JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
ASOL NIGERIA LIMITED
ACCESS BANK NIG PLC
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment):
This appeal is against the
decision of the Lagos High Court of Justice presided
over by Honourble Justice A. A. Oyebanji and contained
in her ruling dated 5th October, 2006.(Found on pages
62-70 of the record of appeal).
In her said ruling, the
learned trial judge refused the application of the
Appellant (then judgment creditor/Applicant) for the
release to it of the sum of N17, 492,081.11 representing
the judgment sum awarded it by the learned trial judge
in her judgment of 2nd December, 2005 (found on pages
49-53 of the record) entered in favour of the
Appellant/judgment creditor on the basis of admissions
made by the Respondent/Judgment Debtor in its pleadings
before the court below, together with interest therein
(see application on pages 36-48 of the record of appeal)
and which said amount was and still is in the custody of
the Chief Registrar of the Lagos High Court consequent
upon an order of interim preservation of the court made
on the 20th of December, 2004 (found on pages 34 and 35
of the record of appeal).
The facts which gave rise to the subject hereof is that the present appellant (as claimant in the court below) had brought an action against the Respondent (as Defendant) by a writ of summons and statement of claim (found on pages 1-10 of the records), praying for the following reliefs:
i. "Payment of the sum of N17, 492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) being due and payable to the Claimant as money had and received its use and benefit. Or ALTERNATIVELY damages for conversion in the sum of N17, 492,081.22 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo.)
Payment of interest on the said sum of
N17,492.081.11 (Seventeen Million, Four Hundred and
Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) at
the rate of 21% per annum from the 22nd of January,
2002 till the date of judgment herein and thereafter
at the rate of 10% per annum till final liquidation.
order of perpetual injunction restraining the
Defendant whether by itself or by its servants,
Agents, privies or how whatsoever from further
defalcating the Claimant's said current account with
it in the said amount of N17, 492,081.11 (Seventeen
Million, Four Hundred and Ninety-Two Thousand, Eighty
One Naira, Eleven Kobo) or any other sum whatsoever
standing to the credit thereof and from the continued
conversion of the Claimant's funds.
sum of N1, 101,988,566.94 (One Billion, One Hundred
and One Million, Nine Hundred and Eighty Eight
Thousand, Five Hundred and Sixty Six Naira, Thirty
Four Kobo) as special damages for the wrongful
dishonor of the Claimant's cheques by the Defendant
and the defalcation by the Defendant of the claimant's
said current account with the Defendant in the sum of
Aggravated and exemplary general damages of
N900, 000,000.00 (Nine Hundred Million Naira) for the
conversion of the Claimant's cheques totaling N17,
492,081.11 (Seventeen Million, Four Hundred and Ninety
Two Thousand, Eighty-one Naira, Eleven Kobo), the
wrongful dishonor of the plaintiffs cheques and the
defalcation if its current account by the Defendant.
Following the exchange of pleadings by the parties, the Respondent (then Defendant) had made certain admissions of facts in its statement of Defence (found in pages 11 to 13 of the record so wherein it admitted the Appellant's claim to the sum of N17, 492,081.11 (seventeen million, four hundred and ninety two thousand eighty one naira, eleven kobo) which represented the total number of cheques drawn in its favour and unlawfully and/or illegally cashed/cleared by the Respondent as its banker without the authority, consent and/or knowledge of the Appellant, who was the drawee of the said cheques, all of which were marked 'A/' or 'Account payee only'.
From the notice of appeal
contained in page 136 of the records, the following two
grounds (2) shorn of their particulars are hereunder
i. Whether the judgment of the learned trial judge entered in the Appellant's favour on the 2nd of December, 2005 for the sum of N17, 492,081.11 (seventeen million, four hundred and ninety two thousand eighty one naira, eleven kobo) on the basis of admissions made by the Defendant in its pleadings is not enforceable by the Appellant upon the entry of judgment but must await the determination of the substantive suit.
ii. Whether the decision of the learned trial judgment in refusing the Appellant's application to order/direct the Chief Registrar of the Lagos High Court to release to the Appellant the sum of N17,492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) kept with it under an order of interim preservation consequent upon the courts judgment of 2nd December, 2005 entered in the Appellant's favour for same sum of N17,492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) together with interest as claimed by it under reliefs (i) and (ii) of its amended statement of claim, was not perverse and wrong, having regard to the position of the law and to the particular circumstance of the case.
