AFRICAN PETROLEUM PLC v. ALBERT ADENIYI & ORS
(2011)LCN/4374(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of March, 2011
CA/A/216/M/03
RATIO
GROUND OF APPEAL: WHETHER OR NOT GROUND OF APPEAL AGAINST A DECISION MUST OF NECESSITY RELATE TO THE DECISION AND BE BASED ON THE ISSUES IN CONTROVERSY OR CANVASSED IN THE COURT BELOW
It is settled principle of law in a catalogue of decided cases by the Appellate Courts that ground of appeal against a decision must of necessity relate to the decision and be based on the issues in controversy or canvassed in the court below. Where a ground of appeal cannot be circumscribed within a particular issue in controversy in a judgment or decision, such a ground of appeal cannot justifiably be regarded as related to or arising from the decision. See: Saraki & Others v. Kotoye (1992) 47 NWLR (Pt 351) 414 at 446; See also Abiola v. Abacha (1991 6 NWLR (Pt 509) 413; Bello v. Aruwa (1999) 8 NWLR (Pt 615) 454; Metal Construction (WA) Ltd. v. Migliore 1990 1 NWLR (Pt126) 299 SC. PER REGINA OBIAGELI NWODO, J.C.A.
POWER OF THE COURT: WHETHER A TRIAL JUDGE HAS A DISCRETION TO MAKE AN ORDER TO DETERMINE TWO APPLICATIONS FILED BEFORE HER TOGETHER AND ALSO ENJOYS INHERENT POWER TO VARY THE ORDER
The order to hear two processes filed before one court is a measure adopted for the convenience of parties, for saving cost and for the avoidance of determination of the substantive matter at the interlocutory stage. The trial Judge has a discretion to make an order to determine two applications filed before her together and also enjoys inherent power to vary the order. See Mbaegnusi Obiekweife Ors v. Unumma & Anor 1957 2 FSC 70. PER REGINA OBIAGELI NWODO, J.C.A.
JUDGEMENT AT AN INTERLOCUTORY STAGE: WHETHER A COURT MUST ALWAYS BE CAUTIOUS IN ITS JUDGEMENT AT AN INTERLOCUTORY STAGE TO AVOID MAKING A PRONOUNCEMENT OR OBSERVATION ON THE FACTS WHICH MIGHT APPEAR TO DETERMINE THE MAIN ISSUE OR ISSUES
It is settled law that a court must always be cautious in its judgment at an interlocutory stage to avoid making a pronouncement or observations on the facts which might appear to determine the main issue or issues. See Olukwu v. Governor of Lagos State (1986) 2 NWLR (Pt 26) Pg 39. NDIC v. SBN Plc (2003) 1 NWLR (Pt 80)1 Pg.311 Iweka v. SCOA (Nig.) Ltd. (2000) 7 NWLR (Pt 664) Pg 325. PER REGINA OBIAGELI NWODO, J.C.A.
JURISDICTION: WHETHER THE ISSUE OF JURISDICTION SHOULD BE CONSIDERED FIRST AND PRONOUNCED UPON BEFORE THE DETERMINATION OF THE SUBSTANTIVE MATTER
The inherent power to combine hearing of an interlocutory application and the petition cannot be faulted. It was a discretion bordering on case management. What is paramount is that once there is an application challenging competency of an action or jurisdiction of the court, the issue of jurisdiction must be considered first and a view pronounced before consideration of the substantive matter. The rationale is that any order made in a matter where the court does not have jurisdiction amounts to a nullity as jurisdiction is a thresh hold issue and should be decided upon first before other matters in a case. This position of the law was well captioned in the case of Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) CA 251 where Oguntade J.C.A (as he then was) said thus: “Saying that the issue of jurisdiction should be resolved “first however does not mean that it should be resolved separately. It can be taken along with arguments on the merits of the case. The important thing is that the court should first express its views on jurisdiction before considering the merit. The advantage of so proceeding is that in the event of an appeal by any of the parties, it is easy for the appellate court to express its view on the decision of the lower court as to jurisdiction and merit of the case. This removes the necessity for two appeals – one as to jurisdiction and the other as the merit of the case.” See also the decision of the Supreme Court in Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) SC 423. PER REGINA OBIAGELI NWODO, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
AFRICAN PETROLEUM PLC Appellant(s)
AND
1. ALBERT ADENIYI
2. IDOWU SAMUEL
(For themselves and on behalf of the Class of ordinary shareholder of African Petroleum Plc who wish that the affairs Of the Company be conducted in conformity With the provisions of the Companies and Allied Matter Act)
3. COMMISSION OF ENQUIRY TO INVESTIGATE THE MANAGEMENT OF AFRICAN PETROLEUM PLC
4. JUSTICE EDET ROBERT NKOP
(Chairman Commission of Inquiry to Investigate the Management of African Petroleum Plc)
5. ATTORNEY – GENERAL OF THE FEDERATION Respondent(s)
REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of the Federal High Court, Abuja Division in suit No. FHC/ABJ/PET/5/2002 delivered on the 15th of January, 2003.
