PRINTS MAGNIFIQUE INTL LTD & ORS v. BANK OF INDUSTRY LTD & ORS
(2020)LCN/15351(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, August 28, 2020
CA/AS/345/2017
RATIO
ISSUES FOR DETERMINATION: WHETHER ISSUES OR AN ISSUE ARGUED IN AN APPEAL MUST FLOW FROM THE JUDGMENT OF THE LOWER COURT
It is trite that where issues or an issue argued in an appeal does not flow from the Judgment of the lower Court, it is fatal to the viability of the appeal and same is liable to be dismissed. See IROAGANCHI V. MADUBUKO & ANOR (NO 10) LPELR 40048 CA. OSSAI V FRN (2013) BURN 87. PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPEAL: WHETHER ISSUES FOR DETERMINATION MUST BE MUST BE DEDUCED FROM THE GROUNDS OF APPEAL IN A NOTICE OF APPEAL
The position of the law from ancient times till present time, is that where an appellant does not formulate any issue from any of the ground(s) of appeal in a notice of appeal, such ground(s) from which an issue or no issues has or have been formulated, is/are deemed abandoned; and must be struck out. In this regard see the case of HUSSENI V. MOHAMMED (2014) LPELR-24216(SC) wherein the Supreme Court per Ngwuta, JSC; said: –
“Appeal is decided upon the issue formulated for determination from the grounds of appeal. When an issue is formulated, the grounds of appeal upon which the issue is based is extinguished as it were and replaced by the said issue. A ground of appeal must have an issue to cover it and an argument is proffered to cover the issue. Any ground of appeal not having any argument proffered on the issue framed therefrom is deemed abandoned and ought to be struck out. xxxx
Consequently, issue 1, 3 and 4 in the appellants brief and grounds 1, 2, 3 and 4 in the amended notice and grounds of appeal are incompetent and are hereby struck out. The same applies to arguments relating to same in the briefs xxxx.”
See also the decisions of this Court in the cases of ODELUGA V. ANIAKOR (2012) LPELR-19977(CA) and AKIYODE V. THE INCORPORATED TRUSTEES OF APOSTOLIC CHURCH LAGOS & WESTERN/NORTHERN AREA (2019) LPELR-48958(CA). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. PRINTS MAGNIFIQUE INTERNATIONAL LIMITED 2. MR. EJIMOFOR NNAMESIE ANAZIA 3. COLINA K. ANAZIA 4. ANAZIA NNAMESIE 5. ANAZIA SOCHUKWUMA APPELANT(S)
And
1. BANK OF INDUSTRY LIMITED 2. MR. VINCENT OSE AKHERE (Receiver) THE COMMISSIONER OF POLICE, DELTA STATE RESPONDENT(S)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 30/6/2017 by the Federal High Court, Asaba Judicial Division presided over by Hon. Justice O.E. Abang (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively).
The 1st and 2nd Respondents as Plaintiffs (hereafter to be simply referred to as “the Respondents”) commenced the instant action by an originating summons dated 29/4/2016 and filed on the same date. The questions which the said Respondents posed for the determination of the lower Court in the originating summons are: –
“1. Whether the 2nd Plaintiff having been duly appointed Receiver by the 1st Plaintiff of the mortgaged property of the Defendants situate at No. 1, Funayan Street, Off Nnebisi Road, Asaba, Delta State pursuant to and under a Mortgage Debenture (the Principal Deed) dated the 28th day of August, 2021 attached hereto as Exhibit “C” and a Deed of Collateral Mortgage dated the 10th May, 2012 attached as Exhibit “D” registered as No. 10 at page 10 in Volume MT. 37 of the Lands Registry in the Office at Asaba, Delta State is thereby entitled to carry out his duties as receiver which include entering into and taking possession of the mortgaged property for the purpose of selling same without any form of disturbance, hinderance and or harassment by the Defendants, their agents, servants and/or privies.