The Respondent on the other hand in its brief of argument, settled by one Sheni Ibiwoye Esq. of counsel and dated the 18th of June, 2013 formulated a lone issue for the determination of this appeal as follows:
"Given the circumstances of this appeal, was the lower court correct in its decision refusing to release the sum held in the name of the Chief Registrar of the court in the light of the courts preservative order of 20th December, 2004 based on the appellant's application."
In addition to this learned counsel to the Respondent filed a notice of preliminary objection dated and filed on the 18th June, 2013. The said notice of preliminary objection brought pursuant to Order 6 Rules 2, 7 and 8 of the Court of Appeal Rules 2011 and Section 2 (1) of the Legal Practitioners Act, CAP L11 LFN 2004. The said NPO, seeks for leave to be heard on the following: (see NPO)
1) An order striking out the two grounds of appeal contained in the Appellant's notice of appeal dated 18th October, 2006 the same not having been derived from any discernable ratio of the decision of the lower court dated 5th October, 2006.
2) An order striking out issue No. 2 formulated for determination by the Appellant as well as the argument based thereon because the issue is not based on any ground of appeal contained in the notice of appeal dated 18th October, 2006.
striking out the notice of appeal because it does not
contain the names and addresses of all the parties
directly affected by the appeal.
4) An order striking out the appeal because the application with which the Appellant initiated the subject matter of this appeal was signed by an entity unknown to law.
GROUNDS FOR THE APPLICATION
A. "The notice of appeal does not contain the names and addresses of all the parties directly affected by the appeal contrary to Order 6 Rule 2 of the Court of Appeal Rules, 2011.
B. The application with which the Appellant initiated the subject matter of this appeal was signed by an unknown entity to law contrary to the Legal Practitioners Act, 2004.
two grounds of appeal contained in the notice of appeal
do not derive from any ratio contained in the lower
D. Issue number two formulated for the determination of this appeal by the Appellant does not spring from any of the grounds of appeal."
ARGUMENTS ON RESPONDENT'S PELIMINARY OBJECTION
"The lower court did not simply said it would not order the release of the held funds pending the hearing and determination of the suit but that she lacked the jurisdiction to vary her initial order that the money be kept in an interest yielding account in the name of the Chief Registrar and the lower court aptly situated the ratio thus:
"A grant of the application of the learned SAN will amount to setting aside the earlier order of this court and substituting it with another order when the suit is yet to be determined."
Your Lordships can see that
the Appellant's two grounds of appeal couched thus
without the particulars at pages 136 - 737 of the record
DO NOT ATTACH THE RATIO OF THE LOWER COURT'S DECISION
and they are reproduced hereunder:
1. "The learned trial Judge erred in law in refusing to order the release of the sum of N17, 492,081,11) (Seventeen Million, Four Hundred and Ninety-Two Thousand and Eighty-One Naira, Eleven Kobo) plus accrued interest kept by the Chief Registrar of the Ikeja High Court, following her earlier order of 20th December, 2004, when she order the same to be kept in an interest yielding account pending the hearing and determination of the case, on the ground that the said case was not yet determined.
The learned trial Judge erred in law by holding
that in interlocutory Judgment entered on the basis of
admissions made by the defendant is unenforceable before
the final determination of the other issues/claims
brought by the claimant in the substantive suit."
It is glaring that contrary to the second ground of appeal there is no where that the learned lower Court held that an interlocutory judgment entered on the basis of admission is not enforceable until the final determination of the other issued or claims brought before the court in the substantive suit.
We submit that the Appellant's
two grounds of appeal as contained in the notice of
appeal dated and set out above cannot be any stretch of
the imagination be said to constitute an attack on any
ratio decided by the lower court's decision of.
We therefore urge the court to strike out the two grounds of appeal and with the attendant consequence that there is nothing left to sustain this appeal and the same is also liable to be struck out also. See ATTORNEY GENERAL OF THE FEDERATION V. CHIEF PATRICK IBIKUNLE FAFUNWA-ONIKOYI & ORS (2006) 18 NWLR (PT 1070) 51 @ 86-87.
The Respondent/Applicant will therefore urge your lordships to exercise the Court's power under Order 6 Rule 6 of the Court of Appeal Rules 2011 to strike out the Notice of Appeal dated 18/10/2006. In essence there is no valid notice of appeal to support the appeal, because it is the notice of appeal that gives your Lordship the jurisdiction to hear an appeal and any defect in it goes to the root of the appeal. See HONOURABLE ABRAHAM ADEOLU ADELEKE & ANOR V. OYO STATE HOUSE OF ASSEMBLY & ORS (2008) 11 NWLR (Pt 990) 521 SEE ALSO VICTOR ADELEKAN V. ECULINE (2006) 12 NWLR (PT 993) 33 @ 56.
