Union Bank Of Nigeria Plc V. Mr. Olusoji Sogunro (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

This is an appeal against the decision of the Court of Appeal, Lagos Division delivered on 14th February, 2001 whereby it struck out the appellant’s appeal on the ground that it is incompetent as leave was neither sought by the appellant nor granted/obtained before the said appeal was filed. Dissatisfied with the said decision, the appellant has appealed to this court on three (3) grounds of appeal. Without their particulars, they read as follows:

Ground One

“The Court of Appeal erred in law in striking out the appellant’s appeal on the basis of the 1st respondent’s objection without considering the appellant’s counsel’s arguments on the objection as canvassed on 22-11-2000”.

Ground Two

The Court of Appeal erred in law when it held per AMIRU SANUSI, J.C.A. as follows:

“From the facts of the instant case, it is not in dispute that this appeal is on interlocutory matter since it is not on final judgment of the court. It is trite law that an appeal against a decision of High Court on interlocutory matters lies in the Court of Appeal as of right where it relates to question of law. But where the appeal is on the ground other than that of law, only then, prior leave of the High Court or the Court of Appeal must be sought and obtained. Failure to obtain such leave would render the appeal incompetent (sic) (see sectian 221) (1) of the 1999 Constitution. See also Akwuwu Motors Ltd. v. Sangonuga (1984) 5 SC 184; Anaghelu v. Oraelosi (supra). Nwosu v. Offor (supra). It is equally clear from the fact of this case that the appellant in this case did not seek for and obtain leave of the lower court or this court before bringing this appeal which as I said is on an interlocutory matter. Thus, in the light of all that I have said above.

I see merit in the first leg of the preliminary objection. I therefore uphold the 1st leg of the respondent’s objection. I, as such, hold that the appellant’s failure to obtain leave from either the lower court or this court renders the appeal incompetent. I therefore uphold the objection and strike out the appeal.”

Ground Three

The Court of Appeal erred in law when it held per AMURT SANUSI, J.C.A. as follows:

“Having so hold (sic) I do not see any use in dealing with the issues for determination raised by the appellant in the appeal. I therefore hereby strike out the appeal with N5,000.00 cost against the appellant in favour of the respondent.” The facts of the case briefly stated are that the 1st respondent was an employee of the appellant. Allegations of financial misappropriation and/or improper and unapproved grant of overdraft facilities to some named customers at the Branch where the 1st respondent worked were made. The 1st respondent who was on leave was recalled to appear and answer questions from the Auditors of the appellant. He duly attended and after hearing from him he was later interdicted and placed on suspension during which period he was asked to report to the Police – i.e. the 2nd respondent. On the strength of the allegations, the Police detained the 1st respondent in the course of their investigation. Eventually, the police found the said allegations against the 1st respondent not substantiated Whether an appeal against the decision of a High Court granting leave to enforce the fundamental right to personal liberty is as of right or must be with leave under the 1999 Constitution.

Whether the 1st respondent’s action in the High Court of Lagos State would not have been liable to be struck out if the court below had considered the merits of the appeal before it. On its part, the 20th and 3rd respondents formulated also two (2) issues for determination, namely,

“1. Whether the sole ground of appeal at the court below was of mixed law and fact such as to require the leave of that court or of the trial court for the appeal which was an interlocutory appeal to be competent. Whether the court below was duty bound to pronounce on all issues raised in the substantive appeal after upholding the preliminary objection to the competence of the appeal before it.” I note that the subject-matter of the application to enforce an alleged fundamental right is strictly one of master and servant. But and in consequence, released him.

On his release, the 1st respondent took out an originating motion ex-parte at the High Court of Lagos seeking the leave of that court to enforce his fundamental right to personal liberty. On 18th October, 1999, that court granted leave to him to apply to enforce his said fundamental right. The appellant, dissatisfied with the said grant or decision, appealed to the Court of Appeal (hereinafter called “the court below”) on a lone ground of appeal. Briefs were filed and exchanged. In the 1st respondent’s brief, he raised and argued a preliminary objection as to the competence of the appeal on the ground that the said one ground of appeal having regard to the “particulars of error” was one of mixed law and fact. That since no prior leave of the court was neither sought nor obtained, the court below was urged by the 1st respondent to strike out the appeal. After hearing the learned counsel for the parties on 22nd November, 2000, the court below in its said judgment upheld the preliminary objection and accordingly struck out the appeal of the appellant. It is against that decision that the appellant has appealed to this court.

The appellant has formulated two (2) issues for determination namely, this is not the issue here. It is in fact to enforce the fundamental right to personal liberty. Again, this is not the issue in the instant appeal. I note that in paragraph 4.2 of the appellant’s brief the appellant concedes that the order made by the High Court of Lagos State on 18th October, 1999- granting leave to the 1st respondent (who I note did not file a brief nor was he represented in this appeal) was an interlocutory order in that or because it did not finally determine the rights of the parties. The cases of Olatunde v. Obafemi Awolowo University &Anor. (1998) 5 NWLR (Pt.549) 178 at 186 – (it is also reported in (1998) 4 SCNJ 59); Balogun v.Adejobi (1995) 2 NWLR (Pt.376) 131 at 161 and Akinsanya v. U.B.A (1986) 4 NWLR (Pt.35) 273 at 293 are cited and relied on in respect thereof.

