Framan Enterprises Limited & Anor V. Spring Bank Plc & Ors (2016)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABUBAKAR, J.C.A.
This appeal is against the Ruling of Olateru-Olagbegi J. of the High Court of Lagos State delivered on the 15th day of September 2009 in suit No. LD/M/609/06.
The Ruling arose from an application by the Defendants (Now Appellants in this appeal) praying the lower Court to set aside its judgment delivered on the 1st day of November 2007. The suit at the lower Court was commenced by the Claimant (1st Respondent in this appeal) by an Originating Summons. When the matter came up for hearing on the 1st day of November 2007 the Claimant (1st Respondent herein) moved the lower Court to enter judgment in their favour pursuant to Order 25 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2004 in the absence of the Defendants (Now Appellants). The Learned Counsel for the 1st Claimant at the Court below (1st Respondent herein) informed the Court that he notified the Defendants (Now Appellants) of the hearing date. The lower Court dismissed the Application to set aside, thereby refusing to set aside its judgment and held that the Applicants (Appellants) had the opportunity to be heard but failed to take advantage of the opportunity offered by the Court.
The Appellants therefore became dissatisfied by the ruling of the lower Court refusing to set aside its judgment and approached this Court by Amended Notice of Appeal filed on the 8th day of March 2016 containing four grounds of appeal. The Appellants’ Amended brief of argument was filed on 8th day of March 2016. The Appellant also filed Reply Brief on the 24th day of March 2016, both briefs were filed by learned Counsel B. C. Igwilo.
Learned Senior Counsel Sylva Ogwemoh SAN filed the Respondents’ Brief of Argument on the 17th day of March 2016.
In the Appellants brief of argument, learned Counsel nominated three issues for determination, the issues are as follows:
1. Whether the findings of the learned trial Judge as cited at Ground One of the Notice of Appeal did not entirely miss the mark with regard to Order 25 Rule 6 of Lagos State (Civil Procedure) Rules 2004 under which the learned Judge entered its ruling in issue.
2. Whether the learned Judge was right in its view that the letter of counsel for the claimant constituted a legal hearing notice to the Defendants/Applicants of a schedule of hearing the matter or proceeding with the Pre-Trial Conference which was sufficient to make the non-appearance of the Defendants/Applicants on the said date 1/11/07 an unpardonable offence for which they must be punished with an irreversible judgment against them having regard to all the circumstances of the matter and the provision of the said Order 25 Rule 6 of Lagos State Civil Procedure Rule 2004.
3. Whether the said ruling of 01/7/07 was altogether a nullity and therefore ought to have been set aside because the pre-trial conference proceeding in which it was made was inapplicable to the originating summons procedure under which the matter was commenced.
The Respondent on the other hand submitted a sole issue for determination also reproduced as follows:
Whether based on the facts and materials contained in the Affidavits of the Appellants attached to the application dated 7th November 2007, to set aside the judgment of the lower Court dated 7th November, 2007, the learned trial Judge rightly exercised his discretion in refusing to grant the application of the Applicants, Grounds 1, 3 and 4 of the Appellants’ Amended Notice of Appeal dated 8th March, 2016.
The Respondents filed a notice of preliminary objection challenging the competence of Appellants appeal. The law is well settled that where preliminary objection is filed challenging the competence of an appeal, the objection must be heard and determined before the substantive appeal is determined. See: APC & ORS v. RE: C.P.C. & ORS (2014) LPELR-24036 (SC), ADEYEMI & ORS v. V. O. ACHIMU/NDIC/ASSURANCE BANK LTD & ORS (2015) LPELR-24379 (CA) and IKUEPKEN v. STATE (2015) LPELR-24611(SC) 52. I will therefore proceed to determine the preliminary objection first.
PRELIMINARY OBJECTION
Learned counsel for the Respondent raised preliminary objection in the Respondent’s brief, the objection is predicated on two grounds, the grounds are as follows:
1. That the Notice and Grounds of Appeal filed by the Appellants in this appeal did not emanate from the Ruling of the lower Court appealed against by the Appellants notwithstanding the amendment of the original Notice of Appeal granted by the Honorable Court on 2nd March, 2006, since it is the law that out of nothing comes nothing; the maxim being “ex nihilo nihil fit”
2. Further that the condition(s) precedent to initiating or continuing an action against the 1st Respondent (being a company that has been wound-up by order of Court) have not been met.
Learned counsel cited AZAATSE v. ZEGEOR [1994] 5 NWLR (Pt. 342) 76 at 83, GOVT. OF AKWA IBOM STATE v. POWERCOM (NIG.) LTD [2004] 6 NWLR (Pt. 868) 2020 at 218, OBUMSELI v. UWAKWE [2009] 8 NWLR (Pt. 1142) 55 at 72 – 73, OLORUNTOBA-OJU v. ABDULRAHEEM [2009] 13 NWLR (Pt. 1157) 83 at 120-121 and OSUJI v. EKEOCHA [2009] 16 NWLR (Pt. 1166) 81 at 122 to submit that grounds of appeal must not be at large or some hypothetical assumptions, but must arise from the live issues and relate to the decision of the lower Court. Learned counsel submitted further that the purpose of the grounds alleged is to accentuate and isolate for attacking the basis of the reasoning of the decision challenged on appeal and therefore should be a challenge to the validity of the ratio of the decision and nothing more.
Learned counsel submitted that there is nowhere in the decision of the lower Court appealed against contained at page 153-157 of the records of appeal where the lower Court held that the Application of the Appellants was brought under a wrong law, or to the effect that there was an adjournment to 1st November 2007 specifically for the hearing of the Appellants’ Preliminary Objection and the 1st Respondent’s Originating summons. Learned counsel contended that the original Notice of Appeal did not contain any general or omnibus ground which could have sustained the Notice and Grounds of Appeal, and in effect there is nothing practically on ground in the said notice to sustain the appeal upon which an amendment of the Notice of Appeal could be built and therefore the entire appeal is liable to be struck out notwithstanding the amendment granted by this Court on the 2nd day of March 2016. He referred to AWHINAWHI v. OTERI [1984] 5 SC 38, ATUYEYE v. ASHAMU [1987] 1 NWLR (Pt. 49) 267 at 280 C.C.B. v. EKPERI [2007] 3 NWLR (Pt. 1022) 493 at 509-510, 512, NWAIGWE v. OKERE [2008] 13 NWLR (Pt. 1105) 445 at 474, N.N.B. v. DENCLAG LTD [2005] 4 NWLR (Pt. 916) 549 at 547 and PASTOR J. ANIMASHAUN v. DR. AMOS OLAWOYIN [2011] LPELR-3773.