"Whether the decision of the learned trial Judge in refusing the Appellant's Application to order/direct the Chief to release to the Appellant the sum of N17, 492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-One Naira, Eleven Kobo) kept with it under the Court's or interim preservation made on the 20th of December, 2004 and consequent upon the court's judgment of 2nd December, 2005 entered in the Appellant's favour for the same sum of N17,492,081.11 together with interest, as claimed by it under reliefs prayers (9i) and (ii) of its amended statement of claim, was not perverse and wrong, having regard to the position of the law and to particular circumstance of the case?"
As can be seen above, the
thrust of issue No 2 formulated by the Appellant is the
fact that the decision of the court being appealed
against is perverse and this fact is also supported by
its arguments in support of the said issue.
"It is indeed trite law that issues for
determination which have the function of accentuating
the issues in the grounds of appeal should be in
concrete terms, arising from and related to the
grounds of appeal representing the questions in
controversy between the parties. Put in another way,
it is that the issue for determination must be
formulated with reference to the grounds of the appeal
and fall within their purview" Per Nzeako, J.C.A @ 469.
On the consequence of an issue for determination not deriving from any ground of appeal the court further held that an issue for determination which has no arisen from any ground of appeal will be liable to be struck out.
We therefore urge your Lordship to strike out Issue No 2 formulated by the Appellant together with the submissions based thereon. See THE STATE v. GRACE ABRAHAM AKPABIO (1993) 4 NWLR, (pt 286) 204 @ 212.
The Respondent/Applicant will
respectfully refer your lordship to page 36-48 of the
record to have a detailed look at the motion for
Judgment based on admission upon which the lower Court
erroneously granted judgment to the Appellant albeit
Your Lordship can see that the
motion at page 36 of the record was filed and signed by
ALADE AGBABIAKA & CO, similarly the written
address at page 42 of the record was signed by the said
ALADE AGBABIAKA & CO contrary to Section 2 (1) of the Legal Practitioners
Act, CAP LII Laws of the Federation of Nigeria, 2004
which stipulates that only legal practitioners
enrolled at the Supreme Court can practice as such and
not Law firms like the Appellant had done in this
case. This position of the law had been well
articulated by the Apex Court in this land in EMMANUEL
OKAFOR 7 ORS V. AUGUSTINE NWEKE & ORS (2001) 10
NWLR 9 (PT 1043) 521.
We therefore urge the court to
uphold our preliminary objection and strike out this
appeal but in the unlikely event that your Lordship
could that this appeal is competent the respondent will
formulate its brief of argument as follows:
Learned counsel submitted further that the law is elementary that whether or not the language or choice of words adopted by a party in couching his or her ground of appeal is same as or ipsisima verba as the one used in the decision, so long as the grounds formulated capture the purview of the judgment being protested by the Appellant, same is competent. See CHIEF E.I. EZENDUKA V. NIEN SPANISH ENGIN (2002) 1 NWLR (Pt. 745) 469. The 1st and 2nd grounds of appeal can be extracted from the whole decision of the court particularly the holding of the learned trial judge at page 69 of the record.
Learned counsel submitted
further that what makes a ground of appeal incompetent
is whether, in the way it is couched, the Respondent is
left in doubt and without adequate information as to
what the complaint of the Appellant actually is. See UMOH
VS. INDUSTRIAL TRAINING GOVERNING COUNCIL (2001) 4
NWLR (Pt. 703) 281; ADEROUNMU V. OLOWU (2000) 25 CNJ
Learned counsel submitted
further on the argument that the motion on notice dated
13th September, 2005 on the basis of which the Appellant
obtained judgment on admission dated 2nd December, 2005
was signed in the name of Alade Agbabiaka & Co. and
therefore same is incompetent, the law that governs a
matter/action is the law at time of instituting the said
action. See GOV. OF OYO STATE V. FOLAYAN (1995) 95
CNJ 50; OWATA V. ANYIGOR (1993) 2 NWLR (Pt. 276) 380.
