Seven Up Bottling Co. Ltd. V Abiola And Sons Bottling Co. Ltd (2001)

LAWGLOBAL HUB Lead Judgment Report

SYLVESTER UMARU ONU, JSC. 

This is an appeal against the final decision of the Court of Appeal (hereinafter referred to as the court below) arising from an interlocutory decision of Gbadeyan, J. of the High Court of Justice of Kwara State holden at Ilorin, wherein the preliminary objection of the Defendants, herein Appellants, to the competence of the suit as well as jurisdiction of the trial court to entertain same, was dismissed.

The background facts of the case that culminated in the appeal may be briefly stated as follows:

In the case which began as an off-shoot of another action No. KWS/215/88 herein on appeal and whose history is tortuous, the Plaintiff now Respondent, obtained a loan from the 3rd Defendant/Appellant, a Banking institution. Although the loan was still outstanding and the Respondent claimed it was not due for repayment, the 3rd Defendant/Appellant proceeded to appoint the 2nd Defendant/Appellant as the Receiver/Manager of the resulting debenture. Following its (Respondent’s) failure to pay up, it in the meantime filed an action in the Kwara State High Court in Suit No. KWS/215/88, to contest the legality of the debenture to stem the acts of the 2nd Defendant/Appellant that began selling its factory etc. to the 1st Defendant/Appellant in purported exercise of its powers under the mortgage debenture between the parties. It (respondent) thereupon obtained interim Order of injunction restraining the Defendants/Appellants from selling these properties and/or the factory, pending the determination of the motion on notice for the substantive order of interlocutory injunction. While the interim order was still subsisting and notwithstanding the said Order, the 2nd Defendant/Appellant engaged in selling the Respondent’s properties such as vehicles and plants. It thereupon engaged in bringing committal proceedings for contempt against the Defendants/Appellants, which finally failed in the Court of Appeal in November, 1990.

This led to the inception of the present action in the Kwara State High Court (Coram: Gbadeyan, J.) wherein the Plaintiff/Respondent claimed damages for its properties traceable to the hands of the Receiver/Manager who allegedly sold them as Receiver/Manager in violation of the interim order of injunction made. By paragraph 19 of the Respondent’s Statement of Claim, it is averred thus:

’19 WHEREOF the Plaintiff claims from the Defendants jointly and/or severally as follows:

1. A Declaration that the removal, sale and/or disposal of the said 44 vehicles and/or plants by the Defendants in disregard of the Court Order restraining same is illegal, null and void;
2. A sum of N18,031,980.00 being the market value of its vehicles and/or plants illegally sold by the defendants as at the time of sale;
3. General Damages of N132,919,181.00 being the current cost of purchase of such vehicles and/or plants illegally sold by the Defendants;
4. ALTERNATIVELY: Restitution of the Said 44 vehicles and/or plants in the working conditions they were before the Defendant illegally sold them.’

Pleadings were ordered, filed and exchanged in the new action. The Appellants in their joint statement of defence pleaded in part thus:

’17 The defendants shall by way of preliminary objection contend that the Suit is incompetent in that conditions precedent to the exercise of the jurisdiction of the court has not been fulfilled.

18. The defendants shall also contend that the suit is an abuse of the Court’s process as the cause of action in this suit is substantially the same and/or can be subsumed in Suit No. KWS/215/88 Abiola & Sons Bottling Co. Ltd. v. 7up Bottling Company Ltd. & Ors. and Suit No. KWS/122/91 Abiola & Sons Bottling Co. Ltd. & Anor. v. First City Merchant Bank Ltd & 2 Ors. all of which are still pending.

19.The Defendants shall further contend that this Honourable Court has no jurisdiction to try this case.’

Subsequent to the filing of their Statement of Defence, the Appellants brought an application before the Court for:

‘1. AN ORDER setting down for hearing and disposal before trial the issue of law concerning the jurisdiction of the court as raised in paragraphs 17,18 and 19 of the Statement of Defence.

2. AN ORDER permitting argument of the issue of law raised in paragraphs 17, 18 and 19 of the Statement of Defence to be argued on this motion, to wit:

(a) The condition precedent to exercise of the jurisdiction of the Court has not been fulfilled, that is to say, leave of the Court to sue the Receiver/Manager in respect of the property in Receivership was not obtained before the issuance and service of the Writ of Summons.

