ADAMAWA STATE GOVERNMENT & ANOR v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS

……………………..A…………………….

SAIDU TANKO HUSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling delivered at the Federal High Court sitting in Yola on the 18th November, 2015 in Suit No. FHC/ YL/CS/2015.

The appellants had by the Motion on Notice dated the 16th November, 2015 and filed on the 17th November, 2015 sought:-
1. An Order of Court vacating the Order nisi granted in favour of the Judgment Creditors dated 21st day of October, 2015 attaching the account of the Judgment debtors with the Garnishees.
2. An Order of Court declining to make Order nisi dated 21st October, 2015 Order absolute on the ground that, the Judgment debtors/Applicants have filed a Motion for restoration of its Appeal before the Court of Appeal, Yola Division.
3. Any other Order(s) as the Honourable Court may deem fit to make in the circumstance of this case.

The appeal to this Court was necessitated by the order of the Federal High Court (hereinafter referred to as the Trial Court), dismissing the Application, the Motion on Notice, referred to above. In the Notice of Appeal filed on the 27th November, 2015 the Appellants have appealed on two (2) grounds.

Upon the transmission of record of appeal to this Court on the 1st January, 2016, the Appellants and the 1st and 2nd respondents respectively, in compliance with the rules of Court, filed and exchanged their briefs of argument in terms of:-
1. The Appellants’ Brief of argument dated the 13th April, 2016 and filed on the 27th April, 2016 but deemed filed on 18th May, 2016.
2. 1st and 2nd Respondents’ brief of argument dated and filed on the 1st November, 2016 but deemed on the 8th December, 2016
2a. The 1st and 2nd Respondents’ brief in support of Preliminary Objection dated and filed on the 21st November, 2016
3. The Reply to the 1st and 2nd Respondents’ brief of argument dated and filed on the 16th December, 2016.
The 3rd – 10th Respondents did not file any brief.
Submissions made relative to the Appeal are contained in the Appellants’ brief of argument at pages 4-9. The only issue distilled by counsel in the brief is whether the Appellants by law, are entitled to be heard in garnishee proceedings before the Court below, if yes, were they accorded fair hearing?
The Response of the 1st and 2nd Respondents are contained in their brief of argument at pages 2- 8. Like the Appellants, the 1st and 2nd Respondents framed just one(1) issue at page 2 of their brief for determination of Court thus:-
Whether the learned trial Judge of the lower Court denied the Appellants the (sic) fair hearing of their Motion on Notice dated 16th November, 2015 before the lower Court.

The Appeal came up on the 2nd March, 2017 for hearing. Mr. Bola Olotu was first heard, in relation to issue raised by him surrounding the Preliminary Objection. He had earlier given a Notice to that effect, of his intention to raise and rely on the said Preliminary Objection dated and filed on 1st November, 2017. Learned Respondents’ counsel referred us to the grounds upon which the objection is predicated and adopted his argument or submissions as per his brief of argument on this point dated 21st November, 2016 and filed same date as at paragraphs 1.1 to paragraph 1.13, pages 1 -16 of his brief of argument.
The Response to the Preliminary Objection is contained in the reply brief at paragraphs 1.3 to 1.8, pages 3 to 6 of the Reply brief. Mr. Konleganyiga, Senior State Counsel, Ministry of Justice, Adamawa State, similarly adopted his argument in response to the Preliminary Objection to urge us dismiss same.
In relation to the main Appeal, is the brief of argument of which the learned Appellants’ counsel also adopted, in urging us to resolve the sole issue formulated by the Appellants in their favour and set aside the ruling of the trial Court and allow this appeal.
Mr.Bola Olotu, learned counsel for the 1st and 2nd Respondents referred us to the brief of argument filed on their behalf on the 1st November, 2016. He adopted same in his response to the appeal. He urged us to dismiss the appeal.
I felt I should first address the issue raised and arising from the Preliminary Objection of the 1st and 2nd Respondents and return to the appeal in due course if there is the need for it. Eight (8) complaints were laid. That is to say, the Preliminary Objection is predicated on those grounds set out in the Notice of Objection. They are as follows:-
i. No leave of Court was obtained by the Appellants before appealing against the 18th November,

……………………..B…………………….