Learned counsel urged this Court to hold that since none of the grounds of Appeal in the original Notice of Appeal relates to the ruling of 15th September 2009, this appeal is incompetent notwithstanding the additional grounds of appeal contained in the Amended notice of appeal filed pursuant to the leave granted by this Court on the 2nd day of March 2016. Learned counsel argued that there is no competent Notice of Appeal which forms the basis or precondition for the vesting of the necessary judicial powers and/or jurisdiction on this Court as defined by Section 6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and therefore the appeal ought to be dismissed or struck out with substantial cost. Learned counsel relied on MARGI v. YUSUF [2009] 17 NWLR (Pt. 1169) 162 at 182.
On the 2nd ground, learned counsel argued that this appeal is incompetent because the conditions precedent to initiating the appeal against the 1st Respondent have not been met and therefore, the Amended Notice of Appeal filed without the requisite leave of the Federal High Court renders the entire appeal incompetent and liable to be struck out for want of jurisdiction on the part of this Court to determine the appeal.
Learned counsel contended that by the provisions of Section 417 and 610 of the Companies and Allied Matters Act Laws of the Federation of Nigeria, Cap C20, 2004 (CAMA), once a winding up order has been made or provisional liquidator appointed, no action or proceedings shall be proceeded with or commenced against the company except by leave of the Federal High Court given on such terms as the Court may impose. Learned counsel referred to A.A.D. ENTERPRISES LTD v. MV “NORTHERN REEFER” [2009] 12 NWLR (Pt. 1155) 255 at 270; ABEKHE v. N.D.I.C. [1995] 7 NWLR (Pt. 406) 228.
Learned counsel contended further that leave of the Federal High Court ought to have been obtained by the Appellant on becoming aware of the winding-up order made in respect of the 1st Respondent before proceeding with the appeal. Learned counsel submitted that the Notice of Appeal and appeal being proceeded with without the requisite leave is null and void and ought to be struck out. Learned counsel referred to OMAGHONI v. NIGERIA AIRWAYS LTD [2006] 18 NWLR (Pt. 1011) 310 at 328-311, MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341, SEA TRUCKS LTD. v. ANIGBORO [2001] 2 NWLR (Pt. 696) 159 and AGIP (NIGERIA) LTD v. AGIP PETROLI INT’L & ORS. [2010] 5 NWLR (Pt. 1187) 348 at 349-395 and 419-420.
Learned counsel argued further that making AMCON and ENTERPRISE BANK LTD parties to the suit is of no moment and cannot cure the defect being complained of in this appeal. Learned counsel submitted further that the arguments canvassed by the Appellants in respect of the issues formulated by the Appellants for determination in this appeal all go to no issue as the issues did not arise from any of the grounds of appeal contained in the amended Notice of Appeal of the Appellants. Learned counsel urged this Court to sustain the preliminary objection and strike out the appeal.
In Response to the Preliminary Objection, learned counsel for the Appellant contended in the reply brief that the Respondents’ Preliminary Objection lacks particularity. Learned counsel argued that the first ground does not give notice of what the lower Court decided and how each of the grounds of appeal in the original notice of appeal is different from or outside it. Learned counsel further argued that the ground is general in that it invites the Court and the Appellant to rummage through the whole of the judgment of the lower Court to decode for themselves what it decided and speculate on how the ground of appeal failed to emanate from it. It is the further contention of the Appellant that the grounds do not constitute a notice to the Appellants of the objection of the Respondents and therefore do not constitute grounds of objection in law.
Learned counsel submitted that a ground of objection, like a ground of appeal should contain particulars of the point of objection as required by Order 7 Rule 1 of the Court of Appeal Rules which provides that every application must state the ground for the relief sought. Learned counsel argued that the ground required is the same as the ground required by Order 6 with respect to a Notice of appeal. Learned counsel argued further that the rule as to particulars in support of a ground of appeal is not expressly provided for in the rules but it is a rule developed by the Courts to give effect to the meaning and purpose of the grounds of appeal which is, to give notice to the opposing side of the specific nature of the complaint. Learned counsel relied on GABRIEL IWUOHA v. NIGERIAN POSTAL SERVICES LTD. [2003] LER (Legalpedia Electronic Reports) SC 87/1999 (Pt. II) 77, CHIEF TAIWO ELEMORO & ANOR v. CHIEF FATAI ABIODUN [2014] LER CA/L/461/2012, ADEROUNMU v. OLOWU [2000] 4 NWLR (Pt. 652) 253.
Learned counsel further submitted that the first ground of objection is entirely baseless, as the Respondents have failed to show how the amendment of the notice of appeal affected their notice of preliminary objection. It was contended that the second ground has remained the same both in the initial and amended notices of appeal, and that the reference by the Respondents to C.C.B. v. EKPERI [2004] 3 NWLR (1022) 493 goes to no issue.
In reply to the Respondents’ argument that the ground of appeal does not arise from the judgment of the lower Court and that there is no place where the Court decided that there was an adjournment to 1st November 2007 specifically for the hearing of the Appellants’ Preliminary Objection and 1st Respondents Originating Summons, learned counsel for the Appellant referred to and argued that the first and second letters of the 1st Respondent dated 10th July 2007 and 5th September 2007 respectively which the lower Court in its decision at page 154 of the records of appeal affirmed and endorsed shows that there was an adjournment of proceedings to 1st November 2007 for the hearing of pending applications which includes the preliminary objection of the Appellants and 1st Respondent’s Originating summons.
