appeal is to highlight the complaint and clarify it. He stated that a particular must not be independent of, rather it should be ancillary to the Ground of Appeal. Counsel submitted that the particulars in question are incongruous with Ground 5 which is challenging the jurisdiction of the lower Court. Learned counsel cited many authorities including HONIKA SAWMILL (NIG) LTD V. HOFF (1994) 2 NWLR (PT.326) 251 @ 262 and urged the Court to strike out particulars (b) of Ground 5 for being incompetent.
Reacting to the preliminary objection, the Appellant in a Reply Brief dated 25th day of May 2017, filed on 31st day of May, 2017 but deemed as properly filed on 4th day of July, 2017 argued that the preliminary objection is misconceived. Counsel contended that the Ground of Appeal in question is challenging the failure of the trial judge to evaluate the evidence of the Appellants witnesses as regards payments made via Exhibits P-P10.
Relying on the case of BOB V. AKPAN (supra) cited by the Respondents, learned counsel for the Appellants contended that Ground one is competent as it challenged the omission of the Court to evaluate evidence adduced before it. Counsel called in aid the case of FIRST BANK OF NIGERIA PLC. V. T.S.A. INDUSTRIES LTD. (2010) 15 NWLR (PT.1216) 247 @ 291-292 to buttress the point that failure of the Court to discharge its duty in considering and pronouncing on the issues raised entitles the aggrieved party to appeal.
Learned counsel summed up his argument by citing UWAZURUIKE V. NWACHUKWU (2012) LPELR 15353 to the effect that a Ground of Appeal that is not capable of misleading the other party and the Court is competent if its meaning can be reasonably elicited, and cannot be considered objectionable.
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Counsel to the Appellants also stated that the gist of the second ground is the view held by the trial Court that the case involved appointment of a Receiver and the issue of Debenture which conferred jurisdiction on the Federal High Court. Counsel submitted that particular (b) of ground 5 is competent as in the absence of valid appointment of a Receiver, the matter would be that of Banker/Customer relationship, wherein the Federal High Court would not have jurisdiction.
Counsel again submitted that since the objection, even if it succeeds, would not affect the entire appeal, the proper procedure would have been for the Respondents to file notice of motion. Counsel cited AUDU & ANOR. V. GIDEON & ANOR (2015) 12 NWLR (PT. 1474) 495 @ 514-515 and a host of other cases in support of this contention. He urged the Court to dismiss the objection as misconceived.
OPINION ON THE NOTICE OF PRELIMINARY OBJECTION:
On the first point raised by the Respondents, I quite agree with the proposition that a ground of Appeal must challenge the judgment but it is not the law that a ground of Appeal must reproduce verbatim the words of a judgment. The various instances where a ground of Appeal can be raised were aptly captured in Oguefi v. A.S.E.C.(2011) ALL FWLR (PT.603) 1873 @ 1901 @1902 PARAS G-C, where it was held inter alia thus though a ground of appeal must stem from the text of the judgment (ipsissima verba) and this by no means limits the scope of a ground of appeal. A ground of appeal can arise in a number of situations such as the following: a) from the text of the decision appealed against. b) from the procedure under which the claim was initiated. c) from the procedure under which the decision was rendered. d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates, or e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even over doing the act complained of.
An appraisal of the above cited authority and those cited by the Respondent, shows without doubt that ground one of the Appellants grounds of Appeal is competent and the issue distilled from it is also competent. The objection of the Respondent on this score is therefore misconceived and accordingly struck out.
On the second point, I agree with the learned counsel for the Appellant that the particulars in question shed light on the Ground of Appeal. Even though it was drafted inelegantly, that does not, in my view make it incompetent. The Respondent was not misled in any way as to the complaint of the Appellant in this ground of Appeal. This objection, in my view is without merit and totally misconceived. The preliminary objection is hereby dismissed.
ARGUMENT ON THE ISSUES:
Issue one: whether a proper evaluation of the oral and documentary evidence adduced on behalf of the Appellants would have shown that the 1st Appellant had repaid a sum of money in excess of the amount claimed by the 1st Respondent before the appointment of the 2nd Respondent as a Receiver/Manager.
Learned counsel to the Appellants in arguing this issue stated that it is the duty of Court to properly evaluate the evidence before it and improper or non-evaluation of evidence will lead to a miscarriage of justice. Counsel also submitted that the Court misapprehended the Appellants’case which was that a sum in excess of the amount drawn down was repaid by the 1st Appellant to the 1st Respondent before the purported appointment of a Receiver.
Counsel contended that if the trial Court had done a proper evaluation of evidence, it would not have reached the conclusion, as it did, that the defendants denied liability and claimed that they had repaid the loan in full without tendering any document, in view of Exhibits M-M10 and/or Exhibit N, P-P10; and Exhibits H-H7. Counsel submitted that it is the duty of Court to consider the totality of the evidence adduced by or on behalf of a party, including evaluation of documentary evidence. On this counsel cited MOHAMMED V. ABDULKADIR & 73 ORS(2008) 4 NWLR (PT.1076) 111 @ 156.
Arguing further, counsel quoted excerpts from the judgment, as well as x-rayed evidence by witnesses and submitted that the trial judge abdicated his duty of evaluation of evidence, but placed reliance on Exhibit D in spite of the fact that some repayments were not captured in Exhibit D. Counsel pointed out that the claim of the Respondents was merely for declaratory reliefs and no where did they seek a declaration that the Appellants are indebted to them, contrary to the conclusion of the judge at page 111 of the records.
Learned counsel noted that in spite of issues being joined on the actual amount drawn down ( i.e whether 60million as claimed by the Respondents, or 40 million claimed by the Appellants) the trial judge did not deem it worthy of consideration in his judgment. Counsel cited MUSA V. CHRISTLIEB PLC (2000) 12 NWLR (PT.680) 145 @ 154-155 PARAS H-A on the point that a trial Court should evaluate and ascribe probative value to documents which it has admitted in evidence, and that a written receipt is not the only means of proving payment in our law. Counsel concluded by urging the Court to resolve the issue in favour of the Appellants.
Reacting to this issue, learned counsel to the Respondents after highlighting the evidence of the parties stated that the Appellants did not specifically controvert the amount stated on Exhibit D but only argued that other antecedent transactions between the 1st Respondent and 1st Appellant were not stated on it. Relying on the cases of OBITUDE V. ONYESOM COMM. BANK LTD. (2014) 9 NWLR (PT.1412) 381; TAHIR V. J. UDEAGBALA HOLDINGS LTD (2004) 2 NWLR (PT.857) 438, and THOR LTD V. F.C.M.B. LTD. (2005) 14 NWLR (PT.946) 696 @ 716counsel submitted that it is not enough for the Appellants to merely deny the claim or aver that some payments made were not taken into account. That they ought to have tendered an alternative statement of account or set out the details and particulars of the payment in their defence.
On the point that Exhibit D was not properly admitted, premised on the case of YESUFU V. A.C.B. (1976) 1 ALL NR 264 @ 272 counsel submitted that the evidence of PW1 substantially complied with the provisions of Section 89 (1) of the Evidence Act as regards the admissibility of Exhibit D.