2. Whether the 2nd Plaintiff having been duly appointed Receiver by the 1st Plaintiff of all Assets of the 1st Defendant situate at No. 1, Funayan Street, Off Nnebisi Road, Asaba, Delta State pursuant to and under a Mortgage Debenture (the Principal Deed) dated the 28th day of August, 2021 attached hereto as Exhibit “C” and a Deed of Collateral Mortgage dated the 10th May, 2012 attached as Exhibit “D” registered as No. 10 at page 10 in Volume MT. 37 of the Lands Registry in the Office at Asaba, Delta State is thereby entitled to carry out his duties as Receiver which include entering into and taking possession of all the assets of the Defendants for the purpose of selling same without any form of disturbance, hinderance and or harassment by the Defendants, their agents, servants and/or privies.
3. Whether having regard to the provisions of Section (sic) 390, 391 and 393 of the Companies and Allied Matters Act, Cap C20, Laws of the Federation of Nigeria, 2004, a Receiver of any property duly appointed under the powers contained in an instrument such as the aforementioned pursuant to which the 2nd Plaintiff in the instant case is appointed Receiver, may apply to this Honourable Court for directives in relation to any particular matter arising from and/or connected with the performance of his duties and functions as receiver.
4. Whether given the failure, refusal and/or neglect of the 1st and 2nd Defendants to repay their debts owed the 1st Plaintiff (the Lender) under the aforementioned instruments are at law entitled to appoint a Receiver over their assets charged under the Mortgage Debenture between the 1st Plaintiff and the 1st Defendant dated 28th August, 2012 and the Deed of Collateral Mortgage between the 1st Plaintiff (Lender) and the 1st Defendant (as Borrower) and the 2nd Defendant (as Surety) dated the 10th May, 2012.”
If the questions are answered in the affirmative, the Respondents claim the following reliefs:
“1. A declaration that the 2nd Plaintiff by virtue of his appointment on 25th day of January, 2016 as Receiver of all the assets of the 1st Defendant pursuant to the Mortgage Debenture (the Principal Deed) dated the 28th August, 2012 and the Deed of Collateral Mortgage dated 10th May, 2012 both and registered at the Corporate Affairs Commission, Abuja is entitled to the exclusion of all the Defendants, their servants, agents or privies, howsoever described, to exercise the powers and carry out the duties as contained in the Deed of Appointment aforementioned.
2. A declaration that 2nd Plaintiff by virtue of his appointment on the 25th day of January, 2016 as Receiver of the mortgaged property of the Defendants situate at No. 1, Funayan Street, Off Nnebisi Road, Asaba, Delta State pursuant to and under a Mortgage Debenture (the Principal Deed) dated the 28th day of August, 2012 attached hereto as Exhibit “C” and a Deed of Collateral Mortgage dated 10th May, 2012 attached as Exhibit “D” registered as No. 10 at page 10 in Volume MT. 37 of the Lands Registry in the Office at Asaba, Delta State is vested with all the rights and interest in the mortgaged properties including the right of possession, collection of rents thereof and sale as contained in the Deed of Appointment dated 18th February, 2016 (Exhibit “K”).
3. An order permitting the 2nd Plaintiff in furtherance of all his powers and duties under and by virtue of the Deed of Appointment of Receiver dated 18th February, 2016 to enter into and take possession of the mortgaged property of the Defendants situate at No. 1, Funayan Street, Off Nnebisi Road, Asaba, Delta State pursuant to and under a Mortgage Debenture (the Principal Deed) dated the 28th day of August, 2012 attached hereto as Exhibit “C” and a Deed of Collateral Mortgage dated 10th May, 2012 attached hereto as Exhibit “D” registered as No. 10 at page 10 in Volume MT. 37 of the Lands Registry in the Office at Asaba, Delta State for the purpose of selling same and applying the sum realized therefrom towards the liquidation of the Defendants’ outstanding indebtedness to the 1st Plaintiff and for the purpose of transferring and putting into possession the purchaser of the property.
