EMENIKE MBANUGO & CO v. FIRST BANK OF NIGERIA PLC
(2014)LCN/7711(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of May, 2014
CA/L/29/2010
RATIO
COURT: JURISDICTION; WHEN THE ISSUE OF JURISDICTION CAN BE RAISED AND WHETHER PARTIES AND SUBJECT MATTER ARE IMPORTANT IN DECIDING JURISDICTION
It is trite law, and I believe it has not changed, that the issue of jurisdiction can be raised on appeal and even for first time at the Supreme Court – USMAN DAN FODIO UNIVERSITY V. KRAUS THOMSON ORGANISATION LTD. (2001) 15 NWLR (Pt. 736) 305; OUR LINE LTD V. SCC (NIG) LTD (2008) 17 NWLR (PT. 1170) 382 @ 404.
The Issue of Jurisdiction can aptly be termed “exceptional circumstances in a deserving case- UKWU V. BUNGE (1997) 8 NWLR. (PT.518) @ PAGE 527; RE ADEWUNMI (1988) 3 NWLR. PT. 83 @ 483. Parties and subject matter are extremely important in deciding jurisdiction. They are not mutually exclusive. They must both be present. The competence or locus standi of a party is imperative in considering the issue of jurisdiction – FAWEHINMI V. AKHILU (1987) 4 NWLR (PT.67) 797. per. RITA NOSAKHARE PEMU, J.C.A.
APPEAL: PRELIMINARY OBJECTION; WHETHER THE COURT NEED TO GO INTO THE MERIT OF THE APPEAL WHERE A COURT FINDS THAT A PRELIMINARY OBJECTION SUCCEEDS
It is also settled law that where a court finds that a preliminary objection succeeds, there is no need going into the merit of the appeal. See AFRIBANK PLC VS AKWARA (2006) 5 NWLR (PT. 974) 619 and A. G. FEDERATION VS ANPP & ORS (2003) 12 SCNJ 67. In UWAZURIKE VS A. G. FEDERATION (2007) 8 NWLR (PT.1035) 1, it was held that where a preliminary objection to an appeal succeeds, there would no need for the court to go further to consider the arguments in support of the issues for determination of the appeal. Per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. per. RITA NOSAKHARE PEMU, J.C.A.
Before Their Lordships
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
Between
EMENIKE MBANUGO & COAppellant(s)
AND
FIRST BANK OF NIGERIA PLCRespondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of G. M. Onyeabo .J. delivered on the 13th of March 2009, at the High Court of Justice Ikeja in Suit No ID/1596/2002.
Facts culminating in the bringing of this appeal are apt.
The Appellant was Claimant in the lower Court and by Writ of summons and statement of claim dated 24th September 2002, he claimed against International Airports Consultants Limited as Defendant as follows:-
(a) The sum of N74,649.60 and interest thereon at the rate of 20% per month from the 25th day of April, 2001 until Judgment and thereafter at the rate of 7% per annum until the Judgment sum is fully paid.
(b) The cost of instituting and prosecuting this suit. – Pages 1-4 of the Record of Appeal.
The Defendant is not a party to this appeal. This is because the Defendant from records, filed no Statement of Defence but only entered conditional appearance on the 21st of May 2003.
The Appellant took out a summons for Judgment, which was granted him vide Judgment delivered by Kekere-Ekun J. (as she then was) on the 29th of March 2004.
On the 17th of January 2005, Hon. Justice lshola granted the Appellant a garnishee order nisi, against the Defendant’s fund with the Respondent, which order was subsequently made absolute on the 5th of October 2006.
In reaction to this, the Judgment debtor filed a motion for stay of execution, and a motion was filed by the Appellant to strike out same.
The Respondent then filed a Notice of Preliminary Objection dated 8th March 2007 challenging the application brought by the Appellant. The Court overruled same in its Ruling dated 13th July 2007 – pages 221-224 of the Record of Appeal. The Court delivered its Ruling on the 18th of October 2007 – page 237 of the Record of Appeal. The Respondent raised a draft dated 24th October 2007 in satisfaction of the Garnishee Order absolute.
