CENTRAL BANK OF NIGERIA v. DR. ERASTUS B. O. AKINGBOLA & ANOR
(2013)LCN/6379(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of July, 2013
CA/L/960/2009
JUSTICES:
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGINIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
CENTRAL BANK OF NIGERIA – Appellant(s)
AND
1. DR. ERASTUS B. O. AKINGBOLA
2.GOVERNOR OF CENTRAL BANK – Respondent(s)
RATIO
THE CRITERIA FOR DISTINGUISHING A GROUND OF LAW FROM THAT OF MIXED LAW AND FACT
The best approach to the thorny question whether a ground of appeal is of fact or mixed law and fact or of law simpliciter is to examine the ground of appeal with its particulars against the background of the decision it attacks. See the case of Akinyemi v. Odu’a Investment Co. Ltd. (2012) 17 NWLR (pt.1329) 209 at 230 – 231 where I. T. Muhammad, J.S.C., held in the comprehensive lead judgment of the Supreme Court inter alia thus –
“I think the criteria for distinguishing a ground of law from that of mixed law and fact have, for quite long, been settled. For the purposes of elucidation, I consider it pertinent to summarise some of these principles as follows:
(1) The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower court of the law, or a misapplication of the law to the facts already proved or admitted.
(2) Where a ground complains of a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.
(3) Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.
(4) A ground which raises a question of pure fact is certainly a ground of fact.
(5) Where the lower court finds that particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law.
(6) Where admissible evidence has been led, the assessment of that evidence is entirely for that court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
(7) Where the lower court approaches the construction of a legal term of art in a statute on the erroneous basis that the statutory working bears its ordinary meaning, the ground is that of law.
(8) Where the lower court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
(9) Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law.
(10) Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if seized of the issue, that conclusion is not an error in law.
(11) Where a trial court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to a court of appeal which alleges a misdirection in the exercise of the application by the trial court, the ground of appeal alleging the misdirection is a ground of law not of fact.
(12) When the Court of Appeal finds such applications to be wrong and decides to make its own findings such findings made by the court of appeal are issues of fact and not of law.
(13) Where the Appeal Court interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.
(14) A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a court of appeal or a further court of appeal).
The above principles accord with the previous practice of this court in considering the thorny and intricate issues of law and fact. See the cases of Board of Customs and Excise v. Barau (1982) 10 SC 48; Ogbechie v. Onochie (1986) 2 NWLR (pt.23) 484.”
See also NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (pt.1328) 148 at 174 – 176. PER IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): A ruling by the Federal High Court of Justice holden at Lagos (the court below) to hear the preliminary objection of the appellant qua 2nd defendant at the court below to the originating motion together with the originating motion occasioned the appeal.
In summary, the 1st respondent brought an originating motion at the court below challenging the special examination of the banker’s books kept by the then Intercontinental Bank Plc under the 1st respondent as the Group Chief Executive (G.C.E.) of the defunct Intercontinental Bank in the course of which the 1st respondent was indicted and subsequently removed as the G.C.E. of the said bank by the appellant acting in concert with the 2nd respondent and the N.D.I.C. that examined the said bankers books.
Upon service of the originating motion on the appellant, she filed a memorandum of conditional appearance without filing a counter affidavit against the originating motion. The appellant proceeded to file a preliminary objection to the originating motion where she objected to the jurisdiction of the court below to entertain the originating motion under Section 53(1) of the Banks and Other Financial Institutions Act, Cap.B3, Laws of the Federation, 2004; and/or alternatively, that the 1st respondent lacked the locus standi to institute and maintain the action which did not disclose a reasonable cause of action against the appellant.
The court below ruled that it would take the preliminary objection together with the substantive motion and determine both of them together instead of taking the preliminary objection first as submitted before it by the appellant. The appellant was dissatisfied with the ruling of the court below and appealed against it in an original notice of appeal subsequently amended and filed on 18-10-10 containing four grounds of appeal.
Before the appellant would argue her appeal, the 1st respondent moved his preliminary objection filed on 21-05-12 and incorporated in his arguments in the respondent’s brief to the effect that the appeal being an interlocutory one grounds 1, 2, 3 and 4 of the amended notice of appeal which are of mixed law and fact required the leave of the court below or this court first sought and had before canvassing the grounds of appeal on the appeal.
Expatiating on the preliminary objection in the 1st respondent’s brief of argument, the 1st respondent argued that grounds 1, 2, 3 and 4 of the notice of appeal were on exercise of discretion while the 2nd and 3rd particulars of ground 2 are complaints on the evaluation of evidence. Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and the cases of Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 299, Opuiyo v. Omoniwari (2007) 16 NWLR (Pt.1060) 415, UBN v. Sogunro (2006) 16 NWLR (pt.1006) 504, Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (pt.496) 64, Maigoro v. Garba (1999) 10 NWLR (pt.624) 555 at 568, Dairo v. UBN (2007) 16 NWLR (pt.1059) 99 at 130 and Dapianlong v. Dariye (No.1) (2007) All FWLR (pt.373) 1 at 33 – 34, Madukolu v. Nkemdilim (1962) All NLR (pt.2) 581 and Ikwebi v. Ebele (2005) 11 NWLR (pt.936) 397 were cited by the 1st respondent in support of the preliminary objection that the grounds of appeal being on mixed law and facts arising from the exercise of discretion by the court below and its evaluation of evidence in an interlocutory appeal and leave having not been obtained to file and argue them on appeal, the said grounds of appeal are incompetent and should be struck out together: with the appeal.