2015 ruling of the lower Court which was not a final decision
ii. No leave of Court was obtained by the Appellants against the 18th November, 2015 ruling of the lower Court being a decision on the exercise of discretion, thus mixed law and facts.
iii. The Appellants Notice of Appeal is not dated.
iv. Ground one in the Appellant Notice of Appeal is on mixed law and facts, and no leave of Court was obtained to appeal on that ground.
v. Ground two in the appellants’ Notice of Appeal is on the exercise of the lower Court’s discretion, thus on mixed law and facts of which no leave of Court was obtained to appeal on that ground.
vi. The Appellants formulated and raised their sole and only issue for determination from incompetent grounds of appeal.
vii. The Appellants’ sole and only issue raised/formulated for determination did not arise or emanate from any of the grounds of appeal
viii. The Appellants’ brief of argument does not contain any competent issue for determination.
It has been argued that the ruling of the 18th November, 2015 delivered at the trial Court is not a final decision but an interlocutory decision of the trial Court of which leave of the High Court or this Court was required to appeal that decision under Section 241 of the Constitution of the Federal Republic of Nigeria. It is argued that the ruling of the trial Court refusing the request of the Appellants to vacate the order nisi or decline from making the order nisi, absolute was an interlocutory ruling or decision and the need becomes even more compelling to obtain leave where the grounds of appeal raise issues of mixed law and facts. Decisions in Adeniyi Vs. Oyeleye (2014) All FWLR (Pt. 726) 538, 577; NWD & Limited V. UFT Engr. Ltd (2011) All FWLR (Pt. 566) 572; UBE Plc Vs. Gombe Oil Seed Processor Ltd (2003) All FWLR (Pt. 163) 112 were cited and relied upon. Leave not having been obtained the appeal on grounds of mixed law and facts and issues derived from those grounds, it is argued, were also incompetent. The case of Jev. Vs. Iyortyom (2014) All FWLR (Pt. 747) 749, 770-771 was cited and relied on. Learned Respondents’ counsel further submitted that a close look at the lone issue distilled by the Appellants will reveal that the issue was neither derived from any of the grounds of appeal nor the ratio decidendi of the decision appealed against. To this end therefore, the issueso formulated was/is incompetent, relying on Reiders Jacks Vs. INEC (2009) All FWLR (Pt. 464) 1638; Daily Times of Nigeria Plc Vs. D.S. Ltd (2014) All FWLR (Pt. 713) 1978.

Learned Respondents counsel’s final submission is that the brief of argument in which the lone incompetent issue was canvassed is itself incompetent. We were urged to uphold the Preliminary Objection and decline jurisdiction to hear the appeal.
Mr. Konleganyiga, learned counsel for the Appellants referred us to the proceedings of the trial Court held on the 18th November, 2015, in particular the order drawn up at pages 53 and 55 of the record on the finality of the order so made by the trial Court. He argued that the order nisi earlier made by the trial Court became absolute after the dismissal order in respect of the application, the Appellants had filed in that Court. Consequently, an appeal lodged or entered after an order nisi had become absolute was an appeal against the final decision of the trial Court. In those circumstances he argued, leave of Court was not necessary to appeal that decision or order. He referred us to Section 241 (1) of the Constitution. He cited and relied on the decision in Union bank Plc vs. Boni Markus Industries Ltd (2005) 13 NWLR (Pt. 943) 654. He urged us to dismiss the Preliminary objection.
On the Issue of the Notice of Appeal not dated, we were urged to invoke the inherent powers vested in this Court and do substantial justice without succumbing to technical justice.
I have given thought and careful consideration to those submissions made by learned counsel on both sides in their briefs. I have pondered for a while. I felt a chronicle of the events leading to this case on appeal will go a long way in shedding light on the question before us for consideration.