(b) That the issue of the validity, legality and correctness/or otherwise of the appointment of the 2nd defendant as a Receiver/Manager pleaded in paragraphs 2 and 3 of the Statement of Claim are the same cause of action in Suit No. KWS/215/88, Abiola & Sons Bottling Co. Ltd. v. First City Merchant Bank Ltd.

(c) The High Court of Justice of Kwara State has no jurisdiction to hear and determine the plaintiff’s claim which concerns and relates to the management of the properties of the plaintiff in receivership by the Receiver/Manager.’

Upon the grounds, that is to say:

‘1. No leave or order of the court was sought, obtained or granted before the plaintiff issued and served the Writ of Summons and other processes on the 2nd defendant who was at all material times the Receiver/Manager of the Plaintiff.

2. The issue of validity, legality and correctness of the appointment of the 2nd defendant as the Receiver/Manager of the Plaintiff are causes of action in other Suits pending in the other Courts.
3. That the plaintiff’s cause of action arose from the operation of the plaintiff as a Company in receivership.’

The Appellants thereafter sought the following reliefs from the trial court:

‘1. AN ORDER striking out the issuance and service of the Writ of Summons and other processes on the second defendant.

2. AN ORDER striking out paragraphs 2 and 3 of the Statement of Claim or in alternative AN ORDER staying hearing of the validity, legality or correctness of the appointment of the 2nd defendant as Receiver/Manager of the Plaintiff company.
3. AN ORDER transferring the case to the Federal High Court within jurisdiction.’

In his Ruling dated 20th September, 1995, the learned trial Judge held, inter alia that:

‘1.This is an action for conversion in tort between same parties. The State High Court has unlimited jurisdiction to try it by virtue of Section 236(1) of the 1979 Constitution. I am persuaded by SADENI FARMS LTD (supra). I find it apposite and I respectfully apply it.’

2. This case at hand is in all respects dissimilar to the previous subsisting suit or suits and it is to that extent not duplicitous as the instant case constitutes distinct latent heads of claim which, not existing at the onset, procedurally, could not be joined with claims in the earlier suit.’

Dissatisfied with the Ruling of the trial court, the Appellants appealed to the Court below upon a Notice of Appeal containing six grounds. In their respective Briefs of Argument both the Appellants and the Respondent identified four issues each for determination.

For the appeal to the court below, the Appellants proffered four issues for determination, to wit:

‘1. Whether the court has jurisdiction when the plaintiff’s claim arose from the management of a property of a company in receivership or a civil cause or matter arising from the operation or management of a company under Company’s Act and not mere violation of a court Order. Even if the Suit arose from an alleged disobedience of court order, whether the court still has jurisdiction to entertain the suit.

2. Whether the court was competent to adjudicate on this case when there existed cases pending between the parties on the same or substantially the same cause of action.
3. Whether the condition precedent to exercising jurisdiction by the court was satisfied by the respondent/plaintiff.
4. Whether the learned trial Judge ought to entertain the claim of the plaintiff, which was capable of being subsumed into Suit No. KWS/215/88 whose order was allegedly disobeyed by way of amendment.’

The appeal was eventually heard and in a considered judgment, the court below per Ogebe, JCA., delivering the leading judgment concurred in by Abdullahi, JCA., (as he then was) and I.T. Muhammad, JCA., held inter alia:

‘After carefully considering all the issues formulated in this appeal, it appears to me that the resolution of the first Issue alone will determine the outcome of the appeal. See Anyaduba & Anor. v. Nigerian Renowned Trading Co. Ltd. (1992) 5 NWLR (Part 243) 535 at page 561. The other issues are manifestly academic and can only properly arise after full hearing of the matter in the court below and either of the parties chooses to appeal from the final decision of the court. A court of appeal must be wary of going into issues that may arise in the substantive appeal when it is considering it. See Eperokun & Ors. v. University of Lagos (1986) 4 NWLR (part 34) 162 and Saraki & Anor. v. Kotoye (1992) 9 NWLR (part 264) 156 at page 185.

