First City Monument Bank Plc. V. Nigeria Institute of Medical Research & Anor. (2008)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
On the 16th day of June 2008, the applicant filed a motion before this court praying for the following orders:
“1. An order enlarging the time within which to file the Appellant’s notice of Appeal against the decision of the Honourable Justice B.B. Aliyu of the Federal High Court Lagos delivered on an Ex-parte application.
- An order of interlocutory injunction restraining, the 1st respondent by Itself or through its servants, agents, privies and whomsoever from Enforcing the Judgment of the Federal High Court howsoever In Suit No. FHC/L/CS/887/03 against the applicant pending the determination of this appeal.
- AND FOR SUCH FURTHER ORDER as this Honourable Court may deem fit to make in the circumstances.”
In support of the application is an affidavit of 23 paragraphs deposed to by one Adinso Iheonu, legal practitioner of 27/29 Odunlami Street, Lagos with four (4) exhibits attached thereto. Similarly, 23 paragraphs reply to the 1st respondent’s counter-affidavit was filed with one exhibit attached to same. In arguing the motion the learned counsel Mr. Demuren relied on all the paragraphs of the supporting affidavit particularly paragraphs 3 – 22 as well as the reply to the 1st respondent’s counter-affidavit. Learned counsel submitted that he is aware of the provisions of S.14 (1) of the Court of Appeal Act but contended that by virtue of the provisions of S.241 (1)(b) of the 1999 Constitution there is a right of appeal in respect of orders made ex-parte where the grounds of appeal involve questions of law alone. He said the applicants’ appeal is based on point of law alone as shown on the proposed Notice of Appeal Exhibit ‘A4.’ Learned counsel cited the cases of Igwe Agu v. Ayalagu 1999 6 NWLR (pt 606) 205 at 221 and Nigerian Spanish Engineering Co. Ltd v. Olympic Steel Mill (2000) 3 NWLR (pt. 649) 403 at 413 paragraph B – C to buttress his submission. He said where there is conflict between an Act and Constitution same is resolved in favour of the constitution because it is Supreme. He contended that S.14 of the Court of Appeal Act is in conflict with S.241 (1) (b) of the constitution and urged that same be resolved in favour of the Constitution because it is supreme.
Furthermore, learned counsel contended that the proposed notice of appeal is challenging jurisdiction and competence of lower court to entertain ex-parte application and give its order ex-parte. The ex-parte order is a variation of the order absolute given by the lower court. Learned counsel referred to the Garnishee order Nisi (Exhibit A5) obtained against the applicant and contended that if order is not stayed the 1st respondent will not refund the money and the appeal if successful will be rendered nugatory. Learned counsel referred to Book on injunctions and Enforcement of orders by Afe Babalola (SAN) chapter 16 page 241 paragraph 20 and cases of Martins v. Nicannar Foods Ltd 1988 NSCC Vol. 19 (pt. 1) 613 at 616; Intercontractors Nig. Ltd v. V. A. C Nigeria Ltd 1988 NSCC volume 19 (Pt. 1) 737 at 752. Learned counsel submitted that these authorities showed that this court has power to grant injunction in absence of valid pending appeal.
The 1st respondent’s counsel opposed the application and relied on all the 28 paragraphs of the counter-affidavit. Learned Counsel contended that the decision of the lower court is an exparte order as such applicant has no right of appeal. He relied on paragraph 19 of the counter-affidavit, Exhibit B1, ‘D2 and ‘E10″ respectively. Section 14(1) of the Court of Appeal Act, precludes right of appeal arising from ex-parte decision. Furthermore, it was contended that S.243 of the 1999 Constitution and S.241 (1)(b) of the Constitution should be read subject to the provision of S.243 of the Constitution. It was submitted that applicant must be a party to the proceedings. He referred to Order 43 of the Federal High Court Rules 1 & 3. Learned Counsel contended that right of appeal was not infringed. Applicant did not appeal against the garnishee Order absolute made on 11/12/06 (Exh. ‘B1’ and ‘B2’) and there is no order staying execution of the garnishee order absolute. See Exhibit ‘E9’ at page 11. Learned counsel submitted that the ex-parte order was a consequential order to enable them levy execution. He cited the case of Union Bank of Nigeria v. Boney Marcus Industry Ltd. 2005 13 NWLR (pt. 943) 654 at 666 – 667. Counsel contended that the application is an abuse of court process and should be dismissed. See Exhibit ‘E3’ & ‘E4′ where similar application was struck out for being incompetent. Learned counsel contended that even if applicant has right of appeal (not conceding) he should have sought for trinity prayers because it cannot ask for extension of time as of right being not a party. See Eze v. Okolonji (1997) 7 NWLR (pt. 513) 515. He urged the court to dismiss the application.
