Investors International (London) Limited V. First Bank Of Nigeria Plc (2007)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, OFR, J.C.A.
The claim leading to this appeal was initiated by a writ of summons accompanied by a statement of claim. The claimant’s claims are for US $118,821,947.00 said to be the aggregate sum of the principal, accrued interest and under writing fees due under a loan guarantee by the defendant together with interest thereon at the rate of 7% per annum; injunction restraining the defendant from disposing or dissipating its assets pending the determination of the suit.
This was followed by a spate of applications viz:-
(a) Claimant’s motion for summary judgment dated 13/7/2004;
(b) defendant’s first notice of preliminary objection to the court’s territorial jurisdiction;
(c) claimant’s motion dated 25/8/2004 for injunction and order to strike out the defendant’s notice of preliminary objection;
(d) defendant’s second notice of preliminary objection dated 22/9/2004 for order to strike out the claimant’s motion on notice dated 25/8/2004;
(e) claimant’s motion for judgment in default of pleadings; and
(f) defendants third notice of preliminary objection dated 16/11/2004 urging upon the court to dismiss claimants application dated 11/11/2004.
At the pre-trial conference the parties were unable to agree on the order to proceed with the host of applications pending before the court within the limited time at the disposal of the court. They assumed irreconcilable and dramatically opposed positions on the agenda to be adopted in disposing of the various interlocutory matters placed before the court. The claimant proposed that its application for summary judgment be taken together with the defendant’s notice of intention to rely on a preliminary objection. On the contrary, the defendant wanted its preliminary objection isolated and solely determined before there could be consideration and determination of the supplication for summary judgment.
Consequently, learned trial judge offered the parties opportunity to be heard and requested them to file briefs in support of their respective positions. Having heard the submissions of counsel, both written and oral, in a reserved and considered ruling learned trial judge, Olateru-Olagbeji, J., concluded thus:-
“Considering the guidelines of the appellate authorities on this issue, mindful of limited time that I have for the consideration of the applications filed by the parties herein, it is my view that taking the two applications together will be more judicious and economic management of the time of court than taking them one at a time.
In the circumstances order be and is hereby made that the claimant’s application for summary judgment dated 13/7/2004 and the defendant’s notice of preliminary objection dated 16/8/2004 be and are hereby fixed for hearing and adoption of written addresses on Tuesday 8/2/2004, at 1 p.m.”
The ruling of the learned trial judge was motivated by the need to have just and expeditious dispensation of justice. The defendant, on the other hand, is not interested in just and speedy dispensation of justice. In spite of welter of authorities in support of the decision of the learned trial judge, the defendant felt unhappy and being aggrieved appealed to this court on eight grounds of appeal.
The plaintiff filed a notice of intention to rely on a preliminary objection at the hearing of the appeal pursuance of Order 3 r 15 of the Court of Appeal Rules, 2004 and section 14(1) of the Court of Appeal Act, Cap 75 of the Laws of the Federation of Nigeria, 1990. I think learned counsel for plaintiff made a mistake in his reference to section 14 of the Court of Appeal Act rather than section 15 thereof. The Notice of Preliminary objection reads inter alia as follows: –
“TAKE NOTICE that at the next sitting of this honourable Court or soon thereafter as the court may direct, Counsel may be heard on behalf of the Respondent on a preliminary objection to this appeal that same is incompetent and should accordingly be dismissed or struck out.
AND TAKE FURTHER NOTICE that the grounds, upon which this objection is brought are:
- That that appealed against is not a decision that can be appealed.
- Whereas this appeal devolves upon mixed fact and law, the Appellant failed to obtain the level of court before lodging the appeal.”
Parties, in accordance with the practice and procedure of this Court, as adumbrated in Order 6 of the Court of Appeal Rules, 2004 duly filed and exchanged briefs of argument which were settled at the Appellant’s, Respondent’s and Appellant’s reply briefs of argument. The argument in respect of the respondents’ intention to rely on a preliminary objection was equally included in the briefs of argument.
At the hearing, it was agreed that both the appeal as well as the preliminary objection should be taken together. Learned counsel for defendant (hereinafter referred to as appellant) adopted and placed reliance on both the appellant’s and appellant’s reply briefs. He also elaborated on the two briefs of argument. On the other hand, learned counsel for plaintiff (hereinafter referred to as respondent) adopted and relied on the Respondent’s brief. In addition, he, too, made oral elucidation on the brief of argument.
It is proposed to treat the respondent’s notice of intention to rely on a preliminary objection first since it smacks of challenge to the competence of the appeal. Jurisdiction is the threshold and life wire of any determination and should be considered and determined before considering any thing else, as a decision no matter how well considered will come to not once the court lacks authority to try it.