Learned counsel further argued that at the time the letters were written, the Court was officially on leave of absence, no judge gave the order of adjournment which the 1st Respondent’s counsel gave notice of, and that when the judge returned to Court, no notice was given to the Appellants, but the Court proceeded to endorse the usurpation of its judicial functions by the counsel who had by his conduct constituted himself into a judge. Learned counsel contended that the records of appeal show that the only proceeding that the Court conducted in the matter was that of 1st November 2007 and that there is no record of any previous proceedings at which the Court adjourned further proceedings in the matter to 1st November 2007 as the Court had been absent on official assignment to the election tribunal before that date. Learned counsel submitted that the letter of counsel was obviously a fabrication and that it speaks volumes for the lower Court to endorse this falsehood.
Learned counsel argued that the second ground of objection also lacks particularity as it does not state in what particular respect the conditions precedent for initiating or continuing an action against a company that has been wound up has not been met, and does not state when and how the issue of the 1st Respondent being wound up became part of the records of appeal in this appeal. Appellants Counsel urged that the objection be struck out because it is an abuse of the process of this Court.
Learned counsel argued further that the Respondents failed to supply any legal authority for the proposition that where in the course of proceedings in an appeal, a provisional liquidator is appointed in respect of a company that is one of the parties in the appeal, the appeal cannot proceed further before the Court of Appeal without the leave of the Federal High Court and that the case of A.A.D. ENTERPRISES LTD v. MV “NORTHERN REEFER” [2009] 12 NWLR (Pt. 1155) Pg. 255 at 270 cited by the Respondents is actually directly against the proposition because the Supreme Court held that Section 417 of CAMA has no application in the Court of Appeal or Supreme Court.
Learned counsel referred to CHARLES CHIWENDU ODEDO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION [2008] 7 SC 25 to further submit that by Order 6 Rule 2 of the Rules of this Court, an appeal is by way of rehearing and the Appellate Court rehearing a case is to assume on the records the position of the Court of first instance as the action had been instituted before it. Learned counsel argued that what this means is that the consideration of this appeal is on the basis of how matters stood when the lower Court was considering it and that at that time, the 1st Respondent was not under any liquidation, and therefore if this objection could not be made to the proceedings then, it cannot be made now. Learned counsel further argued that an appeal being a review of the concluded proceedings is not a proceeding instituted or proceeded with against the 1st Respondent, and that the records of the lower Court which this Court is to review do not contain any circumstance of the 1st Respondent being in liquidation or having a provisional liquidator appointed over it, therefore that circumstance is clearly outside the purview of the review process of the appeal.
Learned counsel submitted that the rule as to notice and particulars is a rule of fairness and therefore a rule of fair hearing, breach of which would vitiate any proceedings, whether it is in an application or in an appeal. Learned counsel submitted further that the ground of objection must be specific as to the point of objection. Learned counsel submitted further that the constitutional right of the Appellants to pursue their appeal to this Court cannot be subjected to the will of any other authority, particularly a lower Court. It was further submitted that this appeal remains unaffected by the subsequent appointment of a provisional liquidator over the 1st Respondent after the judgment of the lower Court. Learned counsel urged this Court to dismiss the preliminary objection because it is grossly misconceived.
In determining this preliminary objection, it is pertinent to state and emphasize that the law is trite that parties as well as the Appellate Court are bound by the records of proceedings,and the parties before the Court cannot go outside the records to urge the Court to resolve an issue in their favour, neither can the Appellate Court go outside the records in the determination of issues submitted to it for determination, See: OFFOR v. STATE (2012) LPELR-19658 (SC) 12, where OGUNBIYI, JSC held as follows:
“It has been laid down and an accepted principle of legal practice that the Court and obviously all parties are bound by the records of the proceedings which are conducted in Court”
See: also AUDU v. F.R.N. (2013) LPELR-19897 (SC) 10, where the Supreme Court of Nigeria also held as follows and I quote:
“The law is trite that an Appellant Court cannot go outside the records of appeal in search of evidence favorable to any of the parties. Like pleadings, which bind parties at the High Court, the Court of Appeal and the Supreme Court, as appellate Courts, are clearly bound by the records of appeal. In other words records of proceedings or appeal, bind the parties and the Court until the contrary is proved. This is because there is a strong presumption of the genuineness of the record which is rebuttable…”
In the first segment of the objection, the Respondent argued that the Notice and Grounds of Appeal filed by the Appellants in this appeal did not emanate from the Ruling of the lower Court appealed against by the Appellants notwithstanding the amendment of the original Notice of Appeal granted by the Court on the 2nd day of March, 2006 and that since none of the grounds of Appeal in the original Notice of Appeal relates to the ruling of 15th September 2009, this appeal is incompetent notwithstanding the additional grounds of appeal contained in the Amended notice of appeal filed pursuant to the leave granted by this Court on the 2nd day of March 2016. The Appellants in reply contended that the Respondents’ Preliminary Objection lacks particularity and that the first ground does not give notice of what the lower Court decided and how each of the grounds of appeal in the original notice of appeal is different from or outside it and that the ground is general in that it invites the Court and the Appellant to search through the whole of the judgment of the lower Court to decode for themselves what it decided and speculate on how the grounds of appeal failed to emanate from it.
The law is settled that the grounds of appeal against a decision must emanate from and relate to the decision and should constitute a challenge to the ratio of the decision. The grounds of appeal contained in the Notice of appeal are the complaints of the Appellant against the judgment of the lower Court. Issues coming for adjudication before an appellate Court are erected on the grounds of appeal, and they form the pillars upon which the entire appeal stands, an Appellate Court cannot embark on any voyage of discovery outside the issues submitted by the parties. Where an issue before the Appellate Court does not relate to a ground of appeal as contained in the Notice of Appeal, the appellate Court cannot take the issue because it is not before the Court. My See: M.B.N. PLC. v. NWOBODO [2005] 14 NWLR (Pt. 945) 379, where PATS-ACHOLONU, JSC held as follows and I quote:
“Grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as the issues arising from the grounds of appeal. However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground. This is indeed a pre-condition if for the vesting of judicial powers under the Constitution in the Courts.”