Other pending applications came before the Court, who adjourned same to the 21st of November 2007 for hearing.
On the 21st of November 2007, the Lower Court could not hear the applications due to movement of Judges to new stations. The matter had to be heard de novo.
On the 21st of November 2007, the Appellant commenced contempt proceedings against the Respondent’s Managing Director who responded by filing a counter affidavit and written addresses – pages 259-263 of the Record of Appeal.
On the 13th of May 2008, Hon. Justice Onyeabo heard the contempt proceedings and adjourned for Ruling to the 3rd of June 2008, but before the date the contempt proceedings was to be heard, the Respondent paid the Appellant the Garnished sum of N5,003,771.68 and filed an affidavit of compliance dated 30th May 2008 – pages 316-329 of the Record of Appeal Vol.II (Cheque is dated 24th of October 2007 – page 319 of the Record of Appeal Vol. II).
On the 3rd of June 2008 the learned trial Judge delivered its ruling on the contempt proceedings, being seised of the affidavit of compliance and dismissed the contempt application – pages 290-292 of the Record of Appeal.
The Appellant then filed an application to set aside the ruling delivered on the 3rd of June 2008. Same was dismissed on the 13th of March 2009.
This provoked this appeal, and pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 26th of March 2009, with just one Ground of Appeal.
It is that
“LEARNED JUDGE ERRED IN LAW IN DENYING THE JUDGMENT CREDITOR A RIGHT TO FAIR HEARING WHEN SHE REFUSED TO SET ASIDE HER ERRONEOUS DECISION TO HEAR AND DETERMINE THE AFFIDAVIT OF COMPLIANCE FILED BY THE 4TH GARNISHEE, IN THE ABSENCE OF THE JUDGMENT CREDITOR, AFTER RULING HAD BEEN RESERVED ON THE CONTEMPT PROCEEDINGS AND THEREBY CAME TO A WRONG DECISION IN THE MATTER.”
The Appellant seeks an order setting aside the decision of the learned trial Judge made on the 13th day of March 2009, and that the Court shall hear and determine the affidavit of compliance filed by the Garnishee, and make such orders as ought to have been made in the circumstances.
The Appellant filed an amended Brief of Argument, and Reply Brief of Argument on the 7th of November 2013, pursuant to an application to file same on the 8th of October 2013, which was granted on the 7th of November 2013.
The Appellant had distilled Two Issues for determination and they are:
(a) “WHETHER THE EXERCISE OF DISCRETION BY THE LEARNED TRIAL JUDGE IN REFUSING TO SET ASIDE THE RULING DATED 13TH MARCH, 2009 WAS NOT ERRONEOUS, PREJUDICIAL AND INJUDICIOUS AND IF SO, WHETHER IT OUGHT NOT TO BE SET ASIDE BY THIS HONOURABLE COURT IN THAT THE EXERCISE OF DISCRETION OCCASSIONED A DENIAL OF FAIR HEARING TO THE APPELLANT AND VIOLATED THE DUE PROCESS OF LAW.”
(b) “WHETHER ON THE PREPONDERANCE OF EVIDENCE BEFORE THE TRIAL COURT IT EXERCISED ITS DISCRETION TO DISMISS THE MOTION DATED 6TH JUNE, 2008 JUDICIALLY AND JUDICIOUSLY AND IF NOT, WHETHER THIS HONOURABLE COURT OUGHT NOT TO INTERFERE WITH SUCH EXERCISE OF DISCRETION AND SET IT ASIDE.”
The Respondent had filed a Brief of Argument on the 27th of January 2012 but same was deemed filed on the 6th of February 2013, and it has just one issue for determination viz
“WHETHER OR NOT THE COURT’S REFUSAL TO SET ASIDE THE RULING OF 13TH MARCH, 2009 HAS LED TO ANY MISCARRIAGE OF JUSTICE?”
