ARMAFORD NIGERIA LIMITED & ORS v. NIGERIAN DEPOSIT INSURANCE CORPORATION (2014)

ARMAFORD NIGERIA LIMITED & ORS v. NIGERIAN DEPOSIT INSURANCE CORPORATION

(2014)LCN/7120(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of April, 2014

CA/L/926/2011

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

1. ARMAFORD NIGERIA LIMITED
2. MR. AYOADE ADEWUYI
3. MR. GBOGBOLAYO ADEOJO Appellant(s)

AND

NIGERIAN DEPOSIT INSURANCE CORPORATION Respondent(s)

RATIO

FACTOR TO DETERMINE WHETHER A GROUND OF APPEAL IS MIXED LAW AND FACTS OR FACTS SIMPLICITER

In the case of Abubakar v. Waziri & Ors. (2008) NWLR (Pt.11078) 507 Niki Tobi JSC observed that:
“In the determination of whether a ground of appeal is mixed law and fact or facts simpliciter, the ground of appeal and the particulars must be considered and taken together. They cannot be considered and taken separately.” Also in the case of Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt.1113) 278 @ 29 294 F-E Onnoghen JSC observed:
“In determining whether a ground of appeal is of law or fact or mixed law and fact, the court is to be guided by the following principles:
(a) Where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground is of mixed law and fact;
(b) A ground which challenges the findings of fact made by the trial court or involves issues of law and fact can only be argued with the leave of the appellate court;
(c) Where the evaluation of fact established by the trial court before the law in respect thereof is applied is under attack or question, the ground of appeal is one of mixed law and fact;
(d) Where the evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact, and;
(e) A ground of law arises where the ground of appeal shows that tne court of trial or appellate court misunderstood the law or misapplied the law to the proved or admitted facts.” PER IYIZOBA, J.C.A.

WHETHER OR NOT LEAVE OF COURT MUST BE OBTAINED TO ARGUE GROUNDS OF MIXED LAW AND FACTS

It is not in doubt that all the four grounds and their particulars as set out above are grounds of mixed law and facts as firmly agreed to by both sides. What is under attack in the four grounds of appeal is the evaluation of fact established by the trial court before the application of the law as to whether Wema Bank should be joined as a party to the suit or not. The parties are also in agreement that leave of the Court must be obtained to argue grounds of mixed law and facts. The law on the point is trite. There is statutory provision for it as well as a long line of decided authorities. Ajibade v. Pedro (1992) NWLR (Pt 241) 257; Ugboaja u Akitoye-Sowemimo (Supra); YARA VS. AREWA CONSTRUCTION LTD. (Supra); Ekwerekwu v Egboche [2010] 14 NWLR (PT.1213) 194 @ 204 C – G; Bonkolans Investment Limited v Central Securities Clearing Systems Limited [2010] 5 NWLR (PT.1186) 182 @ 206 B – C. PER IYIZOBA, J.C.A.

WHETHER OR NOT RELIEFS IN A MOTION PAPER MUST BE SIMILAR TO A PARTY’S PLEADING

In the case of Emerah & Anor v. Oladosun & Ors (2011) LPELR – 8982 (CA), it was held that
“it is elementary and trite law that reliefs in a motion paper is akin to a party’s pleading. In the same way evidence is given in proof of facts averred on pleadings, the affidavit serves as the facts in proof of the relief sought in an application.”
Just as evidence cannot be led in respect of a matter not pleaded, affidavit evidence in respect of a relief not claimed in the motion paper is of no use. PER IYIZOBA, J.C.A.

