NIGERIAN DEPOSIT INSURANCE CORPORATION v. JACKSON DEVOS LIMITED (2014)

NIGERIAN DEPOSIT INSURANCE CORPORATION v. JACKSON DEVOS LIMITED

(2014)LCN/7355(CA)

In The Court of Appeal of Nigeria

On Monday, the 7th day of July, 2014

CA/C/77/2011

RATIO

APPEAL: APPEAL AS OF RIGHT; WHEN SHALL AN APPEAL LIE FROM THE DECISION OF THE FEDERAL HIGH COURT OR A HIGH COURT TO THE COURT OF APPEAL AS OF RIGHT

The right to appeal against a decision of a lower court, whether interlocutory or final is governed by statutory, including Constitutional, provisions creating either the trial or appellate courts. The procedure for exercising that right of appeal is also provided by law. The right of appeal is provided for in Sections 241(1); 242(1); and 243 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Relevant in determination of this Preliminary Objection are the provisions of Sections 241(1)(a) and (b); and 242(1) as follows:
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 –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings;
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

The procedure for exercising the right of appeal is provided for in Section 24 of the Court of Appeal Act, 2004:
24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.

There is a right of appeal when the complaint is in respect of a final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; or where the ground of appeal involves questions of law alone in any civil or criminal proceedings. These provisions plainly interpreted are quite unambiguous. per. ONYEKACHI AJA OTISI, J.C.A.

APPEAL: INTERLOCUTORY APPEAL; WHETHER AN INTERLOCUTORY APPEAL, IN WHICH THE GROUND OF APPEAL DOES NOT RAISE GROUNDS OF LAW, WOULD ONLY BE COMPETENT WITH PRIOR LEAVE OF COURT AND THE CONSEQUENCE OF NOT OBTAINING LEAVE OF COURT WHEN IT IS REQUIRED

An interlocutory appeal, in which the ground of appeal does not raise grounds of law, would only be competent with prior leave of court. A notice of appeal filed without leave of court in circumstances required, is incompetent. It is a nullity; and, there is in effect no appeal. Nalsa & Team Asso. v. NNPC (1991) CLR 11(d) (SC), (1991) 8 (Pt.212) 652; Williams v. Gregory Mokwe (2005) 7 S.C. (Pt.11) 153; Obaseki Iyawere & anor vs. Andrew Omoh & anor (2011) LPELR-8830 (CA). per. ONYEKACHI AJA OTISI, J.C.A.

PRACTICE AND PROCEDURE: APPLICATION FOR AMENDMENT OF THE WRIT OR PLEADINGS; CIRCUMSTANCES UNDER WHICH AN APPLICATION FOR AMENDMENT OF THE WRIT OR PLEADINGS WOULD BE ALLOWED

In Jessica Trading Co. Ltd v. Bendel Insurance Co. Ltd. (1993) 1 NWLR (Pt.271) 538 S.C., the Supreme Court, per Kutigi, JSC (as he then was) restated circumstances under which an application for amendment of the writ or pleadings would be allowed thus:
Under what circumstances will leave to amend the writ and or pleadings be granted? The guiding principle of cardinal importance is that generally speaking all such amendments ought to be made for the purpose of determining the real question in controversy between the parties or correcting any defect or error in the proceedings (See G.L. Baker Ltd v. Medway Building & Supplies Ltd (1958) 1 WLR 1216; A.U. Amadi v. Thomas Applin & Co. Ltd (1972) 1 All NLR 409). The Court therefore must in the process consider the materiality of the amendment sought in deciding whether or not to grant it, and will not allow an inconsistent or useless amendment (See Oyenuga v. Provisional Council of the University of Ife (1965) NMLR 9. So that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is a matter of right on his part to have it corrected if it can be done without injustice. If the amendment sought relates to a mere misnomer, it will be granted almost as a matter of course (Olu of Warri v. Esi (1958) SCNLR 384; (1958) 3 FSC 94); but an amendment to create a suit where none existed would not be granted (Re Pedro St. Matthew-Daniel (Deceased) (1950) 19 NLR 73. Also an amendment to change the nature of the claims before the court will not be allowed (See Foko & Ors v. Foko & Ors (1968) NMLR 44). Again leave to amend will not be granted if the amendment would not cure the defect in the proceeding (Abasi v. Labiyi (1958) WRNLR 12). per. ONYEKACHI AJA OTISI, J.C.A.

PRACTICE AND PROCEDURE; AMENDMENT OF PLEADINGS; AT WHAT STAGE OF THE PROCEEDINGS IN COURT CAN AMENDMENT OF PLEADINGS BE MADE

It is our law that amendment of pleadings may be made at any stage of the proceedings in court. Oguntimehin v. Gubere (1964) 1 All N.L.R. 176; even on appeal, and the amendment dates back to the date of filing the document. Adewunmi v. Attorney General, Ekiti State (2002) 1 S.C. 47, Vulcan Gases Ltd. v. G.F. Ind. A.G. (2001) 9 NWLR (Pt.719) 610, (2001) 5 S.C. (PT. 1) 1. Therefore, unless such amendment will result in injustice or surprise or embarrassment to the other party or the applicant is acting mala fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by way of costs or otherwise. per. ONYEKACHI AJA OTISI, J.C.A.

