Coscharis Motors Ltd V. Capital Oil and Gas Ltd & Ors (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
This appeal arose from the Ruling of the Federal High Court, coram ABANG, J., delivered on the 28th of January, 2013.
The brief facts of this case as indicated by the Appellant is that, by a writ of summons dated and filed on the 30th of October, 2012, the 1st and 2nd Respondents as Plaintiffs claimed various reliefs against the Appellant and the 3rd Respondent. Along with the originating processes, the Respondent also filed a motion on notice for interlocutory injunction which was heard and ruled upon by the trial Court on 12th November, 2012 wherein an order of interlocutory injunction restraining the Appellant and the 3rd Respondent from interfering with the assets of the 1st and 2nd Respondents, pending the determination of the suit.
The Respondent subsequently filed two motions on the 15th November, 2012, praying the lower Court inter alia to dismiss the entire suit for want of jurisdiction. On 21st January, 2013, when the Appellant’s applications came up for hearing, the Respondents’ counsel applied for a short adjournment to enable him
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to respond to the applications of the Appellant in the suit. On the adjourned date of 25th January, 2013, the Appellant moved its motion challenging the jurisdiction of the lower Court. While relying, the 1st and 2nd Respondents’ counsel sought to tender from the bar an order of the English Court made on 23rd January, 2013 in Suit No. 2012, Folio 1300 Access Bank Plc v. Rofos Navigation Ltd & 5 Ors before submitting viva voce that the Appellant and the 3rd Respondent were in breach of the order of the lower Court made on 12th, January, 2012. He thereafter applied for an order restraining the Appellant from enforcing the order made by the English Court. This was vehemently opposed by the Appellant and the 3rd Respondent. The trial judge adjourned to 28th January, 2013 to determine the admissibility of the photocopy of the order of the English Court sought to be tendered. On the adjourned date, the learned trial judge in a considered Ruling admitted the copy of the order of the English Court and made other orders, the basis of which the Appellant has filed an appeal against the Ruling of the lower Court vide a Notice of Appeal dated 30th January, 2013 and
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filed on 31st January, 2013 on seven grounds. However, the Appellant abandoned ground 4 of appeal as contained in the Notice of Appeal at page 5 of the Appellant’s brief.
Before this Court, parties complied with the Rules of the Court by filing and exchanging briefs. Appellant’s brief prepared by Osita Mbamalu (LLM) of Magna Konsults, Ositadinma chambers is dated 5th June, 2013 and filed 6th June, 2013 but deemed properly filed 25th June, 2015. A Reply brief settled by Osita Mbamalu, Kene Udemezue, C. O. Onumaegbu, J. C. Umeh dated 15th March, 2016 and filed 17th March, 2016 but deemed 21st April, 2016 was also filed.
1st and 2nd Respondents’ brief is dated and filed on 11th February, 2016 but deemed 21st April, 2016. Same is settled by Olabode Olanipekun, Bolarinwa Awujoola, Michael Akinleye of Wole Olanipekun & Co. No brief was filed by the 3rd Respondent.
Meanwhile, 1st and 2nd Respondents filed a Notice of preliminary objection dated 11th February, 2016 urging this Court to strike out and/or dismiss the Appellant’s appeal. Arguments in respect thereof have been incorporated in the Respondents’ brief. Nonetheless, the grounds of the said
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objection are:
i. Particular (i) of Ground 1 is argumentative.
ii. Particular (iii) of Ground 1 is a misrepresentation of the ruling of the lower Court.
iii. Further to (ii) above, particular (iii) of Ground 1 does not arise from the ruling of the lower Court.
iv. Further to (ii) and (iii) above, Ground 1 is a misrepresentation of the decision of the lower Court.
v. Further to (i) – (iv) supra, Issue 1 distilled from Grounds 1 and 6 is incompetent.
vi. Ground 2 is a misrepresentation of the decision of the lower Court.
vii. Further to (vi) above, Ground 2 does not arise from the decision of the trial Court made on 28/1/13.
viii. Ground 3 is a misrepresentation of the ruling of the lower Court.
ix. Further to (viii) above, Ground 3 does not arise from the judgment of the lower Court.
x. Particular (vii) of Ground 3 is argumentative.
xi. Particular (iv) of Ground 5 is argumentative.
xii. Ground 5 does not arise from the judgment of the lower Court.
xiii. Particular (i) of Ground 1 adopted in particular (i) of Ground 6 is argumentative.
xiv. Particular (iii) of Ground 1 adopted in particular
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(i) of ground 6 is a misrepresentation of the lower Court’s ruling and it does not arise from the said ruling.
xv. Further to (xiv) above, Ground 6 is incompetent.
xvi. Particulars (i), (iii) and (iv) of Ground 7 are argumentative.
xvii. Further to (xvi) above, Ground 7 is argumentative.
xviii. Further to (i) – (xvii), the appellant’s appeal is incompetent.
Arguing the preliminary objection, 1st and 2nd Respondents, counsel submitted that ground 1, particular (i) thereto, contains arguments and legal submissions contrary to the clear imperatives of Order 6 Rule 2(3) of the Court of Appeal Rules, 2011 which completely proscribes a ground of appeal from being argumentative, hence provision is made for filing of briefs of arguments. Counsel submitted that ground 1 is a misrepresentation of the ruling of the lower Court as particular (iii) which forms the fulcrum of the ground is an unfair attack on the ruling of the lower Court and did not arise from same. He relied on KHALIL v. YAR’ADUA (2003) 16 NWLR (pt. 842) 46 at 478 – 479; CBN v. OKOJIE (2002) 8 NWLR (pt. 768) 48 at 61; LAAH v. OPALUWA (2004) 9 NWLR (pt. 879) 558 at 566. He referred
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to page 476 of the record to submit that the said particular represents the lower Court as holding that the Appellant has the locus to withdraw a suit having being a beneficiary of an order therefrom. It is the submission of counsel that when the holding of the lower Court is placed side by side ground 1 of the Notice of Appeal, it becomes perspicuous that the lower Court never made a finding that the appellant was a beneficiary of the London suit and as such had the locus to withdraw the suit”. He cited ILOABUCHI v. ILOABUCHI (2000) 5 NWLR (PT 656) 178 at 203; DAILY TIMES v. DSV LTD (2014) 5 NWLR (PT 1400) 327 at 351; AFRICAN PETROLEUM PLC v. ADENIYI (2011) 15 NWLR (PT. 1271) 560 at 585, E – G; LAAH v. OPALUWA (supra) at 567 – 570, paras H – B; HONIKA SAWMILL NIG. LTD v. HOFF (1994) 2 NWLR (pt. 326) 252; ARIBO v. CBN (2011) 2 NWLR (pt. 1260) 133 at 160, C – F to submit that since issue one was jointly formulated from ground one and six of the notice of appeal, same is rendered incompetent and liable to be struck out.
