National Insurance Commission & Ors V. Fidelity Bond of Nigeria Limited & Ors (2016)
LawGlobal-Hub Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
This is an appeal against the Exparte Ruling/order of the Federal High Court, Lagos Division delivered by O.E ABANG J. on the 28-8-2012 in suit No FHC/L/CS/998/2012.
The Respondents herein had as Plaintiffs in the Lower Court instituted an action by way of originating summons dated 24-8-2012 against the Appellants herein, as Defendants whereby, they sought the determination of 11 questions presented and if answered in their favour, the following reliefs should be granted by the Court. To wit:-
(i) A DECLARATION that the prohibition of the 1st Plaintiff by the 1st Defendant from transacting Insurance business for a period of 6 months with effect from the 6th day of August 2012 via its letter with reference No. NAICOM/DCT/FBIB/01 dated the 6th of August 2012 on the basis of the directive/decisions of the Financial Reporting Council of Nigeria contained in its letter reference Nos. FRC/NAICOM/NONCOM/016/11 both dated the 31st of July 2012 to the 2nd and 3rd Plaintiffs herein without giving the 1st Plaintiff an opportunity to be heard before the prohibition order
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was made and without waiting for the final determination of the validity or vires of the directive/decisions of the Financial Reporting Council of Nigeria in suit No. FHC/CS/910/201 between the 2nd Plaintiff herein and the Financial Reporting Council of Nigeria is a breach of the 1st Plaintiff?s fundamental rights to fair hearing guaranteed by Section 36 of the 1999 Constitution;
(ii) A DECLARATION that the prohibition of the 2nd and 3rd Plaintiffs by the 1st Defendant from transacting Insurance business for a period of 6 months with effect from the 6th day of August 2012 or any further period via its letters with reference Nos. NAICOM/DCT/A&G/3 and NAICOM/DCT/A&G/4 both dated the 6th of August 2012 on the basis of the directives/decisions of the Financial Reporting Council of Nigeria contained in its letters reference Nos. FRC/NAICOM/NONCOM/016/11 both dated the 31st of July 2012 to the 2nd and 3rd Plaintiffs without giving the 2nd and 3rd Plaintiffs an opportunity to be heard before the prohibition order was made and without waiting for the final determination of the validity or vires of the directive/decisions of the Financial Reporting
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Council of Nigeria in suit No. FHC/L/CS/910/2012 between the 2nd Plaintiff herein and the Financial Reporting Council of Nigeria is a breach of the 2nd and 3rd Plaintiff?s fundamental rights to fair hearing guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria;
(iii) A DECLARATION that the 1st Defendant cannot implement, enforce and execute the prohibition of the Plaintiffs from transacting insurance business for a period of 6 months with effect from the 6th day of August 2012 or any further period via its letters reference Nos. NAICOM/DCT/FBIB/01, NAICOM/DCT/A&G/3 and NAICOM/ DCT/A&G/4 all of 6th of August 2012 on the basis of the directive/decisions of the Financial Reporting Council of Nigeria contained in its letters reference Nos. FRC/NAICOM/NONCOM/1016/11 both dated the 31st of July 2012 before hearing the Plaintiffs and before the final determination of the validity or vires of the directives/decisions of the Financial Reporting Council of Nigeria in suit No. FHC/L/CS/910/2012 between the 2nd Plaintiff herein and the Financial Reporting Council of Nigeria without violating the Plaintiffs?