COURT: DISCRETION OF THE COURT; WHETHER A CONSIDERATION OF AN APPLICATION FOR LEAVE TO AMEND PLEADINGS INVOLVES THE EXERCISE OF DISCRETION BY THE COURT

A consideration of an application for leave to amend pleadings involves the exercise of discretion by the court and it is the law that in exercising that discretion, the court must not only act judicially but also judiciously. The discretion is to be exercised so as to do what justice and fair play may require, having regards to the facts and circumstances of the particular case. Mamman v. Salaudeen (2005) 12 S.C. (Pt.11) 46, Adetutu v. Aderohunmu (1984) SCNLR 515 at 523, Laguro v. Toku (1992) 2 NWLR (Pt.223) 278, Alsthom S.A. v. Saraki (2000) 10 – 11 S.C.48. per. ONYEKACHI AJA OTISI, J.C.A.

COURT: JURISDICTION; WHETHER THE JURISDICTION OF THE COURT IS DETERMINED BY THE PLAINTIFF’S CLAIM AS DISCLOSED IN THE WRIT OF SUMMONS AND OR THE STATEMENT OF CLAIM

It is also settled law that the jurisdiction of the court is determined by the plaintiff’s claim as disclosed in the writ of summons; and/or the statement of claim, where it has been filed; this being because the statement of claim supersedes the writ of summons. The entire content and claim of the statement of claim are the materials to be examined in determining whether or not a court has jurisdiction. Tukur v. Govt. of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; NV Scheep v. MV “Araz” (2000) 15 NWLR (Pt.681) 668; Ayorinde v. Oni (2000) 3 NWLR (Pt.649) 348, Nnadi v. Okoro (1998) 1 NWLR (Pt. 535).
Where the subject matter of the claim is not within the jurisdiction of the Court adjudicating, there is nothing to adjudicate. The proceedings, as well as the subsequent decision, reached in the absence of jurisdiction, are a nullity. per. ONYEKACHI AJA OTISI, J.C.A.

COURT: JURISDICTION; THE JURISDICTION OF THE FEDERAL HIGH COURT UNDER THE CONSTITUTION

The jurisdiction for the Federal High Court is founded in Section 251 of the Constitution. Section 251(1) provides:
Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as maybe conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is party;
(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another any action by or against the Central Bank of Nigeria arising from banking foreign exchange, coinage, legal tender bills of exchange, letters of credit, promissory notes and other fiscal treasures; provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) arising from the operation of the Companies and Allied matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied matters Act
(f) any Federal enactment relating to copy right, patent, designs, trade marks and passing off, industrial designs and merchandise trade marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalisation and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria passports and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft;
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) weights and measures;
(p) the administration or the management and control of the Federal Government or any of its agencies (p) subject to the provisions of this Constitution the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National Assembly:
Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an act for damages, injunction or specific performance where the action is based on any enactment, law or equity. (emphasis mine)
The Supreme Court in Adelekan v. Ecu-Line (supra), also reported in (2006) 5 S.C. (Pt.11) 32, (2006) LPELR – 113 (SC), per Onnoghen, JSC, unequivocally said of Section 251:
“It is the section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial court.” per. ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

JOSEPH JUDE JELLA Justice of The Court of Appeal of Nigeria

Between

NIGERIAN DEPOSIT INSURANCE CORPORATION Appellant(s)

AND

JACKSON DEVOS LIMITED Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice A. Ademola of the Federal High Court, Calabar, delivered on the 21st day of January, 2011 in Suit No. FHC/CA/CS/5/2006.

These are the facts leading to this appeal as relayed by the Appellant: In 1996, the Appellant was appointed Receiver/Liquidator of both Merchant Bank of Africa and Century Merchant Bank Ltd in liquidation. After the appointment the Appellant brought an action at the Failed Banks (Recovery of Debts) and Financial Malpractices Tribunal Lagos Zone III, against the Respondent as debtor to the said Banks in liquidation. On 13/5/97 the Appellant obtained judgment against the Respondent for the recovery of some amount of money which the Respondent owed the said two banks in liquidation. In the process of executing of the said judgment, the Appellant made some concessions. The Appellant granted the Respondent an interest waiver of 70%, thereby reducing their indebtedness to N74,597,000.00. It was mutually agreed that the Respondent would repay the loan within 15 months, but it defaulted. In May 1998, the Appellant proceeded to seal up the Respondent’s carpet factory located at North Industrial Layout, Calabar. The Appellant, through Bailiffs of the High Court of Justice, Cross River State, took proper inventory of items in the Respondent’s factory.

The Appellant was assigned, upon request, policemen from Zone 6 Police Headquarters, Calabar, to guard and protect the factory’s property until the Nigeria Export and Import Bank (NEXIM Bank) bought over the debt and settled the Appellant. The Respondent’s said factory was thereafter handed over to NEXIM Bank, in a debt ‘buy back Agreement’.