The Respondent had indicated by notice of preliminary objection in his Brief of Argument, that there is no Appellant/Judgment Creditor known to law before the Court – paragraph 1 of the Brief of Argument.
On the 26th of February 2014, learned counsel for the respective parties adopted their Briefs of Arguments.
It is incumbent that I consider the Preliminary Objection raised in the Respondent’s Brief of Argument, to which the Appellant responded in his amended reply brief filed on the 7th of November 2013.
THE PRELIMINARY OBJECTION
It was Ngwuta J. S. (who observed in ONI V. FAYEMI (2013) 12 NWLR PT. 1369, PAGE 431 AT PAGE 447) that
“A Preliminary Objection to the competence of an appeal is a pre-emptive strike aimed at scuttling the appeal in limine.”
HABIB V. PRINCIPAL IMMIGRATION OFFICER (1959) 3 FSC 75; MOBIL OIL (NIG) PLC. V. IAL 36 INC. (2000) SCNJ 124; NWOSU V. IMO STATE ENVIRONMENTAL AUTHORITY (1990) 2 NWLR (PT.135) 688.
An appeal will be heard and determined on the merit if and only if the Preliminary Objection is not sustained.
It is the submission of the Respondent that this Honourable Court lacks jurisdiction to hear and determine this appeal as there is no proper party known to law and this Court. That ipso facto the lower Court lacked jurisdiction to entertain the suit in the first place. The proceedings of the Lower Court both before and after Judgment is therefore a nullity, he argues. The Respondent cites the case of KAIGANA vs. NANNAI (1997) 3 NWLR (PT. 495) 549, arguing that there is a feature in this matter which prevents this Honourable Court from assuming jurisdiction. He further argues that the condition precedent to the exercise of the jurisdiction of this Court has therefore not been met.
He submits that EMENIKE MBANUGO & CO. is a non-entity, and one not known to law. Therefore, he submits, that it cannot bring an appeal before this Court, citing MADUKOLU VS. NKEMDILIM (1962) SCNLR 341.
The Respondent submits that by virtue of Sections 652-656 of the Companies and Allied Matters Act 1990, No.1; EMENIKE MBANUGO & CO. is at best a business name registered under Part B of the Act as a trading or business name and nothing more. That it is therefore not a legal entity in law. Being a non entity, he submits that the Appellant cannot submit to the jurisdiction of this Court.
Being a non-entity, the Respondent submits that there is nothing for the Garnishee/Respondent to respond to, nor a party or a legal entity to meet in Court. Citing ATAGUBA & CO. VS GUARA (NIG) LTD (2005) 6 M.J.S.C. 156 AT 169 PARAGRAPHS D-F, he submits that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent Plaintiff or Defendant.
He submits that the Appellant can only bring an action in the name of EMENIKE MBANUGO, (trading under the name and style of ‘EMENIKE MBANUGO & CO”) and not as EMENIKE MBANUGO & CO. which is a non-entity before Court.
He submits that where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. He urges Court to strike out this appeal.
He submits that on the 9th of March 2007, in the Supreme Court matter of EMMANUEL OKAFOR & ORS VS. NWEKE & ORS SC/27/2007, it was decided that EMENIKE MBANUGO & CO is not the same as EMENIKE MBANUGO and as such cannot institute an action.
In his Amended Reply Brief filed on 7/11/2013, the Appellant submits that the Preliminary Objection is ill conceived and lacking in merit. He submits that, it is true that the issue of jurisdiction can be raised for the first time even at the Supreme Court, where the issue has been canvassed at the trial Court and decided, albeit wrongly, the proper step to follow is to appeal the decision and set it aside.
