Mr. Nebolisa O. Arah & Anor V. Chief Osa Osunde (2016)
LawGlobal-Hub Lead Judgment Report
CHINWE EUGENIA IYIZOBA, J.C.A.
This is an Appeal against the decision of Tsoho J of the Federal High Court, Lagos Division fixing a date for the hearing of committal proceedings instituted by the Respondent against the Appellants over an alleged disobedience of the order of the Court.
The Respondent as Plaintiff by an Originating Summons commenced this Suit at the Lower Court against three Defendants (1) Governor, Central Bank of Nigeria (2) Central Bank of Nigeria and (3) AfriBank Nigeria Plc for the determination of the following questions:
1) Whether given the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as “the 1999 Constitution”), the Governor of the Central Bank of Nigeria or anybody or authority inclusive of the Central Bank of Nigeria can validly proceed under or pursuant to Section 48(2) (b) of the Banks and Other Financial Institutions Act, Cap.B3, LFN, 2004 (hereinafter referred to as “the BOFIA”) or any regulations made under the said enactment to purport to make a determination there under without giving the Plaintiff a hearing thereon?
2)
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Whether the Governor of the Central Bank of Nigeria or any other body or authority inclusive of the Central Bank of Nigeria can validly proceed on a purported declaration by and of itself under and/or pursuant to Section 48(2) (b) of the BOFIA or any regulations made under the said enactment to purport to make a determination and/or declaration thereon in the absence of any Order of a Court of competent jurisdiction?
Upon the determination of the questions, the Plaintiff sought the following reliefs:
1) A DECLARATION that given the provisions of Section 36 of the 1999 Constitution, the Governor of the Central Bank of Nigeria or anybody or authority inclusive of the Central Bank of Nigeria cannot validly proceed under or pursuant to Section 48(2) (b) of the BOFIA or any regulations made under the said enactment to purport to make a determination there under without giving the Plaintiff a hearing thereon.
2) A DECLARATION that the Governor of the Central Bank of Nigeria or any other body or authority inclusive of the Central Bank of Nigeria cannot validly proceed on a purported declaration by and of itself under and/or pursuant to Section 48(2)
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(b) of the BOFIA or any regulations made under the said enactment to purport to make a determination and/or declaration thereon in the absence of any Order of a Court of competent jurisdiction.
3) A DECLARATION that to the extent that the 1st Defendants by letter dated the 12th May, 2011 addressed to the plaintiff purports to claim to have disqualified the Plaintiff from continuing to remain in office as Director of the 3rd Defendant Bank and/or to have withdrawn the Plaintiff’s subsisting right or entitlement to remain in the said office purportedly under or pursuant to Section 48(2)(b) of the BOFIA or any regulations made under the said enactment, in the absence of a determination and/or declaration of a Court of competent jurisdiction and without giving the Plaintiff a hearing, the same is invalid, null and void and of no effect whatsoever.
4) AN ORDER of injunction restraining the Defendants by themselves or any one of them, their servants, agents, assigns, privies or howsoever from and/or in any manner whatsoever disturbing the Plaintiff’s lawful occupation of the office of Director and Chairman of the 3rd Defendant Bank herein, until the
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Plaintiff’s tenure of office duly expires.
The Originating Summons, Affidavit in Support and Exhibits are at pages 1 – 29 of the Record of Appeal.
Along with the Originating Summons, the Plaintiff filed a Motion Exparte and a Motion on Notice for interim and interlocutory injunctions. The processes with Written Addresses in support are at pages 30 – 65 of the Record of Appeal.
On 25/05/11 after hearing the motion exparte the Lower Court ordered as follows:
1) That the Defendants or any one of them, by themselves, their servants, agents, officers, privies or howsoever are restrained from enforcing, giving effect to, carrying out and/or taking any step or further steps in pursuance of the execution and/or in furtherance of the letter dated the 12th May, 2011 and headed “Withdrawal of Approval To Remain As Director? and the contents thereof under the hand of the 1st Defendant herein to the Plaintiff herein pending the hearing and final determination of the Motion on Notice for Orders, inter alia, of interlocutory injunction filed in this Suit.
2) That there stands suspended the letter dated the 12th May, 2011 and headed Withdrawal
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of Approval To Remain As Director and the contents thereof under the hand of the 1st Defendant herein to the Plaintiff herein pending the hearing and final determination of the Motion on Notice for Orders, inter alia, of interlocutory injunction filed in this Suit.