The Appellant was the 1st Respondent in the Court below. The 1st and 2nd Respondents were the petitioners and the 3rd, 4th and 5th Respondents were all Respondents.
The petitioners in the Federal High Court commenced this matter by filing a petition dated 17th September, 2002 seeking the following reliefs.
(i) A DECLARATION that the appropriate authority vested with power by Section 314 of the Companies and allied Matters Act to cause an investigation to be conducted into the affairs of the 1st respondent which is a Company having Share Capital is the Corporate Affairs Commission. (ii) A DECLARATION that it is not lawful for the President of the Federal Republic of Nigeria to set up the 2nd Respondent presided over by the 3rd Respondent to investigate the affairs of the 1st Respondent which is a Company having a Share Capital.
(iii) A DECLARATION that in as far as the Commission of Inquiry to investigate the management of African Petroleum Plc (2nd respondent) presided over by the 3rd Respondent is not a body set up or appointed by the Corporate Affairs Commission, any investigation conducted or recommendation made or decision taken by the 2nd Respondent in respect of or in connection with or relation to the affairs of the 1st Respondent is illegal null and void.
(iv) A DECLARATION that it is not lawful for the Commission of inquiry to investigate the management of African Petroleum Plc (2nd Respondent) set up by the President of the Federal Republic of Nigerian and presided over by the 3rd Respondent to compel the 1st Respondent or any of its officers to submit or reveal to any information or record relating to or connected with the operation and management of the 1st Respondent.
(v) AN INJUNCTION restraining the 1st Respondent whether by itself its servants agents and or representatives from submitting or revealing or continuing to submit or reveal to the 2nd and 3rd Respondents or any of the members of the 2nd Respondent any information or record relating to or connected with the affairs or the 1st respondent.
(vi) AN INJUCTION restraining the 2nd and 3rd Respondents whether by themselves their members, agents and or representatives from carrying out any investigation into or otherwise interfering in any manner whatsoever with the affairs of the 1st Respondent.”
The 1st Respondent now the Appellant filed a Motion on Notice on 30/09/2002 without affidavit. Seeking the following reliefs:
“(a) Dismissing/Striking-out the Petition herein or striking out the name of the 1st Respondent/Applicant therefrom on the ground that it does not disclose a cause of action against the 1st Respondent/Applicant.
ALTERNATIVELY
(b) Striking out the Petition (in so far as it is meant to be a derivative action) on the ground that the petition is premature as no leave of this Honorable Court was sought and obtained before filing same as enjoined by Section 303 of the Companies and Allied Matters Act.
And for such further order or orders as this Honourable Court may deem fit to make in the circumstances”
(See Pg 29 – 31 of Record of Appeal). The learned counsel for the respective parties made submissions in respect of the motion on notice filed on 30/09/02. I note that Mr. Ayanlaja arguing the motion as reflected on pages 169 to 171 of the Record of Appeal did not rely on any affidavit in support of the motion. The learned trial Judge concluded as follows in his ruling of 15/01/03.
“This relatively new area of company law is still being fine tuned and it is my opinion that this objection can best be determined along with the substantive suit and so order that the matter be given accelerated hearing”
The petition was amended after the ruling of 15/01/03 and the Respondent therein filed a reply to the petition and the matter was adjourned for hearing.