After the said handover of the factory, the Respondent brought an action, against the Appellant, alleging that the Appellant, by its negligence, allowed the factory to be vandalized more than once and in consequence the equipment and machineries were carted away under their watch. At conclusion of the hearing, the learned trial Judge granted all the reliefs of the Respondent. Aggrieved by the judgment, the Appellant brought this appeal.

On the part of the Respondent, it is their position that the Appellant, in execution of the said judgment delivered by the Failed Banks (Recovery of Debts) and Financial Malpractices Tribunal Lagos, sealed up the Respondent’s ultra-modern carpet factory with all the equipment, machineries, vehicles, work-in-progress on the factory floor and chased away the Respondent’s workers. The Appellant proceeded to change the keys of the entire factory premises and replace them with their own keys to effectively take physical control of the factory premises and strictly prevented the Respondent’s Directors/Representatives from entering the said factory premises.

While the Respondent was making arrangement for the repayment of the loan but worried about the security of the expensive machinery in the said factory, the Respondent wrote the Appellant, requesting for permission to allow the security staff of the Respondent to patrol and guard the vast factory alongside with the Appellant’s own guards, in order to prevent vandalization of the factory. The Appellant rejected this proposal.

The Respondent was able to secure the repayment of the loans and on subsequent inspections it was discovered that the factory had been vandalized. The Respondent took out action against the Appellant and led uncontroverted evidence before the trial court to establish that the Appellant by its negligence allowed the factory to be vandalized more than once. The vandalization resulted in the equipment and machineries in the Respondent’s factory being carted away under the nose of the Appellant. The Respondent contended that the judgment of the trial court was based on the evidence and admissions made before the court.

In the Amended Notice and Grounds of Appeal filed on 7/6/2013, but deemed properly filed and served on 17/9/2013, the Appellant raised nine Grounds of Appeal; and sought an Order:
Setting aside the judgment and order retrial of the case.

The Appellant’s Brief of Argument was settled by Gideon Onwok, Esq. for A.B. Mahmoud, SAN, Dikko & Mahmoud (Solicitors), of Counsel, and filed on 30/5/2012. It was deemed properly filed and served on 17/9/2013. The Respondent’s Brief was settled by E. Etuk, Esq., Alex Umoh, Esq., and H. Eguridu, Esq. of E. Etuk & Co, and was filed on 24/10/2013. The Respondent also filed a Notice of Preliminary Objection. The Appellant’s Reply Brief was filed on 28/3/2014, and deemed properly filed on 16/6/2014.

On 16/6/2014, Chief Ladi Williams, SAN, for the Respondent relied on their Preliminary Objection; to which the Appellant had responded in their Reply Brief. The Briefs of Argument were also respectively adopted on 16/6/2014 by Gideon Onwok, Esq. for the Appellant, and, by Chief Ladi Williams, SAN for the Respondent. As is customary, the merits of the preliminary objection shall first be considered.

By the Notice of Preliminary Objection the Respondent prayed the Court for:

AN ORDER dismissing or striking out ground three (3) of the grounds of appeal herein for being incompetent.

AND FURTHER TAKE NOTICE that, the Grounds upon which the objection is based are as follows:-

a. Ground three (3) of the grounds of Appeal relates to an interlocutory decision of the trial court refusing an application to amend the statement of defence.
b. The Appellant never sought and obtain the leave of the lower Court or this Honourable Court to appeal on the said ground.
c. It is trite that an aggrieved party can only appear if the grounds of appeal are of law as of right within 14 days of the decision.
d. It is also trite that if the ground of appeal is of fact or mixed law and fact the aggrieved party would only appeal with the leave of this Court or the court below within 14 days.
f. Ground three (3) herein is a ground of mixed law and facts.

It was submitted that from the record and the facts of this case, ground three (3) of the Grounds of Appeal attacks the interlocutory decision of the lower court. The said ground three questioned the trial court’s exercise of discretion in refusing to grant the Appellant leave to amend their Statement of Defence. Where a ground of appeal questions the exercise of the discretion by a trial court, it is a ground of mixed law and facts; relying on First Bank PLC v. TSA Industries Ltd (2010) 15 NWLR R (P.1216) 247 at 291-292. The said ground three is one of mixed law and facts. The Court cannot do justice to that ground without coming to a decision whether from the facts of the case the amendment will entail injustice or injury to the opposing party in this case, being the Respondent. The Appellant failed to obtain prior leave of court to raise the said ground three. The Court is urged to hold that the failure of the Appellant to seek leave to raise the said ground three is fatal to their appeal on the said ground. Reliance is placed on Akinwale v. Bank of the North (2001) FWLR (Pt.41) 1683 at 1691.