4. An order permitting the 2nd Plaintiff to enter into and take immediate possession of all other assets of the 1st Defendant for the purpose of selling same and applying the sum realized therefrom towards the liquidation of the Defendants’ outstanding indebtedness to the 1st Plaintiff.
5. An order directing and/or mandating the Commissioner of Police, Delta State Police Command together with officers and men of the Nigeria Police Force under his command to accompany and provide adequate and commensurate protection for the 2nd Plaintiff to enter into and take possession of the mortgaged property and all other assets of the Defendants as set out hereinbefore and to further secure the property and assets after possession of same has been taken.
6. An order of injunction restraining the Defendants whether by their servants, agents or privies, howsoever described from interfering with the exercise of the powers of the 2nd plaintiff or any ancillary duties as may become necessary for the proper performance of his duties as contained in the Deed of Appointment aforementioned.”
The Appellants were the 1st – 5th Defendants in the originating summons; while the party now described as:
“1. Commissioner of Police, Delta State – DEFENDANT”
in the notice of appeal was the 6th Defendant in the said originating summons.
The records disclose that consequent to a motion ex-parte filed on 29/4/2016, by the Respondents, the lower Court on 21/6/2016, granted series of interim orders in the instant action. See the enrolled order on page 636 of the records.
On page 460 of the records is another motion ex-parte dated 30/6/2016 and filed on 1/7/2016. Therein, the Respondents sought for the following orders: –
“1. Leave of Court to serve all the processes in this Suit on the 1st Defendant at her new address at No. 8 Usonia Road, Off Nnebisi Road, Asaba, Delta State rather than No.1, Funayan Street, Off Nnebisi Road, Asaba, Delta earlier provided as address for service on the said Defendant.
2. Leave to serve the 2nd – 5th Defendants in this suit by substituted service, i.e. by delivery of the said processes to the Press Manager or any principal officer of the 1st Defendant at the 1st Defendant’s new address at No. 8, Usonia Road, Off Nnebisi Road, Asaba being the usual place of business of the 2nd – 5th Defendants.
Having regard to the records, the motion ex-parte in question was granted by the lower Court on 8/7/2016. Apparently, upon being served with the processes in the instant case, the Appellants entered a conditional appearance therein. See page 478 of the records. The memorandum of conditional appearance is dated 9/8/2016, and filed on 12/8/2016. On the same 12/8/2016, the Appellants brought a motion on notice wherein they sought for the following: –
“1. Setting aside of all the processes in respect of the suit No. FHC/ASB/CS/21/2016 pending in this Honorable Court for want of jurisdiction.
2. Setting aside the interim execution in the aforestated suit for want of jurisdiction.”
It is disclosed in the motion in question that: –
“1. the challenge on jurisdiction is based on the fact that there was no service on and/or the purported service is contrary to the defendants and in that regard, everything done is a nullity.
2. this action was improperly initiated in the Federal High Court which is bereft of the jurisdiction to entertain such matters.”
See pages 467-471 of the records for the motion on notice and supporting affidavit as well as pages 472-482 for the written address in support of the said motion.
The Respondents filed counter affidavits to the motion and written address in opposition to the Appellants’ motion under reference.
The lower Court subsequently entertained the Appellants’ motion on 11/11/2016; and on 2/12/2016, delivered its ruling therein, per Faji, J. The motion of the Appellants was dismissed in its entirety. See pages 643-654of the records.
Apparently, being dissatisfied with the ruling of 2/12/2016, the Appellants filed an ex-parte motion for leave to appeal against the same. The lower Court per Faji, J; found the motion in question to be incompetent; and ordered that the other side be put on notice. The matter was thereafter adjourned till 16/1/2017, for the hearing of the motion on notice for leave to appeal at the instance of Appellants’ counsel. See pages 688-689 of the records.