The first Respondent aggrieved by the decision of the court pronounced on 15/01/03 filed a Notice of Appeal on 12/04/06 containing four grounds of appeal. In line with the practice and rules of this court the learned counsel for the parties filed and exchanged Briefs of Argument except the 3rd and 4th Respondent. At the hearing of the Appeal on 1st February 2011, the learned counsel for the 1st and 2nd Respondent Mr. M. Burkaa referred the Court to the Notice of Preliminary Objection raised in the 1st and 2nd Respondents Brief filed on 27/02/2009 on pages 3 to 6. He adopted the arguments therein in support of their objection that ground four (a) of the Notice of Appeal is incompetent as it did not arise from the Ruling. The learned counsel for the Appellant Mr. Audu Anuga adopted the Appellant reply brief deemed properly filed on 19/10/2009 at pages 1 – 4 containing their argument in response to the objection. In respect of the main appeal he adopted and relied on the arguments in the Appellants brief filed on 27/02/2009 pursuant to order of court made on 26/01/2009 and urged the Court to dismiss the objection and allow the appeal. The learned Counsel for the 1st and 2nd Respondent adopted their brief as arguments in opposition to the main appeal.
The 3rd and 4th Respondent were not represented and did not file Brief of Argument. The 5th Respondents Brief settled by G.A Omale was deemed properly filed and served on 01/02/2011 pursuant to a motion filed on 17/01/2011 and the brief was treated as having been duly argued under order 17 rule 9(4) of the Court of Appeal Rules 2007.
I will proceed to consider the merit of the Notice of Preliminary Objection raised in the brief of the 1st and 2nd Respondent. Mr. Burkaain the 1st and 2nd Respondents brief raised the question, whether the appellant’s second issue distilled from ground four (a) of the appellant’s notice of appeal is competent? It is his submission that the law is settled that an appeal must relate to an issue in controversy between the parties and attack in a decisive manner the judgment appealed against. He relied on several authorities including:
Dakula v. Adamu (2001) 1 NWLR (Pt 694) 322 at 342 – 343.
Saraki v. Kotoye (1992) 9 NWLR (Pt 264) 156 at 184
Military Admin Ekiti Sate v. Aladeyelu (2007) 14 NWLR (Pt 105) 619 at 653.
Learned Counsel submits that a careful scrutiny of the grounds of the appeal filed by the Appellant, particularly ground four (4) shows that it has no bearing to the ruling of 15/01/03. It is his contention that the learned trial Judge did not hold that the matter before her was a derivative action rather the order made by the trial Judge is to the effect that both the preliminary objection and the substantive action would be taken together at the hearing of the substantive action and ordered for accelerated hearing. It is his contention that in the absence of a decision from which the ground of appeal arose, the ground is liable to be struck out by the court. He cited:
Babalola v. State (1989) 4 NWLR (Pt115) Pg 294 Per Oputa JSC.
He urged the Court to strike out ground four (a) of the Notice of Appeal and issue two (2) distilled from the said ground because it does not originate from the decision appealed against. The learned counsel for the Appellant Mr. Anuga in reply argued that the record of appeal at pages 169 – 171, 173 to 180 and 207 to 208 shows that the trial court heard the preliminary objection and during the course of that hearing learned counsel for the Appellant dwelt heavily on the fact that the case made out by the 1st and 2nd Respondent in the petition was inter alia a derivative action. He contends that the trial court after hearing the arguments in support of the objection failed to determine it in one way or other and the Appellant is entitled to complain about the failure to reach a finding consistent with the evidence reviewed by it. He cited the following cases:
Hon. Alhaji Abdullahi Mccido Ahmed v. Sokoto State House of Assembly and Anor (2002) 44 WRN 52 P 76; Harriman v. Harriman (1989) 5 NWLR (Pt.119) 616 – 17; Carbean Trading and Fidelity Corporation v. NNPC (1992) 7 NWLR (Pt. 252) 161; Peter Oko Chima & Others v. Okerie Ekuma Nkena & Amt (2000) 7 WRN 52 Pg 68; Boniface Nnorodim & Ano v. Eze Paul Ezeani & 7 Others (2001)10 WRN 146
The objection raised in the 1st and 2nd Respondent brief is that Ground four (a) of the Notice of Appeal is incompetent. For a better appraisal of the argument. I reproduce Ground four (4) as follows:
“GROUND FOUR
The Learned Trial Court erred in law by reason of its failure to consider the issue that being a derivative action, the action was improperly constituted, not having been commenced on behalf of all or majority of the shareholders of the Respondent/Appellant
PARTICULARS OF ERROR
1) The Petitioners/Respondents initiated the petition for themselves and on behalf of a class of ordinary shareholders of the Respondent/Appellant and failed to state that their action was on behalf of all or majority of the shareholders of the Respondent/Appellant.”
