NATIONAL OIL & CHEMICAL MARKETING COMPANY LIMITED v. PENBRIDGE TRADING COMPANY LIMITED
(2019)LCN/12865(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of March, 2019
CA/L/835M/12
RATIO
APPEAL: GROUNDS OF APPEAL ARE THE PILLAR UPON WHICH APPEAL REST
“It is trite that grounds of appeal are the pillar upon which an appeal rests. It is to give reasonable and adequate notice of the grouse against the decision appealed. It is from the grounds and particulars contained in the Notice of Appeal that the issues resolving the appeal will be distilled from.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPEAL: NATURE OF APPEAL
“The nature of this appeal is one that questions the evaluation of facts by the lower Court and calls into question the correctness of the facts determined. It is invariably an appeal based on questions of mixed law and facts. See the case of A.C.B PLC v OBMIAMI BRICK STONE [1993] 5 NWLR (PT 294) 399 where the apex Court held thus: It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is aground of law. Where on the other hand, the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is because in this latter case it is a conclusion of law coupled with the exercise of discretion.See also the case of STATE v OMOYELE (2016) LPELR ? 40842 (SC), page 32, paras E ? F, per RHODES-VIVOUR, JSC.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPEAL: WHERE THE NECESSARY LEAVE IS NOT SOUGHT
“Where the necessary leave is not first sought and obtained on an interlocutory appeal containing grounds of mixed law and facts, such grounds of appeal is rendered incompetent and liable to be struck out. See the cases of CHEVRON NIG LTD v FABBY & ORS (2017) LPELR 42825 (CA); NDIC v JACKSON DEVOS LTD (2014) LPELR 23378 (CA); U.B.N PLC v SOGUNRO [2006] 16 NWLR (PT 1006) 504; WILLIAMS v GREGORY MOKWE (2005) 7 SC (PT 11) 153.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
NATIONAL OIL & CHEMICAL MARKETING CO. LTD Appellant(s)
AND
PENBRIDGE TRADING CO. LTD Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
On 3/5/2012, ATINUKE IPAYE, J sitting at the High Court of Lagos State delivered an interlocutory ruling dismissing the Appellant?s application dated 14/2/2012 seeking to set aside the order of the lower Court relisting the main suit back on to the general cause list.
The Appellant dissatisfied with the ruling of the lower Court filed its Notice of Appeal dated 14/5/2012 containing 8 grounds.
The Appellant filed its brief of argument which was settled by Theodore Jnr. Ezeobi of Ezeobi & Company on 17/5/2016 but deemed 18/5/2017. He formulated two issues for determination thus:
1. Whether in all of the material facts and circumstances of this case, non-service of Court processes on counsel on record, otherwise denying a party of the opportunity of being heard, is not an infringement of his constitutional right of fair hearing.
2. Whether a judge of coordinate jurisdiction can sit in judgment over the ruling and orders of his brother judge, when the issues before him do not at all border on default of the defendant’s appearance or default of pleadings, fraud or breach of the fundamental right of a party and/or other jurisdictional related matters as prescribed by law.
The Respondent on the other hand filed a preliminary objection on 16/5/2017 and incorporated the argument into its main brief which was filed on 18/5/2017. The Respondent’s brief was settled by Alade Babatunde Kasunmu of Prof. A.B. Kasunmu Chambers and formulated three issues for determination:
1. Whether the lower Court was wrong in refusing to set aside its order of 3rd May, 2012 relisting the suit by holding that the firm of Ezeobi & Company was not the defendant/Appellant?s counsel entitled to be served with the claimant/Respondent?s motion to relist the suit and thereby occasioning a denial of fair hearing?
2. Whether the lower Court was right in refusing to set aside its order of May 3rd, 2012 relisting the suit by holding that the claimant/Respondent had not misrepresented facts and that the defendant/Appellant would suffer no loss by the relisting of the suit?
3. Whether the lower Court in holding ?that the order of stay of proceedings made as shown on Exhibit DC became spent when the latter suit: LD/876/97 was dismissed on 26th May, 2010 by the Court of appeal interfered with, or vacated the said order made by Coker, J.
PRELIMINARY OBJECTION
The Respondent raised a preliminary objection to the appeal based on the ground that all the grounds of appeal are incompetent. The counsel for the Respondent argued that the grounds of appeal are grounds of mixed law and fact and that the Appellant has not been granted leave to appeal same. Counsel further argued that the grounds of appeal and particulars are extraneous and do not arise from the Ruling of the lower Court.