In reply, it was contended for the Appellant that the cases relied upon by the Respondent are cited out of the con. It was submitted that whereas a party can only appeal as of right in an interlocutory Ruling within fourteen (14) days during the currency of the case, the position is different if that issue is raised as one of the grounds in the final appeal. This is because issues arising in relation to the entire case are merged. An Appellant can appeal against an interlocutory decision of a lower Court with the final decision of that Court. This practice has been encouraged in recent years by both the Court of Appeal and the Supreme Court. The justification for this practice is the need to save time and effort on all sides in the dispensation of justice, relying on Daggash v. Bulama (2004) All FWLR (Pt.212) 1666. The Supreme Court decision in Owoniboys Tech Services Ltd v. UBN PLC (2003) FWLR (Pt. 180) 1529 (SC) was also relied upon.

It was submitted that, although leave was not sought and had in respect of Ground 3 of this appeal, the Ground is so intricately connected with the case and has merged with the final decision. By its very nature, leave of court is not required for the purpose of arguing the issue. This is because, the mischief inherent in the rule to seek leave in interlocutory appeals is for the Court of Appeal to determine the frivolity or otherwise of an interlocutory appeal. This Court had, categorically held in First Bank of Nigeria PLC v. Tsokwa (2003) FWLR (Pt. 153) 205 at 227 that:

Leave is not required to appeal against an interlocutory decision while appealing against final judgment of the trial Court.

Reliance was also placed on the cases of Kabiya v. Rabiu (2006) All FWLR (Pt.237) 998 at 1014; Ikyernun v. Lorkumbur (2002) FWLR (Pt. 110) 1908 at 1925 – 6.

It was submitted that the cases cited by the Respondent all refer to interlocutory appeals, in cases that had not been concluded. They are therefore distinguishable from this Appeal. The Court is finally urged to so distinguish and discountenance them; and dismiss the preliminary objection.

An interlocutory appeal, in which the ground of appeal does not raise grounds of law, would only be competent with prior leave of court.
A notice of appeal filed without leave of court in circumstances required, is incompetent. It is a nullity; and, there is in effect no appeal. Nalsa & Team Asso. v. NNPC (1991) CLR 11(d) (SC), (1991) 8 (Pt.212) 652; Williams v. Gregory Mokwe (2005) 7 S.C. (Pt.11) 153; Obaseki Iyawere & anor vs. Andrew Omoh & anor (2011) LPELR-8830 (CA).

At the lower court, the Appellant herein as defendant, sought to amend her Statement of Defence, upon the close of the case of the Respondent (Plaintiff) to plead the ‘Buy Back Agreement’ of the Appellant and the Respondent and inventory of Bailiffs of High Court of Cross River State upon execution on the Respondent’s factory before Appellant took possession. The provisions of Order 17, Rule 1, of the Federal High Court (Civil Procedure) Rules, 2009 permits a party to amend his originating process and pleadings up to three times before judgment. The application to amend brought by the Appellant as plaintiff was its first such application. Notwithstanding these specifics, the learned trial Judge exercised his discretion against the grant of the application. The complaint of the Appellant is that the refusal did not amount to a judicial and judicious exercise of discretion by the lower court.

A complaint relating to the exercise of discretion in an interlocutory ruling by the lower court, which gives rise to an appeal, is an issue of mixed law and fact. Ogbechie v. Onochie (1986) 3 S.C. 54 at 56; Metal Construction (West Africa) Ltd v. Migliore (1990) 2 S.C. 33. Such appeal must be instituted with leave of court in order to be competent, Section 242(1). But, where the Appellant has waited until the final determination of the case to appeal against all his complaints, including the interlocutory decision, the considerations are different.

In cases where the interlocutory decision of the lower court, which is subject matter of the complaint of the appellant, is integral to the very fabric of the case, the appellant can bring the appeal in respect of the interlocutory decision together with the appeal. Instances include where a piece of evidence is wrongfully excluded or included, or when an amendment of pleadings is refused which impacts on the ability of the party to present his case adequately. In such cases, the interlocutory decision is an integral part of the final decision and appeal would lie as of right. Okobia v Ajanya (1998) 6 NWLR (Pt.554) 348 at 360.
Learned Counsel for the Appellant rightly cited and relied on the case of Owoniboys Tech Services Ltd v. UBN PLC (supra) Uwaifo, JSC, in concurring with the lead Judgment said:
It seems to me that there could be several rulings in the course of a trial which, in effect, would be seen as forming an incident of the proceedings as a whole. Some of such rulings, for example on admissibility of a document, may not need to be pursued on appeal as and when they are given but where necessary may become matters to be included in the appeal against the final judgment: see International Agricultural Industries (Nig.) Ltd. v. Chika Brothers Ltd. (1990) 1 NWLR (PT.124) 70 at 81 per Obaseki, JSC.
Whether this is proper course depends entirely on the matters ruled upon as to whether they form an integral part of the structure of the case presented by the party in the sense of any complaint about any particular ruling being likely to reflect on the result of the case. For instance, a refusal to allow an amendment to a pleading may tend to affect the outcome of the case and present itself in consequence as an issue of a denial of a fair opportunity to present a proper case. In my opinion, the court below was right to hold that it was unnecessary to obtain leave to raise a ground of appeal on a ruling complaining of such denial since the amendment was meant to put the pleading in line with the evidence already led. I believe this could be seen as an appeal as of right against the final decision under Section 241(1)(a) of the 1999 Constitution.

