Mr. Emmanuel Mba V. Spring Bank Plc & Ors (2016)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABUBAKAR, J.C.A.
This appeal is against the judgment of the High Court of Lagos State delivered on the 1st day of November 2007/11/2007 in suit No. LD/M/609/06 by Olateru-Olagbegi J.
The suit at the Court below was commenced against the 2nd and 3rd Respondents by the 1st Respondent vide an Originating Summons dated 20th December 2006. The 2nd and 3rd Respondents filed a Notice of Preliminary Objection dated the 27th day of February 2007 seeking for an order striking out the suit or alternatively directing that the claimant file proper pleadings. When the matter came up for hearing on the 1st day of November 2007 the Claimant (1st Respondent) moved the Court to enter judgment in their favor pursuant to Order 25 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2004 in the absence of the Defendants (2nd and 3rd Respondents). The Court struck out the Preliminary Objection of the 2nd and 3rd Respondents, and granted the reliefs sought by the Claimant (1st Respondent) in its Originating Summons. The Application by the 2nd and 3rd Respondents to set aside the judgment obtained in their absence was dismissed
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by the learned trial Judge in his ruling dated the 15th day of September 2009. The 2nd and 3rd Respondents became aggrieved by the decision of the lower Court and therefore lodged appeal against the said ruling to this Court in Appeal No. CA/L/838/2009.
The Appellant herein Mr. Emmanuel Mba who was not a party to the suit at the lower Court is purportedly the Owner of the property, which is the subject matter of the suit to which the lower Court in its judgment ordered the Claimant (1st Respondent) to sell. The Appellant’s application dated the 19th day of September 2011 for leave to apply as a party interested pursuant to Section 243(a) of the 1999 Constitution was granted in the ruling delivered by this Court on the 18th day of May 2012.
The Appellants Amended Notice of Appeal was filed on the 16th day of April 2014. The amended Notice of appeal contains four grounds of appeal. The Appellants’ Amended brief of argument was also filed on the 16th day of April 2014. The Amended Appellants’ Reply Brief was filed on the 8th day of March 2016. Learned Senior Counsel G. N. Uwechue SAN, filed the briefs on behalf of the Appellant.
?The 1st, 4th and 5th
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Respondents’ Brief of Argument was filed on the 23rd day of February 2016 by Learned Senior Counsel Sylva Ogwemoh SAN, while the 2nd & 3rd Respondents’ Brief of Argument was filed on the 19th day of January 2016 by Learned Counsel B. C. Igwilo.
The Appellant distilled three issues for determination; the issues are reproduced as follows:
1. Whether the learned trial judge was right in assuming jurisdiction over, rather than striking out the originating summons, which was fundamentally and incurably incompetent and irregular, having not sought any declaratory relief to provide an answer to the question sought to be determined as required by the rules of Court (Distilled from grounds 2 & 4).
2. Whether the lower Court was right in assuming the jurisdiction to consider and grant the reliefs sought in the originating summons in this case without first considering and determining the question sought to be determined by the originating summons. (Distilled from ground 1).
3. Whether upon the evidence and the law the lower Court was right in granting the third relief sought in the originating summons which states as follows:
“3. In default of payment as aforesaid,
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the claimant shall be at liberty to sell the 2nd defendant’s landed property at Plot 74 Block 4, Lekki Peninsula Residential Scheme 7, Lekki, Lagos measuring in Area 1,533.055 square meters and registered as Number 95, at page 95 in Volume 1986G of Lagos State of Nigeria Land Registry Office, Ikeja, Lagos as per the agreement between the parties, (Exhibits SB5, SB (-S812).” (Distilled from ground three).
The 2nd & 3rd Respondents adopted the issues submitted for determination by the Appellant, while the 1st, 4th and 5th Respondents submitted two issues for determination thus:
1. Whether the Originating Summons of the 1st Respondent at the High Court of Lagos State brought pursuant to Order 51 of the High Court of Lagos State (Civil Procedure) Rules, 2004 was defective, thereby robbing the High Court of Lagos State of the requisite jurisdiction to entertain it and grant the reliefs contained in the said Originating Summons. (Distilled from ground 1 & 2).
2. The second issue an adoption of the 3rd issue of the Appellant, which has been reproduced above.
PRELIMINARY OBJECTION
The 1st, 4th and 5h Respondents raised preliminary objection in their Brief of
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Argument on the ground that this appeal is incompetent and ought to be struck out or dismissed because the condition(s) precedent for initiating or continuing an action against the 1st Respondent being a company that has been wound-up by an order of Court has not been met. Learned counsel for the 1st, 4th and 5th Respondents cited Section 417 and 610 of the Companies and Allied Matters Act, 2004 (CAMA) to submit that once 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 with the leave of the Federal High Court given on such terms as the Court may deem appropriate to impose.
Learned counsel relied on the case of A.A.D. ENTERPRISES LTD v. MV “NORTHERN REEFER” [2009] 12 NWLR (Pt. 1155) 255 at 270, ABEKHE v. NDIC [1995] 7 NWLR (Pt. 406) 229 to submit that the appropriate Court for the Appellant to approach is the Federal High Court and not this Court or even the Supreme Court. Learned Counsel further contended that the mandatory requirement provided for in Section 417 of the Companies and Allied Matters Act makes the present appeal incompetent and liable to
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be struck out and or dismissed since the appeal was commenced without following due process of law and it is therefore null and void. In support of this submission Learned Counsel relied on the decisions in 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 PET INTL & ORS [2010] 5 NWLR (Pt. 1187) 348 at 349-395.