See also SARAKI v. KOTOYE [1992] NWLR (Pt. 264) 156, AKEREDOLU v. MIMIKO & ORS (2013) LPELR-21413 (SC), F.R.N. v. MOHAMMED (2014) LPELR-22465 (SC) 46-47, and ODM & ORS v. P.D.P. & ORS (2015) LPELR-24351 (SC) 24.
In the instant case, to determine whether or not the grounds of appeal arise from or relate to the decision of the lower Court, the grounds of appeal as contained in the Amended Notice of Appeal are reproduced as follows;
“GROUND ONE
The learned trial judge erred in law when he held as follows:
‘My view is that the counsel for the Appellants having been served with a hearing notice by counsel for the other side cannot be heard to say that they did not receive any notice of hearing.
It was clearly presumptuous on their part to decide in their Chambers that the matter will not go and not take precautionary step of at least ensuring that a representative of the 1st Defendant Company or the 2nd Defendant himself was inc (sic) Court.
Counsel for the Respondents has referred the Court to the provisions of O.20 R.12 of the Rules of Court which provides thus:-
Any judgment by default whether under this Order of (sic) under any Order of these Rules shall be final and remain valid and may only be set aside upon application to a Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.
Fraud was not contended here nor was the jurisdiction of the Court tested. The application is based solely on the ground of ‘non-service’ of hearing notice.
The question then is:-
Did the Applicants have notice of the proceedings of 1-11-2007 or not?
I answer the question in the affirmative; so indeed did the Applicants themselves.
It is a standard and acceptable practice for counsel in a matter to communicate a hearing date to his opposite number in a case.
Such communication is in my humble view valid and adequate.
There is no rule of law which limits notification of hearing notice served on them by counsel for the Respondent was invalid because it was not issued by the Court, it would open a flood gate for delinquent parties to truncate Court proceedings and thereby cause unnecessary delay.
That would go contrary to the spirit of the Rules which provide in O.1 R 1(2) that the said Rules shall be applied towards a just efficient and speedy dispensation of justice.
It is my view that the Applicants in this suit had an opportunity to be heard but failed to make use of it.
GROUND TWO
The learned trial judge erred in law when it held that there was an adjournment of the proceedings to 01/11/07 and specifically for the purpose of hearing the Appellants’ preliminary objection and the Respondents; originating summons.
GROUND THREE
The learned judge eared (sic) in law in declining to set aside the ruling of 01/11/07 when the ruling was an absolute nullity for the additional reason that the pre-trial conference proceeding in which it was made is inapplicable to the originating procedure under which the matter was brought.
GROUND FOUR.
The learned judge failed to exercise his discretion judiciously and judicially.”
From the grounds of appeal as reproduced above and the accompanying particulars, it is clear what the complaints of the Appellants are, and without any doubt the Appellants’ complain relates to the Ruling of the trial judge, more particularly, ground one which reproduced the portion of the judgment of the lower Court which forms the basis of appellants grievance or discontent with the decision of the lower Court. This goes to show that the grounds are not unconnected or unrelated to the Ruling of the lower Court as argued by the learned Counsel for the Respondents.
I must state that the contention of the Respondents against the initial notice of appeal which this Court granted leave to the Appellant to amend is unsustainable. The Appellants by a Motion on Notice filed on the 31st day of January 2013 sought for the leave of this Court to amend their Notice of Appeal dated 16th day of September 2009, the Respondents’ were put on Notice and the Court granted leave to the Appellants’ on the 2nd of March 2016 to amend their notice of Appeal. The Respondents cannot therefore come by preliminary objection challenging the ruling of this Court where the order for amendment was made. It is trite law that once an amendment is granted, what stood before the amendment of the process is no longer material before the Court and no longer defines the issues before the Court. See: the cases of AGBABIAKA v. SAIBU [1998] 10 NWLR (Pt. 571) 534 and THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA v. NAMA (2014) LPELR-22372 (SC) 65.
As it stands therefore, the proper Notice for consideration in the determination of this appeal is the Amended Notice of appeal dated and filed on the 8th day of March 2016. In the light of the foregoing and the authorities I have referred to earlier, I hereby find that this ground of the preliminary objection fails and is accordingly discountenanced.
On the contention that this appeal is incompetent because the conditions precedent to initiating this appeal against the 1st Respondent have not been met and therefore, the Amended Notice of Appeal filed without the requisite leave of the Federal High Court renders the entire appeal incompetent and liable to be struck out for want of jurisdiction on the part of the Court of Appeal to determine the appeal, Respondents argued that by the provisions of Section 417 and 610 of the Companies and Allied Matters Act, Laws of the Federation of Nigeria, Cap C20, 2004 (CAMA), once a winding up order has been made or provisional liquidator is appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Federal High Court given on such terms as the Court may impose.
The Appellants on their part argued that an appeal being a review of the concluded proceedings is not a proceeding instituted or proceeded with against the 1st Respondent, and that the records of the lower Court which this Court is to review do not contain any circumstance of the 1st Respondent being in liquidation or having a provisional liquidator appointed over it, therefore that circumstance is clearly outside the purview of the review process of the appeal. Appellants also contended that the consideration of this appeal is on the basis of how matters stood when the lower Court was considering it, and that at that time, the 1st Respondent was not under any liquidation, and therefore if this objection could not be made to the proceedings then, it therefore follows that it cannot be made now.
Let me state clearly, that this Court will only be bound by the records before it. It is part of the records before this Court that the Appellants herein had by a Motion on notice dated and filed on the 30th day of April 2013 sought for an Order of this Court to join the 2nd and 3rd Respondents as necessary parties. In paragraphs 4, 5, and 6 of the Affidavit in support of the Appellants’ Motion deposed to by one Tochi Uzokwe on the 30th day of April 2013, the following fact were deposed to on Oath:
4. The assets and liabilities of the respondent in this appeal were later taken over by the Enterprise Bank Plc. under the recent Central Bank of Nigeria (C.B.N.) banking reform.