The principle of law to apply to this case is as stated by both sides. For a court to determine its jurisdiction to hear a matter it has to look carefully at the claim and examine its nature. The trial court at this stage has no business looking at the statement of defence. Its sole responsibility is to examine the claim of the appellant and make up its mind on its jurisdiction. See the following cases:- Opiti v. Ogbeiwi (1992) 4 NWLR (Part 234) 184 at 195; Adeyemi v. Opeyori (1976) 9-10 SC.31 at 49; Mustapha v. Governor, Lagos State (1987) 2 NWLR (part 58) 583’

Continuing, the learned Justice further held:-

‘The respondent’s claim as averred in paragraph 19 of the respondent’s statement of claim which was reproduced earlier in this judgment is a claim in conversion on tort. This cause of action arose because the appellants were said to have gone ahead and violated an earlier court order in Suit No. KWS/215/88 in which an interim order was made restraining the appellants from selling the properties of the respondent. There is nothing in the respondent’s claim as presently constituted to show that the matter in dispute has to do with receivership. It is the appellants who by their statement of defence brought in the question of receivership. Since they are not counter-claiming for anything one cannot look at their statement of defence to determine the matter of jurisdiction.’ (Italics above is mine for emphasis).

Aggrieved by this decision, the Appellants have further appealed to this Court upon four grounds of appeal. In their Brief of argument, they proffered the following four issues for this Court’s resolution:

‘1. Whether their Lordships’ of the Court of Appeal were right in failing to consider properly all the issues and matters submitted to the court and if their Lordships were not right in their approach, can the Supreme Court consider these issues?

2. Whether the Respondent’s (a Company under receivership) claim for damages, for wrongful sale of its assets in the hands of the Receiver/Manager is justiciable in the High Court of Justice of Kwara State or the Federal High Court in view of Section 7 of the Federal High Court.
3. Whether their Lordships of the Court of Appeal were right in holding that the Respondent’s claim was a mere tort of conversion; the claims though arising from Suit No. KWS/215/88 whereby the Kwara State High Court can properly exercise jurisdiction.
4. Whether the case was not an abuse of Court process when Suit No. KWS/215/88 whose order was allegedly violated and other pending cases between the same parties, on the same or substantially the same cause of action, were subsisting, and the claim for damages was capable of being subsumed into Suit No. KWS/215/88 whose Order was allegedly violated and which was capable of enforcing its Orders and award damages.’

The Respondent’s counsel in the brief submitted on its behalf formulated two issues as arising for our determination, namely:-

‘(i) Whether the Court of Appeal was bound to consider all the issues raised by the Appellant when the resolution of only the issue relating to jurisdiction could effectively dispose of the entire appeal, and whether such non-consideration of all the issues amounts to a denial of fair hearing to the Appellants.

(ii) Whether the Court of Appeal was wrong in holding that the Respondent’s claim was one of conversion in tort and has nothing to do with Receivership.’

At the oral hearing of this appeal on the 12th day of March, 2001 certain pertinent matters such as the fact that the action was disposed of in 1998 were canvassed by learned counsel for the Respondent and to these learned counsel for the Appellants conceded. Albeit, learned counsel for the Appellants submitted that he would like to go on with the argument of the appeal and we saw no reason for not obliging him. Indeed we permitted him to go ahead. The preliminary point as to Issue 4 containing an allegation of abuse of process of court with regard to ground 3 and the failure of the court below to pronounce on other issues as to whether their non-consideration did not amount to a denial of the Appellants’ right to fair hearing was canvassed. It having been resolved that no miscarriage of justice was occasioned thereby, I shall proceed to consider the above two issues as follows:

ISSUE 1:

This issue which relates to grounds 1 and 3 of the grounds of appeal equally raised by the Appellants and the Respondent in their Briefs of Argument, principally seek the resolution of one question – that of jurisdiction. Thus, while the Appellants invited the court below (and also in this Court) to determine whether the trial court had jurisdiction in view of the Respondent’s claim arising from the management of a company in receivership, the Respondent’s 1st issue urged the court below to determine whether the suit before the trial court related to receivership or operation of the Companies and Allied Matters Decree (Act). This is because the determination of both grounds would, in my firm view, determine the entire appeal since both of them dealing on jurisdiction are fundamental. See Akinsanya v. U.B.A. (1986) 4 NWLR (Part 35) at 273; Onyeama & Ors v. Oputa & Ors. (1987) 2 NSCC 900; Oloriode v. Oyebi (1984) 5 SC.1 and Oloba v. Akereja (1988) 7 SC. (Pt.I) 1,(1988) 3 NWLR (Part 508).