The motion in question next came up on 2/3/2017. It was adjourned at the instant of Appellants’ counsel. The motion came up again on 3/4/2017, before the lower Court presided over by Abang, J. The motion was found to be incompetent as it was placed for hearing after the period within which the leave sought can be granted, had expired. The motion in question was struck out and the Respondents’ originating summons was adjourned till 24/4/2017 for hearing. The proceedings of the lower Court on 5/6/2017, on pages 700-703, is not only a mixed bag as it were, but would appear not to be complete; as it was not signed by the learned trial Judge. However, it is clear therefrom, that as at the said 5/6/2017, the Appellants had not lodged any appeal against the ruling of the lower Court delivered on 2/12/2016. On pages 704-705 of the records, it is shown that the lower Court delivered its judgment in the originating summons of the Respondents on 30/6/2017. The judgment of the lower Court in question spans pages 727-744 of the records. Having stated the facts of the case from pages 735-739, the lower Court, dwelling with specific reference to the Appellants stated thus: –
“The 1st defendant was served with the originating processes on the 27th of June, 2016. The affidavit of service in the Court’s file is dated 27th June, 2016. On 8th of July, 2016, the 1st to 5th defendants were further served with other Court’s processes. The affidavit of service is dated 11th of July, 2016. The 1st to 5th defendants were served hearing notice dated 11th of January, 2017 on the 2nd of February, 2017. The affidavit of service is dated 6th of February, 2017. The 1st to 5th defendants for a period of 12 months failed to file their counter affidavit to the plaintiffs’ originating summons. It is deemed that the facts are admitted by them and Court requires no further proof. It is important to point out here that the 1st to 5th defendants made effort to appeal the interlocutory decision of this Court differently constituted dated 2nd December, 2016. No appeal was filed. They brought a motion to seek leave to appeal the decision of Court dated 2nd December, 2016. In fact the motion was filed on the day the prescribed period to appeal the interlocutory decision elapsed that is on the 16th of December, 2016. The motion the defendants were unable to successfully argue. In fact the application was struck out on the 3rd of April, 2017. In the bench rulings delivered by the Court on 3rd of April, 2017 and 5th of June, 2017, it explained the bold attempt by the defendants to frustrate the proceedings in this matter. In any event, the defendants failed to challenge the case of the plaintiffs when they had the opportunity to do so. Therefore, they have themselves to blame.
I have considered the unchallenged facts of this case so also the unchallenged written address of the plaintiffs.
This is moment of truth.
xxxx
In the final analysis, the plaintiffs’ claims deserve to succeed and it is accordingly granted as prayed.
I grant prayers 1, 2, 3, 4, 5 and 6 as endorsed on the plaintiffs’ originating summons dated 29th of April, 2016. I so hold.
Costs of N50,000.00 (fifty thousand naira) is hereby awarded in favour of the plaintiffs’ (sic) payable by the defendants forthwith.
I so hold.”
Being aggrieved with the judgment of the lower Court, the Appellants lodged two notices of appeal at the registry of the lower Court, in the instant case. The notices of appeal were lodged on 4/7/2017 and 3/8/2017, respectively. The appeal was however argued on the basis of the notice of appeal filed on 3/8/2017, and which is contained in the “supplementary record” transmitted to this Court on 31/8/2017. See pages 1-5 thereof. The notice of appeal contains five grounds of appeal. The grounds of appeal without setting out their respective particulars at this stage, read: –
“GROUND 1
The learned trial Judge misdirected himself when he held that the Defendants/Appellants were served with the originating processes on 27th June, 2016 and that on the 8th of July, 2016, the 1st to 5th Defendants were served with other processes.
GROUND 2
The proceedings that culminated in the judgment of the lower Court were conducted without jurisdiction as there was no proper service of the originating processes and other processes on the 1st Defendant/Appellant.