The refusal of the lower court to allow the amendment of the statement of defence of the Appellant shut them out from presenting their case as they sought to. The exercise of the trial court’s discretion against the grant of this application affected the prosecution of the Appellant’s defence, and in turn, affected of course the final decision in the case. The interlocutory decision was therefore an integral part of the final decision. The Appellant has acted rightly in challenging this interlocutory decision, and they could do so, as of right, without prior leave of court, Section 241(1)(a). The appeal against the final judgment, which incorporated the interlocutory decision was as of right, and did not require leave of court. The cases relied upon by the Respondents are not in point.

Indeed, Mr. Onwok rightly submitted that the current trend espoused by appellate courts is that interlocutory appeals should abide the final outcome of the matter. In his concurring opinion in H.R.H. Igwe G.O. Umeonusulu Umeanadu v. Attorney General of Anambra State & Anor (2008) 3-4 S. C. 1., Ogbuagu, JSC said:
I humbly advocate, that unless in very special circumstances, all interlocutory appeals, should wait and be filed together with the main and substantive appeal to this Court. For my stance, see the cases of Osisie & 3 Ors. v. Obiyan (1997) 10 SCNJ 1; Okobia v. Madam Ajanya & Ors. (1998) 6 NWLR (Pt.554) 348 at 364 – 365: (1998) 5 SCNJ. 95; Dr. M.C.O. Iweka v. SCOA (Nig.) Ltd. (2000) 3 SCNJ 71 at 91 – per Ogundare, JSC (of blessed memory) and Elom Oke & Ors. v. Eze Nwaoebuinya (2001) 1 SCNJ 157, just to mention but a few.
See also: Okwuagbala & 3 Ors v. Margret Ikwueme & 2 Ors LER (2010) SC.266/2003; Iloabuchi v. Ebigbo [2000] 8 NWLR (Part 668) 177; Iweka v. S.C.O.A. (Nig.) Ltd. (2000) 7 NWLR (Pt.664) 665.

The Preliminary Objection is therefore without merit. It is hereby overruled and dismissed.

In the Appellant’s Brief, six Issues have been distilled for determination as follows:
1. Whether the lower court was right in finding the Appellant liable in negligence when it held that the Appellant owed the Respondent a duty of care.
2. Whether the award of N500,000,000.00 and N100,000,000.00 as special damages and loss of use of machines respectively by the Honourable trial Judge without particularization in the pleadings and credible evidence to support was justified in law.
3. Whether refusal by the Honourable trial Judge to grant the Appellant leave to amend her statement of offence did not amount to denial of fair hearing.
4. Whether the award of N150,000,000.00 and N50,000.00 as general damages and cost respectively did not amount to double compensation.
5. Whether it was right for the learned trial Judge to raise the issue of constructive bailment suo motu and rule on it without giving the parties the opportunity to be heard.
6. Whether the court had jurisdiction to hear this case against the appellant and decide it on the merit.

The Respondent reformulated these issues as follows:
1. Whether the lower court was not right when it held that the Appellant was negligent in the circumstances of this case.
2. Whether the trial court was not right when it awarded N500,000,000.00 and N100,000,000.00 as special damages and loss of use of machines respectively.
3. Whether refusal by the Honourable trial Judge to grant the appellant leave to amend her statement of defence amounted to denial of fair hearing.
4. Whether the award of N150,000,000.00 and N50,000.00 as general damages and cost respectively amounted to double compensation.
5. Whether the issue of bailment was not raised and argued by the parties at the trial.
6. Whether the Court had jurisdiction to hear this case against the Appellant and decide it on the merit.

I shall first consider Issue No. 3.

ISSUE NO 3
I am inclined to consider this issue first. The reason for this is simply because it borders on whether the Appellant was given every opportunity to fully articulate and present his defence at the trial court.

The Respondent as plaintiff closed their case on 12/1/2010. The matter was then adjourned for defence. On 26/1/2010, the Appellant filed a Motion on Notice seeking to amend their Statement of Defence.

The motion was brought pursuant to Order 17 Rules 1 and 2 of the Federal High Court (Civil Procedure) Rules, 2009, pages 87 – 88 of the Record of Appeal. The reasons given for the application were supplied in paragraphs 4-7 of the supporting affidavit and in paragraphs 4, 5, and 11 of the Further and Better Affidavit of the Appellant, pages 89-90 and 152-153 of the Record of Appeal. The affidavits were deposed to by a litigation officer in the firm of Victor Essien & Co., Solicitors for the Appellant. These reasons were that certain documents required for their defence were not made available to the Solicitors prior to the time. In paragraph 6 of the supporting affidavit, they deposed that:

That the Defendant cannot tender the said Documents or give evidence in support of the omitted Facts in the absence of such pleadings.

See pages 90 of the Record of Appeal.