Thus, after reviewing the submissions of both parties on the said issues, it is no surprise that the court below per Ogebe, JCA., observed:

‘After carefully considering all the issues formulated in this appeal it appears to me that the resolution of the first issue alone will determine the outcome of the appeal.” Continuing, the court below proceeded to hold that the Respondent’s claim at the trial court was in tort of conversion and that there was nothing in the suit as ‘presently constituted to show that the matter in dispute has to do with receivership.’ By so holding, the court below had effectively determined that the trial court had jurisdiction to try the suit since the tort of conversion is not one of the causes of action on which the Federal High Court has been endowed with exclusive jurisdiction. It is for these reasons that I share the Respondent’s view that having held that the trial court had jurisdiction to try the suit, the court below was under no obligation to consider the other issues. The general rule, it is now well settled, is that an Appellate Court has a duty to consider all the issues placed before it. Albeit, where it is of the view that a consideration of one is enough to dispose of the appeal, it is not under any obligation to consider all the other issues posed.

In the instant case where the court below arrived at the view that the only ‘live’ issue (the sole issue on jurisdiction) is enough to dispose of the appeal, this court will not impose upon it the obligation to consider all the other issues posed by the Appellant. As indeed happened, the lower court decided the appeal from the trial court’s ruling on the sole issue of whether the State High Court has jurisdiction to hear the case having to do with conversion of the Respondent’s property rather than of receivership which would have been appropriate for trial by the Federal High Court vide Section 7 of the Federal High Court Act and Akinbobola & Sons v. Plisson Fisko (Nig.) Ltd. (1986) 4 NWLR (Pt .37) 621 C.A – the decision of the Court below, in my view, did not amount to a denial of fair hearing. That being so, I hold that it does not matter that the court below failed to consider the other issues raised by the Appellants in their Brief and which failure did not occasion a miscarriage of justice. See Union Bank of Nigeria Ltd v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127; Kotoye v. CBN. (1989) 2 SC (Pt.I)1, (1989)1 NWLR (Pt.98) 419 and Bamaiyi v. The State (2001) 4 SC (Pt. I) 18; (2001) 8 NWLR 270;

Besides and in addition, the failure to consider these other issues has, in my opinion, not occasioned a miscarriage of justice. See Mora & Ors. v. Nwalusi & Ors. (1962) 1 All NLR (Pt. 4) 681 and Stool of Abinabina v. Enyimadu 12 WACA 171 at 173.

As this Court succinctly put it, ‘An appellate court has a duty to consider all the issues placed before it vide Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131. But in the instant case the issue on which the appeal was decided was the most important ‘Live’ issue before it, challenging as it does the order of non-suit on the claim for declaration of title. If a court of appeal is of the view correctly that a consideration of one issue is enough to dispose of the appeal, it is not under any obligation to consider all the other issues posed. If however it is erroneous in its decision, the consequence may be setting aside of its decision on appeal with an order of re-hearing. The Court of Appeal was right in its decision here, and its failure to consider those other issues has not led to miscarriage of justice.’

See the case of Anyaduba v. Nigeria Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt. 243) 535 at 561 paragraphs D-E. See Also Okonji v. Njokanma (supra) and Ebba v. Ogodo (1984) 1 SCNLR 372. Indeed, the above position is more enhanced in this case as the appeal complained of was interlocutory in nature. The law is trite that an appellate court should not pour the totality of its own mind on the merits of a matter (in contrast to the case on hand) on which it is not going to make a final decision on the merits. See Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) 47 at 58. Thus, the court below said right when it held that the other issues

‘can only properly arise after full hearing of the matter in the court below and either of the parties chooses to appeal from the final decision of the Court. Indeed, a court of appeal must be wary of going into issues that may arise in the substantive appeal when considering an appeal from an interlocutory decision of a lower court like the present appeal.’

From the foregoing, I am of the firm view that the non-consideration of all the issues before the court below, save issue 1, did not and could not amount to a denial of fair hearing to the Appellants. I am of the further view that as the ‘live’ issue has been determined in the instant appeal, the non-consideration of other issues does not amount to a denial of fair hearing. As this Court opined in Anyaduba v. N.R.T.C. Ltd. (supra):

‘But in the instant case, the issue on which the appeal was decided was the most important ‘live’ issue before it……… If a court of appeal is of the view correctly that a consideration of one issue is enough to dispose of the appeal, it is not under an obligation to consider all the other issues posed.’