Issue two: Whether or not the 2nd Respondent was validly appointed as a Receiver/Manager of the 1st Appellant under and by virtue of the provision of the Deed of Debenture.
Issue three: Whether the lower Court was right in concluding that the 1st Respondent could enforce the provisions of Exhibit A despite not being a party thereto and not having executed same.
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Learned counsel for the Appellants argued issues two and three together and contended that a party cannotacquiese to or alter the illegal status of an act not founded on any law, thus the acknowledgement of the 2nd Respondent by the Appellant does not legitimize the appointment. Counsel called in aid CERAMIC MANUFACTURING NIG. PLC V. N.I.D.B. (1999) 1 NWLR (PT.627) 385 @ 394 to drive home the point that the appointment of a receiver can only be made under a power contained in the debenture between the parties.
Arguing further on this point, counsel submitted that there is no Deed of Debenture between the Appellants and the 1st Respondent and that there is no provision for the appointment of a Receiver in the Deed of Debenture (Exhibit A). Counsel stated that the 1st Respondent is a stranger to the contract. He cited A.G. FEDERATION V. A.I.C. LTD (2000) 10 NWLR (PT.675) 293 @ 306, 314 to the effect that a contract affects the parties to it and cannot be enforced by or against a person who is not a party even if the contract is made for his benefit. Counsel opined that what is contemplated by the Deed of Debenture is the appointment of a Receiver for the Appellants by a third party and not by the 1st Respondent. Learned counsel cited PONSON ENTERPRISES (NIG) LTD V. NJIGHA (2000) 15 NWLR (PT.689) 46 @ 61 and stated that by the nature of the reliefs claimed by the Respondents at the Court below, there was need for them to have filed an affidavit of suitability stating the facts and circumstances from where the Court can glean the suitability or otherwise of the appointment of the 2nd Respondent as a Manager/Receiver. Counsel opined that failure to file the aforesaid affidavit was fatal to the case of the Respondents.
Learned counsel for the Appellants summed up argument on these issues by submitting that the appointment of a Receiver cannot be lawful or legally justified without an express provision in a contract between the parties authorizing such appointment. He cited NIGERIAN BANK FOR COMMERCE AND INDUSTRY & ANOR. V. ALFIJIR (MINING) NIG.LTD (1999) 14 NWLR (PT.368) 176 @ 202.
Learned counsel for the Respondent reproduced Clauses 10 and 11(vii) of Exhibit A and went on to submit that the conditions envisaged in Clauses 10 and 11 had arisen for the 1st Respondent to exercise its power to appoint the 2nd Respondent as a Receiver/Manager over the plants and machinery of the Appellants.
On the privity of contract and the appointment of the 2nd Respondent as Receiver, learned counsel for the Respondents referred to paragraph 2 of the Further Amended Joint Statement of Defence, which was admitted in paragraph 1 of the Amended Reply and stated that parties are bound by their pleadings. Counsel contended that having admitted the existence of a contract between the Appellants and the 1st Respondent, they cannot turn around and disown same in their brief. Counsel cited AJIDE V. KELANI (1985) 3 NWLR (PT.12) 248 @ 269 to the effect that a party should be consistent in stating and proving his case. Counsel submitted that the fact of privity of contract was not in issue, and cited authorities as to when facts can be said to be in issue.
Counsel further cited Section 81(1) of the Property and Conveyance Law 1959 as applicable to Edo State, and referred to the view of Prof. I.E. Sagay in the Book, Law of Contract (First Edition, Spectrum Law Publishers, 1991) at Page 432 to the effect that a third party not named in a contract can enforce it if same is made for his benefit. Counsel submitted that Exhibit A as an executed guarantee makes the Appellants liable to the Respondents for the unpaid debts. Counsel contended that the 1st Respondent having furnished consideration under Exhibit A and being beneficiary of the Deed of Debenture, they were legally justified to have taken steps under Exhibit A to appoint 2nd Respondent to recover the money lent to the 1st Appellant. Learned counsel cited AWOJUGBAGBE LIGHT INT. LTD V. CHINUKWE (1995) 4 NWLR (PT. 390) 379 @ 393 and CHIDOKA V. F.C.F.C. LTD (2013) 5 NWLR (PT.1346) 144 @ 174-175 to buttress the point that it is reprehensible to denounce a contract after taking benefit from same.
Moreover, learned counsel stated that having acknowledged the 2nd Respondent as a Receiver, the Appellants have waived their rights and therefore cannot approbate and reprobate at the same time. Counsel highlighted that the issuance of cheques (Exhibits H-H7) to liquidate the Appellant’s indebtedness to the 1st Respondent is nothing but an admission of the claim of the Respondents and the Receivership. Counsel cited DALA AIR SERVICES V. SUDAN AIRWAYS (2005) 3 NWLR (PT.912) 394@ 411 in support of this contention.
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Issue four: whether the lower Court was right when he admitted Exhibit E in evidence and ascribed the status of admission of the alleged indebtedness to the document.
Learned counsel for the Appellants set the tune for argument of this issue by citing UNILIFE DEV. CO. LTD. V. ADESHIGBIN & 4ORS (2001) 4 NWLR (PT.704) 609 @ 626 to the effect that instruments are to be construed harmoniously and not disjunctively. Counsel contended that Exhibit E was made without prejudice and during the pendency of this suit. Reference was made to Sections 91(3) and 25(1) of the Evidence to show that any document made during the pendency of a matter, and offer of compromise made without prejudice cannot be given in evidence against a party as admission. Counsel called in aid FAWEHINMI V. NBA (NO. 2) (1989) 2 NWLR (PT.105) 558 @ 622 and ASHIBUOGWU V. A.G. BENDEL STATE (1988) 1 NWLR (PT.70) 168-170 on this point.
Learned counsel further opined that admissions are not conclusive proof of the matters allegedly admitted and to operate as estoppels, the beneficial party must not only rely on the said admission but must have acted upon it to his prejudice or have altered his position. The case of EHIDIMHEN V. MUSA (2000) 8 NWLR (PT.669) 540 @ 556 was referred to, and counsel contended that the Respondent did not act on the contents of Exhibit E to their prejudice. He further reiterated that Exhibit E was not an unqualified admission in the circumstance of the case and further contended that Exhibit E is a draft document of a meeting which the Respondents’ representative did not sign. Counsel referred to A.G. KWARA STATE & ANOR. V. ALAO & ANOR. (2000) 9 NWLR (PT.671) 84 @ 104in support of the point that a draft document has no probative value.
Lastly on this issue, counsel cited MOBIL OIL NIG LTD. & ANOR V. NATIONAL OIL & CHEMICAL MARKETING CO. LTD & ANOR (2000) 9 NWLR (PT.671) 44 @ 52 to the effect that the binding effect of the minutes of a meeting must find expression in the parties that attended the meeting signing such minutes.