GROUND 3
The learned trial Judge erred in law when he held that the Plaintiffs/Respondents need no further proof in establishing their case because the failure of the Defendants to file a counter-affidavit is deemed as an admission of all the facts averred by the Plaintiffs/Respondents in support of their originating summons.
GROUND 4
The learned trial Judge erred in law when he held that the 2nd Plaintiff/Respondent was duly appointed as Receiver of the 1st Defendant on the strength of Exhibit L being the Letter of Appointment dated 25/1/2015 and Exhibit K being the Deed of Appointment made on 18/2/2016.
GROUND 5
The learned trial Judge erred in law for doing no evaluation of Exhibit I being the Letter of Appointment of the Receiver dated 25/1/2015 to determine the capacity of the 2nd Plaintiff/Respondent to maintain this suit against the Defendants/Appellants thereby making his eventual declarations of the 2nd Plaintiff/Respondent perverse.”
The reliefs which the Appellants seek as contained in the notice of appeal are to the effect that this Court should allow the appeal and set aside the decision/judgment of the lower Court, appealed against.
The appeal was entertained on 2/6/2020, and parties adopted their respective briefs of argument in aid of their respective positions in the said appeal. Appellants’ brief of argument is undated but was filed on 30/10/2017. Appellants’ reply brief of argument is dated 24/1/2018 and filed on 29/1/2018. Both briefs of argument were settled by learned counsel who argued the appeal for the Appellants – Habeeb Lawal, Esq.
Amended Respondents’ brief of argument (hereafter to be simply referred to as “Respondents’ brief”) is dated 12/1/2019, and filed on 29/1/2019, but deemed to have been properly filed on 10/3/2020. The brief was settled by A.Y. Thomas who argued the appeal for the Respondents.
A lone issue was formulated by the Appellants for the determination of the appeal in their brief of argument. The issue is: –
“Whether there was proper service of the originating process on the 1st Appellant? (Grounds 1 & 2).”
The Respondents equally formulated a lone issue for the determination of the appeal in their brief of argument. It reads: –
“Whether the 1st Appellant was not properly served with the originating summons and other processes in this suit resulting in this appeal.”
In their brief of argument, the Respondents raised what they described or titled a preliminary objection (hereafter to be simply referred to as “P.O.”) to the hearing of the instant appeal. By the so called P.O., the Respondents stated that they will at the hearing of the appeal: –
“contend that this appeal is incompetent and ought to be dismissed on the ground that grounds 1 & 2 of the Appellants’ grounds of appeal do not emanate from the judgment of the trial Court.”
As the so called P.O. targeted only grounds 1 and 2 of the grounds of appeal, and in the knowledge that the grounds of appeal contained in the notice of appeal are more than 2, the Court at the hearing of the appeal made it clear to the parties that as the success of the so called P.O. was not going to snuff out the life of the appeal, the same would not be taken as a P.O., but as a challenge to the propriety or properness of the issue formulated for the determination of the appeal and which can be attacked otherwise than by a P.O. See the case of CBN V. HARRIS (2017) LPELR-43538(CA).
This is however not to say that the issue must first be reviewed before its propriety or properness can be pronounced upon. This is particularly so in the light of the situation on ground in the instant appeal, as reflected in the brief of argument of the Appellants. The situation is that the Appellant having regard to their brief of argument formulated only one issue for the determination of the instant appeal and the said issue was expressly stated to have been distilled from grounds 1 and 2 out of the 5 grounds of appeal in the notice of appeal. The Appellants did not formulate any issue from each of grounds 3, 4 and 5 of the grounds of appeal in the notice of appeal; or an issue to cover the said grounds; and which grounds have been re-produced hereinbefore. The position of the law from ancient times till present time, is that where an appellant does not formulate any issue from any of the ground(s) of appeal in a notice of appeal, such ground(s) from which an issue or no issues has or have been formulated, is/are deemed abandoned; and must be struck out. In this regard see the case of HUSSENI V. MOHAMMED (2014) LPELR-24216(SC) wherein the Supreme Court per Ngwuta, JSC; said: –
“Appeal is decided upon the issue formulated for determination from the grounds of appeal. When an issue is formulated, the grounds of appeal upon which the issue is based is extinguished as it were and replaced by the said issue. A ground of appeal must have an issue to cover it and an argument is proffered to cover the issue. Any ground of appeal not having any argument proffered on the issue framed therefrom is deemed abandoned and ought to be struck out. xxxx
Consequently, issue 1, 3 and 4 in the appellants brief and grounds 1, 2, 3 and 4 in the amended notice and grounds of appeal are incompetent and are hereby struck out. The same applies to arguments relating to same in the briefs xxxx.”