3) That the Plaintiff shall be at liberty to continue to remain in office as Director and Chairman of the 3rd Defendant Bank herein pending the hearing and final determination of the Motion on Notice for Orders, inter alia, of interlocutory injunction filed in this Suit.
Orders 4, 5 and 6 deal with service of processes and adjournment of the motion on notice for interlocutory injunction to 07/06/2011. The enrolled Order of the Court is at pages 66-69 of the Record.
Upon being served, the 1st and 2nd Defendants (the Governor of the Central Bank of Nigeria and the Central Bank of Nigeria) filed several processes which included Notices of Preliminary Objection challenging the jurisdiction of the Court and Motions to discharge the exparte order. On 07/06/11 when the case came up for hearing, the Plaintiff’s counsel informed the Court that the processes were served on him on the previous
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day and he will therefore require time to respond to them. In the course of the proceedings, the provisions of Order 26 Rule 12 of the Federal High Court (Civil Procedure) Rules 2009, was brought to the attention of the Honourable trial judge. The purport of the rule is that where a person affected by an exparte order files an application seeking a variation or discharge of the order, that application must be heard within 14 days of its being filed otherwise the ex parte order lapses. Plaintiff’s counsel urged the Court to extend the ex parte order until the motion seeking its discharge is taken. This was opposed by 1st and 2nd Defendants’ counsel arguing that the Court did not have the power to extend the life of the exparte Orders in view of the provisions of Order 26 Rule 12 of the Federal High Court (Civil Procedure) Rules 2009. The learned trial judge in his ruling agreed with defence counsel that the Court lacked the competence to extend the exparte order and refused the application. In concluding his ruling, the learned trial judge said:
“In the instant case, the Plaintiff has a pending motion for interlocutory injunction and the
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Defendant/Respondents are enjoined to exercise due caution, even when it becomes obvious that the Exparte orders restraining them have lapsed”.
The proceedings of 07/06/11 are at pages 70 to 74 of the Record of Appeal. Subsequently, the Respondent herein [Plaintiff at the Lower Court] caused to be issued a “Notice to show cause why Order of committal should not be made” on the Appellants herein. In the Affidavit in support of the Notice, the Respondent alleged that the Appellants had disobeyed the order of the trial judge made on 07/06/11 wherein he enjoined the Defendants to “exercise due caution”. The Respondent alleged that the Appellants, being the Managing Director/Chief Executive Officer and the Company Secretary of AfriBank Nigeria Plc. ?proceeded in concert to convene and hold a purported meeting of the Board of Directors of the 3rd Defendant Bank on Friday, the 24th June 2011 without any reference to/or notice to the Plaintiff; the latter of whom as Chairman occupied the foremost position in such matters.” Paragraph 2e of the Affidavit of Nnamdi Okoroke Williams of 27/06/11 at pages 82 to 85 of the records. The Respondent placed reliance
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on the Notice of meeting of the Board of Directors, issued under the hand of the 2nd Appellant dated 22nd June 2011 at page 86 of the records. By the Notice of Meeting of Board of Directors, the meeting allegedly held in the board room of the Bank on the 17th floor of its Head Office of 51/55, Broad Street, Lagos.
The Respondent had difficulties serving the Forms 48 and 49 on the Appellants. He therefore filed a motion ex-parte seeking Leave of the Court to serve those processes by substituted means. The application was filed before Tsoho J who heard and granted it and further ruled as follows:
“The Court is disposed to according priority to contempt proceedings and for the preliminary objection to be in abeyance. Suit is adjourned to the 7th of October, 2011 for hearing of the application for committal of some officers of the 3rd Defendant”
?The Appellants being dissatisfied with the decision of Tsoho J to assume jurisdiction and to hear the committal proceedings appealed against it by Notice of Appeal dated 08/08/11 and filed on 09/08/11 containing two grounds of appeal of pages 107 to 110 of the records.
?The parties filed and exchanged
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briefs of argument. The Appellants’ Amended brief of argument and Reply brief are both dated and filed 19/06/15 but deemed properly filed and served on 06/06/16. Out of the two grounds of appeal, the Appellants distilled a sole issue for determination as follows:
”WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE ASSUMED JURISDICTION TO HEAR AND DETERMINE THE COMMITTAL PROCEEDINGS INVOLVING THE APPELLANTS.”