On ground 2, counsel submitted that nowhere in the Ruling of the trial Court, did the Court make any finding or pronouncement, touching
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directly or indirectly, on the motion filed by the Appellant, seeking to vacate the orders made on 12/11/2012, as same was never argued by the Appellant. That ground 2 does not relate to any of the reasons given by the trial Court as it represents the lower Court as having determined its application. At no point did the learned trial judge make the decision stated in particular (iv) of ground 2 of the notice of appeal and that the complaint of the Appellant in the said ground is strange and alien to the decision of the trial Court. He relied on ILOABUCHI v. ILOABUCHI (supra); BORISHADE v. NBN LTD (2007) 1 NWLR (pt. 1015) 217 at 255; OBA v. EGBERONGBE (1999) 8 NWLR (PT 615) 485 at 489; AGBAKA v. AMADI (1998) 11 NWLR (PT 572) 16 at 24 to argue that ground 2 and issue 2 are incompetent.
On ground 3 and 5 of the Notice of Appeal, counsel argued that apart from the fact ground 3 is argumentative, it is also another characteristic misrepresentation of the lower Court’s Ruling by the Appellant since same represents the lower Court arrived at its decision suo motu granting reliefs not sought by the Respondent. He referred to a portion of the judgment of the
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lower Court at page 357 of the record which he juxtaposed with the orders granted by the lower Court, that same exposes ground 3 as a misrepresentation of the lower Court’s decision since the Respondents clearly sought for the lower Court’s order to halt the proceedings before the English Court or any part of the world. He contended that ground 5 is also a misrepresentation of the lower Court’s ruling since the said ground complains of the lower Court’s refusal to follow Order 28 of the Federal High Court Rules (FHC Rules); that the Appellant’s response to Respondents’ application on pages 361 – 362 of the record did not expressly or remotely refer to Order 28. It is the contention of counsel that ground 5 also suffers from the affliction of being argumentative contrary to the Rules of this Court and liable to be struck out. He submitted that grounds 3 and 5 as well as the respective issues 3 and 4 distilled therefrom are incompetent and ought to be struck out.
On grounds 6 and 7, counsel adopted argument made with respect to the objection to ground 1 in urging this Court to strike out ground 6 for being a gross misrepresentation of the lower
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Court’s decision and that ground 7 is a classical infringement on the provisions of the rule of this Court and urge this Court to strike same out. He relied on A.S.T.C v. QUORUM CONSORTIUM LTD (2009) 9 NWLR (pt. 1145) 1 to submit that based on the forgoing argument and since ground 4 has been abandoned by the Appellant, the entire appeal is left bare and becomes fated for an order dismissing and/or striking out same.
Appellant’s response to the above objection and argument of the Respondents is contained in the Appellant’s Reply Brief.
With respect to the competence of ground 1 of the Notice of Appeal, Appellant’s counsel submitted that the Respondents did not challenge the competence of ground 1 itself but rather questioned the validity of particulars (i) and (iii) thereto. It is the submission of counsel that the law is that once a ground of appeal is concise and clear and is not argumentative or narrative, the fact that any particular thereunder is argumentative is not sufficient to deny a right of appeal; that what must not be argumentative is the ground of appeal upon which the Appellant intends to rely upon. He cited OBEMBE v. EKELE (2000) 10
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NWLR (pt. 722); GALAUDU v. KAMBA (2004) 15 NWLR (PT 895) 81; KARUNA v. K.S.H.A (2010) 7 NWLR (pt. 1194) 604 before arguing that a single particular without more can sustain a ground of appeal; that even when particulars (i) and (iii) of ground are incompetent, there are still surviving particulars (ii) and (iv) which are competent and can in themselves sustain Ground 1. He further submitted that there is nothing in ground 1 of the Notice of Appeal which is argumentative or contains any argument; that particular (i) merely restate a trite position of the law which is beyond argument or contention, while particular (iii) in itself does not in any way contain a misrepresentation of the Ruling of the lower Court. He submitted that the Respondents’ counsel failed to consider the entire Ruling delivered by the Honourable trial Court and the flow of the Court’s argument. It is the contention of counsel that the Appellant was not a party to the suit between the 3rd Respondent and the Respondents in London.
Counsel argued that implicit in the Ruling of the lower Court is the fact that the rationale for the order against the Appellant (2nd Defendant) to
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withdraw the case in the English Court wherein it was not a party to.
He contended that the cases cited by the Respondents does not apply to this case and should be discountenanced.
On ground 2, counsel contended that the objection of the Respondents’ counsel is misconceived and should be struck out. He referred to pages 86 – 138 of the record with respect to the Appellant’s motion on notice dated 15/11/12 wherein the Appellant sought an order vacating and setting aside the order of interlocutory injunction granted in the suit on Monday 12th of November, 2012. He further submitted that there is no doubt that the application being argued by the Appellant at the lower Court on 25/1/13 was another application dated 15/11/12 challenging the lower Court’s jurisdiction to hear the suit and that the Appellant’s motion to set aside the order of injunction made by the Court was still lying dormant in the Court’s file awaiting the fate of the Appellant’s motion challenging the jurisdiction of the Court. He referred to page 458 of the record to submit that the Ruling of the trial Court contained therein had conclusively determined and decided the fate of
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the Appellant’s unmoved application dated 15/11/2012. He then submitted that it is not true that ground 2 of the Notice of Appeal did not arise from the Ruling of the lower Court.
On ground 3 and 5, he argued that both grounds are clear and concise and therefore competent. He argued as per OGBUANYINYA v. OKUDO (1979) 6 – 9 SC 32 that although a ground of appeal must stem from the text of the judgment “ipissima verba”, this does not limit the scope of a ground. Citing AKPAN v. BOB (supra), counsel submitted that a ground of appeal can arise in a number of situation such as: (a) from the text of the decision appealed against “ipsissima verba”; (b) from the procedure under which the claim or decision was initiated or rendered; (c) from commissions or omissions by the trial Court.
Counsel urged that all the grounds of appeal filed by the Appellant are competent having arisen from the situations delimited in AKPAN v. BOB (supra) and finally, that once a ground of appeal clearly, as in this case, states what the Appellant is complaining about, and there is compliance with the Rules of Court, the grounds cannot be described as bad and therefore incompetent
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vide ADDAX PET DEV (NIG) LTD v. DUKE (2010) 8 NWLR (pt. 1196) 278; that the purpose of all rules relating to the formulation of ground of appeal is to ensure that the Respondent is not taken by surprise, and there is no element of surprise on the Respondents in the instant appeal.
Finally, he submitted that a ground of appeal alone is enough to sustain an appeal and likewise one competent particular of a ground of appeal can sustain the ground, vide EGBIRIKA v. STATE (2014) 4 NWLR (PT 1398) 558; TOTAL UPSTREAM NIG. LTD v. AIC LTD (2016) 2 NWLR (pt. 1497); that even if this Court finds any particulars of a ground or a ground defective, such is not enough to vitiate the validity of the entire appeal once there is surviving a single ground of appeal with a valid particular.
I have considered the argument of counsel with respect to the objection to the competence of the grounds of appeal contained in the Notice of Appeal filed by the Appellant. Order 6 of the Court of Appeal Rules, 2011 contains provisions relating to the Notice and Grounds of appeal. It reads:
1. “…
2. (1) All appeals shall be by way of rehearing and shall be brought by
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notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.