See also the decisions of this Court in the cases of ODELUGA V. ANIAKOR (2012) LPELR-19977(CA) and AKIYODE V. THE INCORPORATED TRUSTEES OF APOSTOLIC CHURCH LAGOS & WESTERN/NORTHERN AREA (2019) LPELR-48958(CA).
Given all that has been said before now, and guided by the position of the law as enunciated in the cases cited above, I do not see any option available to me than to strike out the grounds of appeal in the notice of appeal from which the Appellants have refused and or neglected to formulate an issue covering all of them; or an issues in respect of each of them (i.e. ground 3, 4 and 5 of the grounds of appeal in the notice of appeal). The said grounds are hereby struck out.
As stated hereinbefore, the challenge to the lone issue formulated by the Appellants for the determination of the appeal (and which I have stated hereinbefore need not be raised by a P.O.), is that the said lone issue is incompetent as it has been distilled from grounds of appeal that do not flow from the judgment of the lower Court, on appeal.
The Appellants responded to the challenge to the issue they have formulated for the determination of the appeal and which they have duly argued in their brief of argument from paragraphs 1.1.2-1.1.4 of their reply brief of argument. I will re-produce the content of the paragraphs in question as I won’t want to be accused of not appreciating the submission of the Appellants on the issue, properly. The paragraphs read: –
“1.1.2. We modestly submit that a ground of appeal must not only arise from the text of the judgment of a lower Court (ipsissima verba) as posited by the respondents, it may, it could and it often arises from other situations like; the procedure under which the claim was initiated; the procedure under which the decision was rendered; other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates; commission or omissions by the Court from which an appeal emanated in either refusing to do what it ought to do or doing what it ought not to do or even in overlooking the act complained of. See Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421 S.C.
1.1.3. My lords, it could easily be gleaned from grounds 1 and 2 (see pages 2 to 4 of the supplementary record) and the sole issue distilled for determination in the appellants’ brief from these two grounds (whether there was proper service of the originating process on the 1st appellant) that the complaint of the appellants arises from the procedure under which the decision of the lower Court was rendered.
1.1.4. What is more, the main plank of the appellants’ grounds 1 and 2 borders on the issue of service. It is settled that an issue of service is jurisdictional in nature and it could even be raised for the time on appeal. See xxx. We therefore respectfully contend that assuming but without conceding that appellants’ grounds 1 and 2 did not emanate from the judgment of the trial Court, the law permits an aggrieved appellant to appeal on the ground that the lower Court lacks jurisdiction to entertain the case.”