5. The account of the appellant with Spring Bank was sold to Assets Management Corporation of Nigeria (AMCON). A copy of AMCON’s letter to the appellant dated 6th March 2012 stating this position is attached as Exhibit 1.
6. That after the takeover of the Respondent (Spring Bank Plc) herein, it now operates as Enterprise Bank plc., while the company (Spring Bank plc,) was left without being wound up until Honorable Justice Archibong of the Federal High Court Lagos made an order dated 5/12/2012 for the winding up of the respondent (Spring Bank plc,). A copy of the notice of the appeal is attached as Exhibit 3.”
On the 19th day of November 2013, this Court granted leave to the Appellants to join the 2nd and 3rd Respondents; hence the Appellant filed its amended Notice of Appeal dated 8/3/2016. Therefore the effect of the joinder of the 2nd and 3rd Respondents is to enable this Court to effectually and completely adjudicate upon this matter.
At the risk of being repetitive, I shall restate that it is trite law that once an amendment is granted, what stood before the amendment of the process is no longer material before the Court and no longer defines the issues before the Court. Therefore the proper Notice for consideration in the determination of this appeal is the Amended Notice of appeal dated and filed on the 8/3/2016. See: AGBABIAKA v. SAIBU (Supra) and THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA v. NAMA (Supra).
On the requirement for leave of the Federal High Court, the provisions of Section 417 of the Companies and Allied Matters Act, LFN, Cap C20, 2004 are clear. The Section provides that:
“If a winding-up order is made or a provisional liquidator is appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court given on such terms as the Court may impose.”
The wordings of the law as reproduced above are clear and unambiguous, and should therefore be accorded their literal and ordinary meaning. See: KALU v. ODILI & ORS (1992) LPELR-1653 (SC) 68, OKOYE v. C.O.P. (2015) LPELR-24675 (SC) 65, and SDV (NIG) LTD v. OJO & ANOR (2016) LPELR-40323 (CA) 11-12. Therefore, the literal and ordinary meaning of Section 417 of the Companies and Allied Matters Act is that the moment a winding-up order is made or provisional liquidator is appointed, no action or proceedings can be proceeded with or commenced against the company except with the leave of the Court on such terms as the Court may impose, and by the provisions of Section 610 of the Companies and Allied Matters Act, LFN, Cap C20, 2004 the “Court” is the Federal High Court. See A.A.D. ENTERPRISES LTD v. MV “NORTHERN REEFER” [2009] 12 NWLR (Pt. 1155) Pg. 255 where My Lord ONNOGHEN, JSC cited an earlier decision of the Supreme Court in ONWUCHEKWA v. N.D.I.C. [2002] 5 NWLR (Pt. 760) 371 at 393 per AYOOLA, JSC where the Court held as follows and I quote:
“There is nothing in Section 417 which prohibits such company from proceeding with action or proceedings against the company.”
Therefore, a party only seeks leave of the Federal High Court, by the provisions of Section 417 of CAMA before proceeding against or continuing an action against a company that has been wound-up or a liquidator has already been appointed. In the instant case, the Appellant cannot proceed against the 1st Respondent without the leave of Court. To this extent and having regard to the foregoing, this appeal cannot in my view competently proceed against the 1st Respondent. The 1st Respondent’s name as a party is therefore struck out from this appeal.
Striking out the name of the 1st Respondent is not the end of the appeal as the 2nd & 3rd Respondents remain parties, and the Appellant can competently proceed against them, this Court therefore has jurisdiction to proceed to hear and determine this appeal against them. On the whole therefore, this preliminary objection only succeeds to the extent that the 1st Respondent having been wound-up cannot be proceeded against. I will now proceed to deal with the substantive appeal against the 2nd and 3rd Respondents.
I indicated earlier that the Appellants submitted three issues for determination while the Respondents submitted one. Having reproduced the issues earlier in this Judgment, it is no longer necessary to reproduce them again. I will just proceed to deal with the appeal.
ISSUE ONE
On issue 1, learned counsel for the Appellant contended that the learned trial judge entirely missed the point as regards Order 25 Rule 6 of the Lagos State (Civil Procedure) Rules 2004 under which the learned Judge entered the ruling in issue, and that the failure by the learned trial judge to set aside the judgment delivered on 1st of November 2007 was an error on the part of the Court. Learned counsel contended that Order 25 Rule 6 of the Lagos State High Court (Civil Procedure) Rules relates to pre-trial conference and empowers a judge to set aside a judgment delivered at the pre-trial stage upon an application made within 7 (seven) days of the judgment. Learned counsel contended further that the Appellants duly complied with the rule by filing its motion for setting aside of the judgment delivered on 1st day of November 2007 within 7 (seven) days, and accompanying the application with an undertaking to participate effectively in the pretrial conference as prescribed by Order 25 Rule 6.
Learned counsel contended that Order 20 Rule 12 of Lagos State High Court (Civil Procedure) Rules 2004 which the learned trial judge also relied on is in conflict with Order 25 Rule 6 of Lagos State High Court (Civil Procedure) Rules 2004, and that the former is a general rule, while the latter is a specific rule on the issue of pre-trial conference. Learned counsel relied on CORPORATE AFFAIRS COMMISION v. DAVIS [2008] 1 NWLR (Pt. 1067) 60 at 99 to submit that where a general rule is in conflict with a specific rule, the specific rule prevails.
Learned counsel for the Appellants further submitted that the appellants were neither substantially unprepared to participate in the pre-trial conference nor failed to participate in good faith which are the conditions under which a judge may enter judgment in the circumstance. Learned counsel argued that the records of proceedings show that the Court did not sit on any day before the 1st day of November 2007 when the judgment was delivered and therefore the Appellants had not missed any Court sitting. Learned counsel argued further that the Appellants were willing to diligently defend the matter and that their absence in Court on the date in issue was due to failure on the part of the Court to properly inform them of the proceedings coming up on that day.