The Respondent opposed the application. In paragraphs 8 and 9 of their counter affidavit at page 146 of the Record, they deposed:

8. That paragraph (sic) 3, 4 and 5 of the affidavit in support of the motion are false. I truly believe that the documents of the defendant is seeking to tender were useless and is intended to raise technical issues only and delay the trial.

9. That paragraph (sic) 6 and 7 of the affidavit are false. I strongly believe and from documents attached to the said exh- A, the proposed amendment is to set up a new case altogether at this extremely late stage of the trial.

The learned trial Judge considered the application and on 2/7/2010, ruled as follows:

It is well settled law that amendment of pleadings would not be allowed by a Court where it will entail injustice or injury to the opposing party in the case i.e. the Plaintiff/Respondent, which cannot be compensated by costs or otherwise. See Ehidimhen vs. Musa (2000) 4 SC (Part 11) 166.

Furthermore, if the application is granted there will be an undue and further adjournment of the hearing of this suit filed on 2nd February, 2006, over 4 years ago as well as prejudice the Plaintiff where last witness gave evidence in July, 2009 and closed its case in January, 2010. See Alsthom S.A. vs. Sarrik (Supra).

In the circumstances, the Defendant/Applicant’s Counsel’s Motion on Notice dated 26th January, 2010 is hereby dismissed with costs in this case.

See: Page 197 of Record of Appeal.

Order 17 Rules 1 and 2 of the Federal High Court, Rules, 2009, under which the application to amend was brought provides:

1. A party may amend his originating process and pleadings at any time before judgment but not more than three times.

2. Application to amend may be made to a Judge such application shall be supported by an affidavit exhibiting the proposed amendment and may be allowed upon such terms as to costs or otherwise as may be just.

The main reasons the learned trial Judge gave for refusing the application were that its grant would entail injustice or injury to the Respondent, which cannot be compensated by costs or otherwise. And, that if the application were granted there would be further adjournment of the hearing.

In the proposed Amended Statement of Defence, one of the documents pleaded was the Project Transfer agreement, which regulated the takeover of the Respondent, by NEXIM Bank, from the Appellant.
The document was to show that NEXIM Bank took over the Respondent without any warranty, and thereby show that the Appellant was not responsible for any damage, vandalization or defects in the Respondent’s factory. The amendment was also aimed at enabling the Appellant use the bailiff’s inventory to contradict and challenge the Technical Damage Report to show that most of the plants and equipment were not listed in the inventory of attached properties prepared in 1996 by the Bailiffs of the High Court of Justice, Calabar.

It was submitted for the Respondent that in filing its Statement of Defence out of time in 2006, the Appellant had given similar reasons of obtainability of documents required for filing its Statement of Defence out of time. The affidavit in support deposed to in 2006, indicated that the documents had required from the Respondents had now been made available to them. In 2010, they now filed another affidavit with similar reasons after already deposing in 2006 that the documents were now available to them.

In reply, the Appellant submitted that the documents, which they now frontloaded, were not at the disposal of the Appellant at the material time the Statement of Defence was originally filed. The pleadings need to be amended before the documents can be tendered in evidence.
Learned Counsel also relied on Section 36(2) of the 1999 Constitution.

In paragraph 11 of the Further and Better Affidavit, page 153, the Appellant had deposed:
That the counsel handling this Action requested for the Documents after the Plaintiff’s Second Witness filed his Deposition on Oath on 17th day of July, 2009.
This averment was not challenged.

Order 17 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009 had given a ceiling of three times for bringing an application to amend. The Appellant had not made any prior application for amendment.
The reasons given for the application have not been shown to be frivolous. The application may have been brought rather late in the day, but that is not a reason to refuse an application to amend. It is our law that amendment of pleadings may be made at any stage of the proceedings in court. Oguntimehin v. Gubere (1964) 1 All N.L.R. 176; even on appeal, and the amendment dates back to the date of filing the document. Adewunmi v. Attorney General, Ekiti State (2002) 1 S.C. 47, Vulcan Gases Ltd. v. G.F. Ind. A.G. (2001) 9 NWLR (Pt.719) 610, (2001) 5 S.C. (PT. 1) 1. Therefore, unless such amendment will result in injustice or surprise or embarrassment to the other party or the applicant is acting mala fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by way of costs or otherwise.

The Respondent as plaintiff had closed their case. But the defence had not opened at all. Even at that stage, if the application were granted, all that would, maybe, have been required would be for the Respondent (plaintiff) to apply for any consequential amendment and reopen their case by recalling their witness(es). I believe this course would have resulted in much less delay and of course in ensuring every matter in controversy is tabled before the trial court.

The application for amendment did not reveal any injustice or injury to the opposing party in the case i.e. the plaintiff/Respondent, which cannot be compensated by costs or otherwise. The Respondent would have been entitled to costs. Most importantly, all issues in controversy would have been tabled before the court for adjudication.
And in the end, time would have been saved for all the parties, and for the court.

The statement stands true for all time that: I know of no kind of error or mistake which if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party, per Bowen L.J. in Cropper v. Smith (1884) 26 Ch. Division 700.