It is from the above Ground 4 that Appellant distilled issue 2 which reads as follows:
“Whether the petition filed before the lower court was properly constituted”
I have carefully scrutinized ground 4 of the Notice of Appeal and the Ruling of the trial court delivered on 15/01/2003. It is settled principle of law in a catalogue of decided cases by the Appellate Courts that ground of appeal against a decision must of necessity relate to the decision and be based on the issues in controversy or canvassed in the court below. Where a ground of appeal cannot be circumscribed within a particular issue in controversy in a judgment or decision, such a ground of appeal cannot justifiably be regarded as related to or arising from the decision.
See: Saraki & Others v. Kotoye (1992) 47 NWLR (Pt 351) 414 at 446; See also Abiola v. Abacha (1991 6 NWLR (Pt 509) 413; Bello v. Aruwa (1999) 8 NWLR (Pt 615) 454; Metal Construction (WA) Ltd. v. Migliore 1990 1 NWLR (Pt126) 299 SC.
Ground four (4) is a complaint that the trial court failed to consider the issue that the action being a derivative action was improperly constituted not having been commenced by all or the majority of the shareholders of the 1st Respondent. This complaint did not arise from the Ruling of the trial court. A ground of appeal must consist of the error of law or fact alleged by an appellant as defect in a judgment appealed. The ruling of the court below is explicit. The court did not consider the issue of derivative action and deferred it to consider same with the substantive matter. Ground four (4) certainly did not arise from the decision it is imperative to emphasis the point that there is a distinction between determination of issues raised by learned counsel during submission in support of an application and deferring the issues sequel to an application for determination on another day. The issues raised by counsel are tied to the Application for dismissal of the petition filed on 30/09/2002. Therefore when the trial Judge ruled that the application will be determined with the substantive petition, the arguments of counsel could not have been considered. There appears to be a misconception by the learned counsel for the Appellant on the decision of the court below looking at the nature of their submission in their brief that the court did not consider the issues raised. Learned counsel for the Appellant cited several cases which supports the point that there is a duty on a trial court to consider all issues submitted before the court.
The present circumstance is different and the authorities cited by the learned counsel for the Appellant in his reply brief in response to the objection are not apposite to this scenario. Clearly ground four (a) is incompetent since it did not arise nor stem from the decision of the court below being challenged by the Appellant. Therefore ground 4 is hereby struck out.
See Salami v. Mohammed (2000) 9 NWLR (Pt 673) 469.
Consequently issue 2 formulated from incompetent ground 4 has no foundation to stand on. Issues are for determination in an appeal and must be formulated from competent grounds of appeal. The appellate court will not entertain submissions on issues not covered by competent and subsisting ground of appeal. Since there is no valid ground 4, issue 2 is hereby struck out. The Notice of Preliminary objection succeeds.
I will now consider the sole issue left for determination. Issue one is whether the trial court ought to have determined one way or the other the motion dated and filed on 30th September, 2002 after having heard it. This issue from the Appellants brief is distilled from grounds 1, 2 and 3 of the Notice of Appeal. I must first observe that learned counsel for the Appellant dissipated energy in his brief to address the court on S. 303 and 311 of company and Allied Matters Act. The submissions on the provisions of the Act should be conserved for the substantive matter in the court below. The crux of issue one is whether the trial court was right when he deferred the consideration of the application to dismiss the petition by combining same with hearing of the substantive matter.
