ALPHA PROPERTIES INTERNATIONAL LTD V. FIRST MOTORS LTD.
(2010)LCN/3746(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of April, 2010
CA/L/539M/09
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
ALPHA PROPERTIES INTERNATIONAL (LTD) Appellant(s)
AND
FIRST MOTORS LTD. Respondent(s)
RATIO
WHETHER OR NOT THE COURTS CAN GRANT AN APPLICATION WHERE DOING SO WILL HAVE AN EFFECT OF DETERMINIG THE SUSBTATIVE APPEAL
It is trite that courts are enjoined to refrain from granting an application where doing so will have the practical effect of determining the substantive appeal. See Icon Ltd (Merchant Bankers) Y. FBN (Merchant Bankers) Ltd (1995) 6 NWLR (Pt. 401) 370 Fasehun V. A.G. Federation (2006) 6 NWLR (Pt. 975) 141 Uhembe v. Away (2006) 7 NWLR (Pt. 978) 1. PER JAURO, J.C.A.
HON. JUSTICE ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): By an application dated 18/11/09 and filed on 19/11/09, the applicant herein prayed this court for the following reliefs:
2. AN ORDER striking out the Notice of Appeal dated 2nd July, 2009 which the Appellant claimed to have filed as part of the Records of Appeal in this Appeal No. CA/L/539/09 when it is in fact not so.
3. AN ORDER suspending the Order of the trial Court adjourning the case sine die in so far as Contempt of Court proceedings in the lower court are concerned and since this Court does not have an original jurisdiction to try Contempt in the lower Court.
4. AN ORDER directing the trial Court to continue with the Contempt of Court committed before it.
AND
5. For such further or other Order or Orders as this Honourable Court may deem fit to make in the circumstances.”
It is to be noted that prayer number one was withdrawn by the applicant and consequently struck out by this Court on 8/12/09. The four grounds numbered (a) – (d) upon which the application is anchored and their necessary particulars have been stated on pages 2 to 5 of the motion paper.
The application is supported by an affidavit of 21 paragraphs deposed to by Kazeem O. Lukman, a legal practitioner in the law firm of Abiodun Adesanya & Co, with documentary exhibits marked ‘KOL 1’, ‘KOL 3’, ‘KOL 3A’, ‘KOL 4’, ‘KOL 5’ and ‘KOL 6’. In further support of the application is a further affidavit of 6 paragraphs deposed to by Kehinde Yekeen of the same law firm with one exhibit marked ‘KY 2’. In opposition to the application the respondent filed a counter affidavit of 5 paragraphs deposed to by David Udoh, a litigation officer in the law firm of Rickey Tarfa & Co. with one annexture marked exhibit ‘A’.
In moving the application, Prof. S.A. Adesanya SAN leading Mr. K. Yakeen for the applicant, stated that the first relief is seeking for an order striking out the notice of appeal dated 2/7/09 and attached to the application as exhibit ‘KOL 3’. The learned senior counsel contends that the notice of appeal in contention contains two grounds of appeal which are complaints against an order to consolidate proceedings. Learned senior counsel further contended that an order to consolidate proceedings is a practice direction and having not determined the rights of the parties, it is not a decision within the contemplation of Section 277 of the 1999 Constitution. In support of this submission, reference was made to the case of United Agro Ventures Ltd v. First City Merchant Bank Ltd (1998) 4 NWLR (Pt. 547) 546. Consequent upon the foregoing submissions, learned senior counsel posited that the grounds of appeal in the said notice of appeal, are not against a decision but practice direction, hence not appealable. Learned senior counsel submitted that to the extent that the grounds are against practice directions which are not appealable, it means there are no grounds of appeal to support the notice of appeal. In consequence, learned senior counsel urged this court to strike out the notice of appeal for being incompetent.