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fundamental rights to fair hearing guaranteed by Section 36 of the 1999 Constitution;
(iv) A DECLARATION that the 1st Defendant cannot prohibit the Plaintiffs from transacting insurance business for a period of 6 months with effect from the 6th day of August 2012 or implement, enforce or give effect to the prohibition of the Plaintiffs from transacting insurance business for a period of 6 months with effect from 6th day of August 2012 or any further period without complying with the provisions of Section 38, 39, 40 and 41 of the National Insurance Commission Act Cap N53, LFN 2004;
(v) A DECLARATION that unless and until the final determination of the validity or vires of the directive/decisions of the Financial Reporting Council of Nigeria in suit No. FHC/L/CS/910/2012 between the Plaintiff herein and the Financial Reporting Council of Nigeria, the Defendants cannot exercise any of the powers specified in Section 4(2), 42 and 43 of the National Insurance Commission Act on the Plaintiffs;
(iv) A DECLARATION that the Defendants cannot exercise or further exercise any of the powers specified in Section 41(2), 42, 43, 44 and 45 of the National
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Insurance Commission Act on the Plaintiffs including removing the directors and/or management of the Plaintiffs or appointing new directors and/or a new management to assume the control and management of the Plaintiffs or revoking the registration of the Plaintiffs without giving the Plaintiffs an opportunity to be heard, without waiting for the final determination of the validity or vires of the directives/decisions of the Financial Reporting Council of Nigeria in suit No. FHC/L/CS/910/2012 between the 2nd Plaintiff herein and the Financial Reporting Council of Nigeria and without complying with the provisions of the National Insurance Commission Act Cap N53, LFN 2004;
(vii) A DECLARATION that the refusal of the 1st Defendant to give its final approval to the merger of the 2nd and 3rd Plaintiffs which was sanctioned by the Federal High Court Lagos (Coram: O. Okeke J) on the 30th of January 2012 and registered with the Corporate Affairs Commission, Abuja on the 27th of February 2012 is oppressive, unlawful and a breach of the provisions of the Insurance Act 2003;
(viii) A DECLARATION that the treatment of Alliance & General Insurance Co. Ltd (RC
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No. 93906) and Alliance & General Life Assurance Plc (RC No. 7215) at all material times by the 1st Defendants as two different companies instead of one company after the merger sanctioned by the Federal High Court Lagos (Coram: O.Okeke) on the 30th of January 2012 and registered with the Corporate Affairs Commission, Abuja on the 27th of February 2012 renders all punitive actions by the 1st Defendant on the 2nd and 3rd Plaintiffs sequel to the merger unlawful invalid, null and void;
(ix) AN INJUNCTION restraining the 1st Defendant by itself, its directors, officers, servants, agents, privies or otherwise howsoever from implementing, enforcing or giving effect to the prohibition of the Plaintiffs from transacting insurance business for a period of 6 months with effect from the 6th day of august 2012 or any further period as per the 1st Defendant?s letters with reference Nos. NAICOM/DCT/FBIB/01, NAICOM/COM/DCT/A&G/3 and NAICOM/DCT/A&G/4 and of the 6th of August 2012;
(x) AN ORDER of this Honourable Court cancelling, quashing and nullifying the prohibition order contained in the 1st Defendant?s letter with reference Nos.
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NAICOM/DCT/FBIB/01, NAICOM/DCT/A&G/3 and NAICOM/DCT/A&G/4 all of the 6th of August 2012 respectively prohibiting the Plaintiffs from transacting insurance business for a period of 6 months with effect from the 6th day of August 2012 or any further period;
Or in the alternative;
A MANDATORY INJUNCTION directing the 1st Defendant by itself, its directors, officers, servants, agents, privies or otherwise howsoever to withdraw, cancel and nullify the prohibition order contained in the 1st Defendant?s letter with reference Nos. NAICOM/DCT/FBIB/01, NAICOM/DCT/A&G/3 and NAICOM/DCT/A&G/4 all of the 6th of August 2012 prohibiting the Plaintiffs from transacting insurance business for a period of 6 months with effect from the 6th day of August 2012 or any further period.
(xi) AN INJUNCTION restraining the 1st Defendant by itself, its directors, officers, servant, agents, privies or otherwise howsoever from exercising or further exercising any of the powers specified in Section 41(2), 42, 43, 44 and 45 of the National Insurance Commission Act Cap N53, LFN 2004 on the Plaintiffs including sacking the management and assuming the control
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and management of the Plaintiff and applying to the 2nd and 3rd Defendants for their approval to remove the directors and management of the Plaintiff or appoint new directors to assume the control and management of the Plaintiff or revoking their registration as insurance companies;
(xii) A MANDATORY INJUNCTION directing the 1st Defendant by itself, its directors, officers, servant, agents, privies or otherwise howsoever to give its final approval forthwith to the merger of the 2nd and 3rd Plaintiffs which was sanctioned by the Federal High Court Lagos (Coram O. Okeke J) on the 30th of January 2012 and registered with the Corporate Affairs Commission, Abuja on the 27th of February 2012.