It is not in doubt, that the lower Court mentioned some things or facts in respect of the Appellants in its judgment appealed against. I have before now re-produced a portion of the judgment of the lower Court containing what the said Court said concerning the Appellants. I consider it expedient to re-produce the same again for ease of reference. It goes thus: –
“The 1st defendant was served with the originating processes on the 27th of June, 2016. The affidavit of service in the Court’s file is dated 27th June, 2016. On 8th of July, 2016, the 1st to 5th defendants were further served with other Court’s processes. The affidavit of service is dated 11th of July, 2016. The 1st to 5th defendants were served hearing notice dated 11th of January, 2017 on the 2nd of February, 2017. The affidavit of service is dated 6th of February, 2017. The 1st to 5th defendants for a period of 12 months failed to file their counter affidavit to the plaintiffs’ originating summons. It is deemed that the facts are admitted by them and Court requires no further proof. It is important to point out here that the 1st to 5th defendants made effort to appeal the interlocutory decision of this Court differently constituted dated 2nd December, 2016. No appeal was filed. They brought a motion to seek leave to appeal the decision of Court dated 2nd December, 2016. In fact the motion was filed on the day the prescribed period to appeal the interlocutory decision elapsed that is on the 16th of December, 2016. The motion the defendants were unable to successfully argue. In fact the application was struck out on the 3rd of April, 2017. In the bench rulings delivered by the Court on 3rd of April, 2017 and 5th of June, 2017, it explained the bold attempt by the defendants to frustrate the proceedings in this matter. In any event, the defendants failed to challenge the case of the plaintiffs when they had the opportunity to do so. Therefore, they have themselves to blame. xxxx”
It has also been stated hereinbefore that the Appellants on 12/8/2016, brought a motion on notice wherein they sought for: (i) the setting aside of all the processes in respect of the Suit No. FHC/ASB/CS/21/2016 pending in this Honorable Court for want of jurisdiction and (ii) the setting aside of the interim execution in the aforestated suit for want of jurisdiction; and that the grounds for the said motion on notice are: (i) “the challenge on jurisdiction is based on the fact that there was no service on and/or the purported service is contrary to the defendants and in that regard, everything done is a nullity”; and (ii) this action was improperly initiated in the Federal High Court which is bereft of the jurisdiction to entertain such matters. The lower Court though presided over at that time by Faji, J; on 2/12/2016, dismissed the said motion brought by the Appellants in its entirety.
In my considered view, it is clear as crystal that when the decision of the lower Court delivered on 2/12/2016, is juxtaposed with the narration by the said Court in respect of the Appellants as contained in the portion of its judgment re-produced above, it is a clear and total misapprehension of the judgment of the lower Court for the Appellants to have conceived that the said Court made any independent or new finding in relation to service of any process (whether originating or other kind of process) on them in its judgment appealed against. The lower Court made no such finding(s). It only expressed as it were, that the position of service on the Appellants of the originating process and other processes filed and served in the Respondents’ originating summons, remained inviolate and binding on it. This is because the Appellants never appealed against the same. The position of the law is settled as to the bindingness of any decision of a Court (whether interlocutory or final) on the parties to an action; and indeed the Court itself, and which decision a party aggrieved with the same has not succeeded in upturning on appeal. Unless the Appellants are now saying that the word “all” used in their motion which the lower Court ruled upon and dismissed on 2/12/2016, did not include the originating process in the instant case, (and which position is obviously untenable), it follows that the lower Court was bound by the position it had earlier taken in respect of the service of all processes in the instant matter on the Appellants and that all the lower Court did in its judgment was to apply the position as found to be the case on 2/12/2016, to the situation of the Appellants in its judgment. The lower Court ex-facie the judgment appealed against never made or never came to any decision of its own regarding the proper service or otherwise of any of the processes that issued in the Respondents’ originating summons on the Appellants. This is not a situation in which the lower Court can be said to have re-opened the issue of the service of any of the processes that issued in the originating summons of the Respondents, on the Appellants in the judgment appealed against, talk less of having come to an independent decision thereon and which decision ended up to be different from the decision given in the Appellants’ motion by the same Court on 2/12/2016. The sole issue