Learned senior counsel submits that the third leg of the application is in relation to an order suspending the adjournment sine die made in relation to contempt proceedings in the lower court, so that the court can proceed to determine same. Learned senior counsel submitted that this court has no jurisdiction to try contempt proceedings, and it is only when the lower court has determined the contempt proceedings that the jurisdiction of this court will be activated. Learned senior counsel posited, that the trial court suspended the contempt proceedings and adjourned same sine die, when it was misled into believing that there was an appeal against the contempt proceedings. Learned senior counsel stated that. he has appealed against the ruling refusing to proceed with the contempt proceedings and the notice of appeal is attached as exhibit ‘KOL 6’. In concluding, learned senior counsel urged that an order be made suspending the adjournment sine die, so that the contempt proceedings can be determined by the trial court.
In opposing the application, Mrs. O.T. Opara leading A.J. Obayabana (Miss), for the appellant/respondent, stated that they filed a counter affidavit of five paragraphs on 3/12/09. Learned counsel stated that the application is not related to the present appeal and that reliefs 2, 3 and 4 are incompetent. Learned counsel made reference to paragraphs 3(iv) (v) and (vii) of the counter affidavit and submits that reliefs 3 and 4 are premised on exhibit ‘KOL 6’, the notice of appeal dated 17/11/09. Learned counsel contended that the learned senior counsel lumped three different notices of appeal in this appeal without an order consolidating the appeals. As to the objection to the notice of appeal as in prayer two, learned counsel submitted that it has to be by way of preliminary objection and it is only then, that the court can take the objection. Learned counsel submitted that the objection as it is, is therefore premature. In support of this contention, reference was made to the following cases:
SCOA (Nig) Plc v. Danbatta (2002) 13 NWLR (Pt. 788) 461 at 466, A.G. Federation v. Abubakar (2002) 5 NWLR (Pt. 760) 340 and Magnusson v. Koiki (1993) 9 NWLR (Pt. 317) 287 @ 296. In concluding. Learned counsel urged the court to refuse the application.
Replying on points of law, Prof. Adesanya SAN, submitted that the respondent cannot rely on Order 4 Rule 11 of the Rules of Court, as no appeal has been entered in respect of contempt proceedings. Learned senior counsel submitted that the competence of the application is a question of law and not of facts to be determined in the affidavit. Learned senior counsel urged that the application be granted as prayed.
The facts giving rise to this application can be briefly summarized thus: The applicant herein upon filing its originating processes, obtained an interim order of injunction against the respondent in respect of plot. A, Ahmadu Bello Way, Victoria Island Layout, Lagos. On being served the originating processes, the respondent filed a preliminary objection praying for the dismissal of the action, a counter affidavit to the motion for interlocutory injunction and an application to set aside the interim injunction. The applications were consolidated and heard, in its ruling dated 31/3/09 the trial court dismissed the preliminary objection and granted the order for interlocutory injunction. Aggrieved by the said ruling, the respondent appealed against it vide notice of appeal dated 14/4/09 and the appeal entered as number CA/L/539/09.
Subsequently the respondent filed an application for stay of proceedings, while the applicant initiated contempt proceedings against the respondent. The trial court consolidated the application for stay of proceedings with the contempt proceedings and adjourned same to 6/7/09 for hearing. The respondent filed another appeal vide notice of appeal dated 2/7/09 against the order consolidating the two proceedings. The trial court thereafter suspended/adjourned the contempt proceedings sine die. The applicant on the other hand, appealed against the ruling dated 17/11/09 refusing to set aside the adjournment sine die of the contempt proceedings vide notice of appeal dated 18/11/09 and filed 19/11/09. The application at hand seeks for the striking out of the 2nd notice of appeal dated 2/7/09 filed by the respondent, and an order suspending the adjournment sine die of the contempt proceedings.
As can be seen from the last two preceding paragraphs, the notices of appeal involved in this case are three, namely:
(i) The notice of appeal against the dismissal of the preliminary objection and the order for interlocutory injunction dated 14/4/09 and entered as appeal number CA/L/539/09.
(ii) The notice of appeal dated 2/7/09 filed by the respondent against the order consolidating the contempt proceedings and the application for stay of proceedings and
(iii) The notice of appeal dated 18/11/09 filed by the applicant against the ruling dated 17/11/09 refusing to set aside or suspend the adjournment sine die in respect of the contempt proceedings. The three notices of appeal have so far not been consolidated, and only the first one has been entered as appeal number CA/L/539/09.