(2) Where a ground of appeal alleges misdirection or error of law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground
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of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
4. The appellant shall not without the leave of the Court urge or be heard in support or any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.
5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.
Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.
6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason…”
In OLORUNTOBA-OJU & ORS. V. ABDURAHEEM & ORS (2009) 13 NWLR (PT 1157) 88 SC; (2009) LPELR – 2596 (SC), the Apex Court, per ADEKEYE, JSC, echoed
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thus:
“An appeal is a challenge against the judgment of a trial Court and it is never predicated on what a Court has not decided in its judgment or ruling.
Therefore, a ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by the appellant. In other words, a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against…
According to the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point, that as soon as it is read, the error and misdirection complained against can be immediately understood and digested.
One should not forget what the main complaint is by the time one finishes reading particulars. It should also not be argumentative. The particulars must relate to and flow from the grounds of appeal. Where a ground of appeal cannot stand as a result of its incompetent particular that ground of appeal is defective and it ought to be struck out.”
I have gleaned through the seven grounds of appeal contained in the Notice of Appeal dated 30th January 2013 filed by the
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Appellant as well as the crux of the 1st and 2nd Respondents’ preliminary objection.
Apparently, the 1st and 2nd Respondents’ counsel is objecting against all the grounds of appeal, save ground four therein which has been abandoned by the Appellant. While I am conscious of the settled position of law earlier stated that a ground of appeal must arise from live issues determined by the lower Court, a careful study of the Notice of Appeal vis a vis the Ruling of the trial Court appealed against by the Appellant before us shows that all the grounds arose from the issues that were considered by the trial Court. I am of the firm view that the other grounds, 1, 2, 3, 5, 6 and 7 of the Notice of Appeal with respective their particulars are related. They have been couched in a manner which is clear and devoid of any ambiguity. Even though the 1st and 2nd Respondents’ counsel is challenging the competence of the some of the particulars (not all) of grounds 1, 3, 5 and 7, assuming the objections are proper, which I am unable to hold as such, it is obvious that there are other particulars which can sustain the respective grounds as contained in the Notice of
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Appeal.
Evidently, the essence of ground of appeal is indicate the error of law or facts alleged by the Appellant as the defect in the judgment appealed against and upon which the Appellant seeks to set aside. See AKPAN v. BOB (2010) 17 NWLR (pt. 1223) 421 SC. Therefore, this Court will not readily hold out as incompetent, grounds of appeal that essentially states the complaints of the Appellant containing the reasons for which the Appellant considers the decision of the lower Court to have been reached wrongly, unless same is not a reflection of the matters dealt with by the trial Court or matters which ought to have been considered and pronounced upon having been properly brought before the Court. See ADDAX PETROLEUM DEV. (NIG) LTD. V. DUKE (2010) 8 NWLR (PT 1196) 278.
On the whole, the preliminary objection of the 1st and 2nd Respondents fails in its entirety. The Appellant had unilaterally abandoned ground 4 of the Notice of Appeal. Same is hereby struck out with ground 5.
With respect to the main appeal, the Appellant formulated five issues for the determination of this appeal thus:
1. “Whether the trial Court was right in law when
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it made orders directing the Appellant to carry out certain decisions of the trial Court in relation to case No. 2012 Folio. Access Bank Plc v. Rofos Navigation & 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the Court that the Appellant was not a party to the said London suit. (Grounds 1 and 6)
2. Whether the trial Court was right in law when it in essence decided the Appellants motion on notice to set aside the order of injunction made by the trial Court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open Court. (Ground 2)
3. Whether the trial Court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Plc v. Rofos Navigation & 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order. (Ground 3)
4. Whether the Learned trial Court was right in granting injunctive reliefs
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against the Appellant based solely on oral application made by the counsel to the Respondents. (Ground 5)
5. Whether the Learned trial judge acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its subsisting orders made on 12/11/12 and 21/1/13 respectively when there was no shred of evidence placed before him to warrant such a finding. (Ground 7)
On the part of the 1st and 2nd Respondents, two issues were nominated for determination as follows:
1. Having regard to the entire facts, circumstances and evidence before the lower Court, as well as the proceedings of 21/3/13 and 25/1/13, whether the trial Court was not perfectly right in making the orders of 28/1/13 – Grounds 1, 3, 5, 6 and 7.
2. Whether the appellant’s application dated 15/11/12 was decided by the lower Court in its ruling of 28/1/13 – Ground 2.
For the purpose of determining this appeal, I shall adopt the issues nominated by the Appellant. However, Issue four shall be taken first, then issues one and five taken together as issue two; before addressing issues three and four
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respectively. The relevant argument by the 1st and 2nd Respondents shall be incorporated herein as well. Moreover, the arguments of the Appellant in its reply brief have been carefully taken note of and shall be considered as the need may arise in the resolution of this appeal.
Meanwhile, the issues for determination as re-arranged are:
1. Whether the Learned trial Court was right in granting injunctive reliefs against the Appellant based solely on oral application made by the counsel to the Respondents. (Ground 5)
2. Whether the trial Court was right in law when it made orders directing the Appellant to carry out certain decisions of the trial Court in relation to case No. 2012 Folio. Access Bank Plc v. Rofos Navigation & 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the Court that the Appellant was not a party to the said London suit. (Grounds 1 and 6)
AND
Whether the Learned trial judge acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its subsisting
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orders made on 12/11/12 and 21/1/13 respectively when there was no shred of evidence placed before him to warrant such a finding. (Ground 7)
3. Whether the trial Court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Plc v. Rofos Navigation & 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order.
(Ground 3)
4. Whether the trial Court was right in law when it in essence decided the Appellant’s motion on notice to set aside the order of injunction made by the trial Court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open Court. (Ground 2)
On the first issue, counsel for the Appellant submits that Order 28 of the Federal High Court (Civil Procedure) Rules, 2009 provides for Rules and Procedures for the grant of injunctive reliefs by the Court and that all applications for injunctive reliefs at the lower Court must by motion or summons and by no other means. He relied
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on EMORDI v. EGBEKE (2011) 9 NWLR (pt. 1251) 24 at 29. It is the submission of counsel that the rules of Court must be obeyed by both the litigants and the Court vide A.T.S.C V. QUORUM CONSORTIUM LTD (2009) 1 NWLR (Pt.1145) and that where the rules are violated as in this case, the Court is duty bound to vitiate all actions flowing from such violation vide AFOLABI v. MUDASHIRU (2010) 3 NWLR (pt. 1181) 328. It is the submission of counsel that the Respondents, application was made viva voce and not by either motion or summons as required by Order 28. He further contends that the provision of Order 28 (2) informed by the need to avail all parties to an action adequate opportunity to meet the case of an application for injunctive relief before same is granted by the Court.