Learned counsel further
submitted that reference is made to the 1st Respondent's
motion on notice dated 13th September, 2005, in that
respect, as at 2003 when this suit was filed on the 13th
September, 2005 when the application for judgment on
admission was filed, the law as to signing of court
process applicable was the law as laid down in COLE
VS. MARTIN (1968) 5 NSCC 120, under which a legal
practitioner who holds himself out as practicing under a
firm of legal practitioners is allowed to sign a court
process in the law firm's name and same is competent.
The Respondent/Applicant argued on the contrary that the decision of the Supreme Court in OKAFOR V. NWEKE (supra) and other subsequent decision of the court which followed that makes such process as incompetent. The learned counsel relied on sections 2 (1) and24 of the legal practitioners Act.
The issue of whether the law takes a
retrospective effect or it is protective having come
into effect after the current position of law is put
to rest by the Supreme Court in its later decision in
FIRST BANK OF NIGERIA PLC & ANOR V. ALH, SALMANU
MAIWADU & ORS. (2013) 5 NWLR (Pt. 1348) 444 at
483. Paras F-G as to who can sign a court process. The
Apex court stated as follows:
"The words employed in drafting Sections
2 (1) and 24 of the Legal Practitioners Act are simple
and straight forward. The literal construction of the
law is that legal practitioners who are animate
personalities should sign court processes and not a
firm of legal practitioners which is inanimate and
cannot be found in the roll of the Supreme Court."
The question as to whether the Supreme Court's decision in NWEKE V. OKAFOR (supra) cannot have effect retrospectively with matters filed before that decision in 2007 as the case with the instant appeal. The Supreme Court answered that effectively in this case of F.B.N. PLC V. MAIWADA (supra) per Fabiyi JSC at pages 485-487 paragraph H-E:
"It was seriously contended that the court did not consider the Registered Trustees' case and COLE VS. MARTINS case while considering OKAFOR V. NWEKE. The inference being drawn is that the decision in OKAFOR VS. NWEKE was rendered per in incuriam.
I wish to discuss what happened in the previous two cases determined by this court. In the Registered Trustees case, under Rule 4 of the Registration of Titles (Appeal) Rules, which applied to the Trustees' appeal to the High Court? The notice of appeal must be signed by the Appellant or the legal practitioner representing him and must contain the name of the legal practitioner.
Mr. Cole, a duly registered legal practitioner entitled to practice as such under the Act, practiced alone but unduly registered business name - J. A. Cole & Co; which no professional objection was suggested.
above decision, to say the least, was followed by this
court in OKAFOR V. NWEKE.
I cannot see the difference in the thought process leading to the two decisions. The only point of divergence is that in OKAFOR V. NWEKE; J.H.C. OKOLO SAN who is a legal practitioner whose name is in the roll did not sign as J.H.C, Okolo SAN for J.H.C. Okolo, SAN & Co.
"The effect of the ruling is not to shut out the Applicants but to put the house of the legal profession in order by sending the necessary and right message that the urge to do substantial justice does not include illegality or encouragement of the attitude of anything goes."
What then is the effect of such process not signed by a legal practitioner known in the roll of the Supreme Court of Nigeria. The Supreme Court in a more recent decision on the subject, the case of BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (Pt. 1346) page 1 stated as follows:
"Since the initiating process were not
signed by a legal practitioner as dictated by the
applicable law, the suit was not initiated with due
process. It is no doubt incompetent and the court is
robbed of jurisdiction ab initio."
On the whole therefore, the motion on notice of the (Appellant) at the lower court dated 13th September, 2005, was incompetent or defective having not complied with the law. The entire proceedings, which includes the judgment obtained on admission dated 2nd December, 2005 on admission is also invalid. The consequence is that the motion on notice dated 13th September, 2005 is hereby struck out by this court. Also the proceedings and the judgment obtained on admission of the 2nd December, 2005 is set aside by this court.
In the final analysis, the Respondent's notice of preliminary objection is upheld on this point. This takes care of all the other grounds argued, as the proceedings was not initiated with the due process of the law. As a further consequence of this, the entire appeal is hereby struck out.
I am in full agreement with
the comprehensive judgment prepared by my learned
brother, Sidi Dauda Bage, J.C.A., which I had the honour
of perusing in advance and adopt it as my judgment with
nothing useful to add.
I had read in draft, the lead
Judgment just delivered by my brother SIDI DAUDA
BAGE J.C.A and I agree with his reasoning and
His resolution of the Preliminary Objection puts paid to the resolution of the entire appeal, as you cannot put something on nothing.
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