On the part of the Respondents, this issue was argued under issue one at paragraph 5.28 under the heading: admissibility of Exhibit E in evidence and the ascription of status of admission of indebtedness to same by the trial Court. Arguing this issue, learned counsel stated that Exhibit E was pleaded and duly admitted in evidence. He further stated that DW1 accepted under cross examination to have signed Exhibit E, and that on the face of the document, there is no expression without prejudice. Counsel contended that Exhibit E is admission against interest; he referred to Section 21(3) of the Evidence Act, and Order 31 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2000 on the effect of such an admission.
Counsel stressed that the Appellants did not produce any alternative minutes to counter the one they alleged was a draft and summed up by stating that there is no evidence that DW1 executed Exhibit E under duress, undue influence, fraud and/or under misinformation or misrepresentation of facts.
Issue five: Whether the trial Court was right in holding that it had jurisdiction to entertain the case.
Learned counsel for the Appellants contended that since the Receiver was not properly appointed, the instant case is not part of the ones set out in Section 251 of the Constitution, hence the Federal High Court does not have jurisdiction. He made reference to Section 209 (1) of Companies and Allied Matters Act and submitted that the Respondents did not fall within the category of persons that can appoint a Receiver.
In conclusion, counsel cited UMOREN V. AKPAN (2008) 16 NWLR (PT.1113) 223 @ 225 PARA C-E to submit that where a Court lacks jurisdiction over a matter, it has no jurisdiction to pronounce or determine on the rights of the parties therein.
On their part, the Respondents argued this issue as their issue no. two. Learned counsel to the Respondents submitted that the case borders on appointment of Receiver and breach of the Deed of Debenture. He contended that this falls within the scope of Sec 251(e) of the Constitution. Counsel cited ADETONA V. I.G. ENT.LTD (2011) 7 NWLR (PT.1247) 535 @ 551, 570 to the effect that jurisdiction of Court is determined by the claim of the plaintiff.
Learned counsel x-rayed the pleadings of the Respondents as Plaintiffs and submitted that the main relief sought by the Respondents was the confirmation of the 2nd Respondent as Receiver, and injunction restraining the Appellants from interfering with his duties. Referring to Section 7(1)(e) of the Federal High Court Act, counsel submitted that the Federal High Court has jurisdiction in such instance. Counsel called in aid NASHTEX INT’L LTD V. HABIB (NIG) BANK LTD(2007) 17 NWLR (PT. 1063) 308 @ 332; and Sections 393-400 of Companies and Allied Matters Act in support of his contention. Finally counsel urged the Court to resolve this issue in their favour.
Issue No. Six: Whether it was not a misdirection which occasioned a miscarriage of justice for the trial Court to hold that the Reply filed on behalf of the Appellants was incompetent.
In his argument, counsel to the Appellants after highlighting the points addressed in the Reply on points of law submitted that the trial judge erred when he struck out the process. Counsel cited ABDULKARIM V. ANAZODO(2006) 11 NWLR (PT.991) 299 @ 323 PARA E-F on the need for the Court to hear the parties before taking decisions. Learned counsel
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also referred to Black’s Law Dictionary 7th Edition and OGBORU V. IBORI (2005) 13 NWLR (PT.942) 319 @ 380 PARA F-G on the meaning and function of Reply Brief. He summed up argument on this issue by stating that the non consideration of the issues raised in the reply occasioned a miscarriage of justice.
On their part, the Respondents submitted that the said reply on points of law was used by the Appellants to reopen their case all over. Counsel cited YARO V. AREWA CONST. LTD (2007) 17 NWLR (PT.1063) 333 @ 367 on the purpose of reply brief.
Counsel concluded by maintaining that the Appellants have not shown any miscarriage of justice as a result of the alleged non consideration of the reply on points of law.
OPINION:
Having gone through the grounds of Appeal and the issues distilled by both parties, two main points in my view will effectively determine this appeal. The points are: a) whether the 2nd Respondent was validly appointed as a receiver; b) whether the lower Court had jurisdiction to hear and determine the matter.
On the first point, learned counsel for the Appellants argued strenuously that the Appellants had repaid the loans before the appointment of the 2nd Respondent making his appointment void. Counsel also contended that the 1st Respondent is a stranger to the Deed of Debenture and therefore cannot enforce same. In my view, these contentions of learned counsel are not borne out by the records. It is my view that the judge was on solid grounds when he found as a fact that the Appellants were still indebted to the 1st Respondent. It is elementary law that he who asserts must prove. The Appellants were asserting that they have repaid the loan which they took from the 1st Respondent, but a careful perusal of the pleadings and evidence at the lower Court reveals otherwise. The finding of the lower Court that the Appellants were still owing is not perverse, and in my view there is no basis for this Court to interfere with same, see IZE-IYAMU V. ALONGE (2007) ALL FWLR (PT.371) 1570 @ 1595-1596 PARAS H-A.
The conditions for upturning findings of facts were elaborately stated in SOKWO V. KPONGBO (2008) ALL FWLR (PT.410) 680 @ 708 PARAS B-C; I must confess that none of those conditions exists in this appeal.
As regards the argument that the 1st Respondent cannotenforce the Deed of Debenture, I must say that the contention is misconceived. The basis of the 1st Respondent lending money to the Appellants was the Deed of Debenture, it therefore goes without saying that it can enforce it. Flowing from this, is the point that since the Appellants were still owing as found by the Court below, the only means by which the 1st Respondent can recover its money is by exercising the powers stated in the Deed of Debenture which is the appointment of a receiver. In the peculiar circumstance of this case therefore, I am of the view that the 2nd Respondent was validly appointed.
This point without doubt addresses the issue of whether Exhibit E was validly admitted or not. The learned counsel for the Appellant has made heavy weather over the Court hinging its finding of indebtedness on Exhibit E. On this point, an appellate Court is only concerned with the veracity of the judgment appealed against. Where the judgment of the Court is right but the reasons are wrong, the appellate Court does not interfere except where the misdirection has caused the Court to come to the wrong conclusion. See JIKANTORO V. DANTORO(2004) ALL FWLR(PT.216) 390 @ 415 PARAS C-E.
In my view therefore, the 2nd Respondent was validly appointed as found by the lower Court. There is no reason to interfere with the finding. This point should therefore be resolved in favour of the Respondents.
On the second point, it is without doubt that it is the claim of the plaintiff that determines the jurisdiction of the Court. To this end, to determine whether the Court below had jurisdiction to entertain the matter, recourse ought to be made to the claim of the Respondents. The claim of the Respondents is predicated on appointment of a receiver and Deed of Debenture. This without doubt is hinged on the operation of the Companies and Allied Matters Act. The Federal High Court is therefore the appropriate Court to hear and determine the matter. The contention of the learned counsel for the Respondents on this is apposite. It is trite that jurisdiction is a question of law, see OGAGA V. UMUKORO (2012) ALL FWLR (PT.614) 41 @ 63-64 PARAS H-A. In addition, Courts are creation of statutes and it is the statute that confers jurisdiction on a Court, MADUAFOKWA V. ABIA STATE GOVT.(2010) ALL FWLR (PT.516) 563 @ 582 PARAS B-C. In my humble view, the claim of the Respondents is within the purview of the jurisdiction of the Federal High Court, and the Court below rightly assumed jurisdiction.