In response under Respondents’ first issue, learned counsel for the 1st and 2nd Respondents submits that Order 28 is inapplicable to the nature of the application made orally by the Respondents’ counsel before the lower Court. It is the submission of counsel that the entirety of Order 28 relate to interlocutory injunctions and interim preservation of property as can be seen
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on the heading of the said Order 28 and that the law is trite that headings in Statutes must be read alongside the provisions appearing thereunder to arrive at the intendment, import and purport of such a provision vide IBRAHIM v. JUDICIAL SERVICE COMMISSION OF KADUNA STATE (1998) 14 NWLR (PT 584) 1; UTC v. PAMOTEI (1989) 2 NWLR (pt. 103) 244 at 285.
Counsel argued that for Order 28 to apply, the Appellant must establish that the injunctive reliefs sought and granted the Respondent is of such nature as to preserve property but that was not the scenario in the instant case. He argued further that Order 26(1) is applicable and the Respondents are permitted to make oral application by that provision wherein the word may is used. He cited KATTO v. CBN (1991) 9 NWLR (PT 214) 126 at 127; APPEAL No: SC. 37/2015 – EJIKE OGUEBEGO & ANOR v. PEOPLES DEMOCRATIC PARTY & ORS (supra) to submit that it is within the exclusive preserve and discretion of the lower Court to entertain the Respondents’ oral application, more so that it is the duty of every counsel to bring to the Court’s notice acts done to undermine its majesty and since the
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Court itself has the inherent jurisdiction to suo motu ensure that its authority is not ridiculed. He also relied on EBHODAGHE v. OKOYE (2004) 18 NWLR (PT 905) 472 at 500 to 501. He recapped the facts of the instant case before submitting that there is the need for the lower Court to assert its authority and deal with every act of disobedience which is capable of bringing the Court into disrepute and that the issue of disobedience to orders and judgments made by Court is one that affects the integrity and powers of the Court.
He relied on ODU v. CHIEF JOLAOSO & ANOR (2003) 8 NWLR (PT 823) 574 at 562, paras E G. It is also the further submission of counsel that assuming without conceding that Order 28 Rule 2 is applicable, same cannot be interpreted to defeat the course of justice and the Constitution which establish the lower Court as the whole essence of the Rules of Court is to secure the interest of justice and that once an appellate Court is satisfied that the proceedings before a trial Court was conducted in accordance with the tenets of justice, the Court will not interfere unless there is miscarriage of justice. IDUFUEKO v. PFIZER PRODUCTS LTD
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(2014) 1 NWLR (Pt. 1420) 96 at 113; SIMETEQUIP LTD v. OMEGA BANK PLC (2001) 16 NWLR (pt. 739) 324 at 340; ABUBAKAR v. YAR’ADUA (2008) 4 NWLR (pt. 1124) 265 at 511.
Now, the summation of the Appellant’s argument is that the lower Court erred when it failed to abide by Order 28 of the Rules of Court by countenancing the Respondents’ oral application.
While the argument of 1st and 2nd Respondents’ counsel on the main is that Order 28 does not apply herein.
Let me begin by saying that the proceedings leading to the Ruling resulting in the instant appeal is somewhat of a special nature as distinct from ordinary proceedings at the lower Court. As agreed by counsel on behalf of both parties which was well highlighted by the learned trial judge in his Ruling, it was in the process of responding to the application of the Appellant challenging the jurisdiction of the Court that the Learned senior counsel for the 1st and 2nd Respondent raised the issue of disobedience of the existing order of the lower Court and thereupon sought to tender from the bar a copy of the order of a English Court in claim No 2012, Folio 1300: Access Bank plc v. Rofos
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Navigation & 5 ors allegedly obtained in violation of the existing order of the lower Court. See pages 355 to 358 of the record. For better appreciation of the matter at hand, at page 355 to 357 of the record of appeal, the relevant part of the lower Court’s proceedings of 25th January, 2013 when the oral application was made is as follows:
“Wole Olanipekun (SAN): …. We were before this Court on 21/11/2013, the Court has jurisdiction and can exercise jurisdiction to reinforce an earlier order made on 12/11/2013, there was a restraining order made by this Court. Shortly thereafter the 2 Defendants went to English Court to process or procure another order of 23/1/2013 amongst the orders granted is that we should not appear before this Court to address the Court or to address the Court and this Court’s order of 12/11/2012 be vacated. In a situation like this, the Court had jurisdiction to undo what that has been done in the process of litigation and violation of an existing orders and to arrest a situation where the institution or judiciary of this country is being scandalized and brought into disrepute. See case no 6 on the list of authority.
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This is the Judgment of Salami J. as he then was. That the Court can undo what that been done and what is going on nor in violation of the proceedings of this Court. See cases no 11 and 12 on the list of authorities. See case number 8. They are taunting the Court with their application.
What we have now is a commercial lawlessness case no 7.
I submit that pending the Court ruling and Court having been seized of this matter, immediately to halt this recklessness and scandalizing the Nigerian judiciary in Britain by the Defendants and this is so, in view of the order made by the English Court, this Court shall direct or restrain….
Paul Usoro (SAN): I object to the entirety of the prayers and tendering of the documents. That document which he seeks to tender, it has not been shared with me. I have not seen it. Beyond this, the purport which the document goes beyond the confine of what is before the Court.
What is before the Court is an application by the 2nd Defendant. The Court should look at the facts before the Court…..
Osita Mbamalu: My objection is that the document cannot be tendered from the bar or at all for it to be tendered from
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the bar it has to be certified True copy. See Section 104/122 of the Evidence Act, it is not certified, it cannot look it. It does not exist. From all the documents properly before the Court. The 2nd Defendant is not a party to the proceedings in the English Court, The application before the Court is a simple application by the 2nd Defendants, urging the Court to respect the wishes of the parties as endorsed in clause 13 of exhibit COS 1.
The only option left to the plaintiff is to respond to that application.
If the Plaintiffs is desirous of invoking the jurisdiction by obtaining an order it must do so by formal application showing the material it is relying upon and same served the Defendant. We have filed a further affidavit which is a counter to that affidavit. It is our case that a breach of the order of the Court is not something that can be raised from the bar. It must be an application properly filed with an affidavit showing the facts of the alleged infringement or breach.”
Delivering a bench ruling on the above argument of the respective counsel, the learned
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trial judge held at page 367 to 369 of the record of appeal thus:
“This matter was adjourned today for argument with respect to applications dated 19/11/2012 and 15/11/2013 filed by the 1st and 2nd Defendants challenging the jurisdiction of this Court in entertaining this suit in any event.
Learned Counsel for the 1st Defendant Paul Usoro (SAN) first argued his application dated 19/11/2013 and Learned Counsel for the Plaintiffs Chief Wole Olanipekun SAN responded and Paul Usoro (SAN) responded again on his reply on points of law, Learned counsel for the 2nd Defendant Osita Mbamalu aligned himself with the argument of Learned counsel for the 1st Defendant. There was no problem.
When it was the turn of the learned counsel for the 2nd Defendant to move his application dated 19/11/2012. Learned counsel actually argued his application. Learned counsel for the 1st Defendant Paul Usoro SAN also canvassed argument in support of the 2nd Defendant’s application.