WHETHER OR NOT APPEALS FROM THE COURT OF APPEAL TO THE SUPREME COURT ON MATTERS OF FACTS OR MIXED LAW AND FACTS REQUIRE LEAVE OF COURT

In YARA VS. AREWA CONSTRUCTION LTD. (2008) FWLR (Pt 400) 603 @ 625, [2002] 17 NWLR (Pt 1063) 333; the Supreme Court held:
“Appeals from the Court of Appeal to the Supreme Court on matters of facts or mixed law and facts require leave, which otherwise means permission, of the Court of Appeal or the Supreme Court which must be obtained as a matter of condition precedent………………..The consequence of not seeking leave where a ground of appeal is of facts or of mixed law and fact is fatal to the ground.” PER IYIZOBA, J.C.A.

WHETHER OR NOT THE COURT CAN GRANT RELIEF NOT CLAIMED BY PARTIES

The question therefore is whether on the face of the motion paper, the Appellants asked for permission of the court to appeal on grounds of mixed law and fact. No such relief was claimed in the motion paper. None was also granted by the lower court. The contention of the appellant that a blanket application for leave covers all situations where leave is necessary cannot be the law. The court cannot grant a relief not claimed. In Odunze & Ors v. Nwosu & Ors (2007) 13 NWLR (Pt.1050) 1 the Supreme Court per Mukhtar JSC observed:
“The cardinal principle of the law that is well settled is that a court is not a charitable institution that would grant reliefs that are not claimed by a party. It must restrict and confine itself within the wall of the relief a party approaches it for, and not to undertake its own generous acts of awarding reliefs not sought.” PER IYIZOBA, J.C.A.

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Archibong J. of the Federal High Court, Lagos in Suit no FHC/L/FBC/342/2000 delivered on 28/1/08 refusing to join Wema Bank Plc as a party in the Respondent’s suit for the recovery of a debt owed to a failed bank. The 1st Appellant obtained a term loan of US$400,000 in October 1989 from Nigerian Bank for Commerce and Industry [NBCI] for the procurement of plant, machineries and equipments for the production of exhaust mufflers from recorded steel waste. The loan was secured by the Personal Guarantee of the 2nd and 3rd Appellants. The amount due and payable as at 30/11/98 when the suit was initially instituted was the sum of US$852,527.12. There is no dispute at all regarding the appellant’s indebtedness and the amount owed. The appellants claimed they could not install the said plants and machineries due to lack of funds and later to the political situation during the Military regime of General Sani Abacha. The machineries were then kept for storage in a warehouse in Oregun Lagos owned by Phoenix Motors Limited for a fee. The appellants claimed that upon a visit to the warehouse by the 2nd Appellant sometime in August 2005, he discovered that the equipments were no longer in the warehouse. On enquiries as to the whereabouts of the machineries, they claimed they were informed that Wema Bank Plc had appointed a Receiver, Wemabod Estates Ltd for Phoenix Motors Limited in liquidation. The Appellants claimed they had intended to sell the plants and machineries stored with Phoenix Motors in order to liquidate the loan facility obtained from NBIC. The Respondent on the other hand claimed that the alleged sale of the equipment by Wema Bank Plc (party sought to be joined) concerned Mitsubishi Pick-Up, 505 Saloon Car, Mitsubishi Saloon Car, Mazda 929 Saloon Car, Yamaha Generator, Power Generator, Porta Cabin, Lathe Machines Stainless Boiler and was concluded in January 2005. It further alleged that the 2nd Appellant by letter to Wemabod Estates Ltd said that he saw the equipment purchased with the term loan in the warehouse where they were kept in April 2005 long after the liquidator appointed by Wema Bank Plc had concluded the sale. The Respondent claimed that the equipment said to have been sold by Wema Bank Plc were never the same equipment the Appellants are alleging were plants and machinery bought with the term loan. The Respondent claimed the party sought to be joined was never a party to the loan transaction nor had any relationship with the parties in the suit whether in pursuit of the loan or any interest on the loan. The Appellants alleged that they had contractual relationship with Phoenix Motors Ltd (a company in liquidation). The contract was that Phoenix Motors Ltd was to store the Appellants’ equipment in the warehouse which at a time fell into the possession of Wemabod Estates Ltd. On the liquidation of Phoenix Motors Ltd, Wemabod Estates Ltd took over possession of the premises occupied by Phoenix Motors Ltd. At that time the Appellants inspected the warehouse in April 2005 and found the said equipments purchased with the term loan intact. (See page 120 – 121 of the Record). The Respondent claimed Wema Bank Plc had no contact with the equipments said to be purchased with the term loan.