In this connection, learned counsel for respondent in the respondent’s brief contended that the appeal relates to scheduling, order in which to take the applications pending before the court. Mr. Opasanya then submitted on the strength of the case Okeke V. Uzochukwu (2001) 3 NWLR (Pt 700) 388, 344-5 that the order or directive is not appealable.
He contended further still on the preliminary objection that the appeal founds on the procedural rules as to presence, waiver and the like as well as about the exercise of discretion, Learned counsel for respondent proceeded to elaborated only on the exercise of description when he submitted elsewhere in the brief that an appeal on discretion is, at least, a question of mix law and fact and the failure to obtain leave as in this case makes the appeal incompetent, Learned counsel relied on the cases Ifediorah v Umeh (1988) 2 NWLR (Pt 74) 5, Comex Ltd. V. N.A.B Ltd. (1997) 3 NWLR (Pt. 496) 643, 658 and Adeyemo v Beyioku (1999) 13 NWLR (Pt 635) 472, 490.
Learned counsel for appellant, in the Appellant’s reply brief mounted onslaught on the notice of preliminary objection on account that paragraphs 10, 11 and 12 of the affidavit in support being legal argument and conclusion offend against the provisions of section 87 of the Evidence Act, Cap 112 of the Laws of the Federation of Nigeria, 1990, Learned Counsel who immediately above alleged that the averments in paragraphs 10, 11 and 12 constituted legal argument and conclusion turned around in volte face to urge the court to discountenance same on account that they are made up of extraneous matters and should be struck out on the authority of General and Aviation Services Ltd. v Paul Thahal (2004) 10 NWLR (Pt 880) 50, 73 and Bamaiyi V. State (2001) 8 NWLR (Pt. 71) 270.
The notice of intention to rely upon a preliminary objection is stricto sensus not a motion either on notice or ex parte it therefore docs not require a supporting affidavit to be competent.
On the substance of the objection, learned counsel for appellant, Dr. Olawoyin, contended that the case Okeke v Uzuchukwu (supra) cannot stand the test of judicial scrutiny having regard to the provisions of section 318 of the Constitution of the Federal Republic of Nigeria, 1999 which defines a decision. But argued that the present case is distinguishable from the case Okeke V Uzoehukwu (supra) in which directive was given suo motu unlike in the instant case where it was made in a reserved and considered ruling following formal addresses by counsel to the parties. He then proceeded to attempt to put in doubt the decision in Okeke v. Uzochukwu (supra) on account of another Court of Appeal decision in All Nigeria Peoples Party v. Boni Haruna (2003) 14 NWLR (Pt. 841) 546 and urge the court not to follow the Okeke’s case in the light of the definition of a decision in the Constitution.
On the issue of the appellant’s failure to obtain leave before bring the appeal, learned counsel for appellant’s submission in the appellant’s reply brief reads as follows:-
“The appeal before this court is competent to the extent that at least some of the grounds of appeal are based on law for which no leave is required.”
Learned counsel for appellant failed to refer to any authority which validates a notice of appeal in an interlocutory appeal in which “some of and not all the grounds of appeal are based on law” I am respectfully not aware of any principle of law, statutory or otherwise, that prescribes that, at least, when some of the grounds of appeal are grounds of law an interlocutory appeal is competent without seeking leave to appeal. It is trite that all the grounds of appeal filed must be ground of law alone for the appeal to be competent. It is clearly provided for in section 241(1)(b) of the 1999 Constitution that an appeal shall lie as of right from the decision of the Federal High Court or a State High Court where the ground of appeal involves questions of law alone decisions in civil or criminal proceedings. But where the ground of appeal does not raise issues of law alone the appellant in an interlocutory appeal must seek and obtain leave of either the court below or this court pursuance of section 242(1) of the 1999 Constitution for the appeal to be valid.
It is apt, at this stage, to consider the nature of the decision of the trial court. The decision of the learned trial judge could have been appealed against as of right if it were a final decision of the High Court of Lagos State under section 241(1) (a) of the Constitution. The order appealed against only set out the agenda whereby the learned trial judge would dispose of the applications before him. It did not finally determine the right of the parties before the court. The test whether a decision is final or interlocutory was settled by the Supreme Court in the case Akinsanya v. U.B.A. Limited (1986) 4 NWLR (Pt 35) 273 where the Supreme Court adopting the test set down in Bozson v. Altricham U.D.C (1903) 1 Q.B. 574 held the appropriate test to be applied as follows:-
“Does the judgment or order as made finally dispose of the right of the parties. If it does, then the order is a final order, if it does not, it is interlocutory.”