In the final analysis, I am of the view that this appeal lacks merit and it ought to be dismissed. Accordingly, the Judgment of the Federal High Court delivered on the 25th day of April 2007 is affirmed.
I make no order as to costs. Parties are to bear their own costs.
JIMI OLUKAYODE BADA, J.C.A.: I have read in draft the judgment just delivered by my learned brother PHILOMENA MBUA EKPE, J.C.A.
I agree with his lordship’s reasoning and conclusion that the appeal lacks merit and ought to be dismissed.
The appeal is dismissed by me.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, PHILOMENA MBUA EKPE, JCA. I agree with the reasoning and conclusion contained therein. I also hold that the appeal lacks merit and it is hereby dismissed. I abide by the consequential orders made in the leading judgment including order as to
Appearances
H. D. Irabor. Esq-For Appellant
AND
I. Imadegbelo, SAN with him, J. E. Igumah, Esq. for the 1st and 2nd Respondents.-For Respondent
Appearances
ABIOLA & SONS BOTTLING COMPANY NIGERIA LIMITED & ANOR v. FIRST CITY MERCHANT BANK LIMITED & ORS.
On Friday, the 19th day of April, 2013
SC.88/2005Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
STANLEY SHENKO ALAGOA Justice of The Supreme Court of Nigeria
Between
Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
STANLEY SHENKO ALAGOA Justice of The Supreme Court of Nigeria
Between
1. ABIOLA & SONS BOTTLING COMPANY NIGERIA LIMITED
2. SAMUEL ABIOLA & SONS COMPANY NIGERIA LIMITED –Appellants
AND
1. FIRST CITY MERCHANT BANK LIMITED
2. ADEMOLA SOMORIN ESQ. F.C.A
[TRADING UNDER THE SAME NAME AND STYLE OF ADEMOLA SOMORIN & COMPANY] 3. SEVEN-UP BOTTLING COMPANY PLC. –Respondents
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IBRAHIM TANKO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The 1st plaintiff at the Kwara state High court of Justice, holden at Offa [trial court] is a limited liability company carrying on the business of manufacture of and dealers in all kinds of soft drinks. The 2nd plaintiff is also a limited liability company carrying on principally the business of building, civil and electrical contractors, saw-milling industry etc. The 1st defendant is also a limited liability company carrying on the business of banking while the 2nd defendant is a Chartered Accountant. The 3rd defendant, as its name suggests, is a limited liability company incorporated to manufacture or brew 7-Up soft-drinks.
“[i] A DECLARATION that the purported unstamped DEBENTURE DEED dated the 22nd day of November, 1986 between the 1st and 2nd Plaintiffs as “the compan”‘ AND the 1st Defendant as “the bank” is meaningless, worthless, unenforceable, illegal, null and void and of no effect whatsoever,
[ii] A DECLARATION that the appointment by the 1st Defendant of the 2nd Defendant as a RECEIVER/MANAGER pursuant to the unstamped DEBENTURE DEEDS dated 27th November, 1986 to take over the physical control and sell off all the assets of the Plaintiffs etc, was/is premature, hasty, illegal, null and void and of no effect whatsoever.
[iii] A DECLARATION that even if the unstamped DEBENTURE DEED dated 27th day of November, 1986 is irregular, the 1st Defendant cannot appoint any DEBENTURE DEED to sell off the plaintiffs’ assets or properties without giving adequate notices to each of the plaintiffs and that the appointment by the 1st Defendant of the 2nd Defendant to sell off the plaintiffs’ assets/properties without any notice at all being given to the 2nd plaintiff before, during or after the said appointment is irregular, illegal, null and void and of no effect whatsoever;
[iv] A DECLARATION that the sale of the 1st Plaintiff’s properties situate, lying and being at ASA DAM ROAD, ILORIN and covered by Certificate of Occupancy No.KW3065 and registered as No.6 at page 6 in volume viii [Certificate of Occupancy] of the Land registry at Ilorin to the 3rd defendant is dishonest, suspicious, illegal, null and void and of no effect whatsoever;
[v] A DECLARATION that the sale by the 1st defendant to the 3rd defendant of the 1st plaintiff’s aforementioned properties is in flagrant violation of the provisions of the AUCTIONEERS LAW [Cap. 10] Laws of Northern Nigeria applicable to Kwara State and is therefore null and void and of no effect whatsoever;
[vi] A DECLARATION that all the actions, steps and decisions taken so far by the 2nd defendant in respect of the assets of the plaintiff under the purported unstamped DEBENTURE DEED dated 27th November, 1986, without due reference or accounting to the Registrar of Companies of the Companies Registry at Lagos or at Abuja are irregular, arbitrary, dishonest, suspicious, illegal, null and void and no effect whatsoever;
[vii] A DECLARATION that the sale, alienation, transfer or lease of the 1st plaintiff’s landed property situate, lying and being at ASA DAM ROAD, ILORIN and covered by Certificate of Occupancy NO. KW3065 dated 16th May, 1979 by the 2nd defendant to the 3rd defendant without the prior consent [or any consent whatever] of the Military Governor of Kwara State is illegal, null and void and of no effect whatsoever;
[viii] A DECLARATION that the 1st defendant has no right or power to debit the 1st plaintiff’s account for sundry and numerous expenses incurred by it or any of its agent in respect of or in connection with the sale of the 1st plaintiff’s properties;
[ix] AN ORDER setting aside:
[a] The purported unstamped DEBENTURE DEED dated 27th November, 1986 between the plaintiffs and the 1st defendant;
[b] The appointment by the 1st defendant of the 2nd defendant as a DEBENTURE DEED to take physical control of the assets and properties of the plaintiff mentioned in the said DEBENTURE DEED of the 2nd defendant’s letter of appointment [if any];
[c] The sale[s], transfer, alienation etc, of the 1st plaintiff’s properties or assets made by the 2nd defendant to the defendant.
[x] AN ORDER setting aside all interest rates excess of the prevailing banking interest rate as at 26th November, 1986 charged by the 1st defendant on the 1st plaintiff’s account:
[xi] AN ORDER setting aside all debits made against the plaintiff’s account by the 1st defendant in respect of all the or any of the expenses incurred by the 1st defendant or any of 1st agents pursuant to the sale of the 1st plaintiff’s properties;
[xii] AN ORDER directing the defendants either jointly and/or severally to make full restitution of all the 1st plaintiff’s assets and /or properties in the perfect and/or same conditions in which they were before the 1st defendant purportedly transferred or sold them to the 1st defendant;
[xiii] A sum of N1,872,000 [One million, eight hundred and seventy-two thousand naira] only per month being loss of minimum net profit/ income on the 1st plaintiff’s properties and assets taken over by the defendants from the 1st day of November, 1987 until the day judgment is delivered in this case and thereafter until the defendants deliver possession to the plaintiffs;
[xiv] A sum of N10 million naira [Ten million Naira] being damages for the illegal and arbitrary take-over of the plaintiffs’ properties by the defendants and the denial by the defendants of the plaintiff’s right of access or entry to their premises;
[xv] AN ORDER of perpetual injunction restraining the defendants either jointly or severally or either by themselves, servants, agents or privies or through any person howsoever from further holding-on-to or seizing or asserting authority and control over any of the plaintiffs’ properties covered by the purported unstamped DEBENTURE DEED dated 27th November,
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1986″ In their joint further amended statement of defence the defendants counterclaimed as follows:
“[1] Declaration that the plaintiffs’ claim concerning the management, dealing with disposal of the 1st plaintiff’s property in the hands of the receiver/manager is a matter arising from the operation of the Company’s [sic] Act and the High Court of Justice of Kwara State lacks jurisdiction.