It is also conceded by the appellant in its paragraph 4.3 of the brief that an application for leave involves the exercise of discretion by the trial court. The cases of Bank of Ireland v. U.B.N. Ltd. Anor. (1998) 10 NWLR (Pt.569) 178 at 192) (it is also reported in (1998) 7 SCNJ 385) and Maigoro v. Garba (1999) 10 NWLR (Pt.624) 555 at 568 are cited and relied on in respect thereof. I agree with the appellant in its paragraph 1.1 of the brief that “this is a very simple and straight forward appeal”. But strangely to me it is submitted in the appellant’s brief that an appeal against an order granting leave to apply for the enforcement of fundamental right to personal liberty is as of right. Section 241(1)(d), (1) and (i) of the Constitution of the Federal Republic of Nigeria, 1999 referred to and reliance is placed on (d) which reads as follows: “decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person.”

But and this is important and should and ought to be borne in mind, that a decision is yet to be made in the substantive application. With respect, firstly, it is a misconception to submit that a decision on an application for leave to apply to enforce the fundamental right to personal liberty and which is through ex-parte is a decision under sub section 241 (d) of the said Constitution and that the decision is one in which the liberty of the appellant is concerned. Very odd indeed to say the least.

Secondly, another gross and grave misconception is the submission on behalf of the appellant in paragraph 4.6 of the brief that although sub-section (d) does not draw a distinction between grounds of appeal involving questions other than questions of law as does sub-section (b) and therefore that an appeal shall lie as of right notwithstanding the nature of the questions raised by the ground of appeal. Learned counsel referred to the case of Aqua Ltd. v. Ondo State Sports Council (1998) (sic) (it is (1988) 4 NWLR (Pt.91) 622 at 655; it is also reported in (1988) 10 – 11 SCNJ 26 – per Wali, JSC, in which it was clearly held that before a person exercises the right conferred by section 220(1)(a) of the 1979 Constitution which is the same provision as in section 241(1)(a) of the 1999 Constitution, all that is required before a person exercises the right conferred by the sub-section is that the decision being appealed against is a final decision of a High Court sitting as court of first instance.