Learned counsel for the Appellant in paragraphs 4.31 – 4.44 argued issue one as follows. It is his contention that the Appellants motion had been argued and the trial court was duty bound to determine same in favour of the Appellant. He cited: Uche Nwokedi & Anor v. Mr. Fred Egbe 2005 9 NWLR (Pt 930) P.293 at 307. It is his submission that parties addressed the court on the materials necessary for determination of the motion on notice and the trial court at that stage was duty bound to decide one way or the other the issues submitted. It is his further contention that the issue of leave raised in the motion touches on jurisdiction of the court by the operation of statute, which provides for a condition precedent before the jurisdiction of the court can be invoked in the matter sought by 1st and 2nd Respondent, he cited: Governor of Ebonyi State v. Hon. Justice E.I Isuama (2004) 6 NWLR (Pt 870) P.511 at 533. It is his further submission that whenever the issue of jurisdiction is involved the court is duty bound to deal with the issues first before proceeding with the substantive case in order to avoid the court embarking on an exercise in futility. He cited: Alhaji Rabiu Zangina & Anor v. Commissioner of Works and Housing Land and Survey Borno State & 3 Others (2001) 9 NWLR (Pt 718) P. 460. It is his further submission that notwithstanding the trial courts failure to determine one way or the other. The motion which was argued, the submissions of counsel and the nature of documentary evidence to prove the issues are before this court and this court is in a position to determine the issues. He cited: Karibo v. Amos Grend & Anor 1992 3 NWLR (pt 230) P. 426. Learned counsel for the 1st and 2nd Respondent further submits that it is settled that courts hearing interlocutory applications are to avoid making any pronouncement on any issue which is likely to prejudice the fair trial of the substantive suit. He cited Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414 at 444.
Learned counsel contends that at the stage of the application the trial court did not have enough materials placed before the court and the ruling was a demonstration of an earnest desire to ensure that justice was done to all within a reasonable time. He cited Amadi v. NNPC Supra.
It is his contention that the Appellant through its interlocutory motion attempted to lure the trial Judge into making pronouncements that would have been better done after evidence had been led. It is his further argument that the present appeal is still an attempt to drag this court into making a pronouncement that would prejudice the fair hearing and determination of the substantive action at the lower court. He referred to Ltd. (1980 3 NWLR (Pt 26) 47 SC. It is his contention that it has been held that there is nothing wrong in a court exercising its discretion to determine an interlocutory application and the substantive action together. He cited Chief Daniel Ogbonaaya & Others. v. Adapalm Nig. Ltd. (1993) 5 NWLR (Pt 292) 147.
Mr. G. A. Omale settled the 5th Respondents brief. It is his contention that the application filed by the Appellant by way of preliminary objection touched on the competence of the court to hear and determine the substantive suit. It is his submission that the trial court ought to have confirmed its jurisdiction at that stage. He argued that once issue of jurisdiction is raised the court as a matter of urgency should have resolve it first before deciding whether to proceed further or not. That the procedure would have saved time and energy. It is his further submission that the trial courts can conveniently take a position without necessarily deciding the substantive case as the court is under a duty to decide the issue of jurisdiction as its earliest opportunity, because any step taken by the court without jurisdiction amounts to a complete waste of time.
He cited: Sani v. Okene (2008) 5 SC NJP 246 at 254
The learned trial Judge in the court below in his Ruling of 15/01/03 gave the reason why he cannot determine the motion on notice and issues raised at that stage when his lordship said
“The case of O’Neill says that the con and background under which the issue of “unfairly prejudicial’ is considered very important.
The Supreme Court in the William’s case held that the petition must disclose all the material facts upon which the court would rely in coming to the conclusion that a case under S.201 (equivalent and more being S.311) has been made out. This presupposes that I would need to go into the substantive action to determine this.
Further, it appears to me that to determine if the plaintiffs can bring this petition or even that a derivative action can be brought, the legality or otherwise of the act of the President must first be determined, which would mean deciding on same aspects of the substantive suit.”