(xiii) AN INJUCTION restraining the 2nd, 3rd and 4th Defendants by themselves, their directors, officers, servants, agents, privies or otherwise howsoever from approving the removal of the directors and management of the Plaintiffs or the appointment of new directors and a new management to assume the control and management of the Plaintiffs or revoking the registration of the Plaintiffs as insurance companies; and:
(xiv) AN INJUNCTION restraining the Defendants
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by themselves, their directors, officers, servants, agents, privies or otherwise howsoever from further posting on their website the prohibition of the Plaintiffs from transacting insurance business for a period of 6 months with effect from the 6th day of August 2012 or any further period or publishing or disclosing to anyone the prohibition order and the exercise or further exercise of any of the powers specified in Section 41(2), 42, 43, 44 AND 45 of the National Insurance Commission Act Cap N53, LFN 2004.
At the commencement of the said suit, the Respondents also filed a motion exparte and a motion on notice both dated 24-8-2012.
In the motion exparte which was heard by the Lower Court on the 28-8-2012 the following three reliefs were sought:-
1. AN ORDER of Interim Injunction that pending the hearing and determination of the Motion on Notice herein, the 1st Defendant whether by itself, its directors, officers, servants, agents, privies or otherwise howsoever be restrained from;
i. implementing, enforcing or giving effect to the prohibition of the Plaintiffs from transacting insurance business for a period of 6 months with effect from
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6th day of August 2012 or any further period as per the 1st Defendant?s letter with reference Nos. NAICOM/DCT/FBIB/01, NAICOM/DCT/A&G/3 and NAICOM/DCT/A&G/4 all of the 6th of August 2012;
ii. exercising or further exercising any of the powers specified in Section 41(2), 42, 43, 44 and 45 of the National Insurance Commission Act Cap N53, LFN 2004 on the Plaintiffs including sacking the management and assuming the control and management of the Plaintiff and applying to the 2nd and 3rd Defendants for their approval to remove the directors and management of the Plaintiffs or appoint new directors to assume the control and management of the Plaintiffs or revoking the registration of the Plaintiffs to transact insurance business;
iii. further posting on their website the prohibition of the Plaintiffs from transacting insurance business for a period of 6 months with effect from the 6th day of August 2012 or any further period or publishing or disclosing to anyone the prohibition order and the exercise or further exercise of any of the power specified in Section 41(2), 42, 43, 44, and 45 of the National Insurance Commission Act Cap N53, LFN
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2004.
2. AN ORDER of Interim Injunction that pending the hearing and determination of the Motion on Notice herein, the 2nd, 3rd and 4th Defendants whether by itself, its directors, officers, servants, agents, privies or otherwise howsoever be restrained from approving the removal of the directors and management of the Plaintiffs or the appointment of new directors and a new management to assume the control and management of the Plaintiffs or revoking the registration of the Plaintiffs as Insurance companies; and
3. AN ORDER granting the Plaintiff/Applicants leave to serve the originating process and all other process in this suit on the Defendants at their respective addresses for service in Abuja, the Federal Capital Territory out of Lagos State:
i. The 1st Defendant (National Insurance Commission) at Plot 1239 Ladoke Akintola, Boulevard, Garki II, Abuja;
ii. The 2nd and 3rd Defendants (Ministry of Finance and the Minister Of Finance) at Ahmadu Bello Way, Central Business District, Abuja, F.C.T; and
iii. The 4th Defendant (Attorney-General of the Federation) at Federal Ministry of Justice, Shehu Shagari Way, Central Area, Abuja,
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F.C.T.
AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The Lower Court in a ruling delivered on the same 28-8-2012 made the following orders:-
Prayer 3 is granted as prayed. A consequential order is hereby made deeming the writ already issued by the Plaintiff as having been properly issued though leave of Court was not sought and obtained before it was filed. Though this prayer was not sought, it is made to give effect to the principal prayer asking for leave to serve outside jurisdiction. Therefore I have jurisdiction to make the consequential order just made. I so hold.
As regards prayers 1 and 2, I think I should hear the defendants before a decision is taken in this matter. Therefore prayers 1 and 2 are hereby adjourned to abide the outcome of the motion on notice.
However, in order to enable the Court get to the root of this matter for proper adjudication taking into consideration the Plaintiffs legal right that is alleged to be threatened, an order is hereby made directing parties to maintain status ante bellum on issues raised in the Plaintiffs? prayers 1 and 2
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which have been adjourned to abide the outcome of the motion on notice pending when the motion on notice is heard and determined. This is because there is no right without a remedy and every right gives rise to a corresponding obligation. See OJUKWU V GOVERNMENT OF LAGOS STATE.
The motion on notice is hereby adjourned to 12th September, 2012 for hearing. I so hold.