The 1st respondent also argued that grounds 1 and 3 of the notice of appeal are repetitive and constitute an abuse of the process of the court; and that Ground 3 of the notice of appeal did not arise from the decision appealed against the should be struck out vide the cases of Ikweki v. Ebele (supra) on page 425, Punch (Nig.) Ltd. v. Jumsum (Nig.) Ltd. (2011) 12 NWLR (pt.1260) 162 at 177, Fabunmi v. Ajayi (2008) All FWLR (pt.444) 1458 at 1470.
The appellant’s amended reply brief filed on 06-08, but deemed filed on 21-05-13, contended in response to the preliminary objection that close examination of the grounds of appeal disclose that they are anchored on whether Order 29 rule 1 of the Federal High Court (Civil Procedure) Rules 2009 was breached by the refusal of the court below to hear the preliminary Objection on jurisdiction and/or locus standing of the 1st respondent to file the substantive action first and separate from the substantive action which the appellant argued was a question of law not requiring leave to appeal on them citing in support the cases of Comex Ltd. v. N.A.B. Ltd (1997) 3 NWLR (pt.496) 643, Ossai v. Wakwah (2006) 4 NWLR (pt.969) 208 at 229 to the effect that the absence of counter affidavit does not make an originating motion non-contentious as wrongly held by the court below, Ogbechie v. Onochie (1986) NWLR (pt.23) 8; and that the grounds of appeal said to be repetitive are not so, nor is the contention that Ground 3 of the notice of appeal did not arise from the decision of the court below tenable, therefore the preliminary objection should be overruled.
The notice of preliminary objection filed on 21-05-12 stated that –
“TAKE NOTICE that the 1st Respondent herein, intends at the hearing of this Appeal, to rely upon the following preliminary objection, notice whereof is hereby given to you and shall move this Honourable Court for:
1. An order dismissing the Appellant’s Appeal for being incompetent
AND TAKE FURTHER NOTICE that the ground upon which this preliminary objection is brought is that:
(i) The decision of the lower court which is the subject matter of the present appeal is an interlocutory decision.
(ii) Ground 1, 2, 3 and 4 of the Appellant’s Grounds of Appeal as contained in the Amended Notice of Appeal dated 18th October, 2010 and filed on 31st January, 2011 are grounds of fact or at best of mixed law and fact.
(iii) The Appellant did not seek the leave of either this Honourable Court or the court below appealing on Grounds 1, 2, 3 and 4 of the Grounds of Appeal.
(iv) The Appellant’s Appeal constitutes a gross abuse of court Process.
(v) This Honourable Court lacks the jurisdiction to entertain the Appellant’s Appeal as presently constituted.”
The ambit of the preliminary Objection did not extend to the repetitiveness of some of the grounds of appeal, nor whether ground 3 of the notice of appeal did not arise from the decision of the court below, nor whether the counter affidavit was validly filed by the appellant, consequently the arguments in the 1st respondent’s brief on these issues are far-fetched and are hereby not countenanced. See Okoya v. Santili (1990) 3 S.C. (pt.11) 1 at 37 – 38 on the proposition that a party is bound by the prayer(s) in his application.
Regarding the preliminary objection to the grounds of appeal, it is necessary, to copy the grounds of appeal below –
“Grounds of Appeal
Ground 1
The Learned trial Judge erred in law in ordering that the Appellant’s Preliminary objection be taken together with Respondent’s substantive application for judicial review:
Particulars
i. In so ordering, the Learned Trial Judge misconstrued the provisions of Order 29 of the Federal High Court Rules.
ii. The provisions of Order 29 properly construed clearly require the court to the Preliminary Objection first and separately.
iii. The court can only exercise a discretion to hear the preliminary objection with the substantive suit only where the substantive suit does not involve the taking of oral evidence.
iv. The learned trial judge failed to appreciate that the undisputed fact that the 1st Respondent alleges the non existence of precedent facts to the decisions of the Appellant being challenged gave a right by law to the Appellant to cross-examine the deponent to the affidavit in support of the application which means that the case will involve the taking of oral evidence.
v. The court could not exercise the discretion given by Order 29(1) to take the two together as the substantive application property construed involves the taking of oral evidence.
vi. The court was obliged under the rules to take and rule on the jurisdictional challenge first and separately and could not competently embark upon hearing the two together.
vii. The Learned Trial Judge failed to be guided by the decision of the Supreme Court in Okoye v. N.C.& F Co. Ltd. (1991) 6 NWLR (pt.199) 501 at 528 and misapplied the decision in Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) at 423.
viii. The learned trial judge misapplied the provisions of the rules to the facts contained in the Respondent’s application for judicial review.
ix. The decision to take the two matters together is clearly erroneous.
Ground 2
The Learned Trial Judge erred in law when he held that because the Appellant had not filed a counter affidavit to the application for judicial review, the said application will not involve the taking of oral evidence:
Particulars
i. In so holding the, Learned Trial Judge showed a complete misapprehension of the provisions of the said Order 29 and particularly rule 1 of the order.
ii. The question of whether or not a suit involves the taking of oral evidence is not dependent on whether or not a counter affidavit is filed.
iii. Properly construed, the Plaintiff’s application by itself clearly shows that it involves hostile proceedings that could not be resolved except by the taking of oral evidence.
iv. The court took into account the irrelevant fact that there was no counter affidavit.
v. The Learned Trial Judge failed to be guided by the decision of the Supreme Court in Ossai v. Wakwah (2006) 4 NWLR (pt.969), 208 at 229 where the court said a counter affidavit was unnecessary, to determine the hostile nature to determine the hostile nature of proceedings.