See also Blay & Ors v. Solomon (1947) 12 WACA 175, William Ude & Ors v Josiah Agu & Ors (1961) 1 All NLR 65 and Falola v U.B.A. Plc. (2005) 2 NWLR (Pt 924) 405, 419 & 426-7. Learned trial judge in the circumstance not having disposed of the rights of the parties the decision is interlocutory.
It could therefore be appealed against as of right under section 241(1) (b) if all the grounds involve issue of law alone. Learned Counsel for appellant conceded that only some of the grounds raised issue of law alone. For the appeal to be competent the grounds of appeal must be of law alone and any ground of appeal that “is not of law simpliciter will not support a competent appeal under section 241(1)(b) of the Constitution”. See Comex Ltd. V. Nigeria Arab Bank Limited (1999) 3 NWLR (Pt 496) 643, 654. The appeal can only be competent in view of the concession of the learned Counsel for the appellant if leave of this court or that of the Lagos State High Court was sought and obtained. In the absence of such leave the appeal is, of course, incompetent.
It is, moreover, manifestly clear that the learned trial judge had not disposed of any right of both parties. He merely made or set down a convenient arrangement for the court and the parties for disposing of the six applications before him together rather than one at a time. It was an arrangement which he could resile from or set aside if at any stage it appeared to him that the interest of justice otherwise demands. The order scheduling the order in which matter would be entertained in the court below could not be trial because the learned trial court could at any time reversed itself which is an attribute of an interlocutory decision but once a court pronounces on a final decision it becomes functus officio and can no longer recede or resile from it and can only be reversed on appeal. The fact that the court can reverse itself is expressly provided for in Order 25 rule 6 of High Court of Lagos State. (Civil Procedure) Rules, 2004 which states thus:
“Any judgment given under this rule may be set aside upon an application made within 7 days of the judgment or such other period as the pre-trial judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate effectively in the pre-trial conference.”
I am not unmindful of the fact that the provisions of Order 25 rule 6 is confined strictly to that rule, but I see no reason why it should not be extended to cover all issues considered and determined under Order 25 or during the pre-trial conference. I am bolstered in this view since all it entails in pretrial are exercise of discretion in respect of which the court can resile or reverse itself.
Be that as it may, an exercise of discretion respectfully can only be challenged by a ground of fact or at best of mixed fact and law since it involves consideration of facts which the court failed to take into account or what it should do and failed to do. The present appeal is an attack on exercise of discretion by the learned trial judge the ground certainly must be of fact or, at best, of mixed law and fact. In this regard the Supreme Court per Ogundare, JSC in Come, Ltd. V. Nigeria Arab Bank Ltd. (supra) at p 658 slated as follows:-
“Again the complaint here is that the court below, in exercising its discretion to grant unconditional stay, did not consider all the circumstances that would, in law, have assisted the court in determining whether or not to grant the stay. It is not stated what circumstances the court ignored such circumstances obviously must be facts. This ground to my mind questions the manner the court below exercised its decision and that can only be an issue of fact or, at best, mixed law and fact but not of law simplicitier.”
Ground 1 when read in its totality is not a ground of law but at best a ground of mixed law and fact since the court will have to sort out the facts to ascertain whether the facts of the cases are on all fours or not. Even then no one case can be authority for another in matters of discretion and the court cannot be bound by a previous decision in exercising its discretion in a particular manner, because that would, in effect, is putting an end to the exercise of discretion. See Odusote v. Odusote (1991) 1 All NLR 219. It is trite that all discretions must be exercised according to common sense and according to justice Odusote v. Odusote (supra). The court will frown upon any act or conduct which tends to stifle exercise of discretion by the court; A.G. V. Emerson (1890) 24 Q.B.D 56). It is, but a discretion which must not be exercised whimsically or arbitrarily but judicially and reasonably. Learned trial judge is required to take into consideration all the circumstances including such question as to the reason for not tiling statement of defence, the nature of the claim and the effect of acceding to the preliminary objection of the appellant upon the claim of the respondent. These are matters of fact which ought to be canvassed in this appeal to enable this court come to the conclusion whether or not learned trial judge by use of his reason ascertained and directed the course which reason demands. This is certainly a ground of fact and is basic to this appeal and for which leave is required. See Roberts v. Hopwood (1925) A.C. 578, 613; Rookes Case 77 ER 209; Sharp v Wakefield 1891 AC 173 appeal, (1888) 22 QBD 239; Ikomi v. Agbeyegbe 11 WACA 379, 380-381.
The appeal is rendered incompetent for not seeking and obtaining leave either of this court or of the court below before filing it. It is therefore null and void ab inito. The preliminary objection succeeds and is sustained. Consequently the appeal is struck out.
The respondent is entitled to costs in this appeal which is assessed at N10,000.00 against the appellant.
Other Citations: (2007)LCN/2301(CA)