The Appellants herein, being dissatisfied with the said order of the Lower Court filed their notice of appeal dated 10-9-2012 and is contained in pages 218 to 221 of the Record of appeal.
Briefs of argument were subsequently filed and served by the parties who adopted same at the hearing of the appeal on the 8-6-2016.
The Appellants? brief of argument settled by Prof. TAIWO OSIPITAN SAN, is dated and filed on 26-11-2012.
The Respondents? brief of argument settled by AYODELE AKINTUNDE Esq is dated 15-2-13 and filed on 18-2-13.
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The Appellants reply to the Respondents brief is dated and filed on 6-6-2013.
The Respondents also filed a Notice of preliminary objection on the 18-2-2013 and this was argued on the 8-6-2016 before the hearing of the appeal.<br< p=””
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The preliminary objection seeks the striking out of the appeal for being incompetent and an abuse of Court process. The grounds for the objection as set out therein are that:-
(1) Under and by virtue of Section 14(1) of the Court of Appeal Act C36 LFN 2004 no appeal lies against the exparte order made by the Federal high Court, Lagos (Coram O. E. Abang J.) on the 28th of August 2012.
(2) The Appellants failed to comply with the provisions of Order 29 of the Federal High Court (Civil Procedure) Rules 2009 which prescribes the procedure to be followed by the Appellants herein who are disputing the jurisdiction of the Federal High Court, Lagos to hear the Respondents? suit before initiating this appeal.
(3) The Appellants failed to comply with the provision of Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rules 2009 which prescribes the procedure to be followed by the Appellant to vary or discharge the exparte order made by the Federal High Court, Lagos (Coram O. E Abang) on the 28th of August 2012 before initiating an appeal;
(4) The combined effect and intendment of Section 14(1) of the Court of Appeal Act C36 LFN
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2004, Orders 29 and 26 Rule 11 of the Federal High Court (Civil Procedure) Rules 2009 is to make the Lower Court the first port of call for a review of the exparte orders made by the Federal High Court, Lagos (Coram O.E Abang J) on the 28th of August 2012 or a challenge of its jurisdiction before the involvement of the Court of Appeal at all;
(5) Neither the leave of the Federal High Court, Lagos or that of this Court was sought by the Appellants before appealing against the exparte orders made by the Federal High Court, Lagos (Coram O.E. Abang J) on the 28th of August 2012, and
(6) Rules of Court are made to be followed.
The argument in support of the objection is embedded in pages 6 and 12 of the Respondents brief of argument.
Therein Learned Counsel for the Respondents referred to Section 14(1) of the Court of Appeal Act and the authorities of NAOC LTD VS OGINI (2011) 2 NWLR (PT 1230) 131, Y.S.C DREDGING CO. VS OMENEUKWU (2011) LPELR CA to submit that this appeal is incompetent because no appeal lies against the exparte order made by the Lower Court.
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Further reference was made to Order 29 to contend that the Appellants failed to comply
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with the procedure for challenging the jurisdiction of the Federal High Court as prescribed in Rules 4 and 5 and since the Appellant did not bring their application within 21 days in the Lower Court, the challenge to jurisdiction can only be addressed at the conclusion of trial and having not allowed the Lower Court to deal with the issue of jurisdiction as raised they cannot approach this Court to do so. Vide NNONYE VS ANYICHIE (Supra).
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It was also submitted that the Appellants ought to first apply to the Lower Court to discharge the exparte order by virtue of Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rules 2009 and having not done so, this Court cannot entertain the Appellants complaint about the exparte order made by the Lower Court, vide 7UP BOTTLING CO. LTD VS ABIOLA (1995) 3 NWLR (PT 383).
Learned Counsel also urged this Court to hold that the appeal is incompetent because the leave of the Lower Court or that of this Court was not sought by the Appellants before they appealed against the exparte order.
This Court was then urged to strike out the appeal for being incompetent.
The Appellants reply to the preliminary
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objection is contained in pages 2 to 7 of their reply brief filed on 6-6-13.
Therein it was submit by Learned Senior Counsel for the Appellants that Section 14(1) of the Court of Appeal Act does not and could not have prohibited appeals against exparte orders especially as in the instant case where the jurisdiction of the Court has been challenged by the Appellants.