Ground 3
The Learned Trial Judge erred in law in effectively holding that he would hear the Appellant’s originating application in a summary manner by his decision to hear the Preliminary objection together with the Application for Judicial Review:
Particulars
i. The Appellant has indicated to the lower court an intention to cross-examine the deponent to the affidavit in support of the originating motion; to enable it destroy the case of the Plaintiff, and better present and build its own.
ii. The Learned Trial Judge failed to appreciate that the effect of the decision to hear the two together is that the Appellant is now obliged to at least to file a written address in accordance with the rules.
iii. The hearing of the preliminary objection and the substantive application together as decided by the court would require the parties under the rules to simply adopt their respective written addresses based on the originating motion and counter affidavit if any and no more.
iv. The learned trial judge’s decision has deprived the Appellant to the right to cross-examination in a clearly hostile proceedings such as this.
v. The decision is tantamount to a violation of the Appellant’s right to a fair hearing and is void.
Ground 4
The Learned Trial Judge erred in law in failing to hold that the jurisdiction issue properly raised by the Appellant should be first heard and determined before hearing the substantive application for judicial review:
Particulars
i. The Appellant’s Preliminary Objection had challenged jurisdiction of the court to grant leave and the validity of the leave granted to the Plaintiff/Respondent to commence this suit by way of an application for judicial review.
ii. The court was thus obliged to determine first and separately the question whether it had competence to grant the leave and the validity of the leave granted to commence the suit, namely, the filing of the application for judicial review.
iii. The decision to hear the Preliminary Objection together with the substantive application without a hearing has peremptorily and unwittingly determined against the Appellant’s challenge to the grant of leave by the court to commence the action.
iv. The judge’s decision is in breach of the Appellant’s Constitutional right to a fair hearing and is null and void.
v. The learned trial judge had no jurisdiction to embark upon the hearing of argument and address on the substantive suit when he had not determined the fundamental question of his competence to grant leave to commence the substantive suit in the first place.”
The best approach to the thorny question whether a ground of appeal is of fact or mixed law and fact or of law simpliciter is to examine the ground of appeal with its particulars against the background of the decision it attacks. See the case of Akinyemi v. Odu’a Investment Co. Ltd. (2012) 17 NWLR (pt.1329) 209 at 230 – 231 where I. T. Muhammad, J.S.C., held in the comprehensive lead judgment of the Supreme Court inter alia thus –
“I think the criteria for distinguishing a ground of law from that of mixed law and fact have, for quite long, been settled. For the purposes of elucidation, I consider it pertinent to summarise some of these principles as follows:
(1) The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower court of the law, or a misapplication of the law to the facts already proved or admitted.
(2) Where a ground complains of a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.
(3) Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.
(4) A ground which raises a question of pure fact is certainly a ground of fact.
(5) Where the lower court finds that particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law.
(6) Where admissible evidence has been led, the assessment of that evidence is entirely for that court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
(7) Where the lower court approaches the construction of a legal term of art in a statute on the erroneous basis that the statutory working bears its ordinary meaning, the ground is that of law.
(8) Where the lower court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
(9) Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law.
(10) Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if seized of the issue, that conclusion is not an error in law.
(11) Where a trial court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to a court of appeal which alleges a misdirection in the exercise of the application by the trial court, the ground of appeal alleging the misdirection is a ground of law not of fact.
(12) When the Court of Appeal finds such applications to be wrong and decides to make its own findings such findings made by the court of appeal are issues of fact and not of law.
(13) Where the Appeal Court interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.
(14) A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a court of appeal or a further court of appeal).
The above principles accord with the previous practice of this court in considering the thorny and intricate issues of law and fact. See the cases of Board of Customs and Excise v. Barau (1982) 10 SC 48; Ogbechie v. Onochie (1986) 2 NWLR (pt.23) 484.”
See also NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (pt.1328) 148 at 174 – 176.
Following the approach stated above, it is clear that the heart of the decision of the court below that agitated the appeal as contained in the grounds of appeal complained of (supra) with emphasis on the particulars thereof was the true interpretation and application of Order 29 rules, 1, 4 and 5 of the Rules of the court below which, in my opinion, is an issue of statutory interpretation and thus a question of law. See Ogbimi v. Niger (2006) 1 NWLR (pt.986) 474 at 490, Akintaro v. Egungbohun (2007) 9 NWLR (p1.1038) 103 at 1 25 – 126.
Accordingly, all the grounds of appeal arose from the statutory construction and application of Order 29 rules 1, 4 and 5 of the Rules of the Court below, which make them questions or issues of law and did not saddle the appellant with the obligation of obtaining leave of either the court below or of this Court to appeal on them. The said grounds of appeal are on that score competent under Section 241 (1)(b) of the 1999 Constitution, as amended, which stipulates thus –
“241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(b) Where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings”.
There is therefore no merit in the preliminary objection that the grounds of appeal are of mixed law and fact and required the leave of either the court below or this Court to raise and argue them on the appeal.
Also, on the face of the grounds of appeal in question, they identify with clearness the dispute between the contending parties without leaving any of the parties in doubt of what to meet in the appeal. Therefore the 1st respondent cannot be said to have been misled by the said grounds of appeal as to lead to a miscarriage of justice. See Koya v. UBN Ltd. (1997) 1 NWLR (pt.481) 251, Addax Pet Dev. Co. (Nig.) Ltd. v. Duke (2010) 8 NWLR (pt.1196) 278, Nwabueze v. Nwora (2005) 1 NWLR (pt.926), page 1 followed in Unity Bank v. Denclag Limited (2012) 18 NWLR (pt.1332) 293 at 323.