He relied on Section 241 of the 1999 Constitution (as amended); OGOJA v OFFOBOCHE [1996] 7 NWLR (PT 458) 48; NBN LTD v NET [1988] 3 NWLR (PT 31) 667 at 669; NWADIKE v IBEKWE [1987] 4 NWLR (PT 67] 718 and submitted that the appeal being an interlocutory one and that the grounds of appeal are of mixed law and facts and therefore requires the leave of the Court. Counsel urged this Court to strike out the Notice of Appeal and dismiss the Appellant’s brief.
The Appellant did not file a reply to the objection of the Respondent.
Ordinarily, the failure, omission or choice of the Appellant not to respond to the preliminary objection raised by the Respondent is to be presumed as the Appellant’s concession to the issues raised by the Respondent. See the cases of NNAMANI v NNAJI [1999] 7 NWLR (610) 313; AKANBI v ALATEDE (2000) FWLR (i) 928; OHIA v OMEGARA & ORS (2008) LPELR 8385 (CA).
However, it is the law that a preliminary objection is still to be considered on its merit. In other words, the absence of a reply from the Appellant and his deemed concession to the preliminary objection does not equate to automatic success or sustaining of the objection raised.
This Court still has the duty to consider if the objection is sustainable in law. See MACHIKA v IMAM & ORS (2010) LPELR 4448 (CA); AGBABIAKA v OKOJIE [2004] 15 NWLR (897) 503 at 522.
RESOLUTION
It is trite that grounds of appeal are the pillar upon which an appeal rests. It is to give reasonable and adequate notice of the grouse against the decision appealed. It is from the grounds and particulars contained in the Notice of Appeal that the issues resolving the appeal will be distilled from.
It is also the law that where an interlocutory appeal raises questions of facts or questions of mixed law and facts, the leave of either the trial Court or the appellate Court must be first sought and obtained before such appeal is filed. Section 241 (1) (a) & (b) and Section 242 (1) of the 1999 Constitution (as amended) provides thus:
241 (1) An appeal shall lie from the 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.
Where the necessary leave is not first sought and obtained on an interlocutory appeal containing grounds of mixed law and facts, such grounds of appeal is rendered incompetent and liable to be struck out. See the cases of CHEVRON NIG LTD v FABBY & ORS (2017) LPELR 42825 (CA); NDIC v JACKSON DEVOS LTD (2014) LPELR 23378 (CA); U.B.N PLC v SOGUNRO [2006] 16 NWLR (PT 1006) 504; WILLIAMS v GREGORY MOKWE (2005) 7 SC (PT 11) 153.
Based on this foregoing, when a party objects to a ground(s) of appeal on the ground that it is of mixed law and facts and leave ought to be obtained, the Court must examine the ground(s) of appeal and determine same on a reasonable understanding of the nature of the ground of appeal and not by what the party raising the objection may have conceived to be the question involved in the appeal. Equally, the Court will not accept a ground as that of law simply because it is labeled as such by the Appellant. See the cases of UGBOAJA v AKITOYE-SOWEMIMO [2008] 16 NWLR (PT 1113) 278; NWAOLISAH v NWABUFOH (2011) LPELR ? 2115 (SC); NWADIKE v IBEKWE (Supra).
It is therefore necessary to examine the grounds of appeal complained about so as to determine whether they are based on law as to be an appeal as of right or based on questions of facts or mixed law and facts which will require the leave of Court.
The Appeal is based on eight grounds of appeal and the Appellant did not formulate any issues from grounds seven (7) and eight (8). He also in his brief deemed it as abandoned. A ground of appeal from which no issue is formulated is deemed to have been abandoned, therefore grounds seven (7) & (8) of the grounds of appeal are accordingly discountenanced.
The case of RABIU HASSAN v FRN & ORS (2018) LPELR ? 44574 (CA) provides the guidelines for determining whether an appeal raises questions of law alone:
1. Where a ground of appeal complains of misunderstanding by the lower Court of the law or a misapplication of the law or facts already proved or admitted.
2. Where the lower Court finds that particular events occurred although there is no admissible evidence before the Court that the events did infact occur, the ground is that of law.
3. Where the lower Court or Tribunal applies the law to the fact in a process which requires the skills of a trained lawyer, it is a question of law.
4. Where the lower Court reaches a conclusion which cannot reasonably be drawn from the fact as found, the appeal Court will assume there has been a misconception of the law and it is a ground of law.
5. Where a trial Court fails to apply the fact which it has filed correctly to the circumstances of the case before it, and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application of the trial Court, the ground of appeal alleging the misdirection is a ground of law and not of fact. See also the case of EASY STREET LTD v M.V. KOSMOS (2015) LPELR ? 24505 (CA).