In a reserved Ruling delivered on 28/1/08 the learned trial Judge dismissed the application for joinder of Wema Bank in the suit. Dissatisfied with the Ruling, the Appellants filed this appeal with a notice of appeal containing four grounds out of which they formulated the following issues:

1. Whether a party sought to be joined in an action needs only to have a direct and legal interest in the suit rather than an existing interest at the commencement of the suit.

2. Whether having regard to the Appellants’ averments as contained in their Statement of Defence and their affidavit in support of their application for joinder both dated 17 February 2006, the Appellants have established a clear nexus between Wema Bank and the Appellants thus making it essential that Wema Bank be joined as a necessary party to the suit.

3. Whether the merits of a case can only be decided on events as they occurred at the commencement of the suit.

The Respondents on their part formulated the following issues for determination:

1. Whether or not there is a competent appeal.

2. Assuming without conceding that there is a competent appeal whether Wema Bank Plc is a necessary party to be joined in the action for the recovery of debt owed to the Respondent by the Appellants and which debt has not been disputed by the Appellants.

3. Whether the Respondent can be compelled to join in an action a party with whom it has no claim and with whom there is no existing interest.

I am of the view that the Respondent’s issues are more germane to the grounds of appeal. I shall therefore adopt the Respondent’s issues in the determination of this appeal. Further the Respondent’s issue one being a complaint against the competence of the appeal and a jurisdictional issue needs to be taken first. Other issues will then follow if need be.

ISSUE 1: WHETHER OR NOT THERE IS A COMPETENT APPEAL
RESPONDENTS ARGUMENTS:

Learned counsel for the Respondent on this issue submitted that Grounds 1, 2, 3 and 4 of the notice of appeal filed on 31/7/11 are grounds of mixed law and facts; and that the appellant failed to obtain leave of court to appeal on mixed law and facts. Counsel submitted that the leave of the lower court sought and obtained was in compliance with section 15 of the Court of Appeal Act LFN 2004 which allows interlocutory appeal with the leave of the lower court or Court of Appeal. Counsel submitted that leave obtained to appeal against interlocutory decision of Archibong J. of the 28th January 2008 does not permit the Appellants to file grounds of appeal which are completely of mixed law and facts. Counsel argued that the Appellant having not obtained leave to appeal on mixed law and fact, the appeal as constituted is incompetent. Counsel relied on YARA VS. AREWA CONSTRUCTION LTD. (2008) FWLR (Pt 400) 603 @ 625 where the SC stated as follows:

“The consequence for not seeking leave when a ground of appeal is of mixed law and fact is fatal to the ground.”

Counsel also referred to the case of MAIGORO VS. GARBA (1999) 10 NWLR (Pt. 624) 555.

Counsel further submitted that the appeal was not brought in good faith as the Appellants failed to join all the parties affected by the Ruling including Wema Bank Plc. He submitted that the conduct of the appellants is undeserving and a calculated attempt to cheat the Respondent out of Justice by means of frivolous appeals. He urged us to dismiss the appeal.

APPELLANTS’ ARGUMENTS IN REPLY:
In their Reply on points of law, the Appellants submitted that their grounds of appeal as contained in the Notice of Appeal dated 29 July 2011 but filed on 1 August 2011 are competent. They submitted that the leave obtained by the Appellants at the lower court on 18 July 2011 was not leave of the lower court sought and obtained in consonance with Section 15 of the Court of Appeal Act LFN 2004 as submitted by the Respondent but rather was, as is clear from the Appellants’ application dated 1 July 2011 in the lower court, that the Appellants sought for leave to appeal on grounds contained in grounds (2), (3) and (4) on the face of the motion paper which read that:

(2) A decision given on the issue of joinder is based on the discretion of the judge and on issues of law and fact.
(3) As a result of (2) above, the Applicants require the leave of this Honourable Court to appeal against the said ruling.
(4) The Notices of Appeal dated 7 February 2008 and 27 February 2008 filed by the Applicants as a result of not obtaining the leave of this Honourable Court were struck out by the Court of Appeal for being incompetent upon the application of the Applicants [see pages 372-373 of the Records].