Learned counsel went further to submit that the intention of the lawmakers is to ensure that matters are heard on their merits in line with the principles of fair hearing. Learned counsel referred to AFONJA COMM. BANK (NIG.) LTD v. AKPAN [2002] 16 NWLR (Pt. 792) 154 to submit that a hearing can only be fair when all the parties to the dispute are given an opportunity to be heard and that the lower Court failed in its duty of fair hearing it owed the Appellants by proceeding to give judgment in favor of the Respondents.
Learned counsel concluded his submissions on this issue by stating that Order 25 Rule 6 is a tentative punitive measure and not intended to foreclose the right of a party to participate in the pre-trial conference and the hearing of the action. Learned counsel further submitted that the pre-trial conference is just a preliminary stage and that the trial Judge is bound by law to set aside a judgment of this nature in the interest of justice.
ISSUE TWO
Learned counsel for the Appellant submitted under issue number two that the learned trial judge erred in law when he held that the letter written by learned counsel for the claimant constituted a legal and valid hearing notice to the Defendants/Applicants of a schedule for hearing the matter, and therefore proceeded to give judgment against the Appellants. Learned counsel referred to S.P.D.C.N v. ESOWE [2008 4 NWLR (Pt. 1076) 72 Para C-G and AGENA v. KATSEEN [1998] 3 NWLR (Pt. 543) 560 at 566 to submit that it is the judicial duty and function of the Court to issue or order the issuance of a hearing notice which is a Court process to parties in a suit through the relevant Court officers. Learned counsel argued that hearing notice is not a private document to be issued by a counsel in the matter on his letter headed paper or by any person other than the Court itself; and therefore adjournments made off record by Court officials are tentative and their sole purpose is to afford the Court an opportunity to deal with the matter should it be present on the fixed date, to properly schedule a hearing and issue notice thereof to parties in the matter.
Learned counsel submitted that the letter written by counsel for the Respondents which was not issued based on the order of Court directing the counsel to issue same does not constitute a valid hearing notice upon which the Court can rely to give judgment in a matter involving about N943,684,164.23 (Nine Hundred and Forty-Three Million, Six Hundred and Eighty-Four Thousand, One Hundred and Sixty Four Naira, Twenty Three Kobo.) Learned counsel further contended that adjournment is vital to Court proceedings it cannot be treated with levity, and therefore an adjournment has to be recorded properly on the records of proceedings of the Court. Counsel referred to FAWEHINMI CONS. CO LTD v. O.A.U. [1998] 6 NWLR (Pt. 553) 171 at 182 to further contend that there it is not on record that there was any adjournment in this matter to 1st November 2007 and that the proceedings of 1/11/2007 were the first the Court conducted on the matter in open Court.
Learned counsel further referred to Order 25 Rule 2 (d) of Lagos State High Court (Civil Procedure) Rules 2004 to argue that the Judge is empowered to enter a scheduling order for further pre-trial conference, and that the first scheduling order which the learned trial judge made was aborted due to his absence because of his participation in election tribunal. Counsel submitted that it was the duty of the learned trial Judge to make a fresh scheduling order and give notice thereof to the parties upon his return from leave of absence and resumption of his position as a Judge over the matter. Learned counsel submitted that the action of the lower Court was contrary to established principles of fair hearing. Learned Counsel therefore urged this Court to resolve this issue in favor of the Appellants.
ISSUE THREE
On the 3rd issue for determination, learned counsel for the Appellants contended that by the provisions of Order 25 Rule 6 of Lagos State High Court (Civil Procedure) Rules 2004, pre-trial conference can only be conducted at the close of pleadings. Learned counsel further contended that in the originating summons procedure, matters are heard on arguments based on the affidavits of parties and that by the provisions of Order 3 Rule 8 of the same Rules, an originating summons is to be accompanied by an affidavit in support and a written address. Learned counsel submitted that what was required of the originating summons procedure was the adoption of written addresses of parties and therefore the pre-trial conference notices issued by the Court constitute a misconception, and the pre-trial conference proceedings and the ruling made on the 1st day of November 2007 was altogether a complete nullity.
In conclusion learned counsel cited the case of OMOBUWA v. OWHOFATSHO [2006] 5 NWLR (Pt. 972) 40 to submit that the failure of the Court to issue hearing notice, intimating the parties that the Court had returned and was ready to proceed with the matter absolutely vitiated the proceedings. The learned Counsel for the Appellants urged this Court to invoke the provisions of Section 15 of the Court of Appeal Act to consider the application of the Applicants/Appellants dated 7th November 2007 made to the lower Court seeking to set-aside the ruling delivered on the 1st day of November 2007 and set aside the said ruling.
As I stated earlier in this Judgment, Learned counsel for the Respondents submitted sole issue for determination on behalf of the Respondents and contended that all the authorities cited by the learned counsel for the Appellants do not apply to the facts of the instant appeal. Learned counsel contended that by the provisions of Order 1 Rule 1 (2) of Lagos State High Court (Civil Procedure) Rules 2004, the purpose and intent of the rules is that the rules be directed towards the achievement of a just, efficient and speedy dispensation of justice.
Learned counsel further contended that the lower Court is only permitted to set aside a default judgment upon an application brought within 7 (seven) days of the judgment and subject to the conditions set out under Order 20 Rule 12. Learned counsel then submitted that no material whatsoever was placed before the lower Court to enable it exercise its discretion in favor of the Appellants by granting the Application for setting aside the judgment of the lower Court delivered on the 1st day of November 2007, and that the Affidavit of the Appellants in support of the application lacked substance and is therefore bereft of any reason or special circumstance upon which the lower Court could rely to grant the application.
Learned counsel further contended that the said affidavit in support never complained of fraud or failure to serve any relevant notice or of lack of jurisdiction on the part of the Court and that the Appellants admitted at Paragraphs 7, 8, and 11 of the Affidavit in support to have had notice of the hearing of the suit and in fact admitted being in Court on the 12th day of July 2007 when the matter was adjourned to 1st November 2007 and that Learned Counsel for the Respondents sent them a letter on the 5th day of September 2007 reminding them of the date but they simply chose to stay away on the assumption that the lower Court might not sit on the date fixed for hearing without any form of communication to the Court explaining their absence and seeking for an adjournment.