The relief sought in prayer two of the instant application is the striking out of the 2nd notice of appeal dated 2nd July, 2009. The ground upon which the prayer was anchored is the fact that the notice of appeal was not against a decision but a practice direction, hence not appealable. In support of this contention, the learned senior counsel placed reliance on the case of United Agro Ventures Ltd v. First City Merchant Bank Ltd (supra). Learned counsel for the respondent contended that all the prayers sought in this application are incompetent as they cannot be accommodated in this appeal. Learned counsel further argued that prayer 2 is premature and it ought to have been raised by way of preliminary objection to the appeal. Learned counsel placed reliance on the following cases: SCOA (Nig) Plc v. Dambatta (supra), A.G. Federation v. Abubakar (supra) and Magnusson v. Koiki (supra).
I have painstakingly studied the case of United Agro Ventures Ltd v. First City Merchant Bank Ltd (supra). The case has dealt with what amounts to a ‘decision’ within the contemplation of Section 277 of the Constitution, and meticulously distinguished a ‘decision’ from a ‘practice direction’. The relief sought in prayer 2, is against the grounds of appeal contained in the notice of appeal dated 2/7/09. The relief sought can conveniently be taken by way of preliminary objection during the hearing of the appeal. See SCOA (Nig) Plc v. Dambatta (supra); A-G. Federation v. Abubakar v. Abubakar (supra) and Effiong v. Ironbar (1998) 13 NWLR (Pt. 582)367. To the extent that appeal has not been entered in respect of notice of appeal dated 2/7/09, the relief sought is premature.
At this juncture, I deem it also necessary to refer to paragraph. 3(iv) (v) (vii) and (viii) of the counter affidavit, which are hereby reproduced thus:
iv. The reliefs 2, 3 and 4 of the Respondent’s motion dated 18/11/09 and filed 19/11/09 is incompetent.
v. the Appellant’s Notice of Appeal dated 2/07/09 can not be accommodated or dealt with in this Appeal as there is no order of consolidation of the Appeals.
vi. the 3rd and 4th Reliefs of the Respondent’s motion are incompetent as they are premised on the Respondent’s Notice of Appeal dated 17/11/09 attached to the Respondent’s Motion as Exhibit KOL 6.
vii. the 3rd and 4th reliefs of the Respondent’s motion can only be competent when brought under another Appeal not this Appeal by virtue of the Respondent’s Notice of Appeal dated 17/11/09.’
The above paragraphs have so far not been countered, so they are deemed admitted as true. See Azeez v. State (1986) 2 NWLR (Pt. 23) 541. Flowing from the foregoing therefore, it means the appeal dated 2/7/09 is not part of appeal number CA/L/539/09, nor consolidated with the said appeal. Consequently the application to strike out the said notice cannot be said to be competent as it cannot be accommodated in this appeal. As for the two other reliefs, there is already a notice of appeal dated 18/11/09 filed by the applicant against the ruling refusing to set aside the adjournment sine die. To my mind, to take the application now or grant same will amount to determining the appeal dated 18/11/09 at an interlocutory stage. It is trite that courts are enjoined to refrain from granting an application where doing so will have the practical effect of determining the substantive appeal. See Icon Ltd (Merchant Bankers) Y. FBN (Merchant Bankers) Ltd (1995) 6 NWLR (Pt. 401) 370 Fasehun V. A.G. Federation (2006) 6 NWLR (Pt. 975) 141 Uhembe v. Away (2006) 7 NWLR (Pt. 978) 1.
In view of the foregoing, the application is lacking in merit and is hereby refused. There will be no order as to costs.
CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the ruling just delivered by my brother Adamu Jauro J.C.A. I agree that the application at hand is greatly lacking in merit and I also refuse and dismiss same in the like terms of the lead ruling of my brother inclusive of the order made as to costs.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the ruling just delivered by my learned brother, Jauro JCA. I agree with the reasoning contained therein and the conclusion arrived thereat. The application is without merit and ought to be refused. Accordingly same is refused. I make no order as to cost.
Appearances
Prof. S. A. Adesanya, SAN;
Mr. K. YakeenFor Appellant
AND
Mrs. O.T. Opara;
A. J. Obayabana (Miss)For Respondent