It is clear from the reproduced portion of the Ruling of the learned trial Judge that the court looked at the nature of the interlocutory application and formed the view that a determination of same in the light of the issues raised will affect the substantive matter. The decision to combine an interlocutory application and the substantive matter involves a consideration by the court of the nature of the materials placed before her at that stage in support of the interlocutory application. The order to hear two processes filed before one court is a measure adopted for the convenience of parties, for saving cost and for the avoidance of determination of the substantive matter at the interlocutory stage. The trial Judge has a discretion to make an order to determine two applications filed before her together and also enjoys inherent power to vary the order. See Mbaegnusi Obiekweife Ors v. Unumma & Anor 1957 2 FSC 70.
It is settled law that a court must always be cautious in its judgment at an interlocutory stage to avoid making a pronouncement or observations on the facts which might appear to determine the main issue or issues.
See Olukwu v. Governor of Lagos State (1986) 2 NWLR (Pt 26) Pg 39.
NDIC v. SBN Plc (2003) 1 NWLR (Pt 80)1 Pg311
Iweka v. SCOA (Nig.) Ltd. (2000) 7 NWLR (Pt 664) Pg 325.
The learned trial judge had the discretion to reserve the determination of the pending application already argued but not determined and combine same with the petition for hearing.
See Toriola & Ors v. William’s (1982) 7 S.C 27 Pg 58 Obaseki JSC said:
“There is a discretion to consolidate pending actions, that is to say, actions in which the writ has been served. See the Helenslea (1882)7 (PD 57) and in which Judgment has not yet been obtained and satisfied.”
I am also guided by the pronouncement of UWAIS JSC in Amadi v. NNPC (2000) 10 NWLR (Pt.674 SC 79 when the said:
“It has thus taken thirteen years for the case to reach this stage.
With the success of the plaintiffs appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that counsel owe it, as a duty, to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here; so that the adage justice delayed is justice denied may cease to apply to the proceedings in our court”
The trial court from the above decided cases has the discretion to hear an interlocutory application with the substantive matter. The management of applications properly filed before the court is at the discretion of the court and depends on the facts and circumstance of each case. This discretion can be interfered with if shown that it was exercised upon wrong principles.
In the instant appeal the main action was commenced by petition which entails hearing by deposition and documentary evidence. The Appellant has not convinced this court that the learned trial Judge exercised her discretion wrongly based on extraneous matters or wrong principle of law when she ruled that the interlocutory application will be heard together with the petition. The court made it clear in the Ruling that the question raised during submission of counsels on derivative action and the decision in the case of O Neill” will entail consideration of the substantive matter.
See Senate President v. Nzeribe (2004) 9 NWLR Pt 878 CA 251.
Looking at the Record of Appeal it is my firm view that the learned trial judge exercised her discretion judicially and judiciously. The inherent power to combine hearing of an interlocutory application and the petition cannot be faulted. It was a discretion bordering on case management. What is paramount is that once there is an application challenging competency of an action or jurisdiction of the court, the issue of jurisdiction must be considered first and a view pronounced before consideration of the substantive matter. The rationale is that any order made in a matter where the court does not have jurisdiction amounts to a nullity as jurisdiction is a thresh hold issue and should be decided upon first before other matters in a case. This position of the law was well captioned in the case of Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) CA 251 where Oguntade J.C.A (as he then was) said thus:
“Saying that the issue of jurisdiction should be resolved “first however does not mean that it should be resolved separately. It can be taken along with arguments on the merits of the case. The
important thing is that the court should first express its views on jurisdiction before considering the merit. The advantage of so proceeding is that in the event of an appeal by any of the parties, it is easy for the appellate court to express its view on the decision of the lower court as to jurisdiction and merit of the case. This removes the necessity for two appeals – one as to jurisdiction and the other as the merit of the case.”