The Respondent’s brief is dated 13/08/14 and filed on 14/08/14 but deemed properly filed and served on 06/06/16. At page 7 thereof, he gave notice of Preliminary Objection. The arguments are at pages 7-14. He urged us to strike out the Appellant’s grounds of appeal and the sole issue distilled there from for incompetence and to dismiss the appeal. On the appeal, learned counsel for the Respondent submitted that the sole issue formulated by the Appellants was based on the wrong assumption that the learned trial judge assumed jurisdiction to hear and determine the committal proceedings against the Appellants. He submitted that the only issue which may be said to have arisen for determination in the premises of the Appellant’s appeal is as follows:<br< p=””
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”Whether, having regard to the facts of this case, the order of the trial Federal High Court adjourning the suit to a later date and after the said Notice to show cause shall have been served pursuant to the order for the substituted service thereof on the Appellants was not merely consequential and/or to give effect to the latter, without more?”
As is customary I shall address the preliminary objection first and necessary go on to a consideration of the main appeal.
PRELIMINARY OBJECTION:
RESPONDENT?S ARGUMENTS;
In the Preliminary objection, the Respondent prayed for:
i). An Order striking out the entirety of Grounds 1 and 2 of the Appellants’ Notice of Appeal dated the 8th August, 2011 for incompetence.
ii). An Order striking out the Appellants’ sole issue for determination as sought to be raised and argued in the Appellants’ Brief of Argument dated the 21st February, 2012 and deemed filed on the 20th November, 2013, same having been predicated on the said incompetent Grounds 1 and 2 of the said Notice of Appeal.
The grounds for the Objection are as follows:
a). That Grounds 1 and 2 of the Appellants’ said Notice
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of Appeal (hereinafter referred to as “the Notice”) are imprecise, vague, ambiguous and general in terms, and offend the provisions of Order 6 Rule 3 of the Court of Appeal Rules 2011 (hereinafter referred to as the Court of Appeal Rules?).
b) That the said Grounds 1 and 2 of the Notice is incompetent as they did not directly attack the ratio decidendi of the decision of the Lower Court delivered on the 26th July, 2011, per Tsoho J., purportedly being appealed against.
c) That the said Grounds 1 and 2 of the Notice did not disclose any reasonable ground of appeal and/or did not arise or emanate from the decision of the Lower Court delivered in this Suit on the 26th July, 2011, per Tsoho J., purportedly being appealed against by the Appellant.
d) That the decision of the Lower Court of the 26th July, 2011 in this suit purportedly being appealed against by the Appellants is an interlocutory decision rather than a final decision of the Lower Court; and, the same was in the exercise of that Court’s judicial discretion.
e) That no leave of either the Lower Court or the Court of Appeal was first sought nor obtained prior to the filing of
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the Appellant’s said Notice and the Grounds thereof.
f) That whilst Grounds 1 and 2 of the Notice and the Particulars, thereof are, of best, Grounds of mixed law and facts, the same are not only wholly speculative and suffused with legal arguments and/or narratives but seek to raise a fresh issue.
g) That the Issue for Determination as sought to be raised and argued in the Appellants’ Brief is incompetent having been predicated on the incompetent grounds 1 and 2 of the Notice.
Learned counsel for the Respondent submitted that the question which calls for determination in the Respondent’s preliminary objection is whether Grounds 1 and 2 of the Appellants’ Notice of Appeal and the sole issue distilled from the grounds are not grossly incompetent and ought to be struck out. Learned counsel set out the grounds of appeal and submitted that they could not have arisen from the decision of Tsoho J. delivered in this suit on 26/07/11. He posited that the grounds are speculative, presumptuous and have no bearing or relationship with the decision of Tsoho J. Counsel citing the cases of A-G Anambra State v. Okeke (2002) 36 WRN 16 at P. 48 (line 35) and
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Oloruntoba-Oju & 8 Ors v. Abdul-Raheem & Ors 13 NWLR (Part 1157) 83 @ 121 B-C submitted that a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against. He further submitted that at the point the Lower Court was called upon to make a determination on 26/07/11 that no question had arisen of the competence or otherwise of the Notice to Show Cause itself and/or whether the alleged disobedience was committed in the face of the Court or not. Counsel posited that all the Court was concerned about at the point of hearing the Plaintiff’s then pending Exparte application for substituted service was the order of priority for hearing the committal proceedings and all the other pending applications in the Suit? Counsel submitted that the Appellants’ said Appeal is merely to challenge the Power of the Lower Court to exercise its undoubted judicial discretion on the priority of the hearing of pending applications before it.