That is the gravamen of the Appellant’s argument. Citing inter alia the case of OBIAKOR V. STATE (2002) 10 NWLR (PT. 776) 612 @ 626-627, where the Apex court held that “where the issue of jurisdiction had first been argued at the trial Court, only an appeal can be against the decision of the trial court and in that way, a ground of appeal complaining against the lack of jurisdiction by the trial Court must be clearly settled” – UOR V. LOKO (1988) 2 NWLR (Pt. 77) 430; KANO ILE PLC V. G & H (NIGERIA) LIMITED (2002) 2 NWLR (Pt. 751) 420 @ 448 e.f.
It is the Appellant’s contention in his amended Reply Brief, that as the Respondent had raised a Preliminary Objection on the issue of jurisdiction at the trial Court, on the same ground that the Appellant is not a proper party to commence the proceedings, and the same was dismissed by the trial Court (Pages 300-307 of Vol. 1 of the Record of Appeal at pages 302-304) the proper step for the Respondent to take in this appeal is to appeal that decision dismissing its preliminary objection on jurisdiction.
The Appellant had also cited the case of JOY V. DOM (1999) 7 S.C. (PT.111) 1 @ 4-5 (supra).
He submits that to determine whether the Appellant EMENIKE MBANUGO & CO is a “non – entity” or not, or whether it can bring this appeal or not, the appropriate provisions of the law which is applicable is Order 13, Rules 24 and 28 of the High Court of Lagos State (Civil Procedure Rules) 2004.
He submits that the Respondent’s relying on the provisions of the Companies and Allied Matters Act 1990, when the facts of the existence of the Appellant’s juristic personality has not been validly challenged as specified by the Rules of Court, is misconceived and an exercise in futility.
So much for submission of the respective parties, with regard to the Notice of Preliminary objection.
Where a suit is not initiated by due process of law, the suit is incompetent and where the suit was heard by a Court, the proceedings before the Court are a nullity – WAEC v. AKINWUNMI (2008) 9 NWLR PT. 1091 @ 151 @ 167 – 169; DERNR LTD V. TRANS INTERNATIONAL BANK LTD (2008) 18 NWLR Pt. 1119, 388 @ 417
Therefore where a statute or a given rule of practice prescribes a method for commencing such proceeding in respect of a particular cause of action, it must comply with it, or the action initiated becomes irregular and incompetent OGUDU v. STATE (1994) 9 NWLR (Pt. 586) 1 @ 48.
It is trite law, and I believe it has not changed, that the issue of jurisdiction can be raised on appeal and even for first time at the Supreme Court – USMAN DAN FODIO UNIVERSITY V. KRAUS THOMSON ORGANISATION LTD. (2001) 15 NWLR (Pt. 736) 305; OUR LINE LTD V. SCC (NIG) LTD (2008) 17 NWLR (PT. 1170) 382 @ 404.
The Issue of Jurisdiction can aptly be termed “exceptional circumstances in a deserving case- UKWU V. BUNGE (1997) 8 NWLR. (PT.518) @ PAGE 527; RE ADEWUNMI (1988) 3 NWLR. PT. 83 @ 483.
Parties and subject matter are extremely important in deciding jurisdiction. They are not mutually exclusive. They must both be present. The competence or locus standi of a party is imperative in considering the issue of jurisdiction – FAWEHINMI V. AKHILU (1987) 4 NWLR (PT.67) 797.
Decidedly, while a persons’ access to the Courts to have his civil rights adjudicated upon may be restricted or omitted by a Statute or Act, it must be construed rather strictly. Ouster of jurisdiction, it is also emphasized, reads express words vide SHODEINDE V. REGISTERED TRUSTEE, AHMADIYA MOVEMENT IN-ISLAM (2001) FWLR (PT.58) 1065.
Now Order 13 Rules 24 and 28 of the High Court of Lagos State (Civil Procedure Rules) 2004 have this to say
ORDER 13 RULE 24
“Any two or more persons claiming or alleged to be liable as partners and doing business within the jurisdiction may sue or be sued in the name of the firms, if any, of which they have partners when the cause of action arose and any party to an action may in such case apply to the judge for a statement of the names and addresses of the persons who were partners in the firm when the cause of action arose to be furnished in such manner, and verified on oath or otherwise as the Judge may direct.”