See also the decision of the Supreme Court in Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) SC 423
It is my firm view that the discretion of the court below is well founded, it was exercised in line with the attitude of Appellate Courts that an appeal challenging jurisdiction and the substantive matter founded on affidavit and documentary evidence can be heard together, each maintaining its distinct status with the issue of competency of the action being considered first. When the learned trial judge felt a decision of the motion will necessitate a pronouncement on the substantive suit he rightly refused to proceed further at that stage. It is settled principle of the law as pronounced in a catalogue of decided cases that a court must be cautious in its Ruling at an interlocutory stage not to determine or make observations on facts which will predetermine the main issue in the proceedings to be completed. This principle was elucidated in Kotoye v. Saraki (1994) 7 NWLR (Pt.357) SC 414 Part 444 where Kutigi JSC said:
“I must observe that this being an interlocutory application. I must avoid making any observation in the judgment which might appear to prejudge the main issues in the proceedings relative to the interlocutory application.”
See: In Ominia (Nig.) Ltd. v. Dyktrade Ltd. (2007) 15 NWLR (Pt.1058) SC 576; Ojukwu v. Governor of Lagos State (1986) 2 NWLR (Pt.26) Pg39; Iweka v. SCOA (Nig) Ltd. (2000) 7 NWLR (Pt. 664) Pg 325; Agip (Nig) Ltd. v. Agip Petroleum International & Others (2010) 5 NWLR (Pt.1187) SC 348; Mil Admin v. Ekiti State v. Aladeyelu (2007) 14 NWLR Pt.1055 SC 619.
the Supreme Court cautioned against pronouncement that will prejudice the trial of the substantive issues at the trial court therefore questions pending before the trial court in the substantive matter should not be determined at the appeal stage in an interlocutory appeal.
See Egbe v. Onogun (1972) 1 All NLR 95 Orji v. Zaria Industries Ltd. 1992) 1 NWLR (Pt.216) 124; FCMB Plc v. AIB (Nig) Plc (2000) 8 NWLR (Pt.667) CA 42.
The learned counsel for the Appellant urged the court to determine the petition pending in the trial court. The duty on the appellate court when hearing an interlocutory appeal is not to determine the issues raised in the substantive matter at the stage of hearing the appeal or make pronouncement prejudicial to the main case at the trial court, when the issue before the trial court has not been heard on the merit. See Mil Admin Ekiti State v. Aladeyelu (2007) 14 NWLR (Pt.1055) SC 619.
It is trite law that when an appeal is allowed for failure of the trial judge to make findings on material issues, then the appellate court will consider whether it will enter judgment for the appellant where the evidence is based on documentary evidence and the substantive matter was argued before the trial court.
See Karibo v. Grend (1992) 3 NWLR (Pt.230 SC 426
Therefore, this Court in this interlocutory appeal must confine itself to the issues necessary for disposal of appeal and must avoid making any pronouncement on anything that will tend to prejudge the main issue at the trial court.
See Ogbonnaya v. Adapalm (Nig) Ltd. (1993) 5 NWLR (Pt.292) SC 147
The learned counsel for the respective parties made extensive submissions touching on the main issue pending in the trial court. Several authorities were cited in support of situations where leave is required and not obtained, its effect on the suit and when issues are raised for determination and the trial court fails to consider. Like I earlier noted the arguments on those issues and the authorities cited are not apposite to the present appeal. The learned trial judge did not refuse to consider issues raised in support of the motion, he exercised the court discretionary power to conduct the manner of hearing the applications along the established principles. The learned trial judge did not consider the motion on notice nor dismiss the application as contended in paragraph 2 and 8 page 3 of the 5 Respondents brief. I do acknowledge that issues of jurisdiction must be taken at the earliest opportunity, it also can be taken at any stage of the proceedings as long as it is determined before the pronouncement of judgment in the main suit. The Appellate courts will not interfere with the exercise of discretion by the trial court when it is not based on wrong principle or tainted by some illegality or substantial irregularity. The right to appeal is guaranteed by the constitution but this right should be accorded dignity and not embarked upon on trifling issues which can be taken up generally with the substantive appeal in the conclusion of a matter. See Bakare v. ACB Ltd. (1986) 3 NWLR (Pt.26) SC 42. I sincerely hope that parties and their lawyers will restrain themselves from rushing to the court of appeal on any trifle issue that can be taken up after Judgment. The spirit of expeditious disposition of cases must weigh high in the mind of a counsel in advising his client. The decision of the court to hear the application and the petition was given in 2003. It took about seven years to determine this appeal. This is inappropriate.