?Learned counsel went on to submit that a ground of appeal, as in the instant case, which questions the exercise of discretion by a trial Court is of the very best a
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ground of mixed law and fact. He submitted citing a number of authorities that Grounds 1 and 2 of the Appellants Notice with the Particulars are grounds of mixed law and facts. Counsel argued that Sections 241(1)(d) and 241(1) (f) (i) of the 1999 Constitution, as amended on the provisions of Chapter IV of the Constitution do not apply because no question as regards the liberty of the Appellants had as yet arisen. He posited that even where the hearing on the committal proceedings had commenced, on the settled law, until there is a determination thereon resulting in a conviction (or not), there was no right of Appeal save with leave of the Court.
Learned counsel submitted that the order of the Court of 26/07/11 did not finally dispose of the matter in contention and was therefore not a final order but on interlocutory one, the prior leave of this Court or of the Lower Court was therefore required for the Appellants to competently appeal against the same. Counsel further opined that the issue being canvassed was not raised and determined in the Lower Court and was consequently a new issue being raised for the first time on appeal. There was need to obtain
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the leave of the Court before arguing the new issue.
Counsel urged us to strike out the entirety of the Appellant’s said Grounds of Appeal for incompetence and to discountenance the issue distilled therefrom. He also urged us to dismiss the appeal for constituting a grievous abuse of process.
APPELLANTS? ARGUMENTS IN REPLY
Learned counsel for the Appellant in reply set out in full the two grounds of appeal and their particulars and submitted that the complaints of the Appellant are that the alleged contempt of Court was committed outside the Court premises; that the order allegedly disobeyed was made by the same learned trial judge; that the order made by the trial judge was vogue and call for evaluation by an objective mind to discover the acts specifically prohibited by the order if any; that the trial judge who made the order would likely give a subjective interpretation to the order since it was made by him; and that the trial judge lacks jurisdiction to hear and determine contempt proceedings where the alleged contempt was committed outside the Court. Counsel posited that the particulars of the two grounds of appeal amplify the
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grounds and that the grounds were not vague, ambiguous or imprecise. Counsel further submitted that the Appellants do not require leave to argue any of the Grounds of Appeal as they fall squarely within the provisions of Section 241(1)(b) & (d) of the Constitution of the Federal Republic of Nigeria, 1999.
Counsel further submitted that the two Grounds of Appeal raise the issue of the jurisdiction of the learned trial judge to hear and determine the contempt proceedings (undoubtedly a question of law). He opined that Ground 2 further raises an issue of contravention of the rights of the Appellants to fair hearing as guaranteed by Section 36[1] [Chapter IV] of the Constitution. He submitted that the Appellants therefore can appeal to this Honourable Court on those grounds as of right and do not require leave of any Court. Learned counsel submitted that the Respondent deliberately closed his eyes to the complaints of the Appellants and chose to make out complaints for the Appellants which they did not make in their Appeal. He posited that the Appellants did not question the exercise of the discretion of the learned trial judge on any matter. Rather, the Appellants’ complaint are that, when the trial judge adjourned the committal
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proceedings to a date for hearing by him, he clearly and unambiguously assumed jurisdiction to hear the proceedings. With due respect, the learned trial judge at that point overstepped his bounds on the authority of several judicial decisions which have been cited in the Appellants’ brief. Counsel argued that the learned trial judge went beyond deciding the priority to be accorded the several applications pending before him but rather he assumed jurisdiction to hear the contempt proceeding and therefore put the pending preliminary objections in abeyance. Counsel opined that the only legally permissible consequential order the Court should have made in the circumstances was to send the committal proceedings to the Chief Judge of the Federal High Court for assignment to another judge bearing in mind the contents of the Forms 48 and 49 which were all before him. Counsel further submitted that the crux of this appeal is whether the learned trial judge had the power to hear the contempt proceedings as by setting a date for the hearing he had already assumed jurisdiction to hear the contempt proceedings in priority to all other pending applications.