Learned counsel contended that the Notice of Appeal was filed on the 22nd day of January 2013 pursuant to an Order of this Court dated 14th January 2013, after the 1st Respondent was wound-up by the Order of the Federal High Court on the 6th day of July 2012. Learned counsel argued further that making AMCON and ENTERPISE BANK LTD parties to this appeal is of no moment and cannot cure the defect being complained of. Learned counsel urged this Court to sustain the objection and strike out the appeal.
?Learned Senior Counsel for the Appellant filed an Amended Appellant’s Reply brief wherein he responded to the Preliminary Objection, Learned Senior Counsel said the preliminary objection is
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misconceived. He submitted that Section 417 of the Companies and Allied Matters Act (CAMA) relied on by the Respondent deals with actions and proceedings against, not by companies under liquidation. Learned counsel argued that the true intent and purport of the section is to stop people commencing or continuing with claims for reliefs against such companies.
Learned counsel argued further that the facts in the cases of A.A.D. ENTERPRISES LTD v. MV “NORTHERN REEFER” [2009] 12 NWLR (Pt. 1155) 255 at 270; ABEKHE v. NDIC [1995] 7 NWLR (Pt. 406) 228 which the 1st, 4th and 5th Respondents cited and relied upon were that action was commenced against the companies without leave, which is different from a case involving action by the company.
The contention of the learned counsel is that the judgment against which this appeal was filed was delivered on the 1st of November 2007 suit No. LD/M/609/2006 long before the liquidation Order of 6/7/2012, and the said action was not an action against the 1st Respondent but an action by the 1st Respondent against the 2nd & 3rd Respondents.
?Learned counsel submitted that the Appellant’s Notice of appeal filed on the 22nd day
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of January 2013 was pursuant to an Order of this Court made on the 18th day of May 2012 pursuant to the Appellant’s right by virtue of Section 243 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which is protected by Section 1(1) and 3 of the Constitution. He referred to LAFIA LOCAL GOVT. v. GOV. NASARAWA STATE [2012] 17 NWLR (Pt. 1328) 94, A.G. ABIA STATE v. A.G. FEDERATION [2002] 6 NWLR (Pt. 763) 264, A.G. ABIA STATE v. A.G. FEDERATTON [2003] 4 NWLR (Pt. 809) 124, FASAKIN FOODS (NIG) CO. LTD. v. SHOSANYA [2006] 10 NWLR (Pt. 982) 126, CADBURY NIG PLC v. F.B.I.R. [2010] 2 NWLR (Pt. 1129) 561 at 579, and SPEAKER K.S.H.A v. ADEGBE [2010] 10 NWLR (Pt. 1201) 45 at 68, to submit that the right conferred by the Constitution cannot be taken away by virtue of the provisions of Section 417 of CAMA or any other law whatsoever, and that in the circumstances the preliminary objection is ill conceived and constitutes an abuse of Court process and should be dismissed.
?Learned counsel submitted that the 1st, 4th, & 5th Respondents failed to supply any legal authority to support the proposition that where in the course of proceedings in an
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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) 255 at 270 cited by the Respondents is 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 if 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
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then, it cannot therefore 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 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 as being grossly misconceived.
?The law is settled that where a preliminary objection is raised in any proceedings before the Court, it is the duty of the Court to hear and determine the preliminary objection one way or
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the other. If the objection succeeds, the entire proceedings come to an end or where the objection fails, the Court proceeds with the hearing and determination of the issues before it. See: A.P.C. & ORS v. RE: CPC & 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.
Before resolving the preliminary objection challenging this appeal, it is important to note that this appeal is predicated on the judgment of the lower Court delivered by Olateru-Olagbegi J. of the High Court of Lagos State on the 1st day of November 2007 in suit No. LD/M/609/06. Meanwhile, I have noted that the 2nd & 3rd Respondents herein who were Defendants at the lower Court applied that the said judgment of the lower Court be set aside following an application dated 7/11/2007. The lower Court in a ruling delivered on 15/9/2009 on the application refused to set aside its judgment delivered on 1/11/2007. The 2nd & 3rd Respondents approached this Court in an appeal against the said ruling in Appeal No. CA/L/83812009. In the said appeal, this Court held thus:
“On
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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.”
In the light of the foregoing, and having set aside the judgment of the lower Court delivered on 1/11/2007; it would amount to an exercise in futility to proceed to determine any of the issues submitted for determination by the parties in this appeal, the issues having been predicated upon a judgment which has already been set aside by this Court. It is a well known and settled principle of law that one cannot put something on nothing and expects it to stand, it will certainly collapse like pack of cards. In MACFOY v. U.A.C. LTD, [1961] 3 All ER 1169, LORD DENNING, MR (of blessed memory) held that:
?”If an
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act is void, then it is in law a nullity. It is not only bad, but also incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there.”
Therefore, since nothing can stand on nothing, there is no judgment against which this instant appeal stands, any consideration or determination of the issues herein will be of no practical relevance whatsoever, a decision on the issues would lack utilitarian value. A judgment delivered without jurisdiction or nullified for any other cause is no longer in the eyes of the law an effective adjudication on the right of the parties. In other words, it can no longer be a legal foundation upon which any lawful right can be hoisted, there is no pedestal upon which to concrete any valid decision.
?Parties are therefore to abide by the decision of this Court in Appeal No. CA/L/838/2009 to the effect that the suit is remitted to the Chief Judge of the High Court
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of Lagos State for re-assignment to another Judge of the Court for accelerated hearing and determination. There is no order as to cost.
Other Citations: (2016)LCN/8799(CA)