While replying on point of law applicants’ counsel Mr. Dumerun contended that the issue of trinity prayers does not arise. The order was made against them. An order absolute is self-executory. He relied on order 44 rules 2 of Federal High Court Rules. Learned counsel contended that the exhibit referred to did not refer to the Judgment sum.
I would first of all resolve the point of law raised by the 1st respondent in paragraph 19 of its counter-affidavit. Following a motion ex-parte filed on 26/02/07 by the 1st respondent the lower court on 9/3/07 granted leave to the 1st respondent to levy execution for the purpose of executing the judgment debt as contained in the garnishee order Nisi dated 21/11/06 made absolute on 11/12/06. The applicant was not satisfied with the decision and is now seeking for enlargement of time to appeal against the ex-parte order. The issue is does the applicant have the right to appeal against the ex-parte order? The provision of S.14 (1) of the Court of Appeal Act states that no right of appeal exist if the decision sought to be appealed against emanates from the interlocutory order of the court below made ex-parte. For clarity I would reproduce S.14(1) heavily relied upon by the 1st respondent. It states:-
“S.14 (1) where in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original Jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal, but no appeal shall lie from any order made ex-parte, or by consent of the parties, or relating only to costs.
- Nothing in subsection (1) of the section shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.”
This section is certainly unambiguous. But same has to be read along side the section 241(1)(b) of the 1999 Constitution. It provides:-
“S.241(1) An appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(b) Where the ground of appeal involves questions of law alone, decisions, in any civil or criminal proceedings.
While interpreting the provisions of Section 15(1) of the Court of Appeal Act and S.220 (1) (b) of the 1979 Constitution, this court in Agu v. Ayalogu cited supra by applicant’s counsel had this to say at page 221:-
“Now whereas section 15(1), (2) clearly denies the applicants. In the instant case the right to appeal against the interlocutory Ex-parte order of the trial court, section 220(b) on the other hand has created a right of appeal notwithstanding the fact that the appeal would be emanating from ex-parte order of the Court of trial. Furthermore, under the provision of section 220 (b) the appeal is as of right an appellant does not require the Leave of any court in order for his appeal to be competent. In so holding I find applicant’s prayer for leave to appeal in applicant’s circumstances unnecessary.”
Furthermore, in N. S Engineering Co. Ltd. vs. V. O. S. M. Ltd supra this Court per Mohammed JCA at page 413 had this to say:-
“Thus the decision of the lower court which is the subject of the applicants Appeal now pending in this court is only that decision of the lower court delivered on 28 – 7 – 99.
In other words there is no appeal now pending in this court by the applicants against the two decisions of the lower court contained in the two ex-parte orders of that court of 3 – 4 – 96 and 15-4-96 inspite of the fact that the applicants have the right to appeal against those decisions as of right on questions of law or mixed law and fact under sections 220(1) (b) and 221 of the 1979 Constitution. This is because the decisions of the lower court in the two ex-parte orders are decisions of the court within the meaning of that word under section 277 of the 1979 Constitution which are appeallable to this court.”
It is obvious that S.14 (1) of the Court of Appeal Act which is relevant to the case under consideration is a replica of S.15 (1) of the Court of Appeal Act referred to in the cases cited supra. While section 220(1) (b) of the 1979 Constitution is also replica of S.241 (1)(b) of the 1999 constitution. The import of section 241 (1) (b) of the 1999 Constitution confers right of Appeal on a party where the appeal involves question of law only. The interpretation given by this court in the two cases cited supra is to the effect that an ex-parte order is a decision, so a party can appeal against such order as of right where the grounds of appeal involves questions of law alone. The argument of 1st respondent’s counsel to the effect that applicant has no right of appeal against an ex-parte order cannot therefore be sustained.
The issue for consideration now is whether the three grounds of appeal relied upon by the applicant can be classified as grounds of law. The notice of appeal exhibit ‘A4’ contains three grounds of appeal as follows:-
Ground One
(a) The learned trial judge erred in law when she granted the Ex-parte application to levy execution against the Appellant/Garnishee Bank in the sum of N10, 167.500.00 contrary to the intent and meaning of the trial court’s order Absolute made on 11th December, 2006.
Particulars of error
(1) On 11th December, 2006, the trial court made a garnishee order absolute in respect of the judgment debtor’s account with first city monument Bank Plc.
(2) The credit balance in the judgment debtor’s account as at the date of the order was N36, 185.60.