Equally, I do not see merit in the objection that grounds 1 and 3 of the notice of appeal are repetitive in light of the fact that the said grounds of appeal are not vague or general in terms and disclose reasonable grounds in compliance with Order 6 rule 3 of the Rules of this Court; all the more so the 1st respondent did not complain that he was misled by the said grounds of appeal and/or suffered a miscarriage of justice thereby. See Aigbobahi v. Aifuwa (2006) 2 SCNJ 61 at 73 -74. The net result I reach is that the preliminary objection lacks substance and is hereby overruled.
The appellant submitted three issues for determination on the appeal as follows –
“Issue 1:
Whether the Learned Trial Judge was right to have held that since the Appellant had not filed a Counter Affidavit to the application for judicial review, the said application will not involve the taking of oral evidence”.
Issue 2:
Whether the Learned Trial Judge was right in the circumstances when he failed to hold that the jurisdiction issue properly raised by the 2nd Defendant/Appellant should be first heard and determined before hearing the substantive application for judicial review”.
Issue 3:
Whether the decision of the Learned Trial Judge does not amount to denying the Appellant in the circumstances its Constitutional right of fair hearing”.
Grounds 1, 2 and 3 of the notice of appeal were tied to the first and second issues which were argued together to the effect that by Order 29 rules 1, 4 and 5 of the Federal High Court (Civil Procedure) Rules 2009 (the rules of the court below) an objection to the jurisdiction of the court below where the substantive action would involve the taking of oral evidence such as the originating motion at the court below which is claiming some declaratory reliefs and required the cross-examination of witness(es) together with the examination of disputed/disparate bankers books, the court below was wrong to hold that the preliminary objection would not be taken separately but together with the substantive action vide De Smith’s Judicial Review (6th Edition) 849 read with the cases of Okoye v. N.C. and F. Co. (1991) 6 NWLR (pt.199) 501 at 528, Inajoku v. Adeleke (2007) 4 NWLR (pt.1025) 423.
In arguing further on the second issue, the appellant contended that the substantive proceedings were on the papers filed by the 1st respondent hostile in nature, therefore the fact that the appellant had not filed counter affidavit did not diminish the disputed facts in the affidavit of the 1st respondent in support of his substantive action, accordingly the court below was wrong to hold that the failure of the appellant to file counter affidavit made the proceedings without friction obviating the taking of oral evidence in the substantive action which it relied upon to order the hearing of the preliminary objection together with the main action contrary to the case of Ossai v. Wakwah (2006) 4 NWLR (pt.969) 208 read with Order 29 rule 1 of the rules of the court below.
The appellant contended on the third issue that the challenge to the jurisdiction of the court below was based on the premise that the 1st respondent did not seek leave of the court below to institute the action as mandated by section 53(1) of the Banks and Other Financial Institutions Act, Cap.B3, Laws of the Federation of Nigeria, 2004, as condition precedent to vest the court below with the jurisdiction to entertain the substantive application and that, by the refusal of the court below to determine the issue of jurisdiction first as a threshold issue, which it directed to be heard together with the substantive application, it deprived the appellant of her constitutional right to fair hearing read with the case of S.C.E.N. v. Nwosu (2008) All FWLR ( pt.413) 1399 at 1413, consequently, the appeal should be allowed and the ruling of the court below set aside and the court below be ordered to determine the issue of jurisdiction first, not together with the substantive application.
The 1st respondent’s amended brief of argument filed on 23-02-12, but deemed filed on 24-05-12, formulated two issues for determination as follows –
“i. Whether or not the learned trial Judge exercised his discretion judicially and judiciously by ordering that the Appellant’s preliminary objection should be heard together with the 1st Respondents Originating
Motion?
ii. Whether there was any conflicting affidavit evidence before the lower court that could not be resolved
without calling oral testimony?”
The 1st respondent made the points in the course of arguing the first issue that by the nature of .his substantive application for judicial review at the court below, no oral evidence was required to resolve the substantive application which was on the construction of sections 33 and 35 of the Banks and Other Financial Institutions Act (BOFIA) vis-a-vis the documents attached to the substantive application, which did not evoke material conflict therefore the court below exercised its discretion judicially and judiciously by scheduling to take the preliminary objection together with the substantive application to save time and cost for the parties and avoid the temptation of delving into the substantive application.
It was also argued that the questions of locus standing and juristiciability of the action plus whether there was a reasonable cause of action could be taken conveniently with the substantive application under Order 1 rule 4 and Order 29 rule 1 of the Rules of the court below read with the cases of Odusote v. Odusote (1971) NSCC 231, Duwin Pharmaceutical and Chemical Co. Ltd. v. Beneks Pharmaceutical and Cosmetics Ltd. and Ors. (2008) 4 NWLR (pt.1077) 376, Bello v. Yakubu (2008) 14 NWLR (pt.1106) 104, Senate President v. Nzeribe (2004) 9 NWLR (pt.878) 251 at 274, Inajoku v. Adeleke (2007) 4 NWLR (Pt.1025) 423 at 621 and 623, Amadi v. N.N.P.C. (2000) 10 NWLR (pt.674) 76 at 100, Pere Roberto (Nig.) Ltd. v. Ani (2009) 13 NWLR (pt.1159) 522 at 534-535, Orugbo v. Una (2002) 16 NWLR (pt.792) 175 at 211 – 212,  Oguntayo v. Adelaja (2009) 15 NWLR (pt.1163) 150 at186 – 187.