He added that jurisdiction is a threshold issue which can be raised at any time and even for the first time in the Supreme Court and can also be raised suo motu by the Court, provided parties are given the benefit of an address on the issue. He relied on the following cases. MANU VS MUHAMMAD (1977) 11 NWLR (PT 528) 2323 at 337; NASIRI VS CHANJI (1999) 1 NWLR (PT 1588) 605 at 611; PETROJESSICA ENTERPRISES LTD VS LEVENTIS TECHNICAL CO. LTD (1992) 5 NWLR (PT 1244) 675 at 696.
Also referring to Section 241 (1) (b) of the 1999 Constitution (as amended) it was submitted that all the grounds of appeal are grounds of law in which case the Appellants have the right to appeal without leave and the same applies under Section 241 (1) (f) (ii) given the exparte order of injunction made by the
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Lower Court.
Learned Counsel also referred to Section 1(3) of the 1999 Constitution to contend that where Section 14 (1) of the Court of Appeal Act is in conflict with the Constitution the said Section 14(1) shall be rendered null and void citing some authorities in support.
On the applicability of Order 29 of the Federal High Court Rules and non-compliance with same by the Appellants, Learned Senior Counsel submitted that the language of Order 29 relating to application to the Federal High Court on issue of jurisdiction is permissive given the word ?MAY? used therein as against the words ?MUST? or ?SHALL? used in Rules 4 and 5. Therefore the Appellants acted within their Constitutional rights of appeal by challenging the jurisdiction of the Lower Court to entertain the Respondents claim or make the order complain of.
On the issue of non-compliance with Order 26 Rule 11, Learned Senior Counsel submitted that there is nothing in the said Order that compels the Appellant to embark on the mission of applying to the Lower Court to set aside the exparte orders because the Appellants? case is that the Lower Court has
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no jurisdiction to entertain the suit given that the condition precedent for instituting same was not complied with. Furthermore that by the authority of 7UP BOTTLING CO. LTD VS ABIOLA an aggrieved party like the Appellants have two options, either to apply to the Lower Court for a discharge of the said Exparte order or elect to appeal against it.
In the Respondents reply on points of law filed on 2-7-13 reference was made to Section 14(1) of the Court of Appeal Act to submit that the wordings are clear and unambiguous to the effect that ?no appeal shall lie from any order made exparte.? The case of NAOC LTD VS OGINI (2011) 2 NWLR (PT 1230) 131 was cited in support.
On the contention by the Appellants that they have unqualified right of appeal, it was submitted that there is nothing like unqualified right to appeal but that such rights are qualified in order to avoid abuse and unnecessary appeals as held in ALADE VS ALEMULOKE (1988) 2 CS 1; ANAMBRA STATE GOVERNMENT VS MADUEKWE (2011) LPELR CA; MOSES VS OGUNLABI (1975) 4 SC (REPRINT) 6 and 7 SC DREDGING CO. LTD VS OMENEUKWU (2011) LPELR CA.
On the Appellants? contention that
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the order to maintain status quo amount to an order on injunction for which they have a right of appeal under Section 241 (1) (f) (iii) of the 1999 Constitution, it was argued vide ADENIYI VS AKINTAN (2005) 5 NWLR (PT 554) at 567 that such order is directed at both parties and not against one of the parties.
While urging this Court to hold that Order 29 Rule 4 demands mandatory compliance, it was also urged that the preliminary objection should be upheld.
Now Section 14(1) of the Court of Appeal Act 2004 provides thus:-
14(1) Where, in the exercise by the High Court of a State or as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made exparte, or by consent of the parties, or relating only to costs.
To my mind, the wordings of the above provision are quite clear and unambiguous and needs no further interpretation. It specifically provided that no appeal shall lie from any order made exparte, or by consent of the
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parties or relating only to costs.
In the instant case, the Appellants are no doubt aware of the said provisions of Section 14(1) of the Court of Appeal Act 2004 but insists that all the grounds of appeal are grounds of law and as such have the right to appeal against the exparte order of the Lower Court by virtue of Section 241 (1) (b) and 241 (1) (f) (ii) of the 1999 Constitution. Therefore if Section 14(1) of the Court of Appeal Act completely out laws appeals against exparte orders it renders the said provision null and void for being inconsistent with Section 241 (1) (b) and 241 (1) (f) (ii) of the 1999 Constitution.