In the light of the forgoing, I resolve the remaining sole issue against the Appellant. The Appeal is devoid of merit and dismissed.
Each party to bear its own cost.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother REGINA OBIAGELI NWODO, JCA in this appeal.
For the sound reasons so admirably set out in the lead judgment, I am in agreement that the objection on ground 4 of the notice of appeal deserves to succeed and that the appeal lacks the merit to so succeed.
The law is well known now that for a ground contained on a notice to be a valid ground for consideration in an appeal it has to enure or arise from the decision appealed against. Where a ground of appeal did not come from the decision in respect of which a notice of appeal was filed, it would be an invalid and incompetent ground for the purposes of hearing and determination of an appeal. Such a ground is liable to be struck out by the appellate court. See:
OBATOYINBO v. OSHATOBA (1996) 5 NWLR (450) 531, NEWBREED PRESS LTD. v. JAIYESIN (2000) 6 NWLR (662) 561.
As very ably demonstrated in the lead judgment, the ground No. 4 contained on the Appellant’s notice of appeal clearly did not arise from the decision of the Federal High Court which is simply to the effect that it would decide the application along with the substantive suit. For that reason I join in upholding the objection to that ground of appeal and striking it out as an incompetent ground of appeal for the purposes of this appeal. Because you cannot raise or formulate something out of nothing; an issue out of an incompetent ground of appeal, Appellants’ Issue No. 2 is not a competent issue and so is struck out too. See: SADIKU v. A.G. LAGOS (1994) 7 NWLR (355) 235. OGUNDIPE v. ADENUGA (2006) ALL FWLR (336) 266.
On the decision by the Federal High Court to decide the motion argued along with the substantive case, for the reason stated in the lead judgment which is rooted firmly in law, the Federal High Court had the discretionary power to take and decide the motion along with the substantive case particularly when the issues or some of them that are to be determined in both are so intricately interwoven such that it is not possible or even difficult to decide one without making pronouncements which are likely to materially touch the other.
Specifically as settled in the judicial authorities cited in the lead judgment, a court should not at an interlocutory stage of a case make pronouncement/s that would touch or decide issues which are to be determined at the hearing of the substantive case. See: ONWUEGBU v. IBRAHIM (1997) 3 NWLR (491) 110. GROUP DANNONE v. VOLTIC (NIG.) LTD. (2008) 7 NWLR (1087) 637.
It appears to me that the only quarrel the Appellant picked with the decision by the Federal High Court to defer its decision on the application to the determination of the substantive matter was that since that court had taken arguments in the motion, it was bound to decide it one or the other at that stage. The pith of the reason is that the motion challenged the jurisdiction of that court to entertain the petition filed before it and so the law requires that the issue be determined first by that court at the stage it was raised.
I would simply say that the principle of law that an issue of jurisdiction should be decided first whenever it arises in a matter is not meant to quarantee a court to a stage at which the decision on it should be made. Depending on the peculiar facts and circumstances of a given case, a court is entitled to take the issue of jurisdiction along with the substantive matter where both have issues which are common to them and which cannot be determined separately and distinctly without encroaching materially on the merit of the other. That was the situation the Federal High Court found in the application and the issues to be decided in the substantive suit which as stated in the ruling appealed against, necessitated the order to defer pronouncement on the motion until the determination of the petition. That arguments were taken in the motion did not take away the power of the Federal High Court to defer its decision for the reason given, to await the hearing of the petition. As long as the Federal High Court in its determination of the petition first decided the issues canvassed in the motion before those in the petition, its decision to defer ruling on the application/motion would not cause any prejudice or miscarriage of justice to any of the parties involved.
For the above and the fuller reasons in the lead judgment, I am in complete agreement with all the terms thereof.
JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my learned brother REGINA OBIAGELI NWODO, JCA, just delivered. My Lord has dealt with the issues in this appeal in a very lucid manner. I agree with my Lord’s reasoning and conclusion.
It is also my view that this appeal is unmeritorious and it dismissed by me.
Appearances
Audu Anuga with Luter AtagherFor Appellant
AND
Mathew BurkaaFor Respondent