The 1st respondent also argued that his substantive application was not contentious nor were any substantial or fundamental conflicts evident in the uncontroverted affidavit in support of the substantive application, 1976 as what is expected of the court below is to construe section 33(1) of the BOFIA vis-a-vis the letters written by the appellant to 1st respondent removing the latter from office which are to be examined against the backdrop of the procedure to be adopted when a special examination into the books and affairs of a bank is to be carried out which did not require oral evidence to resolve therefore the court below was right to order that the preliminary objection be heard together with the substantive application vide Section 78 of the Evidence Act read with the cases of Manuel and ors. v. Briggs and ors. (1999) 7 NWLR (pt.469) 537, Akujobi and Anor v. Ekanem and Ors. (1999) 1 NWLR (pt.1135) 530 at 545; and that Ossai v. Wakwah (supra) is at best obiter and not binding on this Court, consequently the appeal should be dismissed.
The appellant’s amended reply brief filed on 06-08-12 but deemed properly filed on 21-05-13, addressed the impropriety of the Court hearing the substantive application under section 15 of the Court of Appeal Act, 2004, in light of the lack of original jurisdiction by the Court to do so vide section 24A of the 1999 Constitution coupled with the fact that the affidavit evidence of the 1st respondent and the counter affidavit of the appellant are in conflict therefore section 15 of the Court of Appeal Act which is inconsistent with Section 240 of the 1999 Constitution read should be declared null and void under section 1(3) of the 1999 Constitution should and the case of Peenok Investment Ltd. v. Hotel Presidential Ltd.
The reply brief added that the case of Senate President v. Nzeribe (supra) held that where evidence would be taken, it is wise to first and separately dispose of the issue of jurisdiction, so the court below did not exercise its discretion by proper reason or sound judgment by misconstruing Order 29 of the Rules of the court below vide Eronini v. Iheuko (1989) NWLR (pt.101) 46 at 60 – 61, Stroud’s Judicial Dictionary (4th Edition) vol.3, 1449; that the cases of Inajoku v. Adeleke (supra), Dapianlong v. Dariye (supra) are in a class of their own or sui generis and distinguishable from this matter vide Buhari v. INEC (2008) 4 NWLR (pt.1078) 546 at 643 and that the conditions under which section 15 of the Court of Appeal Act may be exercised are absent vide Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (pt.39) 1 at 38, Olujimi v. E.S.H.A. (2009) 11 NWLR (pt.1153) 464 at 492; that the Court is entitled to look at its own record vide Fumudoh v. Aboro (1991) 9 NWLR (pt.214) 210 at 229; that the Court having allowed the appellant to compile and transmit supplementary record of appeal (supplementary record) it can look at it and discover therein that the appellant’s counter affidavit is in material conflict with the 1st respondent’s affidavit; that the prayers in. the substantive application are declaratory in nature requiring some evidence vide Ogolo v. Ogolo (2006) S NWLR (pt.972) 163 at 184; and that to rehear the case under Section 15 of the Court of Appeal Act would be inappropriate vide Obi v. INEC (2007) 11 NWLR (pt.1046) 565 at 639, Attorney General of Anambra State v. Okeke (2002) 12 NWLR (pt.782) 575 at 609.
The 2nd respondent did not file any brief and was not heard in oral argument on the appeal under Order 18 rule 10 of the Court of Appeal Rules, 2011.
The issues formulated by the appellant are appropriate for the discussion and I hereby adopt them for the discourse. The 1st respondent’s originating motion on notice for certiorari to quash the decision of the appellant and the 2nd respondent stated these reliefs on pages 242 – 243 of the record-
“a. A Declaration that there was no order made as at 18/6/2009 or at anytime at all by the 1st Respondent for a “special examination” into the books and affairs of Intercontinental Bank Plc, during the management headed by the Applicant as the Group Chief Executive;
b. A Declaration that the “Joint CBN? NDIC Ad-Hoc Assignment” conducted on the books and affairs of Intercontinental Bank Plc, from 18/6/2009 during the management headed by the Applicant as Group Chief Executive of Intercontinental Bank Plc, is not a “special examination” as required by the Banks and Other Financial Institutions Act, Cap.B3, Laws of the Federation of Nigeria, 2004;
c. A Declaration that there was no “special examination” conducted at all by the 1st Respondent into the books and affairs of Intercontinental Bank Plc during the management headed by the Applicant as its Group Chief Executive;
d. A Declaration that the purported examination or investigation ordered by the 2nd Respondent, (or purportedly conducted at the instance of the 1st Respondent) into the books and affairs of Intercontinental Bank Plc, based on the letter of 18/6/2009 and signed by one E. O. Owajulu, a Deputy Director, on behalf of the Director of Banking Supervision of the 2nd Respondent during the management headed by the Applicant or at any time whatsoever, did not comply with the requisite enabling statutes, due process of law and the rules of natural justice;
e. A Declaration that the “Joint CBN/NDIC Ad-Hoc Assignment” Report relied upon by the 1st Respondent in making the said order of 14/8/2009 against the Applicant was made contrary to the principles of natural justice and due process of law;
f. A Declaration that the Applicant was denied his right to fair-hearing by the 1st and 2nd Respondents and their Agents in the purported investigation conducted into the books and affairs of Intercontinental Bank Plc under the “Joint CBN/NDIC Ad-hoc Assignment”;
g. A Declaration that Intercontinental Bank Plc is not a failing bank within the contemplation of Section 35 of the Banks and Other Financial Institutions Act, Cap. 83, Laws of the Federation of Nigeria, 2004;
h. An Order setting aside, vacating, nullifying and quashing the Order of the 1st Respondent appointing Mr. Joseph Olushola Ajewole and Mr. Lai Alabi, or any other person howsoever, as Acting Deputy Managing Director and Managing Director, respectively, or Intercontinental Bank Plc;
i. An Order setting aside, vacating, quashing, and nullifying the Order dated 14/8/2009, made against the Applicant by the 1st Respondent, on behalf of the 1st Respondent, to wit:
i. Removing the Applicant as an officer cum Chief Executive of Intercontinental Bank Plc, effective immediately from the date of the Order.