Counsel submitted that from the affidavit in support of the motion dated 1 July 2011 that the leave sought for and obtained by the Appellants was as result of the fact that the grounds of appeal as contained in the notice of appeal were of mixed law and fact. He referred particularly to paragraphs 6, 7 and 13 of the said affidavit which states that:

“(6) The Applicants however realized that they ought to have sought the leave of this Honourable Court to appeal against the ruling as the grounds of appeal are based on mixed law and fact.
(7) As a result of (6) above, the Applicants in order to regularize their position filed an application dated 1 July 2010 seeking the trinity prayers for extension of time to apply for leave to appeal against the ruling of this Honourable Court.
…….
(13) As a result of the above, the Applicants are bringing this application to regularize our position”. (Pages 376 of the Records).

Relying on the cases of Ekwereku v Egboche [2010] 14 NWLR (PT.1213] 194 @ 204 C-G; Bankolans Investment Limited v Central Securities Clearing Systems Limited [2010] 5 NWLR (PT.1186) 182 @ 206 B-C, Counsel submitted that the position of the law on this issue is as stated in Sections 241 and 242 of the Constitution, of the Federal Republic of Nigeria 1999 and the plethora of cases that an appeal to the Court above can only be as of right or by leave; and that in a situation where the right to appeal does not fall within any of the instances listed in Section 241, Section 242 simply provides that leave of the lower court or the court to which the appeal lies shall be sought and obtained.

Learned counsel submitted that all that was required of the Appellant in this instance was to obtain the leave of court. Furthermore the grounds upon which the application was brought for leave was clear on its face as seeking leave to appeal on grounds of mixed law and fact.

RESOLUTION:
Although both sides are in agreement that all the four grounds of appeal are grounds of mixed law and facts for clearer understanding of the issue under discussion, I shall set out the four grounds with their particulars:

“GROUND 1:
The learned trial Judge erred in law by holding on page 4 of the ruling that “a party to be joined must have an “existing interest” at the time the action or suit was commenced and not contingent or “in future.”
PARTICULARS
(a) Wema Bank (the party sought to be joined in the lower court) ought to have been joined not because it does not have an (“existing right”) but because it has a direct and legal interest in the suit,
(b) The appellant has a justiciable cause of action against Wema Bank which warrants its joinder in the suit.
(c) The appellant also has an existing right of relief against Wema Bank in the suit.
(d) The joinder of a party is not contingent on the cause of action at the commencement of the suit

GROUND 2:
The learned trial Judge erred in law by holding that the party sought to be joined (Wema Bank) was not a necessary party to the suit.
PARTICULARS
(a) Wema Bank was closely connected with the disposal of the subject matter of the suit
(b) If Wema Bank had not been joined, its right would have been adversely affected by the orders of the court.
(c) Wema Bank is a necessary party to the suit whose presence is necessary for the effectual and complete adjudication of the questions and issues raised by the Appellants in the Appellant’s statement of defence.
(d) The Appellants’ affidavit in support of the application for joinder and the statement of defence are replete with reasons as to why Wema Bank ought to be bound by the result of the suit.
(e) A necessary party are those who in their absence, the proceedings cannot be fairly dealt with.