?Learned
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counsel submitted that the word ‘decision’ was defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria to include ‘Orders?. He opined that the Order of the learned trial judge that he would hear the Committal proceedings on a particular date is a ‘decision’ within the meaning of the word as defined by the Constitution and can therefore be subject of an Appeal especially since the decision involved assuming jurisdiction to hear a matter which the Appellants contend is beyond the learned trial judge’s jurisdiction. Counsel relied on Usman v. K.S.H.A (2007) 11 N.W.L.R. (Pt.1044) Pg. 148 @ 190 (A ? B).
On the contention of the Respondent that the grounds and issue are being raised for the first time, counsel submitted that the issue raised in this appeal is an issue of jurisdiction which can be raised of any point, more so since the learned trial judge in this case had already assumed jurisdiction. Counsel further submitted that the grounds and issues could not have been raised in the Lower Court because to raise the issues before him will be an invitation to him to review his own decision. He cited some authorities.<br< p=””
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Counsel finally submitted that the Respondent’s contention that the appeal is incompetent is misconceived. He urged us to overrule the Preliminary objection as lacking in merit.
RESOLUTION OF PRELIMINARY OBJECTION:
The sequence of events that led to this appeal has been set out earlier in this judgment. For clarity I shall set out relevant abstracts of the Ruling of the Court in respect of which the appeal was brought. The Ruling is at pages 97 – 101 of the Record.
”The issue at hand by my humble perception, borders on whether this Court can alter the order of hearing application brought before it, particularly with the effect of according precedence to an application brought after others have been already scheduled. I hold the respectful view that the Court has discretion to decide the order in which application before it should be taken, having due regard to the peculiar nature of each of them. In deciding the order of hearing, the question of jurisdiction, and sensitivity and urgency of the matters involved must be reckoned with. Against that background, if is incontestable that even though other applications may be earlier scheduled, once
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an application touching on the jurisdiction of the Court is brought subsequently, it automatically takes precedence. This is on the basis that issues of jurisdiction are threshold,and should usually be first disposed of. But having said that, it is necessary to add that even among threshold issues, some are certainly more threshold than others, and must be ranked in that order.
Associated with this is the question as to which application Court should accord priority when faced with challenge to jurisdiction and then application for committal, otherwise referred to as contempt proceeding. Authorities are divided on this, but I am aware of decisions even of the Apex Court, that contempt proceedings, which incidentally is what Aniakor Esq. seeks to pursue, should be given priority in order to preserve the integrity of the Court. If that line is towed, then Aniakor’s Motion Exparte, though having been preceded by 1st and 2nd defendants’ preliminary objection should enjoy precedence.
I am more inclined in favour of that position. This is on the premise that a Court is entitled to investigate and to determine whether it has jurisdiction to entertain a matter or not, and until it expressly divests itself of jurisdiction, it can make orders as are necessary to preserve its
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integrity.
……In the instant situation, I hold the respectful view that Aniakor’s motion Exparte should enjoy precedence over the earlier scheduled hearing of preliminary objection. And this is particularly so that being an application exparte; the defendants are not entitled to respond to it, as it is only by happenstance that it has come up at the same time as the hearing in the substantive matter I so hold.”
Thereupon, Aniakor Esq. moved his motion exparte for substituted service on the Respondent/contemnors which was duly granted by the Court. The Court then further held:
“Court is disposed to according priority to contempt proceedings and for the preliminary objection to be in abeyance.
Suit is adjourned to 7th October, 2011 for hearing of the plaintiff’s application for committal of some officers of the 3rd Defendant.”
?It is against the above Ruling of the Lower Court that the Appellant filed his Notice of Appeal with grounds and particulars of appeal as set out hereunder:
GROUND 1
The learned trial judge erred in law when he assumed jurisdiction to hear committal proceedings when the alleged act constituting one (sic
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the) alleged contempt was committed De (sic ex) curia.
PARTICULARS:
a. The act allegedly constituting contempt of Court was not committed in the face of the Court;
b. The established principles of law in committal proceedings divest the learned trial judge of jurisdiction to entertain the alleged contempt.
GROUND II
The decision of the learned trial judge to assume jurisdiction to try the alleged contempt is a breach of the fundamental rights of the Applicants to a fair trial which is also guaranted by the Constitution of the Federal Republic of Nigeria.
PARTICULARS:
a. The Order of Court which the Appellants are allegedly in contempt of was made by the learned trial judge;
b. By assuming jurisdiction to hear the committal proceedings the learned trial judge has become a judge in a matter in which he is interested and his independence and impartiality is no longer guaranteed;
c. The particular order allegedly disobeyed is one that is vague and calls for interpretation by an impartial and independent mind;
d. There is every likelihood that justice will not be seen to have been done if the committal proceedings
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is heard by the trial judge.