[2] An order striking out all the plaintiffs’ claim relating to the sale, transfer and disposal of the 1st plaintiff’s property by the 1st defendant/counter-claimer.
A declaration that the loan agreement and debenture deed entered into by the plaintiff and the 1st defendant/counter-claimer is valid, legal and binding on the parties”.
After full hearing, the learned trial judge granted the 1st plaintiffs claims except the relief on sub-paragraph [ii], which was abandoned and struck out. In respect of the 2nd plaintiff, the learned trial judge declined to award anything as loss of profits/income as there was no claim for it by the 2nd plaintiff. The learned trial judge dismissed the defendants’ counter claim in its entirety.
Dissatisfied, the defendants appealed to the Court of Appeal, Ilorin Division [court below]. There was a preliminary objection filed by the plaintiffs/respondents at the court below. The preliminary objection was taken by way of motion on notice. It was moved accordingly. The court below over-ruled the objection. The court below then went into the merit of the appeal. It was however confronted with the issue of jurisdiction of the trial court that the subject matter of the plaintiffs’ action involved a civil cause or matter pertaining to the operation of the Companies and Allied Matters Act. The court below found merit in that issue which it resolved in favour of the defendants as appellants before it. The court below added a rider in the following words:
“Ordinarily this would have been the end of the matter. But then, this is not the Final Court. In the event that the Supreme Court finds that I am wrong in my view on the issue of jurisdiction they ought to have my views on the other issues canvassed so that a rehearing on them by this court would not be rendered necessary.”
The court below, per IKONGBE, JCA [as he then was but now late], went on to discuss extensively the remaining issues which he found in favour of the defendants/appellants and allowed the appeal by setting aside the decision of the trial court and dismissing the plaintiffs’ action in its entirety.
Dissatisfied, the plaintiffs/respondents and now appellants appealed to this court. The defendants/appellants and now respondents also cross-appealed against the said judgment.
Briefs as usual were settled by the parties. In their brief, the appellants set out the following issues for determination:
“[3.01] Whether in the circumstance if this case, the learned Justices of the Court of Appeal erred in law when they over-ruled the Respondents/Appellants’ preliminary objection in its entirety. [Grounds 1, 2 and 3].
[3.02] Whether having regard to the circumstances of this case, the learned Justices of the Court of Appeal erred in law when they held that the trial High Court had/has no requisite jurisdiction to hear and determine the plaintiffs [now appellants] suit/claims vide Decree No.60 of 1991. [Grounds 4 and 5].
[3.03] Whether the lower court of Appeal erred in law when it resolved the issue of validity or otherwise of the Deed of Debenture tendered as EXHIBIT 1 in favour of the appellants/respondents and whether the issue of validity or otherwise or EXHIBIT 1 was raised timeously. [Grounds 6, 7, 8, and 9] [3.04] Whether having regard to the circumstances of this case, PW1 can be classified and/or referred to as “A PERSON INTERESTED” when he prepared EXHIBITS 34 and 36 respectively as held by the Court of Appeal. [Ground 16] [3.05] Whether the Court of Appeal was right and proper in its decision when it held that:
“The failure, if any by the 2nd defendant/appellant to register his instrument of appointment or to make the requisite returns did not relate back to adversely affect his otherwise valid appointment.” [Grounds 10 and 11] [3.06] Whether the Court of Appeal rightly and properly considered the relevancy and/or applicability of the provisions of Auctioneers Law and Land Use Act in the circumstance of this case. [Grounds 12, 13, 14 and 15] [3.07] Whether the judgment of the Court of Appeal is against the weight of evidence in the circumstances of this case. [Grounds 17] The appellants shall argue the issues in order in which they are arranged and/or seriatim”
From the respondents’ own side, although it is nowhere clearly stated, what I decipher from the arguments contained in part ‘A’ of the brief is that the respondents adopted the issues formulated by the appellants. However, before discussing the issues, the learned counsel for the respondents raised a preliminary objection against the competence of some of the grounds of appeal filed by the appellants. I shall consider this preliminary objection firstly.
The respondents’ counsel pointed out that grounds numbers 7, 8, 11 and 17 are incompetent as these grounds raise issue of facts or at best issues of mixed law and facts for which no leave was sought and obtained before filing them in contravention of section 233[3] of the Constitution of the Federal Republic of Nigeria, 1999. Cases such as OFORKERE VS MADUIKE [2003] 5 NWLR [part 812] 166; OLUWOLE VS. LSDPC [1983] 5 SC 1 at page 2 and 3, were cited in support.
Further challenges are that no issues were formulated from grounds 11, 12 and 15 which are deemed abandoned and that arguments in respect thereof should be discountenanced.
Permit me my lords, to reproduce the grounds of appeal challenged by the respondents. They are as follows:
GROUND SEVEN
The lower Court of appeal erred in law and shurned its sacred duty when it held:
“This is clear evidence that the question of the non-payment of stamp duties was not raised in the plaintiffs’ pleadings before the parties closed their cases. The plaintiff had the opportunity of raising it earlier in the proceedings, as
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evidenced by the fact of the application for particulars that I just referred to. I do not think that the learned judge had been fair to the defendants.”
PARTICULARS OF ERROR
[a] It is clear that the question of non-payment of stamp duties was raised in the plaintiffs pleadings.
[b] The fact that the question of non-payment of stamp duties was raised in pleadings vide amendment of pleadings is immaterial.
[c] The trial court had been fair to the parties in this case as the defendants had also had ample opportunity to amend their pleadings.
[d] The issue of fairness raised by the lower court is highly unwarranted and is capable of prejudicing the lower court’s decision against the appellants herein and this has occasioned miscarriage of justice against the appellant.
GROUND EIGHT
The learned justices of the lower court erred in law when they held that there was indeed evidence before the learned trial judge to convince any judge that stamp duties were paid on Exhibit 1.
PARTICULARS OF ERROR
[a] The findings of the trial court that no stamp duty was paid is a finding of fact which ought not to be disturbed by the lower court.
[b] There is nothing to show on the face of Exhibit 1 that stamp duty was paid on it and the trial court so found, albeit, rightly.