It is not in dispute that the Constitution of the Federal Republic of Nigeria 1999 enjoys a Supreme status as the grundnorm and by virtue of Section 1(3) thereof, if any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
As much as the issue of the Constitutionality of Section 14 (1) of the Court of Appeal Act 2004 is not a ground in this Appeal. However, having been alluded to, it is worth comment, given the
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nature of the order being appealed against, which indeed is an Order exparte. I am quite reluctant to categorise such order as falling within the bracket of the decisions referred to in Section 241(1) (b) of the 1999 Constitution as argued by the learned Senior Counsel for the Appellants. This is given the urgent, but transitory and temporary nature of exparte orders. They do not determine the final or obligatory right of the parties to an action but rather last for a number of days or weeks. It follows that the wisdom behind the enactment of Section 14(1) of the Court of Appeal Act which amongst others precludes appeals from exparte orders is to avoid opening a flood gate of appeals from every interim or urgent order made by a trial Court and to save the Appellate Courts from the danger of being clogged with such unnecessary and unwarranted appeals borne out of exparte orders of the trial Courts which if indeed is not controlled may frustrate litigants and incapacitate our system of administration of justice moreso that virtually every appeal will engender a stay of proceedings in the trial Courts.
An analogous scenario played itself out when the grant
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of exparte applications was challenged as being a breach of the right to fair hearing but the Supreme Court in the case of 7 Up BOTTLING CO. LTD VS ARIOLA & SONS LTD (1995)3 NWLR (PT. 383) 257 made the point clear in the following terms:-
?There is no doubt that the right to fair hearing under the Constitution is synonymous with the common law rules of natural justice. However, because of the nature of certain preliminary steps that has to be taken before the commencement of substantive maters, the Rules of Courts have made provisions for exparte applications and there is nothing unconstitutional in such rules.?
The above cited decision of the Supreme Court was relied on and followed by this Court in the case of OWODUNNI & ORS VS REGD TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2007) LPELR (4376) CA. Where the issue in contention was whether the grant of interim orders in accordance with the Rules of Court can amount to a breach of fair hearing.
The point I seek to make here is that statutory provisions or Rules of Court generally viewed as operating contrary to the provisions of the Constitution are actually helping the smooth and
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proper operation of the Constitution. Section 14 (1) of the Court of Appeal Act is one of such provisions and the Appellant herein have sought refuge under the Constitution, without compliance with the specific statutory restriction to the effect that exparte orders shall not be appeal against.
An action instituted by a party must comply with both the Constitutional and Statutory requirement. Non-compliance by a claimant who might indeed have a cause of action will lose the right to enforce same by judicial process. See ODUBEKO VS FOWLER (1993) 7 NWLR (PT 308) 637, OKE VS OKE (2006) 4 NWLR (PT 1008) 224; EYESAN VS NNPC (2012) LPELR (19667) CA.
The Federal High Court (Civil) Procedure) Rules 2009 have made exhaustive provisions for the method by which a party should seek to challenge an exparte order wherein it is provided in Order 26 Rules 11 and 12 as follows:-
?Rule 11:
Where an order is made on a motion exparte, and any person affected by it may within seven days after service of it, or within such further time as the Court shall allow, apply to the Court by motion to vary or discharge it; and the Court may, on notice to the party
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obtaining the order, either refuse to vary or discharge it, or may discharge it with or without imposing terms as to costs or Security, or otherwise, as seems just.
Rule 12(1):-
?No order made on motion exparte shall last for more than fourteen days after the party or person affected by the order has applied for the order to be varied or discharge or last for another fourteen days after application to vary or discharge it has been argued.
(2)If a motion to vary or discharge an exparte order is not taken within fourteen days of its being filed, the exparte order shall lapse.?
I believe that the above set out provisions of Order 26 throws more light on the issue being addressed both on the constitutionality and propriety of the Appellant appealing directly from an exparte order without first applying to the lower to Court to have it varied or discharged in accordance with the Rules of the Court made pursuant to the Statute and Constitution sought to be a weapon of attack by the Appellants.
The said Order 26, in my humble view has provided a detailed guide for the Court and parties to an action on the proper approach and
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actions to be taken in the course of addressing issues relating to exparte applications and orders.
In the case of Order 26 Rule 11, it is after an aggrieved party had applied to the Lower Court to vary or discharge an exparte order and it is refused then the door will be opened and there will be justification to appeal against such refusal. For a party to directly rise up and appeal against an exparte order without much ado about first seeking to have it set aside, discharged or varied by the trial Court that made the order is an act of defiance to the mandatory Rules of the Court.