The Apex Court in the case of IWUEKE v IMO BROADCASTING CORPORATION [2005] 17 NWLR (PT 955) 447 held thus:
Though the difficulty involved in distinguishing a ground of law from a ground of fact has always been present and recognized by the Courts, the position of the legal authorities on the issue is for the Court to examine thoroughly the grounds of appeal involved to see whether the grounds reveal a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved, or admitted in which case it could be a question of law, or one that would require questioning the evaluation of facts by the lower Court before the application of the law, in which case, it would amount to a question of mixed law and fact.
Also in the determination of whether a ground of appeal raises questions of facts or mixed law and facts, the ground of appeal, and the particulars must be considered and taken together. See the case of ABUBAKAR v. WAZIRI & ORS (2008) LPELR 54 (SC).
The grounds of appeal left to be considered are grounds one (1) to six (6). The six grounds are reproduced hereunder:
GROUND OF APPEAL 1
(1) The trial Court erred in law in holding in the passages of its judgment to wit:
(a) To all intents and purposes therefore this Court is persuaded that the law firm on record for the Defendant herein up to the time the Claimant?s application to relist the suit dated 24/06/11 was filed, was the law Firm of Ayo Adeshola & Associates and I so hold.”
(b) Having served the law firm of Ayo Adeshola & Associates with the said application as shown on the affidavit of service deposed by Michael Odunlami on 07/10/11; having also served the law firm with a hearing notice as ordered by the Court (the proof of service of which is in the Court?s records) I am persuaded that the Claimant/Respondent has discharged the burden placed on her to ensure proper service of her pending application and I so hold.?
PARTICULARS
(i) For the purposes of the Claimant/Respondent?s application to relist this suit dated 24/06/11 the law firms on the record up to that date and at all material times are those who represented the parties during the proceedings for stay as specifically noted by Adenike Coker J. at the end of his Ruling for stay of 09/06/2005, Exhibit ‘DC’ thus
Parties absent in court
Josephine Emiaso (Mrs) for Claimant
Ms O. K. Kasumu for the 1st Defendant
Adebayo Haroun State Counsel for 2nd & 3rd Defendants.”
(ii) The law firm of Ayo Adeshola & Associates never participated or represented anybody in Court during the 2005 proceedings when stay of this suit No. LD/1213/85 was argued, and ordered by Coker J.
(iii) For avoidance of doubt, Coker J. in the body of that court’s Ruling (Exhibit ‘DC’) specifically noted.
Unfortunately, there are 2 counsels representing the same party sued as Defendant in the earlier suit. The counsel in the 1985 suit was put on Notice but is not in Court nor filed any process.
(iv) The two counsel referred to are Chief Theodore A. Ezeobi SAN who argued the application and obtained the Order for Stay and Ayo Adeshola who never took part in the Stay proceedings or at all to the full knowledge of the Claimant/Respondent and its counsel.
(v) The Respondent deliberately omitted to put Appellant on notice through Ezeobi and Company, solicitors, who are on the record and having applied for and obtained the Stay Order of 09/06/2005 or at all and purported to serve Ayo Adesola & Associates who on the record never took part in the Stay proceedings nor represented the Appellant in any proceedings ever since May 2005.
(vi) The findings by the trial Court that the law firm on record for the Appellant up to 24/06/2011 as regards the motion to relist suit LD/1213/85, is Ayo Adeshola & Associates and that by service of both the application to relist and the hearing notice on Ayo Adeshola & Associates the Respondent had discharged its legal burden to ensure proper service of those processes on the Appellant and/or its solicitors, are perverse.
GROUND OF APPEAL 2
(2) The trial Court erred in law in that it failed in its duty to ensure that parties to the proceedings before the Court and/or their counsel are put on notice before the hearing and purported determination of this matter and having failed to do so in the instant case denied the Appellant of its constitutional right to fair hearing.
PARTICULARS
(a) The application before the trial Court was to relist this suit No. LD/1213/1985 which was stayed by order of Coker J. of 09/06/2005 ?to await the outcome of the 1997 Suit i.e. LD/876/97.
(b) The application for stay was made argued and obtained by Chief Theodore A. Ezeobi SAN of Ezeobi and Company, undisputedly legal practitioners on the record for the Appellant in LD/876/97 since 1997 and they were never served with the motion and hearing notice to relist suit LD/1213/85:
(c) The Respondent filed the application and the trial Court heard and made the Order to relist Suit No. LD/1213/85 without notice to and at the back of the appellant who is Plaintiff in Suit No. LD876/97 and Defendant in LD/1213/85 or its Counsel/Solicitors Ezeobi and Company who obtained the Order in the first instance and so the entire proceedings were a nullity.