[c] The defendants, through DW2 confirmed that Exhibit 2 was not stamped as required by law on the ground that both plaintiffs are limited liability Companies.
[d] Even the appellants/respondents’ brief before the lower court, their counsel submitted to the effect that if the respondents/appellants had stated in their pleadings at the appropriate time that exhibit 1 was unenforceable for alleged lack of stamping, they would have had the opportunity of tendering the certified copy to prove that it was duly stamped.
[e] The content of paragraph [d] above shows further that the appellant/respondents did not show or prove that exhibit 1 was stamp dutied.
[f] The wrong conclusion of the lower court has occasioned miscarriage of justice against the appellants herein.
GROUND ELEVEN
The lower court of appeal erred in law when it held that no notice was required for the enforcement of the Deed of Debenture and if notice was required it was duly given.
PARTICULARS OF ERROR
[a] The Deed of Debenture is in the nature of loan agreement and this being so demand is required for its enforcement.
[b] The appellants/respondents did not give the requisite written demand notice to the respondents/appellants before enforcing the Deed of Debenture.
[c] No requisite demand notice was given to the 2nd respondent/appellant for the refund of the money loaned her before enforcing the Deed of Debenture.
[d] There is no modicum of evidence in this case that any demand notice was written or issued on the 2nd respondent/appellant.
[e] It has not been established that the 2nd respondent/appellant made any default in the payment of the advance made to it by the 1st appellant/respondent.
GROUND SEVENTEEN
The judgment of the lower court is against the weight of evidence”
It is clear to me that the above grounds, especially grounds seven which questions the non-payment of stamp duties and its particulars; ground eight, ground eleven and its particulars and ground fifteen are grounds of mixed law and facts. The appellants did not show that they obtained the requisite leave before filing them. This certainly offends the provisions of section 233 [3] of the Constitution of the Federal Republic of Nigeria, 1999 [as amended]. This renders the grounds to be incompetent. They are accordingly struck out. All issues and arguments in respect thereof are also incompetent and are struck out and or discountenanced. See: OLUWOLE VS. LSDPC [supra]; OFORKERE VS. MADUIKE [supra]; In JOV VS.DOM (1999) 9 NWLR [part 620] 538 at page 541, this Court, per BELGORE, JSC, [as he then was] observed:
“A party to an appeal that intends to raise a new issue or introduce a novel matter into an appeal must seek leave to do so… this is in order to avail the other side every opportunity to advert to that issue, but to contend that issue of law or the constitution can be raised at any time and do nothing more than to raise it in argument is like laying a disrupting ambush for the opponent this is not the spirit of our practice of adjudication of holding the even balance.”
As against the submissions of learned counsel for the respondents, I have found as a fact that grounds of appeal Nos 11, 12 and 15 are properly covered by issues Nos. 5 and 6 of the appellants’ brief. Thus, in the final determination of the preliminary objection it is my findings that grounds 1 – 6, 9, 10, 12 – 14 and 16 are competent and can sustain the appeal. Grounds 7, 8, 11 and 17 are incompetent and struck out. The preliminary objection succeeds partially. This appeal shall be determined on issues Nos. 1, 2, 4, 5 and 6 as issues 3 and 7 are struck out for incompetence.
Issue No. 2 from the appellants’ brief of argument challenges the holding of the court below on trial court’s jurisdiction to hear and determine the appellants’ suit/claim vide Decree No. 60 of 1991.
It is to be observed that the issue of jurisdiction of the trial court was raised before the trial court and the
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trial court held inter alia as follows:
“I do agree in toto, with the learned counsel for the defence, Chief Adegboyega Awomolo, SAN, that the issue of jurisdiction to adjudicate on this matter has never been canvassed before or decided upon by this Court. What happened was that during the prosecution of the appeal from my ruling of the 10th day of July, 1992, before the Court of Appeal, sitting in Kaduna, the learned counsel for the defendants sought for and obtained leave of the Court of Appeal to argue additional ground of appeal bordering on the jurisdiction of this Court to adjudicate on this matter in the light of Decree No. 107 of 1993. Chief Wole Olanipekun, SAN, learned counsel for the plaintiffs has tendered a certified true copy for the decision of the Court of Appeal in the case No. CA/K/243/92, where that court in rounding off [sic] its decision stated per OPENE, JCA, as follows at page 38 thereof:
“I am also of the view that the present suit being a pending case before the commencement of Decree 107, it is not affected by the said Decree.’
This decision was lenchored [sic] on the decision of the Court of Appeal in the same case that:
‘In view of the fact that Decree 107 of the 1993 does not make any provision for the pending cases, it is deemed not to affect any pending case.’
This decision was handed down by the Court of Appeal on the 8th day of December, 1994 and the defendants herein who were the appellants in that appeal have not appealed from it further to the Supreme Court in accordance with the evidence of the DW 2.
By the principle of hierarchy of Courts, all Courts below the Court of Appeal are bound by its decision until otherwise set aside by the Supreme Court. The matter does not end there. The issue of jurisdiction on this matter whether before me or in the Court of Appeal has already been destructive litigated upon [sic] and has been destructive by determined [sic]. In the circumstance of this case, it will be improper [sic] to seek to relitigate on the same issue either before this court or the Court of Appeal.
Since the case has been remitted back to me after the decision of their Lordships in CA/K/243/92, the decision of their Lordship becomes my decision on the issue and I cannot alter it or its effect. Being the decision of the Court of Appeal, I am bound by it.
In the light of the foregoing, I am of the firm view that this court has become functus officio and the parties are bound by the determination by the Court of Appeal, as far as the issue of competency of the Court to adjudicate on the cause of action herein is concerned. The defendants are therefore stopped from raising the issue of jurisdiction in this case by way of a counter claim.”
The first issue for determination raised by the appellants before the court below was whether the Kwara State High Court could exercise jurisdiction in respect of the plaintiffs’ claim. The court below after having reviewed the decision taken by the trial court, the submissions of learned counsel for the parties and the prevailing law, came to the following conclusions:
“I think I see some force in the submissions of counsel for the appellants on the point in contention. None of the reasons given by learned counsel for the respondents for asserting the inapplicability of the Order of 1993, is with all due respect to counsel, untenable. Counsel obviously had not read Decree 60 of 1991 ….. if he had read it he would have seen that the Decree contained four sections.
“As from that new date on which Decree 60 came into fore, i.e; 26/08/93, only the Federal High Court could by the plaintiffs’ action, which, as agreed by all, are connected with or pertained to the operation of the companies and Allied matters Act.”
It is the submission of the learned counsel for the appellants in this Court on issue No.2 that the Kwara State High Court, Offa had the jurisdiction and competence to entertain the plaintiffs’ suit as it did and that it is trite that the relevant and applicable law in respect of a cause of action or matter is the law in force at the time the cause of action arose and in the case of law relating to jurisdiction when the action was instituted. This court is urged to set aside the judgment of the court below and affirm the judgment of the trial court as the court below erred in law when it refused to observe its sacred duty to consider and apply the right and appropriate law that is Decree No. 107 of 1993 which revised the jurisdiction of the Federal high court and has impliedly repealed the provisions of Decree No. 60 of 1991.