ii. Removing the Applicant as a director of Intercontinental Bank Plc, effective immediately from the date of the Order.
j. An Order of certiorari quashing the said Order of the 1st respondent made against the Applicant, for not being in good faith, contrary to due process of law, discriminatory, ultra vires, illegal, unconstitutional, null and void;
k. An Order of this Honourable Court reinstating the Applicant to his lawful position as the Group Chief
Executive and Managing Director of Intercontinental Bank Plc;
l. An Order of perpetual injunction restraining the Respondents, their officers, servants, agents, privies, assigns or any other persons deriving their authorities in any way whatsoever from the Respondents, from unlawfully interfering, harassing, victimizing or disturbing the Applicant, in any way whatsoever, from the executive of his lawful duties as the Group Chief Executive and a Director of Intercontinental Bank Plc, and from stopping in any way, whatsoever, the benefits, privileges or perquisites enuring to the Applicant by virtue of his aforesaid office;
m. The sum of N50 Billion (fifty billion naira) as exemplary damages against the Respondents, jointly and severally; and
n. Such further or other orders as this Honourable Court may deem fit to make in the circumstances. ”
After entering a memorandum of conditional appearance on 25-08-09, the appellant filed a preliminary objection to the 1st respondent’s originating application on 26-08-09 vide pages 387 – 388 of the record as follows –
‘TAKE NOTICE that the Honourable Court will be moved on the…….Day of…… in the forenoon or so soon thereafter as counsel may be heard on behalf of the 2nd Respondent praying for:
1. AN ORDER setting aside or discharging the order made granting leave to apply for judicial review on the basis of lack of jurisdiction.
2. AN ORDER declaring that this Court has no jurisdiction and/or should not exercise any jurisdiction to entertain this suit.
3. AN ORDER striking out and/or dismissing this suit.
4. AND FOR SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstances.
TAKE FURTHER NOTICE that the grounds upon which this objection is brought in addition to those contained in the accompanying affidavit are as follows.
i. Having regard to the true and proper meaning and intendment of Section 53(1) of the Banks and Other Financial Institutions Act Cap 83, Laws of the Federation of Nigeria, 2004, the Court has no jurisdiction to entertain the application for leave to apply for judicial review and the Applicant’s Originating Motion as constituted against the 2nd Respondent.
ii. The Applicant lacks the legal standing “Locus Standi” to institute or maintain this suit against the 2nd Respondent and the court therefore has no jurisdiction to entertain the suit.
iii. The Applicant’s suit is not justiciable.
iv. The Applicant’s suit does not disclose a reasonable cause of action against the 1st Respondent and the court in consequence lacks the jurisdiction to entertain the suit.”
The court below held on pages 622 – 624 of the record inter alia that for expeditious dispensation of the matter and to avoid delving into the substantive application it was better and just to take the preliminary objection to the originating application and the originating application together as no oral evidence was required to resolve the originating application pursuant to Order 29 rules 1 of its Rules.
I think it is apposite to copy hereunder Order 29 of the Rules of the court below –
“29(1) Where a defendant wishes to –
(a) dispute the Court’s jurisdiction to try the claim; or
(b) argue that the Court should not exercise its jurisdiction,
he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the Plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
(2) A defendant making such application must first file along with the application a memorandum of appearance stating that he is appearing conditionally.
(3) A defendant who files a memorandum of appearance does not, by so doing, lose any right that he may have to dispute the court’s jurisdiction.
(4) An application under this order shall;
(a) be made within twenty one days after service on the defendant of the originating process, and
(b) be supported by affidavit where it is not based on ground of law alone.
(5) If the defendant files an acknowledgement of service and does not make such application within the period specified in rule 4 of this order, any such application can only be taken at the conclusion of the trial.”
Rules 1 to 5 of Order 29 (supra) are interwoven and address the same subject matter of when it is appropriate for the court below to hear preliminary objection to an originating process. Accordingly, I propose to read them together or harmoniously following the cases of Justice Raliat Elelu-Habeeb and Anor. v. Attorney General of the Federation and Ors. (2012) 13 NWLR (pt.1318) 423 at 520 – 521 which followed the cases of Aqua Ltd. v. Ondo State Sports Council (1989) 4 NWLR (pt.91) 622, Tukur v. Government of Taraba State (No.2) (1989) 4 NWLR (pt.117) 517, Ishola v. Ajiboye (1994) 6 NWLR (pt.352) 506, Director of S.S.S. v. Agbakoba (1999) 3 NWLR (pt.595) 314, Attorney General of Bendel State v. Attorney General of the Federation (1982) 2 NCLR 1, Okogie v. Attorney General of Lagos State (1981) NCLR 337 , Anyah v. Attorney General of Borno State (1984) 5 NCLR 225.
An intimate look at Order 29 rules 1-5 of the Rules of the court below reveals that by qualifying the word “may” which is used three times in rule 1 thereof by the words “in so far as”, read with rules 2, 3, 4 and 5 thereof, makes it clear that the natural meaning of permission or discretion or choice the word “may” conveys metamorphoses into the compulsory or mandatory meaning of obligation imposing a duty on the court below to act in a particular direction without option. See Ude v. Nwara and Anor. (1993) 2 NWLR (pt.278) 638 at 661, Edewor v. Uwegba and Ors. (1987) 1 N.S.C.C. 149 at 168 – 169, Mokelu v. Commissioner for Works and Housing (1976) 1 All N.L.R.224 at 221 The Nigerian Navy and Ors. v. Navy Captain D. O. Labanjo (2012) 17 NWLR (pt.1328) 56 at 77.