for the determination of the instant appeal formulated by the Appellants and argued by the said Appellants in their brief of argument therefore clearly did not flow from any aspect of the decision of the lower Court in its judgment on appeal. In other words, the grounds of appeal on which the said issue was predicated clearly do not arise from the judgment delivered by the lower Court on 30/6/2017. The judgment of the lower Court delivered on 30/6/2017, and the ruling of the said Court delivered on 2/12/2016, in which the lower Court found nothing wrong with the service of all the processes that were served on the Appellants in the originating summons of the Respondents, are separate and distinct; and one is not extrinsic to the other as the Appellants would want this Court to find in order to give its stamp of approval as it were, to the sole issue they formulated for the determination of the instant appeal and thereby to hold the same to be proper. The Appellants in my considered view and in the knowledge that they never appealed against the “jurisdictional issue of service” raised by them in their motion and which was dismissed on 2/12/2016, simply wanted to ride rough shod on the position of jurisdiction in any adjudication, without appreciating the fact that the issue of jurisdiction based on improper service or non-service in the instant case was sealed permanently against them for as long as they never did the needful regarding the matter at the appropriate time, and that they cannot now surreptitiously raise the same through the judgment of the lower court in which the said court not only simply re-stated the position in the instant case as it relates to the Appellants, in its own words; but in strict conformity with the decision of the same court in relation thereto, on 2/12/2016. As pivotal as the issue of jurisdiction is to adjudication, the Appellants would appear not to realise the position of the law that the raising of the said issue must itself be properly done. See the case of CBN V. OKONKWO (2012) LPELR-20435(CA) wherein this Court had cause to state that: –
“xxxxxx. As fundamental as jurisdiction is to proper adjudication, the issue of jurisdiction by its very nature must be placed before the Court for determination by processes that are regularly or properly before the Court for that purpose. See OKONKWO V. CBN (2012) All FWLR (Pt.605) 293.”
I am of the considered view that it is not for this Court to embark upon lecturing the Appellants as to the procedure they ought to have taken in the event they thought it expedient to have appealed against the decision of the lower court on 2/12/2016, in the instant appeal. Simple research into decided cases would have shown the Appellants the way forward in this regard. The Respondents’ challenge to the propriety or properness of the sole issue for the determination of the instant appeal formulated by the Appellants in the circumstances, is highly meritorious.
Appeals are argued on issues and not on grounds of appeal. The Appellants herein in the circumstances have glaringly argued their appeal on a sole issue which does not flow in any respect from the judgment appealed against. Having argued their appeal on the sole issue in question and the said issue having been found not to have arisen from any aspect of the decision of the lower Court delivered on 30/6/2017, it follows that the appeal is liable to be dismissed for having been argued on an issue which does not flow from the judgment of the lower Court. This leaves the challenge against the judgment of the lower Court delivered on 30/6/2017, unsubstantiated. See in this regard the case of ODELUGA V. ANIAKOR (supra).
In the final analysis, the instant appeal is highly unmeritorious and it fails. It is hereby dismissed. The judgment of the lower court entered in favour of the Respondents herein on 30/6/2017, is hereby upheld.
Costs of N200,000.00 is awarded in favour of the Respondents and against the Appellants, jointly and severally.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: My Lord, Ayobode Olujimi Lokulo-Sodipe, JCA availed me the benefit of reading in draft his lead Judgment and I agree that the appeal has no merit.
The appeal argued on an issue not supported by any extant valid Ground of appeal had no pedestal and therefore the Court had no jurisdiction to sail.
Indeed, the issue and its argument having no root or trace to the judgment had erected itself as an octaypus in the whirl of the ocean with no magnetic field created in the judgment sought to be impugned. The Judgment, remaining unmaligned, subsists and the appeal is dismissed.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA, and I am in agreement with reasoning and conclusion reached in the Judgment therein.
It is trite that where issues or an issue argued in an appeal does not flow from the Judgment of the lower Court, it is fatal to the viability of the appeal and same is liable to be dismissed. See IROAGANCHI V. MADUBUKO & ANOR (NO 10) LPELR 40048 CA. OSSAI V FRN (2013) BURN 87.
I join my learned brother in dismissing the appeal.
I also abide by all consequential orders in the Appeal.
Appearances:
Habeeb Lawal with him, A. P. Obarugbi For Appellant(s)
Y. Thomas For Respondent(s)