GROUND 3
The learned trial Judge misdirected himself by failing to see the nexus between the party sought to be joined (Wema Bank) and the Appellants.
PARTICULARS
(a) The contents of the Appellants’ affidavit in support of the application for joinder and the statement of defence establish a clear nexus between Wema Bank and the Appellants.
(b) The nexus between Wema Bank and the Appellants makes it essential that Wema Bank be made a party to the suit.
(c) The issues and questions raised as a result of the nexus between Wema Bank and the Appellant are such that they can be disposed of in this suit.

GROUND 4
The learned trial Judge erred in law by holding that the suit will be considered on its merits as matters stood at the date the originating application was taken out.
PARTICULARS
(a) The originating application was taken out by the Respondents in 1998 whilst the Applicants statement of defence was filed in February 2006.
(b) The essence of the position taken by the learned trial Judge is that the points raised by the Applicants in their defence do not deserve consideration in the resolution of the matter.
(c) The suit cannot be properly determined without taking into consideration events which have taken place after 1998.”

Also in the case of Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt.1113) 278 @ 29 294 F-E Onnoghen JSC observed:
“In determining whether a ground of appeal is of law or fact or mixed law and fact, the court is to be guided by the following principles:
(a) Where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground is of mixed law and fact;
(b) A ground which challenges the findings of fact made by the trial court or involves issues of law and fact can only be argued with the leave of the appellate court;
(c) Where the evaluation of fact established by the trial court before the law in respect thereof is applied is under attack or question, the ground of appeal is one of mixed law and fact;
(d) Where the evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact, and;
(e) A ground of law arises where the ground of appeal shows that tne court of trial or appellate court misunderstood the law or misapplied the law to the proved or admitted facts.”

the application of the law as to whether Wema Bank should be joined as a party to the suit or not. The parties are also in agreement that leave of the Court must be obtained to argue grounds of mixed law and facts. The law on the point is trite. There is statutory provision for it as well as a long line of decided authorities. Ajibade v. Pedro (1992) NWLR (Pt 241) 257; Ugboaja u Akitoye-Sowemimo (Supra); YARA VS. AREWA CONSTRUCTION LTD. (Supra); Ekwerekwu v Egboche [2010] 14 NWLR (PT.1213) 194 @ 204 C – G; Bonkolans Investment Limited v Central Securities Clearing Systems Limited [2010] 5 NWLR (PT.1186) 182 @ 206 B – C.

The Appellant claims they did obtain the requisite leave. The only point to decide therefore is whether the application of the Appellants for leave as set out in the motion paper covered application for leave to appeal on grounds of mixed law and facts. It is then necessary to set out the contents of the application itself. The application is at page 372 of the Record of Appeal and reads as follows:

“TAKE NOTICE: that this Honourable Court will be moved on ……the…..day of…….2011 at the hour of 9’oclock in the forenoon or so soon thereafter as counsel on behalf of the Defendant/Applicants may be heard for the following orders:
1. AN ORDER granting the Defendants/Applicants (“the Applicants”) extension of time within which to appeal against the Ruling of this Honourable Court delivered on 28 January 2008 in this suit.
2. AN ORDER granting the Applicants extension of time within which to appeal against the Ruling.
3. LEAVE to appeal against the Ruling
AND for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.”

It is very clear from the reliefs sought in this application that no leave was sought to appeal on grounds of mixed law and fact. All the Appellants prayed for were the trinity prayers. But the first relief was not even properly worded. It ought to have been extension of time within which to apply for leave to appeal, leave to appeal because the appeal is against an interlocutory ruling which appeal is not as of right and then extension of time within which to appeal because they were out of time. There was need to include specifically as one of the reliefs sought “Leave to appeal on grounds of mixed law and fact. “Leave to appeal is a different thing from leave to appeal on grounds of mixed law and fact. The first refers to the appeal itself while the second refers to the grounds of appeal. Apart from the constitutional provision, leave to appeal against an interlocutory decision which is not a final decision is also provided for by section 14 of the Court of Appeal Act 2004, which the Respondent wrongly referred to as section 15. The Respondent is therefore right that the leave sort and obtained by the Appellant was pursuant to that section. Even the Order of the lower Court as shown at page 409 of the Record of appeal supports the fact that no leave was granted to appeal on grounds of mixed law and facts. The lower Court granted the applicant 1. Extension of time to apply for leave to appeal; 2. Extension of time within which to appeal against the Ruling; 3. Leave to appeal against the Ruling and 4. That proceedings be stayed pending the determination of the appeal.
The fact that there were allusions in the Grounds for the application or the affidavit that grounds of appeal are grounds of mixed law and facts do not satisfy the requirement of the law because orders are made as per reliefs sought on the face of the motion paper.