Having set out the Ruling and the grounds of appeal, it is my view that grounds (b) and (c) of the Respondent’s grounds for the preliminary objection are adequate to determine the objection. The grounds are as follows:
b) That the said Grounds 1 and 2 of the Notice are incompetent as they did not directly attack the ratio decidendi of the decision of the Lower Court delivered on the 26th July, 2011, per Tsoho J., purportedly being appealed against.
c) That the said Grounds 1 and 2 of the Notice did not disclose any reasonable ground of appeal and/or did not arise or emanate from the decision of the Lower Court delivered in this Suit on the 26th July, 2011, per Tsoho J., purportedly being appealed against by the Appellant.
?It is quite obvious that the grounds of appeal do not arise from the Ruling of the learned trial judge set out above and that learned counsel for the Respondent is right in their argument on the preliminary objection that the Appellants’ grounds of Appeal cannot be said to have arisen or that they are predicated on the decision of the Lower Court. It is indeed trite that an Appeal must relate
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to the decision of the Court from which the Appeal lies and any ground of Appeal and issues raised on matters outside those relating to the relevant decision are incompetent. In the case of C.C.B. Plc v. Ekperi (2007) 3 NWLP (Pt.1022) 493 Onnoghen JSC observed:
“It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal…”
See also Bello v. Aruwa (1999) 8 NWLR (Pt.615) 454 @ 465; Igbinovia v. UBTH & Anor (2000) 8 NWLR (Pt.667) 53; Egbe v. Alhaji (1990) NWLR (Pt.128) 546 @ 590: 4-6 Anambra State v. Okeke (2002) 36 WRN 16 at p.48 and Oloruntoba-Oju & 8 Ors v. Abdul-Raheem 4 Ors (Part 1157) 13 NWLR 83 at 121 B-C where Adekeye JSC observed:
“An appeal is a challenge against the judgment of a trial Court and it is never predicated on what a Court has not decided in its judgment or ruling. Therefore, a ground of Appeal must arise from the live issue at the trial Court and not any hypothetical assumption by the Appellant. In other words, a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed
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against”.
Learned counsel for the Respondent is also right that at the point the Lower Court was called upon to make a determination on the 26th July, 2011, no question arose as to the competence or otherwise of the Notice to Show Cause, or whether the alleged disobedience was committed in the face of the Court or ex facie curiae. The Lower Court was concerned with the only issue raised before it, to wit: Whether this is not a proper case for the exercise of the Court’s discretion in favour of hearing the Plaintiff’s Exparte application for substituted service and the determination of the said application in priority to other pending applications in the Suit especially the application challenging the jurisdiction of the Court to hear the substantive suit. The truth is that the Appellants simply got it all wrong. Their contention is that by adjourning the case for hearing of the contempt proceedings, the learned trial judge had assumed jurisdiction to hear the matter when the contempt was committed ex-facie curiae and is outside the Court’s jurisdiction. These matters have not been canvassed before the trial judge. They must be canvassed before the Court
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and a stand taken by the Court before the matter can be brought before us on appeal. Order 6 Rule 2 of the Court of Appeal Rules provides that all appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”). In this particular instance, it would not be a rehearing because the trial Court had not considered the issues and given its views on them for us to now rehear the matter to determine whether the Court is right or wrong. The Appellants clearly jumped the gun. They should have raised the issues before the trial Court. If they had done so, the trial Court would then decide whether or not it has jurisdiction to hear contempt proceedings where the contempt was committed ex facie curiae. It is only after the trial Court has taken a stand on the issue and the appellant is not satisfied that they can now come to us on appeal. In M.B.N. Plc v. Nwobodo (2005) 14 NWLR (Pt.945) 379 Pats Acholonu JSC (of blessed memory) observed:
It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the
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remotest connection with what the Court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal.”
There is no need wasting further time on the many other issues raised in the preliminary objection. On these two very obvious grounds, the preliminary objection has merit. It is upheld. The grounds of appeal and the sole issue raised from them are hereby struck out. There being no other ground to sustain the appeal, the appeal is also struck out with cost to the respondents assessed at N50,000.00 only.
Other Citations: (2016)LCN/8916(CA)