This brings me again to the issue of the efficacy and justification of Section 14(1) of the Court of Appeal Act. Now, Order 26 Rule 12(2) provides that if a motion to vary or discharge an exparte order is not taken within 14 days of its being filed, the exparte order will lapse. The same goes with Order 26 Rule (1) which provides that no Order exparte shall last for more than 14 days after the party affected has applied to have the order varied a discharged.
?The question then is, why carry the burden of embarking on an appeal that will take months or even years to
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resolve when the Rules have specifically made it clear that the exparte order appealed against shall only last for 14 days where an aggrieved party obediently abides by the set out rules and simply apply to the trial Court to have it set aside. I believe the picture is getting clearer now on why Section 14 (1) of the Court of Appeal Act is not only a support to the Constitution but also a veritable provision to assist the administration of justice in curtailing incessant and unwarranted appeals over decisions and exparte orders that only last for 14 days and therefore transits into oblivion while parties are still in the battle front of appeal fighting over nothing and wasting the precious and priceless time of the appellate Courts.
I indeed agree entirely with the finding of the trial Court in its ruling at page 271 to 272 of the record wherein it was stated that:-
However the Defendant under the Rules of this Court is enjoined to approach the Court within 7 days upon service of the order to have the order discharged if the plaintiff misrepresented facts to the Court or if the Court did not have jurisdiction to make the order in the first place.<br< p=””
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?In this case, the 1st to 3rd defendants have adopted a legal strategy not to have the order discharged but to appeal against the order. For now I would not know if the 1st to 3rd Defendants have a right of appeal against an exparte order wherein they were not parties to the proceedings?.?
In this regard, I will again emphasise that it is upon taking necessary action by applying by way of motion on notice to the trial Court to vary or discharge the exparte order pursuant to the provisions of Order 26 Rule 11 that an aggrieved party will then exercise the right to appeal against any refusal by the trial Court to vary or discharge the said order in which case he will not be caught by the provisions of Section 14(1) of the Court of Appeal Act having moved and argued by way of a motion on notice that the said exparte order be discharged or varied.
A typical example of the above stance played out in this Court in the case of HONEYWELL FLOURMILLS PLC VS ECOBANK NIGERIA LTD (APPEAL NO CA/L/1247/2015 delivered on the 30th day of March 2016. In the said case, the trial Court granted an exparte order against the Appellant which upon being
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served applied immediately by way of motion on notice to the trial Court to discharge the said order on the grounds inter alia of lack of jurisdiction and abuse of Court process. The trial Court in a considered ruling opted to vary the exparte order instead of discharging same as prayed by the Appellant. The said appellant was not satisfied with the Ruling of the Lower Court and consequently appealed against same to this Court, seeking for an order to set aside the Ruling of the trial Court and to discharge the exparte order.
The process adopted in the case above referred is the correct method to follow by a party aggrieved by an exparte order. It is therefore a breach of the extant Rules of the Federal High Court is well as Section 14 (1) of the Court of Appeal Act to appeal directly to this Court without first applying to the trial Court to have the said exparte order varied or discharged. Moreso that Order 26 Rules 12 provides for a terminal date of 14 days for such exparte order once an application is made to have it discharged or varied.
The Respondent had also premised the objection to this appeal on the ground that the Appellant failed to
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comply with the provisions of Order 29 of the Federal High Court (Civil Procedure) Rules 2009 which prescribed the procedure to be followed by a defendant disputing the jurisdiction of the Federal High Court to entertain the Suit before it.
?The said Order 29 provides as follows:-
?1. Where a Defendant wishes to:-
(a) dispute the Court?s jurisdiction to try the claim; or
(b) argue that the Court should not exercise its jurisdiction, he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the plaintiff?s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
2. A Defendant making such application must first file along with the application a memorandum of appearance stating that he is appearing conditionally.
3. A Defendant who files a memorandum of appearance does not, by so doing lose any right that he may have to dispute the Court?s jurisdiction.
4. An application under this order shall:
(a) Be made within twenty one
30
days after service on the Defendant of the originating process, and
(b) Be supported by affidavit where it is not based on ground of law alone.
5. If the Defendant files an acknowledgement of service and does not make such application within the period specified in Rule 4 of this Order, any such application can only be taken at the conclusion of the trial.?
?For the Appellants it was however contended that Order 29 is permissive by the use of the word ?may? apply to the Court for an order declaring it that it has no such jurisdiction. For the permissive nature of the use of the word ?may? the following cases were cited. OKON VS BOB (2004) 1 NWLR (PT 854) 378 AND AWUSE VS ODILI (2004) 8 NWLR (PT 876) 481.