The lower court could not have granted and did not grant the appellant leave to appeal on grounds of mixed law and facts because the relief was not prayed for in the motion paper as set out above. The cases of Ekwerekwu v Egboche [2010] 14 NWLR (PT.1213) 194 @ 204 C -G; Bonkolans Investment Limited v Central Securities Clearing Systems Limited [2010] 5 NWLR (PT.1186) 182 @ 206 B-C, cited by the appellant do not assist his case in any way. They merely re-stated the general principle as to when an appeal is as of right and when leave is required as laid down in Sections 241 and 242 of the Constitution and the fact that where an appeal requires leave of court to be obtained and it is not obtained, such an appeal is incompetent and will be struck out. In the case of grounds of appeal, if there are other grounds to sustain the appeal after the grounds requiring leave are struck out, the appeal would go on. Obata of Otan-Aiyegbaju v Adesina (1999) 2 NWLR (Pt 590) 163. But if all the grounds are affected, in the absence of grounds to sustain the appeal, then the appeal would be struck out. Irhabor v Ogaiamien (1999) 8 NWLR (Pt. 616) 517. The four grounds of appeal are grounds of mixed law and facts; not having sought the leave of the court to appeal on those grounds, the appeal is incompetent and ought to be struck out.

In the case of Ekwerekwu v Egboche (Supra)- this Court per Sanusi JCA held that:
“Where an appeal requires leave of court to be obtained and the leave was not sought and obtained, such appeal is incompetent and would be struck out. This is obviously because a court of competent jurisdiction has no jurisdiction to hear an incompetent appeal. In the instant case, the appeal being incompetent, the court of Appeal lacked jurisdiction to go into its merits.”

Having determined that the appeal is incompetent as all the grounds are of mixed law and facts, and no leave to appeal on those grounds was obtained, this court lacks the jurisdiction to consider the appeal on the merits. The Respondent’s first issue is resolved in its favour. There is no competent appeal. The appeal is therefore hereby struck out. I make no order as to costs.

AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Iyizoba, JCA, and I agree with him that the appeal cannot be heard on its merit since the Appellants failed to obtain leave to file grounds of mixed law and fact – see Uchendu V. Ogboni (1999) 5 NWLR (Pt. 603) 337 SC and Akpasubi V. Umweni (1982) 13 NSCC (Vol. 13)438 at 440 SC, where Eso, JSC, observed –
“No leave was given to the Appellant either by the Federal Court of Appeal or this Court to file a ground of fact. The appellate jurisdiction of this Court on questions of fact only exists where there has been leave of the Federal Court of Appeal or of this Court. No appeal on question of fact lies to this Court without such leave. In other words, where as it would appear to me in this case, question of fact has been brought to this Court without leave, the Court has no jurisdiction”.

In this case, the Appellants never sought the leave of the lower Court or of this Court to appeal on grounds of mixed law and fact, and it follows, therefore, that this Court lacks the requisite jurisdiction to entertain the appeal.
Thus, I also strike out the appeal, and I also make no order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in draft the judgment prepared by learned brother Chinwe Eugenia Iyizoba, J.C.A., in which I concur with nothing useful to add.

Appearances

Dr. Adewale Olawoyin with Tope Ademola (Mrs) and Abass Ibrahim Esq.,For Appellant

AND

Olusola Folarin (Miss)For Respondent