Learned counsel for the Respondents submitted that counsel for the Appellants cannot be heard to claim ignorance of the law or mistake after having brought his application for setting aside under the relevant and appropriate Rules of Court as contained in their application. Learned counsel further referred to KOTOYE v. C.B.N. [1989] 1 NWLR (Pt. 98) 419 at 448, OKON v. ADIGWE [2011] 15 NWLR (Pt. 1270) 350 at 372, ADEYEMI v. LAN & BAKER (NIG.) LTD [2007] 7 NWLR (Pt. 663) 333, MANKANU v. SALMAN [2005] 4 NWLR (Pt. 915) 270, BARIGHA v. P.D.P. [2013] 6 NWLR (Pt. 1349) 108 at 48, CREDIT ALLIANCE FINANCIAL SERVICES LTD v. MALLAH [1998] 10 NWLR (Pt. 569) 341 at 351; OJUKWU v. NNORUKA [2000] 1 NWLR (Pt. 641) 348 at 359-360, NUBA COMMERCIAL FARMS LTD v. NAL MERCHANT BANK LTD [2001] 16 NWLR (Pt. 740) 510 at 520; N.D.I.C. v. SHERIFF [2004] 1 NWLR (Pt. 855) Pg. 563 at 599 and A.S.T.C. v. QUORUN CONSORTIUM LTD. [2004] 1 NWLR (Pt. 855) 601 at 632-633 to submit that the Appellants’ contention that they were denied fair hearing is not tenable and cannot be supported having regards to the facts of this case and the applicable law.
Learned counsel submitted that every judgment given under Order 20 and Order 25 of the High Court of Lagos State (Civil Procedure) Rules, 2004 is expressed to be a final judgment and that before such a judgment is set aside, the party applying for the setting aside must come within the ambit of the conditions specified under Order 20 Rule 12 of the Rules of Court. Learned counsel further contended that Appellants argument on issue three is in conflict with Appellants argument on issue number one. Learned counsel referred to the definition of pleading in the Black’s Law Dictionary 9th Edition at page 1270 to contend that originating summons falls under the categories of pleadings and the fact that it is tried on affidavit evidence does not exclude it from the categories of pleadings. Learned counsel urged this Court to resolve the sole issue formulated by the Respondents for determination in favour of the Respondents and dismiss the appeal.
The Appellants reply is that the counsel’s letter never constituted hearing notice in law. Learned counsel for the Appellant’s referred to the decision in the case of MR. CHINEDU UKACHUKWU & ANOR v. SYLVESTER NKPADO [2012] LER CA/L/161/11 and submitted that the letter of counsel did not state that the matter was fixed for any pre-trial conference and therefore the pre-trial conference purportedly conducted that day cannot be the basis of any order against the Appellants under Order 25 Rule 6.
I have carefully scrutinized the issues formulated by parties in this appeal and it is my view that all the issues may be collapsed into one single issue for determination. The ultimate desire to effectively determine the appeal will be achieved. I therefore think that the following sole issue shall be the issue to resolve in the determination of this appeal. The issue is:
“Whether based on the circumstances of this case, the learned trial judge rightly exercised his jurisdiction in the consideration of the Appellant’s Application to set aside the judgment of the lower Court when he held that the letter of the Respondents to the Appellants constituted a legal hearing notice for the proceedings of the Court on 1/7/2007.”
It is trite and has been held in seemingly endless judicial authorities that any proceeding in a case which holds without the parties having been duly served with a hearing notice of the date for hearing of the matter does violence to the principles of fair hearing as enshrined in the 1999 Constitution and such proceedings held or taken in the absence of a party who was not put on notice of the date of such proceedings amounts to a nullity. See the recent decision of the Supreme Court in ACHUZIA v. OGBOMAH (2016) LPELR-40050 (SC) 14 where GALADIMA, JSC said as follows and I quote:
“It is trite that failure to serve a party in a case with a hearing notice indicating clearly when and where the Court is to sit is a fundamental irregularity which easily vitiate the proceedings, and make it a nullity, however well conducted and decided. The effect is extrinsic to the adjudication. See the English decision in CRAIG v. RANSEEN (1943) k. b 25 at pp 262-263 cited and relied upon by this Court in SKEN CONSULT (NIG) LTD & ANOR v. GODWIN SEKOMY UKEY (1981) 1 SC. pt at p. 15.”
In the same Judgment, KEKERE-EKUN, JSC, also said as follows:
“No matter how tardy a party might be in the prosecution or defense of his case before the Court, he has a constitutional right guaranteed by Section 36 (1) of the Constitution to be notified of the dates when the cause or matter will be heard.”
Making further efforts in padding the Judgment, my lord PETER-ODILI JSC, at page 22-23, of the same judgment said as follows and I quote again:
The requirement of fair hearing implies that each party to a dispute before a Court or tribunal must be accorded adequate opportunity to state his own side of the case under the principle of “audi alteram partem”, an immutable principle and the other leg of natural justice. This position was well expatiated in the case of Ariayefah Nwaosus v. Ibejimba Nwaosu (2000) 4 NWLR (Pt. 653) 351 at 359 where it was stated as in this case in hand that the Court cannot without issuing and serving hearing notice on the party affected, proceed to abridge the time and hear evidence in the absence of the party to be affected. See also Obimonune v. Enrinosho & Anor (1966) All NLR 245 at 247.
The import of service of process on the defendant is well captured in Skenconsult (Nig.) Ltd & Anor v. Sekondy Ukey (1981) 7 SC 6 wherein this Court held thus:-
“The service of process on the Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
What I am trying to say in effect is that when there came about that failure to serve notice of the date of hearing on the Appellant it means that the requirement of fair hearing has not been observed and the resultant decision that followed is a nullity and cannot be allowed to stand. See: Wema Bank Nigeria Limited & Ors v. S. O. Odutaja & Ors (2000) FWLR (Pt. 17) 138 at 142 – 143; A.C.B. Plc v. Losada Nig. & Anor (1995) 7 SCNJ 158 at 167.”