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It all began with the Judgment delivered at the trial Court on the 3rd November, 2014 in suit No. FHC/YL/CS/2014. The 1st and 2nd Respondents had commenced action in the undefended list against the appellants and obtained Judgment against them at the close of hearing. By that Judgment, the Appellants were ordered to pay to the 1st and 2nd Respondents the total sum of Five hundred and thirty Three Million, one hundred thousand Six Hundred and Seventy Four Naira (533, 100, 674.00) as liquidated money demand. Pursuant to that Judgment, the 1st and 2nd respondents in the bid to realize the fruits of the Judgment initiated Garnishee Proceedings in the same Court against the banks, namely, Central Bank of Nigeria, CBN; Zenith International Bank Plc; First Bank of Nigeria Limited; Guarantee Trust Bank Plc; Keystone Bank Ltd, United Bank for Africa Plc; Diamond Bank Plc and FCMB Limited. These are the same banks named or labeled as the 3rd -10th Respondents in this Appeal, that is, the Garnishee Banks. The Federal High Court heard the exparte application dated and filed on the 19th November, 2014 and at the sitting of the 21st October, 2015 granted same and the Court made the Garnishee Order nisi attaching the accounts of the Appellants in those Banks. The Court further directed all the Garnishee Banks to appear before it on 18th November, 2015 to show cause why the order nisi should not be made absolute.

On the 17th November, 2015, just a day before the appointed date of hearing, the appellants that is (1) Adamawa State Government and (2) Attorney-General of Adamawa State, through their counsel filed a Motion on Notice at the Registry of the said Federal High Court, Yola. This is the same application of which the ruling of the Federal High Court has given rise to this Appeal. The propriety of the appeal before us is the subject-matter covered by the respondents, Preliminary Objection. Is the ruling of the Federal High Court appealed against a FINAL decision or an interlocutory one?
I need to point out from the onset that a decision is FINAL if it brings to an end the right of the parties to it. In otherwords a decision is final if it disposes of the subject-matter of litigation or controversy to the extent that there is nothing left after the Judgment of the Court. Where a decision is not final, it is interlocutory see: Gomez & Anor. Vs. C & S Society (2009) 4 -5 SC (Pt. iii) 156, 179 – 181.
To qualify as an appeal as of right under Section 241 of the Constitution (as amended) the decision sought to be appealed against must fall within the ambits of Section 241(1)(a)(f), (2)of the Constitution which provides thus:-
241-(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following case:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) Decisions in any civil or criminal proceedings or questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court-
(i) Where the liberty of a person or the custody of an infant is concerned,
(ii) Where an injunction or the appointment of a receiver is granted or refused,
(iii) In the case of a decision determining the case of a creditor or the liability of a contributory of other officer under any enactment relating to companies in respect of misfeasance or otherwise
(iv) In the case of a decree nisi in a matrimonial cause or a decision in an Admiralty action determining liability, and
(v) In such other case as may be prescribed by an Act of the National Assembly.
(2) Nothing in this Section shall confer any right of appeal-
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute, for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High or High Court made with the consent or to costs only.

……………………..D…………………….