(3) The Appellant complied by issuing the cheque in the sum of N38, 185.60 and also filed an affidavit of compliance which was in the Court’s file.
The decision complained of is a review and/or an amendment of the order absolute.
Ground Two
(b) The Learned trial judge erred in law when she entertained the judgment Creditor/Respondent’s exparte motion having become functus officio immediately the order absolute was made.
Particulars of error
- Order 43 Federal High Court (Civil Procedure Rules) 2000 through which the Exparte was brought is not relevant and/or applicable to this suit.
- The said order was used as a ploy to mislead the court and thereby amend the order absolute to suit the selfish wish of the judgment Creditor/Respondent.
- The motion ex-parte dated 31st January, 2007 culminating in the ruling is incompetent as it neither falls within Order 43 rule 2 nor satisfies the requirement Order 43 rule 4 Of the Federal High Court Civil Procedure Rules 2000.
- The garnishee order absolute is self executory by virtue of section 86 sheriffs and civil process Act, Order 44 rule 4 (2) and order 43 rule 6 (4) of the Federal High Court Civil Procedure Rules, 2000 and does not require the leave of court as it has become Functus officio in respect of the sum to be paid by the Appellant.
Ground three
(c) The learned trial judge erred in law when she held as follows:-
“In the circumstances the application has merit and the writ of execution of the Judgment debt is hereby ordered to be issued against the garnishee for the purpose of executing the judgment debt as contained in the garnishee order absolute made on 11/12/2006.”
Particulars of error
(1) The garnishee order absolute made on 11th December, 2006 is not in respect of the Judgment debt but in respect of the 1st Respondent’s account with the Appellant.
(2) The Ruling is a variation of the garnishee order absolute which is outside the competence of the trial judge. The trial court has no appellate jurisdiction over its order or decision.
(3) The garnishee Order absolute as couched by the trial judge has no relationship with the Judgment debt.
(4) In case of Union Bank of Nigeria Plc v. Boney Marcus Industrial Limited (2005) 13 NWLR (pt. 943) 654 is not an authority for the trial court to review, amend and/or Correct any error in the couching of the garnishee order absolute of 11th December, 2006.
I have carefully examined all the three grounds of appeal reproduced supra. It appears to me that ground one or (a) in particular can be classified as a ground of mixed law and fact. Where the ultimate finding results in conclusions of law and fact, the finding involves question of mixed law and fact. It is trite that where a ground of appeal is of mixed law and fact it can only be filed when leave has been sought and obtained. See Abbey v. Alex (1991) 6 NWLR (Part 198) 459, Eke v. Ogbonda (2006) 18 NWLR (pt. 1012) 506 at 540 – 541 paragraphs H – A; Okeke v. Petmag Nig. Ltd (2005) 4 NWLR (Pt. 915) 245 at 260 261 paragraphs D – F; Ehinlanwo v. Oke (2008) 11 FWLR (Pt. 442) 1007 al 1040 paragraphs A – D and Ugboaja v. Akintoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278 at 294.
As earlier stated where the proposed ground of appeal involves question of law alone, it can be brought without leave of Court and thus it can be brought as of right. In the instant case since all the grounds of appeal are not grounds of law alone, the appeal cannot be as of right as argued by applicant’s counsel. Applicant ought to have included a prayer for leave since ground one is a ground of mixed law and fact.
Applicant only sought for an order enlarging the time within which to file notice of appeal against the decision of the Federal High Court Lagos delivered on 9/03/2007. Order 7 rules 10 of the Court of Appeal Rules, 2007 stipulates conditions applicant must fulfill to be entitled to the discretionary reliefs sought for. Authorities abound thereby making it a settled law that if applicant must succeed it should:-
(a) By affidavit evidence provide good and substantial reason to explain the delay in filing the appeal.
(b) Exhibit notice of appeal with ground of appeal which prima facie show good cause why the appeal should be heard.
Applicant satisfactorily explained the delay in filing the appeal within time in paragraphs 3 – 12 of the affidavit in support. Paragraph 10 in particular showed that the notice of appeal though filed within time was struck out because same was not signed by a legal Practitioner which rendered the notice of appeal incompetent. The grounds of appeal Prima facie raise substantial questions for the consideration of the appellate court. But for the absence of the leave applicant would have been entitled to the exercise of court’s discretion in its favour. As it is the appeal against the ex-parte order is not as of right. Having failed to include prayer for leave to file and argue ground of appeal involving mixed law and fact, this application in my humble view, cannot be granted. Accordingly it is hereby refused and same dismissed.
No order as to cost.
Other Citations: (2008)LCN/2992(CA)