?It seems to me however that the word ?may? as used within the con of Order 29 connotes that if a party choses to challenge the jurisdiction of a Court to hear a matter one way or the other, he is free to do so. In other words the permissive nature of the word ?may? relates to whether the defendant has any justifiable ground to challenge the jurisdiction of the Court because a challenge
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to jurisdiction is not a matter of course or an application made at random. So the ?may? relates to where the defendant wishes to challenge the jurisdiction of the Court and does give room for a party to decide whether or not he should apply to the trial Court for an order declaring that it has no jurisdiction hence Rules 2, 4 and 5 used the words ?must? and shall to show mandatoriness in complying with the provisions of Order 29 in situations where the defendants believes that the trial Court has no jurisdiction to hear the suit. Put in a nutshell, a defendant who wants or wishes to raise the issue of jurisdiction during a trial in the Federal High Court must follow the procedure laid down in Order 29 of the Federal High Court (Civil Procedure) Rules 2009 and failure to so apply within the time specified by Rule 4 means that such application can only be taken at the conclusion of the trial ? by virtue of Rule 5.
?This to my mind does not amount to placing the Rules of Court above any statutory or Constitutional provision but simply complied with numerous authorities of the Supreme Court to the effect that Rules of Court are
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meant to be obeyed and complied with moreso on issues as fundamental as that of jurisdiction.
It is trite law that Rules of Court are rules of procedure. They do not by themselves and of themselves confer jurisdiction but only regulate the exercise of a jurisdiction conferred in alinude. See CLEMENT VS IWUANYANWU (1989) 4 SC (PT 11) 89.
Though Rules of Court are made pursuant to statutory or Constitutional provisions, it has been held that such Rules of Court are the lubricants of the machinery of justice and they contain minute details of various steps which a litigant is expected to take in the process of getting the Court to adjudicate on the various types of cases that comes before it. Therefore, once it is shown that the Rules are made under the powers conferred by the Constitution or a Statute, they are deemed to have the same force of law as the said Constitution or Statute. See AKANBI VS ALAO (1989)5 SC page 1.
In the circumstance, except where it is clearly shown that non compliance has been waived, Rules of Court must be complied with. See DINGYADI VS INEC (NO 2) (2010) 18 NWLR (PT 1224) 154 SC IROEGBU VS OKWORDU (1990) 6 NWLR (PT 159) 643
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CCB (NIG) PLC VS A.G. ANAMBRA STATE (1992) 8 NWLR (PT 261) 528. In ABIA STATE TRANSPORT CORPORATION & ORS VS QUORUM CONSORTIUM LTD (2009) 9 NWLR (PT 1145) 1 SC, the Supreme Court held emphatically that Rules of Court are not made for fun, but to be obeyed. Therefore, once such Rules are in place they must be adhered to and not contravened or ignored. See also OYEGUN VS NZERIBE (2010) 7 NWLR (PT 1194) 577; UTC (NIG) LTD VS PAMOTEI (1989) 2 NWLR (PT 103) 244; SOLANKE VS SOMEFUN (1974) 1 SC 141; SAUDE VS ABDULLAHI (1989) 4 NWLR (PT 116) 387. Further in KALU VS ODILI (1992) 6 SCNJ 76 the apex Court did admonish that Rules of Court must prima facie be obeyed and if there has been non-compliance with the Rules and it is not explained away, then unless it is of a minimal kind, no indulgence of the Court can be granted.
?
In the instant case the Appellants seemingly decided to ignore to follow the procedure prescribed in the Rules of the Federal High Court in applying to vary or discharge the exparte order made by the trial Court but rather opted to appeal directly to this Court on the issue. As earlier stated, a party who brings an action to Court must comply
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wholesomely with the Rules of the said Court as well as other Constitutional and statutory requirements. Non-compliance no doubt will cause the party to lose the right to enforce the cause of action by the judicial process. See EYESAN VS NNPC (2012) LPELR (1967) CA and EBOIGBE VS NNPC supra at 658.
In the final result, I hold that the preliminary objection has merit and it is accordingly upheld. The Appeal is hereby struck out for being incompetent.
The case file is to be remitted back to the Federal High Court, Lagos Division for continuation of hearing, the needful.
Parties to bear their respective costs.
Other Citations: (2016)LCN/8919(CA)