I agree with the Appellant, the refusal of the application for amendment amounted to a denial of fair hearing. Courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing in the sense of availing the parties. Abubakar v. Yar’Adua (2003) 1 S.C. (PT. II) 77.
The Appellant was not allowed to fully articulate and present their defence. The learned trial Judge failed to ground the exercise of his discretion on time honoured judicial principles and judiciously. In this circumstance that the Appellant did not have fair opportunity to fully present his defence; the judgment of the trial court was not premised on a fair consideration of the issues in controversy.
A refusal to allow a defendant the opportunity to amend his Statement of Defence translates into refusing him the liberty to call the evidence which would have been necessary had the amendment sought been granted. The consequence is a denial to him of his right to a fair hearing.
Per Oguntade, JSC, in Akaninwo v. Nsirim (2008) 1 S.C. (Pt.III) 151.

When a trial has been found to have breached the principle of fair hearing, the proceedings amount to a nullity. The proceedings cannot be salvaged as they are null and void ab initio. Orugbo v. Bulara Una (2002) 9-10 S.C. 61; Attorney General, Rivers State v. Ude (2006) 6 – 7 S.C. 54. Fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. The only order to make in the circumstance is to set aside the proceedings.

The liability for negligence and, the award of damages against the Appellant were based on the evidence as was presented before the trial court. In my considered view, it would not be prudent to go into the complaints of the Appellant on the resolution of these issues by the trial court because the decision thereon was premised on the Appellant’s inchoate pleadings and evidence. Issues Nos. 1, 2, 4, and 5 would not therefore be considered, the proceedings and decision upon which these issues are based, having been set aside.

ISSUE NO 6.
Issue No 6 challenges the jurisdiction of the lower court. Issues of jurisdiction are threshold issues that can be raised for the first time even on appeal. Ezomo v Oyakhire (1985) 2 SC. 260, A-G Fed. v. Guardian Newspapers Ltd & Ors [1999] 9 NWLR (Pt.618) 187.

The Appellant was appointed as Receiver/Liquidator for both Merchant Bank for Africa and Century Merchant Bank in liquidation. The Appellant had obtained judgment against the Respondent and took over the factory. NEXIM Bank bought over the debt and settled the Appellant. The factory was then handed over to NEXIM Bank, and not to the Respondent, in a debt “Buy Back Agreement”. It was contended for the Appellant that the said Agreement stated that the Liquidator, the Appellant, had transferred the assets of the Respondent to NEXIM Bank on the basis of as “is” and “exist” and that the transfer was without warranty as to their condition, state, nature or performance. This meant NEXIM Bank had no recourse to the Appellant as to the state, nature or damage done to assets of the Respondent. The said Agreement is still subsisting and the action for negligence against the Appellant is not in line with the terms of that Agreement. It was submitted that the Respondent is bound by the terms of that Agreement and that the action against the Appellant was in its breach. The law recognizes and respects the sanctity of agreements and where the parties have agreed, the conditions must be observed, relying on Texaco Nigeria Plc. v. Kehinde (202) FWLR (PT 94) 143. It was submitted that the Respondent had no right of action against the Appellant. Any action on negligence should be against NEXIM Bank, not them.

It was further submitted, relying on Section 55(1) of the N.D.I.C. Act that the Appellant was excused from any liability whatsoever in the execution of its duties as a liquidator. It was submitted that by these provisions, the Appellant cannot be held liable for any negligence and for the damages awarded by the Court. A statutory provision is a word of command and does not admit of discretion to be exercised by the court, relying on Agbiti v. Nigerian Navy (2011) ALL FWLR (PT.570) 1223.

In reply, the Respondent submitted that an appeal is a complaint against the decision of the lower court. Issues raised at the appellate court must be confined to or related to issues raised at the trial court.
Issues relating to NEXIM Bank and its agreement with the Appellant were not raised before the trial court. The Court was urged to discountenance these submissions, relying on S.S. GMBH v. T.D. Ind. Ltd (2010) 11 NWLR (PT 1206) 589. It was further submitted that the provisions of the NDIC Act was passed September 12, 2006 and assented by the President on December 22, 2006. The cause of action herein arose in 2001, while the suit was instituted February 2, 2006. The applicable law is the NDIC Act, 2004. The NDIC Act cannot be applied retrospectively, Marwa v. Nyako (2012) NWLR (PT 1296) 199 at 299. It was further submitted that Section 55(1) of the NDIC Act does not avail the Appellant as it only covers acts done in good faith.

In the Reply Brief, the Appellant further relied on the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, as amended, which sets out the jurisdiction of the Federal High Court. It was finally submitted that an action seeking damages for negligence is not within the jurisdiction of the Federal High Court. Reliance is placed on Adelekan v. Ecu-Line (2006) 12 NWLR (Pt 993) 333 at 52.

It is well settled that one of the prerequisites of a court in the exercise of its jurisdiction, is that the subject matter of the action must be within its jurisdiction, and there should be no feature in the case which prevents the court from the exercise of its jurisdiction. Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt. 4) 587.