ORDER 13 RULE 28
“Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name, and so far as the nature of the case will permit, all rules relates to proceedings against firms shall apply.”
The provisions of Order 13 Rule 28 talks about a situation where the person “may be sued” and not a situation where he is suing as in the present circumstances.
The claimant/Appellant has always been “EMENIKE MBANUGO & CO.” I am of the view that the Provisions of the Lagos State High Court (Civil Procedure Rules) 2004 is inapplicable in this circumstances and I so hold.
Therefore, when the Appellant in his reply Brief contended that to determine whether the Appellant EMENUGO MBANUGO & CO is a “non-entity” or not, or whether it can bring this appeal or not, the appropriate provisions of the law which is applicable is Order 13, Rules 24 and 28 of the High Court of Lagos State (Civil Procedure Rules) 2004 is misconceived.
From Records – on the 8th of March 2007, the 4th Garnishee-First Bank of Nigeria PLC – (the Respondent in this present appeal), filed a Notice of Preliminary Objection with a fourth Ground stating that “the Court has no Jurisdiction to relitigate a concluded matter as far as garnishee of sums are concerned” – pages 194-195 of the Record of Appeal.
From records, on the 13th of July 2007, vide Ruling delivered by Hon. Justice S. O. Ishola, the Preliminary Objection, considered as immature was struck out – pages 221 – 224 of the Record of Appeal.
It is therefore the case that the Preliminary Objection referred to by the Appellant in his amended reply brief, which the Respondent raised in the lower court – (indeed the 4th Garnishee) was not in respect of the issue of a “wrong party” before the court, but that the lower Court had no jurisdiction to relitigate a concluded matter as far as garnishee of sums are concerned.
It is my view that the treatment of that preliminary objection does not deprive the Respondent from bringing up the issue of jurisdiction as it affects a “wrong party” before the Court, as this is a threshold issue that borders on the jurisdiction of any competent Court of Record.
The Appellant was therefore misconceived when he submitted in his amended reply brief that the Respondent cannot raise the issue of jurisdiction on appeal.
The Notice of Preliminary Objection raised by the Respondent, had not raised matters that constitute an answer to the Ground of Appeal or to issues formulated therefrom. It only raises a valid reason on why the Court should not hear the appeal.
Having said this, it remains to consider whether the Preliminary Objection is one that should succeed or not.
The Respondent had cited the Supreme Court case of EMMANUEL OKAFOR & ORS VS. NWEKE & ORS SC/27/2007 where the Apex Court decided on the 9th of March 2007 that EMENIKE MBANUGO & CO is not the same as EMENIKE MBANUGO.
The Respondent had alluded to the fact, that the Appellant on record had sued in the firm’s name, but that it could only have that capacity if there is an enabling law to that effect. The firm of EMENIKE MBANUGO & CO, he submits is mainly one person, and that it is not a partnership. That no evidence has been led to establish this.
It is curious that the Appellant in his amended reply brief had not controverted all these. He had not controverted the case of EMMANUEL OKAFOR & ORS VS. NWEKE & ORS cited by the Respondent in paragraph 2.7 of his amended brief. Neither had he controverted the facts that the firm of EMENIKE MBANUGO & CO is run by one person, and that it is not a partnership. These facts are therefore in law deemed admitted by the Appellant.
There is no gainsaying that the nomenclature EMENIKE MBANUGO & CO is not a natural person, neither is it a Juristic person known to law as proved. At least there is nothing to show that it is an incorporated company.
I agree with the submission of the Respondent in paragraph 2.5 of his brief of argument, deemed filed on the 6th of February 2013, that the Appellant can only bring an action in the name of EMENIKE MBANUGO trading under the name and style of “Emenike Mbanugo & Co, and not as EMENIKE MBANUGO & CO. simpliciter – ATAGUBA & CO v. GUARA (NIG) LTD (2005) 6 M.J.S.C. 156; SHITTU V. LIGALI (1941) 16 N.L.R. 21; AGBONMAGBE BANK LTD V. GENERAL MANGER G.B. OLLIVANT LTD & ANOR (1961) ALL N.L.R. 116.