Accordingly, the phrase “in so far as” appearing in Order 29 rule 1 of the Rules of the court below which means “to the extent that” or “in such measure as” (see Webster’s Comprehensive Dictionary (International Edition) 657) are words of stricture/limitation and/or words that water down and control other words or phrases, and in this case the phrase “in so far as” qualifies the word “may” and makes the latter mandatory in the context it found itself.
To illustrate: There are three significant instances that give Order 29 of the Rules of the court below mandatory or compulsory content. First if a defendant files the preliminary objection within 21 days of service on him of the originating process and the or1ginafing process does not involve the taking of oral evidence the preliminary objection must be taken together with the originating process.
Second, if the preliminary objection is filed after 21 days of the service on the defendant of the originating process, the preliminary objection must be taken with the originating process at the conclusion of trial, whether or not the originating process does not require the taking of oral evidence.
And third, if the preliminary objection is filed and the originating process entails oral evidence whether or not it was filed by the defendant within 21 days of service on him of the originating process, the preliminary objection must be taken first and separate from the originating process as a threshold issue. These are the only three instances discernable from Order 29 of the Rules of the court below showing the court below has no discretion to exercise in the implementation of Order 29 of its Rules, in my view.
Therefore, in the context the word “may” is used in Order 29 rule 1 of the Rules of the court below qualified by the phrase “in so far as” read with rules 2, 3, 4 and 5 thereof, connotes an obligation charging the court below to hear the preliminary objection together with the substantive matter, if the substantive matter does not involve the taking of oral evidence, but if oral evidence is likely to be taken in the substantive matter then the court below, as a matter of obligation, must hear the preliminary objection separate and before the substantive matter.
The emphasis is therefore on the taking of oral evidence at the hearing of the substantive action contingent upon the defendant filing the preliminary objection within the prescribed 21 days after service of the originating process on him.
The fundamental objective of the Rules of the court below is to promote speedy dispensation of justice and avoid protracted trial. Consequently, if oral evidence is to be taken at the hearing of the main action its protracted nature due to cross-examination and re-examination would unduly delay or bog down the just and expeditious disposal of the preliminary objection contrary to the spirit and soul of the Rules of the court below expressed in Order 1 rule 4 thereof thus –
“The fundamental objective of these Rules is, just and expeditious disposition of cases”.
The touchstone of Order 1 rule 4 of the Rules of the court below is therefore for it to do justice fairly and avoid delay plus unnecessary cost of protracted litigation, The court below, accordingly, had to balance the criteria of fairness, justice, convenience, time management and/or efficient case management for the purpose of attaining justice in the case by deciding to hear both the preliminary objection and the main application together.
In the present case, the advantage and protection the appellant will have of having its preliminary objection attended to first shall not be lost as the preliminary objection will be heard before the substantive matter at the time both the preliminary objection and the substantive matter are taken together.
The court below would also have to rule on the preliminary objection first, thus giving priority to the preliminary objection over and above the substantive matter.
Accordingly, I do not feel the force of the appellant’s contention that it would be deprived of statutory protection if its preliminary objection is heard together with the substantive application.
By and large what is principally involved in the substantive suit, ex facie, is to ascertain whether the unfavourable actions taken by the appellant against the 1st respondent that led to the removal from office of the 1st respondent by the appellant acting for the 2nd respondent violated Section 35 of the Banks Act; and, whether the 1st respondent was denied fair hearing in the steps taken by the appellant and the 2nd respondent to remove him from office which will entail looking at the papers filed by the 1st respondent vis-a-vis the purview of Sections 35 and 53(1) of the Banks Act which does not appear to call for oral evidence as the documentary materials necessary for the construction of Section 35 of the Banks Act is already available in the one way affidavit evidence of the 1st respondent.
The issues of lack of jurisdiction under Section 53(1) of the Banks Act, lack of locus standi and the substantive action not being justiciable or not disclosing a reasonable cause of action raised in the preliminary objection (supra) can be determined by looking at the face of the papers filed by the 1st respondent for the substantive matter alone or aliunde and/or without resort to oral evidence. See Western Steel Works v. Iron and Steel Workers Union (1987) 1 NWLR (pt.49) 284, Adeyemi v. Opeyori (1976) 9 – 10 SC 51, Izenkwe and Ors. v. Nnadozie (1953) 14 WACA 361 followed in Justice Elelu-Habeeb v. Attorney General of the Federation (supra) at 474 and Inajoku v. Adeleke (supra) at 588 – 589, to the effect that it is the claimant’s case that has to be examined on face value to ascertain the issue of jurisdiction.
Also, the case of Basinco Motors Ltd. v. Woermann-Line and Anor. (2009) 13 NWLR (pt.1157) 149 at 199, decide it that the question of locus standing is determined solely on the claim of the plaintiff without calling oral evidence, while the cases of Nicon Insurance Corporation v. Olowofoyeku (2006) 5 NWLR (pt.973) 244 at 257, Dada v. Ogunsanya (1992) 3 NWLR (pt.2321 754, Yusuf v. Akindipe (2000) 1 NWLR (pt.669) 376, Ege Shipping and Trading Inc. v. Tigris International Corporation (1999) 14 NWLR (pt.637) 70 at 90 – 91 and Ibrahim v. Osim (1988) 3 NWLR (pt.82) 257, decide that reasonable cause of action and justiciability of an action are equally determined on the face of the claim of the plaintiff without necessarily calling external evidence and without scrutinizing the documents attached to the plaintiffs claim and/or counter affidavit of the defendant.