Before I answer this issue, I think there is the need to examine the historical antecedents of the legislations that were in operation vis-a-vis the jurisdiction of a State High Court and the Federal High Court, more particularly in relation to the nature of the claims filed by the plaintiffs/respondents, from the time of filing same up to the time when the trial court delivered its judgment.
In the first place, filing of the writ of sermons and statement of claim by the respondents was done on the 31st of July, 1991. The Constitution of the Federal Republic of Nigeria, 1979 was clearly in vogue. All parties agreed and there is a finding by the court below that both the Kwara State High Court and Federal High court as at the 1st of July, 1991, shared concurrent jurisdiction on such claims. A decided case which supports this view is that of SAVANAH BANK OF NIGERIA LIMITED VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LIMITED & ANOR [1987] 1 NSCC 67 at page 72, where this court held that the Federal High Court and the State High Courts have concurrent jurisdiction on Admiralty matters.
Secondly, when Decree No.60 was promulgated in 1991 with its commencement date from the 30th day of December, 1991, there was a turn of events now that the Federal High Court was the only court conferred with exclusive jurisdiction to entertain matters in relation to the operation of companies and allied matters. Section 7[1] thereof provides:
“The Court shall to the exclusion of any other court have original jurisdiction to try Civil causes and matters connecting with or pertaining to –
[b] The operation of the Companies and Allied Matters Act, the Nigerian Enterprises Promotion Act, Federal enactments and any other Common Law action regulating the promotion of Nigerian Enterprises”
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This Decree, therefore, divested any State High Court of original jurisdiction on any matter as specified by that section of the Decree as set out above. Thus, any matter that had to do with the operation of the companies incorporated thereunder including management of such companies and their assets, fell squarely within the jurisdiction of the Federal High Court. See OMISADE VS. AKANDE (1987) 1 NSCC 486. It is to be observed that this section of the Decree re-enacted sections 7 and 8 of the then Federal Revenue Court Act of 1973 which conferred exclusive jurisdiction on that court and divested State High courts on civil matters or causes arising from the operation of the Companies Decree 1968 or any other enactment regulating the operation of companies incorporated under the Companies Decree 1968. It also provided that in so far as jurisdiction is conferred upon the Federal Revenue Court in respect of the causes or matters mentioned in the foregoing provisions, the High Court or any other Court of a State shall, to the extent that jurisdiction is so conferred upon the Federal Revenue Court, cease to have jurisdiction in relation to such causes or matters. See: OMISADE’s case, page 491, [Supra], per BELLO, CJN, as he then was and of blessed memory]. Now looking at the nature of the claims of the plaintiffs/respondents and the parties before the trial court, it can hardly be disputed that the matter had a lot to do with the companies or management thereof. Then by the operation of Decree 60 of 1991, it was only the Federal High Court that had jurisdiction and not the trial court.
Thirdly, when Decree 16 of 1992 section 5 thereof suspended Decree 60 of 1991 , it also annulled all decisions taken in pursuance of that Decree.
In the fourth stage, a statutory instrument No.9 of 1993 restored the operation of Decree 60 0f 1991. The instrument provided the commencement date of the re-enacted Decree No. 60 to be the 26th day of August, 1993.
Fifthly, that Decree 60 had been restored, recourse ought to be had to the provision of section 7 [6] thereof which provided that all pending matter connected with or pertaining to the operation of the Companies Act, 1963 which were pending before any other court including a State High Court as of the 26th August, 1993, shall, as from that date, abate and shall be transferred to the Federal high court. This provision clearly and unmistakenly divested the trial court of jurisdiction on the matter placed before it by the plaintiffs/respondents and the trial court ought to have transferred same to the Federal High court for determination. Thus, as at the 26th day of August, 1993, the trial court lost its jurisdiction in respect of the matter placed before it.
The sixth stage is the coming into effect of Decree 107 of 1993 [Constitution [suspension modification] Decree 1993] which came into operation on the 17th of November, 1993. It amended section 230 of the Constitution, subsection [1] thereof with the following section:
“230 [1] Notwithstanding anything to the contrary contained in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:
[e] the operation of any Act or Decree relating to companies and Allied Matters and any other Common Law regulating the operation of companies.”
For completeness of the historical perspective of the legislations spelling out the exclusive jurisdiction of the Federal High Court, I think I should mention the seventh stage, that is the Constitution of the Federal Republic of Nigeria, 1999 [as amended] which made such provisions in section 251. I do not deem it necessary to produce this provision herein as the decision of the trial court was given years before the commencement of that Constitution. The judgment of the trial court was delivered on the 11th day of March, 1994. Thus, the enactments applicable to the claims and the parties before the trial court were the Federal High Court [Amendment] Decree No. 60 of 1991 and section 230 [1] [e] of Decree No. 107 of 1993. They came into operation on the 26th of August, 1993 and 17th of November, 1993, respectively. Decree 107 of 1993 did not make provisions for pending cases but section 7[6] of Decree No. 60 of 1991 did, that all pending matters connected with or pertaining to the operation of the Companies Act 1968 which were pending before any other Court including a State High Court as of the 26th August, 1993, shall be transferred to the Federal High Court. From this date therefore, the matter being treated by the [trial court] was removed from the subject matters that could be tried by the trial Court. For the avoidance of any further doubt, I consider it pertinent to re-examine the claims placed before the trial Court: The respondents as plaintiffs sought 16 reliefs from the trial Court [already set out]. [1] The first declaration sought attacks the Debenture Deed made between the respondents and the 1st appellant. Part VII of the Companies and Allied Matters Act, that is, sections 166 – 210, deal with all matters pertaining to debentures including the remedies prescribed for debenture holder which is the appointment of a receiver.
[2] Second and third reliefs relate to the appointment of the 2nd appellant as a Receiver pursuant to the said Debenture Deed. The powers, duties and liabilities etc, of a receiver or receiver/manager are governed by section 387 of the Act.
[3] The fourth and fifth reliefs attack the power of the receiver to sell off the plaintiffs’ assets or properties.
[4] The sixth relief complains about the 2nd appellant’s failure to account to the registrar of Companies which is covered by section 393 of the Act.
[5] The twelveth, thirteenth and sixteenth reliefs ask for an account from the 2nd appellant and this relates to section 396 of the Act.
Thus, most of the respondents’ claims fell squarely within the armpit of the provisions made by Decree 107 of 1993, section 230 [1] thereof as they are causes and matters arising from the operation of an Act or Decree relating to Companies and Allied Matters. Afortiori, it is the Federal High Court that can competently exercise jurisdiction on such matters and I so hold.