However it was when Chief Wole Olanipekun (SAN) Learned Counsel for the plaintiffs presented his argument that reference was made to the processes before the Court wherein it is alleged
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that the Defendants have flouted the positive and subsisting orders of this Court dated 12/11/2012 and 21/1/2013 respectively.
Learned SAN made reference to Exhibits 1 and 2 attached to his counter affidavit and also sought to tender the order from an English Court dated 23/1/2012 from the bar to show that the order of this Court dated 12/11/2012 and 21/1/2013 have violated violently (sic).
I have before me two issues (1) challenge to Court’s jurisdiction and also an allegation that a subsisting a positive (sic) order of this Court have been violated by the Defendants. As at now the issue regard the violation of the Court’s order is in the realm of allegation. The Court must suspend proceedings and investigate by looking at the proceedings whether its orders have been violated. If it is so then it will either be in form of criminal contempt or civil contempt which have its procedure to get the alleged contemptnor to Court but we have not reached that stage yet. It is still an allegation.
See the Supreme Court decision in the case of Ebhodaghe v. Okoye (2004) 18 NWLR PT. 905 P. 494 – 495 where the Supreme Court held that where an act which would
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impugn on the majesty of the Court and is likely to bring the Court into Odium and disrepute is done, it is not just desirable but essential for the Court to first look into the matter of alleged disobedience of Court’s order before proceedings (sic) with issue of jurisdiction because according to Supreme Court it is the duty of the Court at all times to guard jealously its orders including judgment and I want to add that the only cherished or valued property of Court of law is its judgment including its order. Where there is an attempt to deprive the Court of law of its most cherished or valued property, the Court has to resist such attempt with all its judicial might. Where a Court of law is deprived of its most valued property, the Court is no longer a Court of law but a toothless bulldog that can only bark and cannot bite…”
I have taken the pain to reproduce verbatim the antecedent of the argument of parties at the lower Court as well as the bench ruling of the Court. This is to give a representation of the proceedings upon which the Ruling was based. It is obvious that the Ruling of the Court was based on the oral argument of the 1st and 2nd
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Respondents’ counsel that the positive subsisting order of the lower Court has been flouted. While I agree with the Appellant’s counsel that application for injunction must be made via motion or summons pursuant to Order 28 of the lower Court’s Rules, I am however persuaded by the argument of the 1st and 2nd Respondents’ counsel that the learned trial judge was right to have countenanced the oral application made by the Respondents in this regard.
In the first place, as I have earlier noted, the proceedings before the lower Court leading to the instant appeal is sui generis, a special one based on allegation of contempt against one or two parties before the lower Court. While it may be argued that the order of the lower Court was made in favour of the 1st and 2nd Respondents, the order allegedly violated is “an order of the Court” and not necessarily that of the parties (though made in their favour), which possesses the judicial authority and cannot be displaced except by the Court itself.
Therefore, where a Court is faced with set of facts and circumstances as in the instant case, the Court has an inherent power to ensure that the
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sanctity of the Court is not eroded. This it can do on the application of any of the parties, either orally or by formal application. This however does not prejudice the Court itself to raise the issue suo motu. To accept the contention of the Appellant that the lower Court can only give a Ruling bothering on whether its positive and subsisting order had allegedly been violated upon the filing of an application by the parties vide a motion or summons is to leave the Court at the mercy of the litigants in protecting its most prized property – its judgment or orders. It is typical of a Court of justice to preserve the integrity of the Judiciary and the sanctity of the order of Court and this can be achieved by whatever means and procedure that falls within the ambit of the inherent powers of the Court.
To this extent, I am of the firm view that the lower Court cannot and should not be said to have erred in the conclusion it reached as per the non-compliance with the provision of Order 28 of the Federal High Court (Civil Procedure) Rules, 2009, which I earnestly believe will not be utilized as a clog in the exercise of the inherent powers of the Court as
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protecting its sanctity.
Therefore, the learned trial judge was right in law in entertaining the reliefs sought by the 1st and 2nd Respondent geared towards compelling obedience to the subsisting order of the Court based on oral application made by the 1st and 2nd Respondents.
This issue is resolved against the Appellant and in favour of the 1st and 2nd Respondents.
On issue two, Appellant’s counsel referred to the order made by the trial Court to submit that they are incapable of being complied with by the Appellant as the Appellant is not a party to the suit in claim No 2012, Folio 1300: Access Bank plc v. Rofos Navigation & 5 ors. Citing UKPO v. NGAJI (2010) NWLR (pt. 1174); UMEH v. IWU (2007) 6 NWLR (pt. 1030) 416, he submitted that every Court of law has a duty and responsibility to refrain from making any order which is incapable of being obeyed. Referring to the Exhibits accompanying the motion dated and filed 15/1/13 by the Appellant as well as the counter-affidavit deposed on behalf of the Respondents by one Dayo Adesina, counsel contended that there is nothing before the lower Court showing that the Appellant herein is a party to
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the English suit. He submitted vide USANI v. DUKE (2004) 7 NWLR (pt 871) 116 that parties to a suit mean persons whose name appears on record as Plaintiff or Defendant and vide that A.G. LAGOS STATE v. A. G. FEDERATION (2004) 18 NWLR (pt. 904); UBOM v. AMAKA (1999) 6 NWLR (PT 605) 99 that a Court will not make an order that will affect the right or interest of a person or body that is not a party to the case; that a Court cannot by an order compel a person to discontinue a suit in which he is not a party. Counsel stated that the Ruling of the lower Court portends that it is immaterial that the Appellant is not a party to the English suit; that it is sufficient that the Appellant is a beneficiary therein.
With respect to whether the lower Court acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its orders, Appellant counsel submitted that it is settled law that the decision of a Court must be based upon facts and materials placed before it by the parties to the dispute vide ONYIA V. ONYIA (1985) 3 NWLR (PT 11) 1; EGWUNNEWU v. EGBEAGWU (2007) 6 NWLR (pt. 1031) 431. It is the
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submission of counsel that there is no evidence before the lower Court in support of its finding that the Appellant flouted its orders. Relying on ORJI v. ORJI (2011) 17 NWLR (PT 1275) 113; IZUAGIE v. AMUDA (2006) ALL FWLR (PT 294) 493, he contended that a Court is duty bound to base its decision on facts before it. He argued that what the lower Court did was to treat the Appellant and 3rd Respondent as one entity and urged vide HAMZA v. KURE (2010) 10 NWLR (pt. 1203) 630, that this Court should intervene and restore justice by setting aside the above speculative decision of the lower Court.
On his part, 1st and 2nd Respondents’ counsel juxtaposed the order of lower Court of 12/11/2013 and 21/1/2013 with the order of the English Court made on 16/11/2013 before submitting that a close-examination of the order made by the English Court will reveal that the implication of the order goes beyond mere flouting of the order of the lower Court as it is not diametrically in conflict with the orders of the lower Court; its very essence is to neutralize and suspend the orders of the properties of the 1st and 2nd Respondents, contrary to the order of the
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lower Court and that the order clearly seeks to render the order of the trial Court a nullity and also, in a very serious manner, impinge the powers of not only the trial Court but the Nigerian judiciary. He referred to paragraph 187 of the first affidavit of Andrew James Preston at page 253 of the record as well as paragraph 59 of the second witness statement of Andrew James Preston at page 274 of the record and the finding of the lower Court at page 467 of the record as to the statement to the effect that the 2nd Respondent herein is above the law and that he has the judiciary of this country in his pocket.