The Respondent, as can be gleaned from the Statement of Claim, at pages 6 – 11 of the Record of Appeal, seeks damages for negligence.
Clearly, from the provisions of Section 251, and, having regard to the decision of the Supreme Court in Adelekan v. Ecu-Line (supra), this subject matter is not within the competence of the Federal High Court. The Federal High Court therefore had no vires to entertain the matter submitted to it by the Respondent for adjudication. And, I so hold. Issue No 6 is thus resolved in favour of the Appellant.

In the final result, this appeal is meritorious, and it therefore succeeds. The judgment of Hon. Justice A. Ademola of the Federal High Court, Calabar, delivered on the 21st day of January, 2011 in Suit No. FHC/CA/CS/5/2006 is hereby set aside.

The Appellant sought an Order for retrial, which is the appropriate order to make, having earlier resolved Issue No 3 in their favour.
However, it has also been held that the Federal High Court has no jurisdiction to entertain the matter.

If the learned trial Federal High Court Judge had reached the same conclusion, he would not have simply struck out the matter. He would have acted as prescribed in Section 22(2) of the Federal High Court Act, as amended in 2005, which provides as follows:
No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.
Order 49(5) of the Federal High Court (Civil Procedure) Rules, 2009 provides:
Where a Judge has in the exercise of the powers conferred by Section 22(2) of the Act directed that any cause or matter be transferred to the High court of a state or the Federal Capital Territory the Judge shall make an order under his hand to that effect to the Chief Judge of the High Court of the State or the Federal Capital Territory to which the matter is to be transferred.

In Mokelu v. Federal Commissioner For Works & Housing (1976) 3 S.C. (REPRINT) 60, the Supreme Court considered the provisions of Section 22(2) of the Federal Revenue Court Decree, 1973, which are in pari materia with Section 22(2) of the Federal High Court Act, as amended in 2005, and, held as follows:
We have carefully considered the wording of Section 22(2) of the Federal Revenue Court Decree, 1973 and we are convinced that for a true and correct meaning to be given to the word “may”, it must be construed as imposing an obligatory duty. Absurdity or repugnancy would follow from holding that a discretion was given; because where a Judge of the Federal Revenue Court holds that he has no jurisdiction and then refuses to order a transfer, he can neither strike out the case nor dispose of it in any other manner. In our view, the learned trial Judge having rightly held that he had no jurisdiction was clearly in error when he ordered that the case be struck out as this is contrary to the provisions of Section 22(2) of the Federal Revenue Court Decree. The proper order in the circumstances was to transfer the case to the appropriate High Court in pursuance of the provisions of Section 22(2). (emphasis mine)

The Supreme Court then ordered as follows:
For the foregoing reasons, this appeal will be allowed. The order of the Federal Revenue Court dated the 25th of January, 1974 striking out this case together with the order for costs is hereby set aside and we hereby remit the case to the Federal Revenue Court with a direction that that court shall transfer the said cause to the appropriate High Court in pursuance of the provisions of Section 22(2) of the Federal Revenue Court Decree, 1973.
See also: Aluminum Manufacturing Co. (Nig.) Ltd. v. Nigerian Ports Authority (1987) NWLR (PT 51) 475.

This Court, by virtue of the provisions of Section 15 of the Court of Appeal Act 2004, may exercise the powers conferred on the Federal High Court, which the said lower court possesses under the law and rules. Inakoju v. Adeleke (2007) ALL FWLR (PT.353) 3; Ezeigwe v. Nwawulu (2010) 4 NWLR (PT 1183) 159, (2010) LPELR-1201 (SC); Faleye v. Otapo (1995) 3 NWLR (PT 381) 1, (1995) LPELR-1235 (SC); Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.13) 264; Akpan v. Otong (196) 10 NWLR (PT 476) 108, (196) LPELR- 374 (SC). This Court shall therefore, in this circumstance, exercise the powers conferred on the Federal High Court in order to facilitate the speedy administration of justice.

Accordingly, it is hereby ordered that Suit No FHC/CA/C/CS/5/2006 be and is hereby transferred to the High Court of Justice, Cross River State. The learned Chief Judge of Cross River State shall assign the suit for hearing and determination by a Judge of the State High Court.

Costs of N50, 000.00 are awarded in favour of the Appellant.

PAUL OBI ELECHI, J.C.A.: I have read the draft judgment just delivered by my Learned brother Onyekachi Aja Otisi. I agree with her reasoning and conclusion and also abide with the consequential orders made. I have nothing else to add.

JOSEPH JUDE JELLA, J.C.A.: I have read before today, the judgment of my Lord ONYEKACHI A. OTISI, JCA just delivered in this matter. I entirely agreed with the aforesaid judgment. I too hereby order that Suit No. FHC/CA/C/CS/5/2006 be and is hereby transferred to the High Court of Justice; Cross River State. The learned Chief Judge of Cross River State shall assign the Suit for hearing and determination by a Judge of the State High Court. I agree that the sum of N50,000.00 are awarded to the Appellant.

Appearances

Gideon Onwok Esq.For Appellant

AND

Alex Umoh Esq.For Respondent