It only remains for me to observe finally that the holding of the learned trial judge that the plaintiffs/respondents were estopped from raising the issue of jurisdiction as the issue had once been settled by the Court of Appeal, Kaduna Division in the case of 7UP BOTTLING COMPANY VS. ABIO & SONS BOTTLING COMPANY LIMITED in Appeal No.CA/K/248/92 [reported in (1996) 7 NWLR (Pt.463) 714] on which the learned counsel for the respondents argued at the court below and the court agreed with him, that this holding of the learned trial judge is erroneous in that the legislations that were considered by the Court of Appeal, Kaduna in that case were Decree 107 of 1993, Decree 60 of 1991 and Decree 16 of 1992. The statutory instrument No.9 of 1993 [which restored Decree 60 of 1991) was never considered by the Kaduna Division of the
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Court of Appeal in that appeal. That decision by the Kaduna Court of Appeal, thus, given PER INCURIAM, that an existing statutory instrument No.9 of 1993 was not brought to the attention of that court and the court of its own volition did not take judicial notice of that instrument. So by virtue of section 7 [6] of Decree No. 60 of 1991, the decision of the Court of Appeal, Kaduna in 7 Up Bottling Company vs. Abiola & Sons Bottling Company [Supra] was given per incuriam. The position of the law as adumbrated somewhere, is that where the Court of Appeal has ruled that the lower court lacks jurisdiction over a matter, this decision would not estop the same court from reversing itself in the same case between the same parties (as in this case) on the issue of jurisdiction should fresh arguments or some other relevant statutes on the matter be brought to its attention as in the case of AKINBOLA VS. PLISSON FISKO NIGERIA LIMITED (1991) 1 NWLR (Pt.167) 270. It is reported in that case as follows:
“The appellant in this court was the plaintiff in the Kwara State High Court where he had instituted an action against the 1st respondent for “money had and received”. At the time of the institution of the suit, the 3rd respondent was in possession of the 1st respondent’s assets, having been appointed a receiver and manager by the 2nd respondent. The 2nd and 3rd respondents were joined as parties when the appellant realized that the assets of the 1st respondent were being, sold by the respondent at the instance of the 2nd respondent. The appellant then sought and obtained an ex-parte order from the Kwara State High Court restraining the 3rd respondent from selling all the plants, machinery and equipment of the 1st respondent, or in the alternative an order directing the 1st respondent to deposit the sum of N100,000 in court pending the determination of the case. Subsequently, learned counsel for the respondents filed a motion in the High Court praying the court to set aside the ex parte order on the ground that the Kwara State High Court had no jurisdiction to hear the substantive suit. The Court refused to do so holding that it had jurisdiction to hear the matter. Consequently, the respondents appealed to the Court of Appeal which Court ruled that the Kwara State High Court had no jurisdiction to hear the matter. The Appeal court then directed that the case be heard by the judge of the Federal High Court, Ilorin. All the relevant papers filed in the State Court relating to the case and sum of N100.000 deposited in that Court were subsequently transferred to the Federal High Court, Ilorin”.
Following the footsteps laid in Akinbobola’s case, the lower court can hardly be faulted in its decision that the Kwara State High Court lacked jurisdiction to determine the case on hand.
It is trite that where a court lacks jurisdiction all the proceedings its conducts including a ruling or judgment delivered, are a nullity.
In the final result, this appeal lacks merit and it is dismissed on the first issue alone. There shall be no need to consider other issues dealings with the competence of the appeal. I order that the matter be remitted to the Chief Judge of the Federal High Court for consideration of the matter DE NOVO. I make no order as to costs.
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.S.C.: I have had a preview of the judgment prepared and delivered by my learned brother Muhammad JSC with which I entirely agree that the appeal lacks any merit whatsoever and should be dismissed.
I endorse all the orders contained in the judgment.
SULEIMAN GALADIMA, J.S.C.: I have had the opportunity of reading in draft the leading Judgment of my learned brother I. T. MUHAMMAD, JSC just delivered. The facts of the matter and the intricate issues involved in the appeal have been meticulously, comprehensively, set out and admirably resolved. I cannot but agree entirely with reasoning and conclusion that the appeal lacks merit and it is dismissed on the first issue on whether the Kwara State High Court could exercise jurisdiction in respect of the Appellants claim. The Kwara State High Court holden at Offa lacked jurisdiction to determine the case at hand, on the Authority of the case of AKINBOLA v. PLISSON FISKO (NIGERIA) LIMITED (1991) 1 NWLR (pt.167) 270.
It is needless to delve into other issues dealing with the competence of the appeal. I too, in the circumstance agree that the matter be remitted to the Learned Chief Judge of the Federal High Court for consideration of the matter de novo expeditiously.
CLARA BATA OGUNBIYI, J.S.C.: I read in draft the judgment just delivered by my learned brother Muhammad, JSC and I agree that both the appeal and cross appeal are lacking in merit and deserve to be dismissed. Briefly and for purpose of emphasis, I wish to state that where an appeal raises an issue of jurisdiction it is fundamentally a constitutional matter. Jurisdiction has been held as the life wire of adjudication which cannot be waived or compromised. The court in other words must first be clothed with jurisdiction before it can properly and competently operate. The determinant overriding consideration of a court in adjudication is to first ensure that it is by law predisposed to preside over a matter brought before it, without jurisdiction, the court acts in futility and the proceeding no matter how well conducted is a non-starter and therefore a nullity. The issue is so fundamental and cannot be relegated or dismissed by a wave of hand.
I wish to state briefly that as at July, 1991 when the writ of summons was taken out in the case at hand, both the State High Court and Federal High Court were clothed with jurisdiction to entertain the subject matter of the suit now before us on appeal. However by Decree 60 of 1991 which commenced on the 30th December, 1991, section 7(1) vested exclusive jurisdiction in the Federal High Court. The subsequent Decree 16 of 1992 also came into effect and operated to suspend Decree 60 of 1991 which directed that all cases of the nature of hand be transferred to the Federal High Court. The Decree therefore divested any other court inclusive of the State High Courts of jurisdiction over all pending matters connected with or pertaining to the operation of the companies Act 1968. The operative date was as at 26th August 1993 when the cases were abated and transferred to the Federal High Court.
The lower court in its judgment cannot be faulted as rightly submitted by the learned respondent’s counsel in concluding that the Kwara State High Court lacked jurisdiction to determine the case. My brother Muhammad JSC has adequately dealt with this issue which is sufficient in determining the appeal. I cannot therefore agree more with the lead
judgment that the appeal is devoid of any merit and it is also dismissed by me.
On the cross appeal by the defendants/appellants it is my view also that same should be dismissed. On the totality therefore I make an order that the suit be remitted back for the Federal High Court to hear de novo.
STANLEY SHENKO ALAGOA, J.S.C.: I read before now in draft the lead judgment of my learned brother I. T. Muhammad, JSC and I am in total agreement with him. I have nothing useful to add.
I also dismiss the appeal as lacking in merit and order that the matter be remitted to the Chief Judge of the Federal High Court to be tried de novo.
I make no order as to costs.
Appearances
Dr. J. O. Olatoke, with him: B. O. Omodare, K. A. Uzamot, I. V. Ogiemwonyi and O. O. Aweda. For Appellant
AND
A. A. Adegbonmire, with him; D. D. Killi. For Respondent