It is the submission of counsel that it is beyond dispute that the order of the English Court was procured in favour of both the 3rd Respondent and the Appellant herein and that the Appellant cannot feign ignorance of the proceedings of the English Court or deny that it was not a direct beneficiary of the order so made. He contended that the lower Court was right in restraining the Appellant from enforcing the said order, since the Appellant was a beneficiary. He relied on U.B.A v. JARGABA (2007) 11 NWLR (PT 1045) 247 at 267 before submitting that
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the Appellant did not at any time in the proceedings before the lower Court deny the fact that the order made by the English Court was instigated by both the Appellant and the 3rd Respondent for their joint benefits. He cited AKERE v. GOV. OF OYO STATE (2012) 12 NWLR (PT 1314) 240 at 278 that the finding of the lower Court is unappealed and remains binding on all parties for all intents and purposes. He further argued that issues relating to obedience of subsisting Court orders go to the foundation and integrity of the Courts and no Court will fold its arms and allow a party under whatever guise to flout its orders. He relied on OBA AMOS BABATUNDE & ORS v. MR SIMON OLATUNJI & ANOR (2000) 2 NWLR (PT 646) 557 at 572, per ACHIKE, JSC; APPEAL No: SC.37/2015 – EJIKE OGUEBEGO & ANOR v. PEOPLES DEMOCRATIC PARTY & ORS at 37 to 38 delivered on 29th January, 2016. Referring to the Ruling of the trial Court, counsel submitted that decision therein to the effect that the order of the English Court is a violation of its earlier orders has not been appealed against. Counsel argued vide DONA v. OGIRI (1998) 3 NWLR (PT 541) 246 at 266 that anyone who is served
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with or becomes aware of a valid order of Court should ensure that he completely obeys it and desist from taking any step that could render the decision a nullity. He urged that the Appellants arguments be discountenanced as there was sufficient evidence before the lower Court upon which the Court arrived at the conclusion that the Appellant had flouted its orders and that where the decision of a trial Court is based on evidence before it by parties, an Appellate Court will not interfere in the findings made by the lower Court vide OSUJI v. EKEOCHA (2009) 16 NWLR (PT 1166) 81 at 117. He finally urged that this issue be resolved in the favour of the 1st and 2nd Respondents favour.
Now, the law is settled and upon which the parties to this appeal readily agreed with that it is the primary function of the trial Court to make a finding of fact based on the material evidence led before it and Appellate Courts are not in the habit of interfering or disturbing the findings of fact of a trial Court unless it is shown that same is perverse or is not in tandem with the evidence on record or the evidence on record is insufficient to warrant the finding
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of fact as done by such trial Court. See MINI LODGE LTD v. NGEI (2009) 18 NWLR (PT 1123) 254; AROWOLO v. OLOWOOKERE (2011) LPELR – 561 (SC); R-BENKAY NIGERIA LTD v. CADBURY NIGERIA LTD. (2012) LPELR – 7820 (SC).
The complaint of the Appellant under the two combined issues here is that the trial Court erred when it made certain orders directing the Appellant to carry out certain decisions of the trial Court in relation to claim No 2012 Folio 1300: Access Bank Plc v. Rofos Navigation & 5 ors pending at the English Court and that the Court also erred when it held that the Appellant flouted its subsisting order.
With respect to the question as to whether the Appellant indeed flouted the subsisting order of the lower Court, I have perused the entire content of the record before this Court and I found there is no evidence on record upon which the lower Court’s finding in this regard is predicated. Quite interestingly, at page 460 of the record, the learned trial judge noted thus:
“The cumulative effect of the steps taken by Access Bank plc being to interfere or tamper with the Plaintiffs’ properties and business interest…”
At page 478
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of the record, he stated:
“… I have in this Court given several judgments in favour of Access Bank Plc., I wouldn’t know what compelled Access Bank Plc to make attempt to ridicule the judiciary of this country before international community…”
Clearly, the above positive and definite finding of the trial Court that the alleged contemptuous steps were taken by the 3rd Respondent, Access Bank Plc (alone and not with the Appellant), is indeed at variance with its subsequent findings that the Appellant jointly and severally with the 3rd Respondent flouted the subsisting order of the Court. A fortiori, it is also obvious from the first Affidavit of Andrew James Preston at page 204 of the record as well as his second witness statement at page 262 evidently relied upon by the trial Court, that the information in the depositions contained therein which allegedly was made to ‘ridicule the judiciary before the international community’ was derived from one Mr. Fatai Oladipo, Corporate Counsel and one Mr. Deji Awodein, a Deputy General Manager, both employees of the 3rd Respondent, Access Bank Plc. See paragraph 2 of page 205 and paragraph 4 of page 263
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of the record. While it may be conceded as held that the Appellant is a beneficiary of the order of the English Court; I must say that the fact that a party is a beneficiary of the consequence of the act or conduct of another party is not sufficient enough to hold it liable for the act or omission of the latter party. In the instant case, before the Appellant can be held to have flouted a subsisting order of the lower Court, there must be evidence on record to show that it indeed acted in contravention of the order so made. This is not so here. Consequently, I am of the firm view that the finding of the trial Court that the Appellant indeed flouted its subsisting order is perverse.
The question to be considered then is whether the trial Court was right to have ordered the Appellant to carry out certain actions with respect to the order of the English Court. A comprehensive resolution of this question calls for the reproduction of the orders made by the learned trial judge on the 28th January, 2013, which is the fulcrum of this appeal. At pages 484 to 485, it is ordered:
1. That the 1st and 2nd Defendants shall within 48 hours from today discontinue
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and file notice of discontinuance of all processes filed in claim no 2012 folio 1300 in the queen’s bench division of the High Court of Justice England from 12th November 2012 till date being the date the subsisting order was made in this suit in the Plaintiffs favour and evidence of compliance shall also be filed in Court within the prescribed period.
This order herein made includes all processes filed by the Defendants in the Court of any country in the world where the plaintiffs have assets or business interest and that of their agents, privies and partners.
2. The 1st and 2nd Defendants are hereby restrained from enforcing any order, warrant or other process whatsoever in particular the orders made by the English Court on 16/11/2012, 23/1/2013 against assets and properties of Plaintiffs their business interest and their agents or partners either in or outside Nigeria pending the determination of the plaintiffs, suit herein.