Let me quickly state here that from records, the Appellant had on the 8th of March 2013 filed an affidavit exhibiting Certificate of Registration of Emenike Mbanugo & Co, and attached thereto is an uncertified Certificate of Registration . I dare say that this Court cannot countenance such a document, not having been certified.
I had to refer to this document, because in paragraph 1.10 of the Appellant’s reply brief to the Respondent’s brief of argument, he had submitted that the onus is on the Respondent to rebut the presumption of law as evidenced by the Certificate of Registration of the Appellant, that the Appellant is a quasi, or near body corporate under the Companies and Allied Matters Act cap. C30, volume 3, Laws of the Federation of Nigeria 2004, with a right to sue or be sued. He submits that this onus has not been discharged as there is nothing before the Court to shift the burden and compel the Appellant to show proof of its partnership.
Again, I dare say that there is nothing for the Respondent to rebut as the Certificate of Registration shown by the Appellant is of no moment, not having been certified.
The result is that the Preliminary Objection is meritorious. The effect is that where this is the position, there would be no need to go further to consider the arguments in respect of the issues formulated for determination by the Appellant in this Appeal. – ONYEMEH v. EGBUCHULAM (1996) 5 N.W.L.R. (part 448) 255; A.G FED. v. ANPP (2003) 18 NWLR (PT.851) 182; BOISEC V. KACHALA (2006) 1 NWLR (PT.962) 587.
The Preliminary Objection is hereby upheld and the effect is that the entire proceedings at the lower Court being null and void are hereby set aside, and the suit No.ID/1596/2002 is hereby struck out.
The Appeal filed in this Court, by the Appellant, being incompetent, same is hereby struck out.
Parties to bear their own costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Rita Nosakhare Pemu, J.C.A., which I had the honour of reading in draft, and wish to add, by way of emphasis, that certificate of registration or incorporation issued under the Companies and Allied Matters Act (CAMA) 1990, relevant to the appeal, is a public document and only a certified true copy thereof is admissible in evidence, which was not the case here. See Tabik Investment Ltd. V. G. T. B. Plc (2011) 17 NWLR (Pt. 1276) 240, Reptico S. A. Geneva V. Afribank Nigeria Plc (2013) 14 NWLR (pt. 1373) 172. For the reason given above and on account of the elaborate reasons stated in the lead judgment, I too find merit in the preliminary objection which I hereby uphold and allow the appeal and strike out the suit at the court below on ground of incompetence.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My learned brother, R. N. Pemu JCA granted me the privilege of a firsthand perusal of the lead judgment just delivered.
I agree with the reasoning and conclusion contained therein and have nothing extra to add except to emphasize that a challenge to the jurisdiction of the court can be raised at any stage of the proceedings before the judgment. It can be raised also for the first time in the Appellate court or even the Supreme Court either by the parties or the court suo motu and once raised it should be considered first. BRONIKS MOTORS LTD VS WEMA BANK LTD (1983) 7 SC 158.
It is also settled law that where a court finds that a preliminary objection succeeds, there is no need going into the merit of the appeal. See AFRIBANK PLC VS AKWARA (2006) 5 NWLR (PT. 974) 619 and A. G. FEDERATION VS ANPP & ORS (2003) 12 SCNJ 67. In UWAZURIKE VS A. G. FEDERATION (2007) 8 NWLR (PT.1035) 1, it was held that where a preliminary objection to an appeal succeeds, there would no need for the court to go further to consider the arguments in support of the issues for determination of the appeal.
For this and the fuller reason contained in the lead judgment I also order that this appeal be and is hereby struck out for being incompetent.
Parties to bear their costs.
Appearances
E. O. Mbanugo EsqFor Appellant
AND
E. A. Adesina Esq., C. A. Anichebe EsqFor Respondent