I wish to state that the “worry” of the appellant’s learned counsel in paragraphs 5.5 and 5.6 of its brief that matters relating to fundamental right enforcement should be heard expeditiously is, with respect, of no moment. It is otiose. It does not arise and it is indeed a non- issue. Equally, the action being statute-barred is certainly, irrelevant and it is of no consequence in the circumstances of the issue in controversy. I agree with the 2nd and 3rd respondents’ counsel’s submission at page 2 paragraph 5.01 of their brief that it is now firmly settled that any ground of fact or mixed law and fact in an interlocutory appeal from the High Court to the court below will be incompetent except with the prior leave of either the trial court or of the court below first sought and obtained. That is the essence or intendment of sections 220(1 )(b) and 221 (1) of the 1979 Constitution of the Federal Republic of Nigeria now sections 241(1)(b) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria. See the cases of Co-operative & Commerce Bank of Nigeria Plc. v. A. -G., Anambra State & Anor. (1991) 8 NWLR (Pt.261) 528 at 552 and 554; (it is also reported in (1992) 10 SCNJ 137): Chief Nwosu & Anor. v.Offor (1997) 2 NWLR (Pt.487) 274 at 282 (it is also reported in (1997) 1 SCNJ 193 at 198,200; and Akin wale v. B.O.N (2001) 4 NWLR (Pt.704) 448 at 455-456 cited and relied on in the said brief. I hold that the appeal in respect of the lone ground of appeal required leave under section 242( 1) of the 1999 Constitution. I also hold that the ruling or decision of the trial High Court was not a final decision since it did not finally dispose of the rights of the parties in the suit. See also the cases of Blay v. Solomon (1947) 12 WACA 175 at 176; Bozson v. Altrincham Urban District Council (1903) 1 KB 547; Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 273; Ajani v. Giwa (1986) 3 NWLR (Pt.32) 796 at 803-804; Nwadike & Ors. v. Ibehve (1987) 4 NWLR (Pt.67) 718 at 721; (1987) 11-12 SCNJ 72, Metal Construction (West Africa) Ltd. v. Migliore In Re:Miss C. Ogundare (1990) 1 NWLR (Pt.126) 299 at 314; (1990) 2 SCNJ 20; (1990) All NLR 142 at 149-150 and Chief Nwosu & Anor: v. Offor (supra) and many others. In other words, an appeal in an interlocutory decision which is not on a ground of law alone is not competent when prior leave was not sought and obtained. See Ichie Anoghalu & 3 Ors. v Nathan Oraelosi & Sole Administrator Ihiala Local Govt. (1999) 10 SCNJ 1 at 10, 12; (1999) 13 NWLR (Pt. 634) 297 – per Ogundare, JSC (of blessed memory). The phrase ” a question of law” and “a question of fact” was examined in the cases of Metal Construction (WA.) Ltd. v. D. A. Migliore & Ors. -In Re: Miss C. Ogundare (vice versa)(supra) and Olapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. The said decision of the trial High Court, I repeat, was on an ex parte motion/application requiring the exercise of discretion as conceded by the appellant in its brief. Surely, exercise of such a discretion as rightly submitted at paragraph 5.01.2 of the 2nd and 3rd respondents’ brief, would be based on the facts and circumstances to be married to the law on the subject matter on mixed law and fact. See perhaps the case of Incomex (it is Comex) Ltd. v. N.A.B. (i.e. Nigeria Arab Bank Ltd. (1997) 3 NWLR (Pt. 496) 643 at 655 cited and relied on in the brief of the 2nd and 3nd respondents. The decision of the court below was premised on the fact that the ground of appeal which was against the exercise of discretion to grant leave challenged in effect both law and fact applied by the trial High Court. This fact in my view is eloquently borne out and has support from the particulars of error in respect of the lone ground of appeal. While No. 1 particular is one of fact, particular (ii) is law, particular (iii) is fact and law and it is based on statute-barred which will invoke the calculation of days, months and years. See the case of Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 110 cited and relied on in the 2nd to 3rd respondents’ brief and particular iv will be based on fact and law. The court below was therefore right when it – per Samisi, JCA at pages 63-64 of the records, stated inter alia, as follows: From the facts of the instant case, it is not in dispute that this appeal is on interlocutory matter since it is not on final judgment of that court. It is trite law that an appeal against a decision of High Court on interlocutory matters lies in the Court of Appeal as of right where it relates to question of law. But where the appeal is on ground other than that of law, only then, prior leave of the High Court or the Court of Appeal must be sought and obtained. Failure to obtain such leave would render the appeal incompetent (see section 221(1) of the 1999 Constitution. See also Akwuwu (sic) (Akwiwu) Motors Ltd. v. Sangonuga (1984) 5 SC 184; Anoghalu v. Oraelosi (supra); Nwosu v. Offor (supra). It is equally clear from the fact of this case that the appellant in this case did not seek for and obtain leave of the lower court or this court before bringing this appeal which as I said is on an “interlocutory matter”. As regards issue 2 of the appellant, with the greatest respect, it is most irrelevant. This is because considering the merits of the appeal did not arise from the said lone ground of appeal. The said issue is therefore discountenanced by me and in fact it is hereby accordingly struck out. In respect of issue No.2 of the 2nd and 3rd respondents, since the preliminary objection succeeded and was upheld by the court below, I agree with the learned counsel for the respondents in their paragraph 5.02.1 of their brief that there was nothing left for the court below to pronounce upon. Such indulgence, in my respectful view, would have been an academic exercise. The court below was therefore right and justified when it declined to go to any other issue and pronounce on it. See the cases of Okonji & Ors. v.Njokanma & Ors. (1991) 7 NWLR (Pt. 202) 131, (it is also reported in (1991) 910 SCNJ 27) Anyaduba & Anor v. Nigeria Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt. 243) 535 (it is also reported in (1992) 6 SCNJ 204) and 7-Up Bottling Co. Ltd. & Ors. v. Abiola & Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt.730) 469 at 493-494 (it is also reported in (2001) 6 SCNJ 18) cited and relied on by the 2nd and 3rd respondents in their brief. It is now settled that where a preliminary objection succeeds, there would be no need to go further to consider the arguments in support of other issue or issues for determination. See Chief Bright Onyemeh & Ors. V. Lambert Egbuchulam & Ors. (1996) 5 NWLR (Pt. 448) 255; NEPA v.Ango (2001) 15 NWLR (Pt. 737) 627 at 645 C.A. and recently, A.N.P.P v. The Returning Officers, Abia State Senatorial District (Mr Festus Ukagwu) & 2 Ors. (2005) 6 NWLR (Pt. 920) 140 at 170-171. The preliminary objection was so fundamental and indeed went to the root of the whole appeal and so with the said decision of the court below no appeal existed. In the end result or final analysis, this appeal even though it is and very frivolous, yet the appellant is complaining of delay in the hearing of the substantive matter. The delay of course is the handiwork of the appellant. It cannot eat its cake and have it at the same time. The appeal fails and it is accordingly dismissed. Costs follow the event. The 2nd and 3rd respondents are entitled to costs assessed and fixed at N10,000.00(Ten Thousand Naira) payable to them by the appellant.

SC.124/2001