3. Undertaking to this effect which shall be filed by the Defendants in this Court within 48 hours from today.
As the Appellant’s counsel rightly noted, every Court is under the bounden duty to ensure that it
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refrain from making any order or giving any direction to any party, which is incapable of being obeyed by whom it is directed at. Orders of Court ought not to be made in vain but must be of such nature that it is susceptible of being obeyed by the subject. In the case at hand, the learned trial judge made sundry orders against the Appellant and the 3rd Respondent on the premise that the Appellant and the 3rd Respondent jointly and severally violated the subsisting order of the Court. As earlier noted, the learned trial judge erred in this regard. No evidence on record implicated the Appellant as having flouted the positive order of the Court. It is apparent from the evidence on record that the Appellant is not a party to the English suit. Indeed, the English suit in claim No. 2012 Folio 1300 was instituted by the 3rd Respondent against (1) Rofos Navigation Ltd; (2) Xifias Navigation Ltd; (3) Heli Navigation Ltd; (4) Tutbury Maritime Ltd; (5) Capital oil and Gas Industries Ltd (2nd Respondent herein); (6) Ifeanyi Patrick Ubah (1st Respondent in this suit). Even though, it is conceded that the Appellant is not a party to the English suit, I believe that is
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not the end of the matter. As the trial Court found, which finding has not been appealed against by the Appellant, the Appellant is indeed a beneficiary of the order made by the English Court. Perhaps, a reproduction of the relevant order of the English Court at page 444 of the record is apposite. It states:
1. Until further order of the Court, the Fifth and Sixth Defendants and each of them be restrained, whether by itself or through its servants or agents, from continuing or assisting in the continuation of proceedings brought against the Claimant and/or Coscharis Motors Limited (and in particular, but not limited to suit No. FHC/L/CS/1268/12 in the Federal High Court of Nigeria) arising out of or in connection with the Deed executed by the Fifth and Sixth Defendants (including, for the avoidance of doubt, any proceedings concerning the existence, validity or termination of the said Deed (a copy of which is attached hereto) and from instituting or pursuing such proceedings other than by way of proceedings in the High Court in England….”
Evidently, the Appellant’s contention in this appeal as per the error of the lower Court is with respect to the
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order relating to the discontinuance of the English suit. While I am persuaded to agree with the Appellant’s counsel that the Appellant, not being a party to the English suit lacks the locus standi to enforce the order of the lower Court, only and specifically as it relates to the discontinuance of the English suit, I am however inclined to say that having regard to the fact that the Appellant is a beneficiary of the order of the English Court, he can validly be restrained, as rightly done by the learned trial judge from enforcing the order of the English Court with respect to which it is a beneficiary.
With respect to the counsel for the 1st and 2nd Respondents, the crux of the instant issue is not whether the order obtained from the English Court is in conflict with the subsisting order of the lower Court; rather, the contention herein is whether the orders made by the learned trial judge as it affects the Appellant was rightly made. Perhaps, 1st and 2nd Respondents blew muted trumpet with respect to the question as to whether the Appellant can indeed discontinue the pending proceedings before the English Court. Nothing can be far from the
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truth. The Appellant lacks the requisite legal capacity to discontinue the proceeding as it will be deemed a meddlesome interloper by the English Court unless it will attempt to make an application to be joined as a party therein, which no doubt will be contrary to the subsisting order of the lower Court which the Court is forcefully but rightly protecting vide the orders it made on the 28th January, 2013.
Nonetheless, having been a beneficiary of the order of the English Court, the learned trial judge was right to have restrained the Appellant from enforcing the said order. This no doubt is conceded by the Appellant as its complaint is directed sorely at the order to discontinue under the extant issue.
Issue two is partly resolved in favour of the Appellant.
On issue three, Learned Appellant counsel submits that a Court of law is duty bound to restrict itself within the scope and ambit of claims or reliefs sought by parties before it. He relied on DEBAYO v. DOHERTY (2009) 1 NWLR (PT 1123) 505; ACHU v. C.S.C. CROSS RIVER STATE (2009) 3 (PT 1129) 475; ORJI v. ORJI (2011) 5 NWLR (PT 1241) 571 before submitting that every Court would only deal
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with issues raised by the parties before it and abstain from delving into issues outside the ones raised by the litigants vide NJABA L.G.C. v. CHIGOZIE (2010) 16 NWLR (PT 1218) 166 and that a Court cannot grant a relief not sought by the parties before it vide SULE v HABU (supra).
Learned counsel contended that the orders made by the lower Court were completely charitable and not borne out of any claims or applications made by the Respondents. Counsel referred to the Respondents’ claim before the lower Court made viva voce to submit that the learned trial judge was generous and charitable in granting reliefs and prayers not sought by the Respondents.
He further submits that the Respondents’ application did not include any prayer or relief requiring the Appellant to discontinue within 48 hours all processes filed in the English suit or in any other part of the world where the Respondents have assets or business interest inclusive of the interest of the Respondents partners. He referred to EKPEYONG v. NYONG (1975) 2 SC 71 at 81 – 82; MAKANJUOLA v. BALOGUN (1989) 3 NWLR (PT 108) 192 at 206. Counsel argued that though the lower Court has the power to
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grant any relief incidental and necessary to the reliefs claimed even where such incidental relief has not been expressly claimed vide NNEJI v. CHUKWU (1988) 3 NWLR (PT 81) 184 at 208 but that in the instant case the orders made by the trial Court was original, radical and in no way incidental to the reliefs sought via voce by the Respondents. He finally submitted that the order of the lower Court on the Appellant to discontinue the English suit not being incidental to any of the orders sought on behalf of the Defendants should be struck down by this Court.
No argument in response to this issue by the 1st and 2nd Respondents in their brief of argument. I had earlier noted that the Appellant is not a party to the English suit and lacks the locus standi to discontinue same. The Appellant did not in any way flout the subsisting order of the lower Court to warrant the order that the Appellant should jointly with the 3rd Respondent discontinue the proceedings before the English Court. Therefore, it will be an exercise in futility to proceed to consider whether indeed the trial Court suo motu ordered the Appellant to discontinue the said suit. I so hold. The
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extant issue is of no material relevance, hence academic.
On issue four, learned Appellant counsel recapped the facts of the case before submitting that it is clear that it was the motion to dismiss the suit for want of jurisdiction that was moved by the Appellant’s counsel on 25/1/13 and thereafter respondent to by the Learned senior counsel to the Respondents before the learned trial Court in a bench ruling to determine the admissibility of a document sought to be tendered from the bar suspended proceedings to “decide whether the orders of the Court have been violated.” counsel argued that a Court of law or Tribunal has a legal duty to hear and make a decision on any Court process or motion before it. He cited DANDUME L.G.C v. YARO (2011) 11 NWLR (PT 1257) 159; AFRO-CONTINENTAL (NIG) LTD v. CO-OPERATIVE ASS. OF PROFS INC (2003) 5 NWLR (PT 813) 303. Counsel stated that at the lower Court, there is ample evidence that the Appellant had two motions on notice before the Court which the Court is obligated to hear and determine and it is not in dispute from the records that the motion being argued by the Appellant when the ruling of 28/1/13 was delivered was the
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motion to dismiss the case for want of jurisdiction and not the one to vacate the order of injunction made by the Court on 12/11/12. It is the submission of counsel that the lower Court was under a legal duty not to make findings or pronouncement which would have the effect of determining or prejudging the Appellant’s application to vacate the interlocutory injunction which the application had neither been moved nor canvassed by the Appellant. He referred to SULE v. HABU (2011) 7 NWLR (pt. 1246) 839 before stating that in interlocutory proceedings the Court has a duty to avoid deciding the substantive matter vide UBN PLC v. ASTRA BUILDERS (2010) 5 NWLR (PT 1186) 1; IDANRE L.G. v. GOVT OF ONDO STATE (2010) 14 NWLR (pt. 1214) 509; BROWN v. BROWN (1994) 7 NWLR (pt. 355) 217 as there is a legal duty on every Court to refrain from determining an application not yet canvassed while deciding another application on which it has received arguments from the parties, hence a breach of Section 36 of the Constitution of the Federal Republic of Nigeria (as amended) and cited TIPPI v. NOTANI (2011) 8 NWLR (pt. 1249) 285.