GROUND OF APPEAL 3
(3) The learned trial Court erred in law in holding in the passage of its judgment to wit:-
It is not however the business of the Court to compel the participation of a party and his counsel in the proceedings. Having informed counsel on the record of the pendency of the application having also gone further to inform counsel on the record of the hearing date, the Defendant cannot turn round to allege denial of fair hearing on the mere allegation that Defendant had changed its counsel from the known counsel on the record to the law firm of Ezeobi and Company when no application for change of counsel had been filed or a formal notice of such change furnished to the Claimant/Respondent or the court and I so hold.
PARTICULARS
(a) It is the duty of all Courts including the trial Court herein to ensure that notice is given to all parties to any proceedings directly or through their counsel but not to counsel who has not business in the matter.
(b) The Order to Stay Suit No. LD/1213/85 was obtained by Chief Theodore A. Ezeobi SAN of Ezeobi and Company as counsel to the Appellant who was Claimant in Suit No. LD/876/97.
(c) The law firm of Ayo Adeshola & Associates never ever acted for the Appellant in Suit No. LD/876/97 or at all in these proceedings (See Exhibit ‘DC’) and the purported services of notice on them is, sheer futility.
(d) Both the Respondent and the trial Court failed in their respective duties to ensure service of the motion to relist on Ezeobi and Company and the Appellant who, on the record, would be affected by any order the Court would make.
(e) With respect to the proceedings for stay of the Suit No. LD/1213/85 before Coker J. of 09/06/2005 as per Exhibit DC up to the Respondent’s motion to relist the same of 24/06/2011, and indeed till date, no question of change of Appellant’s counsel in Suit No. LD/876/97 ever arose.
(f) The finding by the trial Court that Ayo Adeshola & Associates were the proper solicitors on the record who were properly served with notices of the pending application before the Court in the purported absence of notice of change of counsel from Ayo Adeshola & Associates to Ezeobi and Company, is perverse.
GROUND OF APPEAL 4
(4) The learned trial Judge erred in law in failing to set aside its Order relisting suit No. LD/1213/85 stayed by order of a competent Court of co-ordinate jurisdiction (Coker J.) when the motion to relist was not served on and in the absence of the Appellant and/or their counsel who obtained the order of stay of the said suit No. LD/1213/85 in the first instance.
PARTICULARS
(i) Exhibit ‘DC’ and other records of the Court shown that the order staying Suit No. LD/1213/85 was obtained by the Appellant through Chief Theodore A. Ezeobi SAN of Ezeobi and Company its solicitors and counsel in the sister suit No. LD/876/97.
(ii) The motion to relist the said suit was not served on the Appellant or its said counsel and the said order to relist was made in their absence.
(iii) The entire proceedings up to the making of the relisting order are incompetent, made without jurisdiction and a total nullity and the trial Court ought to have set the same aside ex debito justitiae.
GROUND OF APPEAL 5
(5) The learned trial judge erred in law in purporting to interfere to, in effect, vacate an order for stay of proceedings in Suit No. LD/1213/85 by Coker J. a judge of coordinate jurisdiction, made to await the outcome of the 1997 suit i.e. Suit No. LD876/97 where the said 1997 suit is undisputably by Exhibit ‘DE’ or Exhibit ‘C’ pending on appeal in the highest Court of the land and so has not been finally disposed of.
PARTICULARS
(a) There was no appeal against the said order of Coker J. of 09/06/2005 for stay and being a Court of competent jurisdiction it binds all parties and all Courts.
(b) Being a Judge of coordinate jurisdiction with Coker J., the learned trial Judge cannot sit in judgment over the Ruling and Order of Coker J. of 09/06/2005 in this matter and the orders of the trial Court purporting to relist this suit and declaring the Order of Coker J., Exhibit ‘DC’, as ‘spent’ are incompetent and made without jurisdiction.
GROUND OF APPEAL 6
(6) The trial Court erred in law in the passage to wit:
The fulcrum of Chief Ezeobi SAN?s argument is that the claims in this present action as in Suit LD/1213/85 was ordered ?stayed to await the outcome of the 1997 suit.
With all due respect I have carefully considered the order of my learned brother A.J. Coker made in Suit LD/876/97 placed before the Court as Exhibit ‘DC’; although I have my reservation as to the appropriateness of staying the proceedings in one suit pending the outcome of another when both suits have not been consolidated, I am persuaded that the order of stay of proceeding made as shown in Exhibit DC became spent when the latter suit No. LD/876/97 was dismissed on 26/05/2010.”