In MIDEN SYSTEM LTD v. EFFIONG [2011] 2 NWLR (Pt. 123) 254 at 366, this Court per my Learned Brother MIKA ‘ILU, JCA (of blessed memory) held as follows:
“A Court has jurisdiction to hear a case when among other things, its jurisdiction is properly invoked by proper service of the Court process on the defendant. Where the defendant has not been served in accordance with the substantive and/or procedural law prescribes, and then the jurisdiction of the Court is not properly invoked for it to entertain the case. Thus the issue of service is so fundamental that it goes straight to the jurisdiction of the Court.”
The main question to be determined is whether the Respondents’ letter to the Appellants constitutes or qualifies as a valid hearing notice required to be served on the Appellants. In the case of UKACHUKWU & ANOR. v. NKPADO (2012) LPELR-15421 (CA)13-14, which has substantially similar facts with the instant appeal, my Lord and learned brother, BAGE, JCA held as follows and I quote:
“Now let me return to whether those two letters of the counsel to Respondent, served on the Appellants, for the pre-trial conference, have satisfied the due process of Court to be served on parties for appearance before the Court. This Court has since pronounced on this issue that those letters of counsel did not and could not take the place of a due process of Court to make a party bound by it. This Court in the case of Amuwah Transport Nig. Ltd v. Oyinlola Atanda Transport Nig. Ltd (1998) 6 NWLR (Pt. 555) 684 at 690 paragraph C, stated:- “When deciding a case, a Court of trial must give parties opportunity of a fair hearing by being satisfied that all the due processes of Court have been served on all the parties. “In the instant appeal, it is a fact already admitted that the due process of Court was not served on the Appellants, which negatively impacted on the proceedings of the 25/02/10 before the lower Court. Let me add here also that it is trite on effect of violation of the principle of ‘audi alteram partem’ causing injustice to any party, as it did to the present Appellants, any judgment delivered amounts to a miscarriage of justice and should be declared a nullity. See:-Yakubu v. Gov. Kogi State (1995) 8 NWLR (Pt. 474) 386; U.B.N. Ltd. v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127; Mr. Yesufu Amuda Garba & Ors. v. The University of Maiduguri (1986) 2 S.C. 128 at 271; Madukolu & Ors. v. Nkemdilim & Ors. (1962) 7 All NLR 582. On the whole therefore, in the absence of any competent hearing notice from the lower Court served on the Appellants, the proceeding of the 25/02/10 and the judgment rendered on that date relying on Order 25 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2004 amounted to a miscarriage of justice and it is hereby set aside by this Court.” underlining mine.
In OLORUNYOLEMI & ANOR v. AKHAGBE (2010) LPELR-2597 (SC) 12-13, MUKHTAR, JSC (Later CJN) held as follows:
“The fact that a party was in Court on the day a matter is slated to come up is not necessarily a confirmation that the other party was actually served with the hearing notice. There must be actual proof of service on the necessary parties, i.e. the evidence of receipt vide signature of the party personally or his counsel, or an affidavit of service sworn to by the person who effected the service. See: Habib Nigeria Bank Ltd. v. Wahab Opomulero & Ors (2000) 15 NWLR (Pt. 690) page 315.”
It is my view having considered the facts and submissions of the parties in this appeal, that the letter of counsel to the Appellants is at best a correspondence between them and cannot in law take the place of a hearing notice which ought to be issued by the Court, the learned trial judge ought to have in the interest of justice adjourned the pre-trial proceedings and ordered the issuance of hearing notice on the Appellants who were absent. The law is settled that service activates the jurisdiction of the Court, sessions held by the Court behind any of the parties in litigation will be rendered null and void if it is shown that the party was not served hearing Notice of the session. In ADEGBUYI v. A.P.C. & ORS (2013) LPELR-22799 (CA) 28, my learned brother, KALIO, JCA re-echoed the pronouncement in NTUKIDEM v. OKO [1986] 5 NWLR (Pt. 45) 909 at 922 by my Lord, ANIAGOLU, JSC (of blessed memory) where he said:
“Every effort must painstakingly be made to do justice, a snappy short cut decision, bereft of an examination of the merits of the case, often settles nothing but rather exacerbates the conflict.”
My learned brother KALIO, JCA went further to state as follows:
“A legal battle is not a guerilla war where anything goes. It is not a conventional warfare either where ambushment of the enemy is allowed. It is a battle where the gladiators come out in the open with all the implements or weapons of battle in full display before the opponent. Whether the opponent is a Goliath or a David, he knows exactly the weapons carried by his adversary. Parties in a legal battle are expected to know what exactly they are to meet in Court. That is why there are pleadings. They are also expected to know the expected date of battle. That is why hearing notices are an integral component of the legal battle. The Appellant did not know the day of battle, through no fault of his. The battle could not have been won behind his back. He was entitled to a Hearing Notice before his case could be dismissed.”
Now having regard to the settled position of the law set out expressly and eloquently in various judicial decisions cited herein, I must hold that the learned trial Judge fell into grave error when he held that the Respondents’ counsels letter to the Appellants constituted a valid and legal hearing notice to the Appellants of the proceedings of the Court on 1st November 2007. This is certainly far from it.
On the whole therefore, this appeal is meritorious and is hereby allowed. The ruling of the High Court of Lagos State delivered on the 15th day of September 2009 by Olateru-Olagbegi J, is hereby set aside. Prayer number one of the Appellant’s application dated 7th November 2007, seeking to set aside the judgment of the lower Court delivered on the 1st day of November 2007 is granted. The suit is remitted to the Chief Judge of the High Court of Lagos State to be re-assigned to another Judge for accelerated hearing and determination.
There is no order as to cost.
Other Citations: (2016)LCN/8795(CA)