On their own part, 1st and 2nd Respondent,
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through their counsel submitted that there is no dispute as to the fact that the Appellant filed two applications before the trial Court but that the records before this Court clearly shows that it was the application of the Appellant challenging the jurisdiction of the Court to entertain the suit that was being considered by the trial Court at the time the orders in the Ruling of 28/1/2013 were made and that the Ruling of the Court was based on an application made by counsel to the 1st and 2nd Respondents while responding to the Appellant’s application to dismiss the suit for want of jurisdiction. It is the contention of counsel that the Ruling did not in any way touch on the Appellant’s application seeking to vacate the earlier orders made by the trial Court. Counsel recapped the facts leading to the Ruling of the trial Court before arguing that there is nothing in the misquoted portion of the Ruling in paragraph 5.09 of the Appellant’s brief to suggest even remotely that the trial Court reached any decision on the application of the Appellant which was never moved by the Appellant and that the trial Court prefaced its said portion with the words:
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Assuming without deciding, not conceding, as quoted by the Appellant. He urged that this issue be resolved in the 1st and 2nd Respondents, favour.
For the sake of appreciating in context the complaint of the Appellant under this issue, it appears that parties herein are in agreement as to the fact that as at the time the Ruling of the trial Court, which is the subject of appeal herein, was delivered on 28th January, 2013, there were two pending applications before the Court – one for the setting aside of the subsisting order of the lower Court and the other challenging the jurisdiction of the Court. Quite naturally, the trial Court decided to first consider the latter application as same deals with the competence of the 1st and 2nd Respondents’ suit, hence jurisdiction of the Court. It was in the course of taking argument on that application on the 25th of January, 2013 that an application was brought by the 1st and 2nd Respondent viva voce as to the violation of the subsisting order of the Court. It was on this premise that the learned trial judge decided to suspend hearing on the application in order to determine whether the orders of the Court had
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indeed being flouted by any of the parties to this suit, which thus led to the Ruling delivered on 28th January, 2013. Therefore, it is safe to conclude that as that time there were two motions pending before the lower Court – one half moved and the other not yet moved at all.
Now, the Appellant’s complaint under this issue is that the learned trial judge ought to have restricted himself to the matters before it, that is, as to whether its subsisting orders have been violated and not overreach matters which are aptly covered by applications that are yet to be considered by the Court. The relevant part of the Ruling of the trial Court that the Appellant is dissatisfied with herein is at page 457 to 458 of the record which is reproduced hereunder:
“If the Defendants were interested in presenting their case before the Court stating grounds that the application should not be granted, the Defendants ought to have checked on the Registrar of the Court on 9/11/2012 to know when the matter was adjourned to. The 1st Defendant has not complained about the hearing of the Plaintiffs’ application on 9/11/2012 except that they are contending that the Court did not
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have jurisdiction to entertain the suit in any event.
The 2nd Defendant is however contending that the period under the provisions of Order 25 Rule 5 of the Rules of this Court for them to respond to the application did not expire as at the time the application was argued. Assuming without deciding that the period for the 2nd Defendant to respond to the motion did not expire as at 9/11/2012 when the motion was argued, the 2nd Defendant upon being served with the hearing notice of the Court’s proceedings of 9/11/2012 ought to have appeared in Court on 9/11/2012 or 12/11/2012 to raise this issue that they were still within time to respond to the application. But they preferred to stay back to enjoy the comfort of their homes and offices and expected the Court to wait for them.
It is not as if the 2nd Defendant did not know that the motion will be argued on 9/11/2012….”
With respect to the learned trial judge, the above pronouncement, no matter how one looks at it, goes beyond the scope of the matter that was being considered by the Court, that is, whether its orders of 12th November, 2012 and 21st January, 2013 were flouted by any of the parties
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before it. A fortiori, the learned trial judge referred to one of the grounds upon which the Appellant had sought to set aside the subsisting orders of the Court vide the motion on notice dated 15th November, 2012, which was still pending before the Court and upon which no argument had been canvassed by the respective counsel. For better comprehension, the Appellant had by the motion prayed that the order of the Court made on 12th of November, 2012 be vacated and set aside on the ground, inter alia that the said order was made in complete violation of Order 26 Rules 5 and 6 of the Federal High Court (Civil) Procedure Rules, 2009 and Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
I am unable to accept the contention of the 1st and 2nd Respondents’ counsel that the trial Court did not ipso facto consider the Appellant’s pending motion that had not been argued before the Court. Contrary to the argument of the 1st and 2nd Respondents’ counsel, it is not enough for the learned trial judge to have prefaced his pronouncement herein with the words: “Assuming without deciding“, but then proceeded to make pronouncements
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touching on the substance of the application not yet moved. It is elementary principle of adjudication that where a Court is faced with circumstances, as in the instant case, where it is obligated to make certain findings and orders, same must be founded on the ground upon which it has received argument from the parties. In essence, the decisions of a Court must be restricted to the matters specifically brought before it by the parties but where such matters are raised suo motu by the Court, the parties must be heard before any pronouncement is made thereon. See SULE v. HABU (2011) 7 NWLR (pt. 1246) 339. I must say that the policy behind the principle of law that every Court, when dealing with interlocutory matters, must avoid delving into the substantive questions or issues applies in the instant case. Consequently, every Court must also be careful to restrict itself to the matters arising under an application and avoid making statements giving the impression that it has made up its mind on other pending applications before the Court upon which no argument has been canvassed by the parties. Therefore, the learned trial judge erred when he made pronouncement on the
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Appellant’s pending application which upon no argument had been canvassed by parties thereon.
This issue is resolved in favour of the Appellant.
The summation of the resolution of this appeal is that issue one is resolved in favour of the 1st and 2nd Respondent, while issue two is resolved partly in favour of the Appellant only to the effect that the learned trial judge erred where he held the Appellant to be jointly liable with the 3rd Respondent with respect to the flouting of the lower Court’s subsisting order, thereby ordering the Appellant to discontinue the English suit in claim No.2012 Folio 1300; issue three is of no material relevance to this appeal and finally, issue four is resolved in the Appellant’s favour.
On the whole, the Appellant’s appeal is meritorious and hereby partly allowed. The Ruling of ABANG J., of the Federal High Court, Lagos delivered on 28th January, 2013 is partly set aside.
Parties to bear their own costs.
Other Citations: (2016)LCN/8753(CA)