Looking on the face of the claim of the 1st respondent at the court below, the action is not on originating summons, but an action on the prerogative order of certiorari which principally deals with excess of jurisdiction of an inferior body and breach of the doctrine of natural justice in the course of the determination of the civil rights and obligations of a person by an inferior body; so Ossai v. Wakwah (supra) on originating summons procedure is on the facts inapplicable to the case in hand.
In the result, I agree with the 1st respondent’s learned senior counsel that the court below was right to invoke Order 29 rule 1 of its rules (supra) to order that the preliminary objection be heard together with the substantive action at which the preliminary objection to jurisdiction, locus standi and justiciability/reasonable cause of action of the substantive matter will be taken first followed by the substantive matter and a decision given on them in one package by the court below for the purpose of saving time, cost and duplication of effort by the parties and the court below. See Senate President v. Nzeribe (2004) 9 NWLR (pt.878) 251 at 274 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 view on jurisdiction before considering the merits.
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 views 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 to the merit of the case”.
There is again the case of Amadi v. NNPC (2000) 10 NWLR (pt.674) 76 at 100 where Uwais, C.J.N., held inter alia that –
“With the success of the plaintiff’s 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 the merit in the proceedings as the case might be”.
Even where facts are needed to resolve preliminary objection, for the purpose of convenience and economy of time, the preliminary objection can be taken with the substantive matter. See Olorunkunle and Anor. v. Adigun and Ors. (2012) 6 NWLR (pt.1297) 407 at 426 where this Court (Okoro, Bage and Pemu, JJ.C.A.) followed Amadi v. NNPG (supra) on the same issue to hold inter alia that-
“It is instructive that the Supreme Court has given support to the position taken by the learned trial Judge in that an objection to jurisdiction where facts are needed to resolve it can be heard together with the substantive matter and an appeal taken together if need be.”
The 1st respondent did not cross appeal nor put in a notice to vary the ruling on other grounds under Order 9 rule 1 of the Court of Appeal Rules, 2011. What is before the Court on appeal is not the preliminary objection and the originating process which are yet to be determined by the court below, but its ruling scheduling both matters to be heard together by it that is on appeal in this case. See Attorney General of Anambra State and Ors. v. Okeke and Ors. (2002) 12 NWLR (pt.782) 575 at 619 – 620 thus –
“With the greatest respect to the Court of Appeal, Section 16 of the Court of Appeal Act operates to enable that court to exercise all such regular and lawful inherent powers that are open to it with a view to it arriving at a just and expeditious determination of a matter property before it on appeal. See Metal Construction (W.A.) Ltd. v. Migliore (1978) 6 – 9 SC 163. There is no doubt that the trial court did not hear or pronounce on the committal proceeding against the ‘defendants on its merit. All it dealt with was the preliminary objection raised by the defendants.
In the present case, the substantive application for the committal of the defendants had neither been moved nor had a decision on the merits in respect of the same been made by the trial court. In my view, the Court of Appeal should have confined itself to the issue of whether or not the decision of the trial court on the preliminary objection is sustain able. Regrettably, however, it did not. It took refuge under the provisions of section 16 of the Court of Appeal Act, 1976 to justify the procedure it adopted in committing the 3rd, 4th and 6th defendants to prison for contempt.”
See also Igboho Irepo Local Government Council v. The Boundary Settlement Commission and Ors. (1988) 2 S.C. (Pt.1) 28 at 132.
For these reasons I agree with the appellant’s learned counsel that section 15 of the Court of Appeal Act, 2004, cannot be invoked to rehear the case. Accordingly, I refuse the invitation of the 1st respondent to invoke Section 15 of the Court of Appeal Act.
On the whole, I see no merit in the appeal. I hereby dismiss it and uphold the ruling of the court below (Auta, J., as he then was) to hear the appellant’ preliminary objection to the substantive matter of the 1st
respondent together with the substantive matter. Parties to bear their costs. I commend Dr. Ekwueme, learned counsel for the appellant, and Chief Fagbohungbe SAN, learned senior counsel for the 1st respondent, for their well thought out briefs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by His Lordship Ikyegh, ICA. I agree intoto that this appeal lacks merits, and it’s dismissed by me. Consequently, the ruling of the Federal High Court, coram Auta I (as he then was), delivered on 26/10/09 in suit No. FHC/L/903/09 is hereby affirmed.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, Ikyegh JCA. He has exhaustively dealt with all the issues raised.
In deciding to hear the preliminary objection and the originating motion together, the learned trial Judge considered the provisions of Order 1 Rule 4 and Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009. His Lordship thereby exercised his discretion judicially and judiciously rather than arbitrarily. This court, as an appellate court cannot in the circumstances interfere with this proper exercise of judicial discretion by the lower court. See Oyegun v Nzeribe (2010) 7 NWLR (Pt.1194) 577; Haruna v Ladeinde (1987) 4 NWLR (Pt.67) 941; Ugboma v Olise (1971) 1 All NLR 8; University of Lagos v Olaniyan (1985) 1 NWLR (Pt.1) 156.
I agree that the appeal lacks merit. I also dismiss it and abide by the consequential orders in the lead judgment.
Appearances
Dr. K. U. K. Ekwueme (with Mr. B. B. Makanjuola and Mr. E. I. Ebiri) For Appellant
AND
Chief F. O. Fagbohungbe SAN (with M. A. Adeniran and Miss E. L. Onoja) for 1st Respondent.
Mr. K. Awodein, SAN (with Mr. H. Abelekale) for 2nd Respondent. For Respondent