As indicated earlier in this Judgment, proceedings which gave rise to this appeal were initiated vide the Motion on Notice filed at the Federal High Court over which the Appellant had sought for an order of Court to vacate an earlier order nisi granted in favour of the 1st and 2nd Respondents on the 21st October, 2015 and to decline to make the order nisi, absolute. Those requests of the Appellants were clearly directed on the trial Court to exercise its discretion one way or the other in favour of the Appellants but the trial Court in its wisdom dismissed that application as can be found at page 53 of the record. The appeal to this Court is thus an appeal against the exercise of discretion by the trial Court in terms of the order/ruling of the 18th November, 2015.
My Lords, permit me, I will elucidate further by reference to the grounds of appeal contained in the Notice of Appeal.
Grounds 1 and 2 together with the particulars state thus:-
GROUND ONE
The Hon. Trial Court erred in law when it failed or neglected to consider issue raised in Exhibit A. A Motion on Notice for restoration of Appeal
PARTICULARS OF ERRORS
(i) The appellants have filed a Motion for restoration of their appeal and same was already served on the Respondents.
(ii) The Court failed to consider the Exhibit A attached to the Motion of 16th September, 2015 but proceeded to struck out (sic) the said Motion.
GROUND TWO
The Hon. Trial Court erred in law and fact when it stated that, the application, motion on notice dated 16th November, 2015 ought not to be filed before her by the appellants. And that it is unusual despite subsisting suit No. FHC/YL/CS/12/2015.
PARTICULARS OF ERROR
(i) The Hon. Trial Court, shot (sic) out the appellants by striking out Motion filed on the 16th November, 2015.
(ii) The right of the appellants in respect of their motion on Notice dated 16th November, 2015 was not considered properly by the Hon. Court.
Those grounds no doubt are complaints made against the trial Court in the exercise of her discretionary powers. In Adeniyi Vs Oyeleye (supra), it was held that a ground of appeal that calls to question such exercise of discretion by the Courts is at best a ground of mixed law and facts. Where an appeal involves a ground of mixed law and facts, leave of Court is necessary as a pre-condition for a valid appeal. The Court held thus at page 577:-
The Appellants’ application solicited for the exercise of the discretionary powers of the lower Court, albeit judicially and judiciously. The lower Court, with the aid of the law as exemplified/manifested in its Judgment, turned down the Appellants application or invitation to exercise its discretion in their favour. It is for that reason that the Appellant challenged its decision, a decision wholly based on the exercise of discretion. It is trite that a ground of appeal that calls to questions such exercise of discretion is at best of mixed law and facts.
See further, decisions in FBN Plc vs. Abraham (2008) 18 NWLR (Pt. 118) 172; Garuba vs. Mokhadion (2005) All FWLR (Pt. 280) 1453, OR (2005) 14 NWLR (Pt. 945) 249. Thus leave of either the trial Court or the Appeal Court is required under Section 242(1) of the Constitution of the Federal Republic of Nigeria as a precondition for appeal against a decision, where the grounds of appeal are of mixed law and facts and it does not matter whether that decision appealed against was final or interlocutory in nature.
Moreover, Appellants’ application that is, the Motion on Notice placed before the trial Court relate to or was connected to the Garnishee Proceedings initiated by the 1st and 2nd Respondents against garnishee Banks to which the appellants are/were not involved as parties.
Garnishee Proceedings are sui generis, that is they are peculiar and special proceedings on their own and will not admit of any outside intervention other than persons who are parties to it, unless by leave of Court. Section 83 (2) of the Sheriffs and Civil Process Act does not confer on the Judgment debtors, the Appellants in this appeal, the right of appeal in matters relating to Garnishee proceedings hence the Notice of Appeal and the grounds of Appeal contained therein and filed them are incompetent, for want of leave first sought and obtained. What all these boil down to is that, there is failure of compliance with due process to render the appeal before us incompetent, for as held in Madukolu V. Nkemdilim (1962) 2 SC NLR 341; Anyah Vs. Iyayi (1993) 7 NWLR (Pt. 305) 290; Kotoye Vs. Saraki (1994) 7 NWLR (Pt. 357) 414, a Court of law is only competent to exercise jurisdiction in respect of any matter only where:-
1. It is properly constituted as regards the number of its members and no member is disqualified for one reason or the other
2. The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.
3. The case comes up by due process of law and upon the fulfillment of any condition precedent to the exercise of the jurisdiction of Court.

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A Notice of Appeal is an originating process. Where a law makes provision for leave before appeal, a Notice of Appeal or appeal lodged or entered without leave first sought and obtained (as in the current appeal) is invalid and liable to be struck out. The appeal before us is afflicted by this virus and the same ought to be struck out. We uphold the Preliminary Objection of the Respondents, hence the Appeal No. CA/YL/01/2016 is struck out.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft form the leading judgment just delivered by my learned Brother, Saidu Tanko Husaini, JCA, in this appeal.
I agree with His Lordship that the condition precedent to the commencement of the appeal not having been fulfilled, the appeal is tainted with incompetence. I also strike out the appeal for that reason.
I abide by the consequential order made in the said leading judgment. I do not award costs in the appeal.
JAMES SHEHU ABIRIYI, J.C.A.: I read before now in draft the judgment just delivered by my learned brother Husaini JCA. I am in complete agreement with the reasoning and conclusion of my learned brother that the appeal is incompetent and should be struck out.
For the same reason, I too strike out the Appeal No: CA/YL/01/2016.