PARTICULARS
(a) Not sitting on appeal the trial Court has no jurisdiction to sit in judgment or otherwise interfere with the Ruling and order of Coker J. of 09/06/2005 Exhibit DC.
(b) An Order can properly be made in one suit staying the proceedings in a sister suit though not consolidated.
(c) The Order for Stay of the Suit No. LD/1213/85 by Coker J. was in clear language not made pending any appeal to the Court of Appeal but to await the outcome of the 1997 suit i.e. final disposal and there is not final outcome of the 1997 suit when it is still pending in the Supreme Court Nigeria by Exhibit DC.
(d) The finding by the learned trial judge that the order for stay of proceedings in LD/876/97 was dismissed on 26/05/2010 by the Court Appeal notwithstanding the admitted pending appeal in the Supreme Court by Exhibit DC, is perverse.
I have taken time to carefully read through grounds 1 to 6 of this appeal. The main complaint of the Appellant is that the law firm of Ezeobi & Company was not served with the Respondent’s application to relist the suit at the lower Court which is the subject matter of this appeal. The Appellant as the defendant at the lower Court also contended that the Respondent/Plaintiff misrepresented facts to the lower Court and that same occasioned a miscarriage of justice by the relisting of the suit.
The lower Court in reaching its decision made findings of facts on which it based its ruling that the service of the application for relisting was properly served on the counsel that was on record.
Paragraphs 1(a) and 1(b) of ground one are clearly findings/evaluation of fact made by the lower Court as to who was counsel on record to the Appellant/Defendant and also who ought to be served and who was infact served. The particulars in support are clearly not issues of law.
Ground 2 of the Notice of Appeal though couched as a ground of law on fair hearing reveals that the Appellant’s complaint is that the lower Court failed in its duty to consider whether the parties to the proceedings and their counsel were put on notice for the motion to relist. The particulars in support are purely contentious issues of fact.
Grounds 3 and 4 again attacks the findings of the lower Court and ground 5 on whether the lower Court interfered with or vacated or sat in judgment over the ruling of its fellow learned brother, also raises a question of fact to be determined by the Court.
Ground 6 which is against the finding of the lower Court that the order of stay of proceedings made in LD/876/97 became spent following its dismissal on 26/5/2010 is of fact and infact, particulars (d) is attacking the said finding as perverse.
The nature of this appeal is one that questions the evaluation of facts by the lower Court and calls into question the correctness of the facts determined. It is invariably an appeal based on questions of mixed law and facts. See the case of A.C.B PLC v OBMIAMI BRICK STONE [1993] 5 NWLR (PT 294) 399 where the apex Court held thus:
It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is aground of law. Where on the other hand, the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is because in this latter case it is a conclusion of law coupled with the exercise of discretion.See also the case of STATE v OMOYELE (2016) LPELR 40842 (SC), page 32, paras E ? F, per RHODES-VIVOUR, JSC.
Consequently, this Court has no qualm in aligning its view with the objection of the Respondent that the grounds of appeal raised questions of mixed law and facts.
It is not in contention that leave to appeal on these grounds of appeal was not sought and obtained by the Appellant and this is fatal to the consideration of this appeal. The six grounds of appeal are therefore incompetent and are accordingly struck out and this appeal therefore has nothing else to stand on. See the case of WILKEY v OGIEGBAEN & ANOR (2001) LPELR ? 7028 (CA) where it was held that where all grounds of appeal are incompetent, the Notice of Appeal is a nullity and the Court has the power to strike out the Notice of Appeal.
On the whole, the preliminary objection of the Respondent succeeds and it is hereby upheld. The Notice of Appeal is accordingly struck out for being incompetent. Costs of N200, 000 is awarded in favour of the Respondent against the Appellant.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA which has just been delivered.
I ally myself with the analysis of the eight grounds of appeal in the Notice of Appeal dated 14/5/2012 and of the conclusion reached therein, that grounds 1-6 are grounds of mixed law and fact challenging interlocutory decision of the lower Court and for which leave of the lower Court or this Court was required to be valid in the light of the provision of Section 242(2) of the Constitution, 1999 as Amended, and that no Issue was formulated on grounds 7 and 8 In the Notice of Appeal which makes them incompetent to be considered by this Court.
I agree that the Respondent?s Notice of Preliminary Objection is meritorious and it is accordingly sustained.
The appeal is hereby struck out and I abide with the consequential order made as to costs.
Appearances:
Theodera Jnr EzeobiFor Appellant(s)
Mrs. O. K. Hassan-OdukaleFor Respondent(s)