Besides, I am of the opinion that the non-consideration of all the other issues by the court below, assuming but not conceding was erroneous, same was not sufficient to nullify the judgment of the court below because it neither substantially nor materially affect the decision. See Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) 164 at 175 and Adeyeri II v. Atanda (1995) 5 NWLR (Pt. 397) 512 at 528.

Issue 1 is accordingly answered in the negative.

ISSUE II

This issue which relates to grounds 2 and 4, asks whether the court below was wrong in holding that the Respondent’s claim was one of conversion in tort and so has nothing to do with receivership in a Company.

The law is sufficiently settled that in determining whether the Plaintiff’s (Respondent’s) action discloses any cause of action or the nature thereof, the court will necessarily restrict itself to the Plaintiff’s/Respondent’s Statement of Claim without recourse to the Defendant’s /Appellant’s Statement of Defence vide Shell B. P. Ltd.& Ors. v. Onasanya (1976) NSCC 334 at 336. See also Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129.

In necessarily restricting itself to the Statement of Claim, the court is not obliged to consider seriatim all the averments in the Statement of Claim. It is sufficient that the court looks at same as a whole and/or refer to few averments that form the gravamen of the claim. Thus, the court below in the present case rightly, in my view, referred to the relief sought by the Respondent (as contained in paragraph 19 of the Statement of Claim, which paragraph forms an integral part and in fact, formed the core of the Respondent’s claim at the trial court.) According to the court below

‘the Respondent’s claim as averred in paragraph 19 of the Respondent’s Statement of Claim which was reproduced earlier in this judgment, is a claim of conversion in tort.’

I cannot agree more.

The court below in determining the nature of the Respondent’s claim also considered paragraphs 5, 6, 7, 8 and 12 of the Statement of Claim, the general purport of which it condensed into the following words:

‘This cause of action arose because the appellants were said to have gone ahead and violated an earlier court order in Suit No. KWS/215/88 in which an interim order was made restraining the appellants from selling the properties of the respondent.’

Apart from the averments alluded to above, the paragraphs dealing with introduction of parties and paragraphs 5, 6, 7, 8, 12 and 19 of the Statement of Claim and all the other paragraphs clearly enumerate by description and particulars the vehicles, machineries, and/or plants illegally disposed of by the Appellants. In this regard, the submission of the Appellants that ‘the Learned Justices of the court below in considering this matter limited and restricted themselves to the reliefs in the Statement of Claim and thus misunderstood the objection’ is insupportable. We were also further urged to discountenance the Appellant’s submission that in determining the nature of the Respondent’s claim in the Suit KWS/215/88 (page 11 in Appellant’s Brief) the Court should not have had recourse to the statement of claim alone. This, I will decline to do because to do so would be a clear affront to the principle that a cause of action is determined by reference to the plaintiff’s Statement of Claim. The Appellants’ contention that the statement of claim in Suit No. KWS/215/88 is clearly the same statement of claim as in Suit No. KWS/270/89 by reliance on the case of Shell B.P. Ltd. & Ors. v. Onasanya (supra), is in my view, not correct.

The Appellants’ final submission that we should disregard the Respondent’s claim in relation to conversion which they contend is ancillary to the main claim of receivership is, in my view, untenable. This is more so in that as decided in the case of Shell B.P. Ltd. & Ors. v. Onasanya (supra), it is necessary as the respondent has done in the instant case, that his claim discloses a cause of action. This is the moreso that the claim in receivership as set out in the Appellants’ Brief is a figment of their imagination vis -a -vis what is borne out in the Respondent’s Statement of Claim. It is for this reason, that I entirely agree with the court below when it held

‘There is nothing in the Respondent’s claim as presently constituted to show that the matter in dispute has to do with receivership; it is the appellants who by their statement of defence brought in the question of receivership.’

My answer to the issue canvassed herein (Issue II), is also accordingly rendered in the negative.

Both issues having been resolved against the Appellants, this appeal fails and it is accordingly dismissed with N10,000.00 costs awarded against them (Appellants) jointly and severally.

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SC.63/1996