CHIEF GUY IKECHUKWU IKOKWU v. ASSET MANAGEMENT CORPORATION OF NIGERIA
(2019)LCN/12872(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/L/1368/2016
RATIO
APPEAL: WHETHER THE APPELLANT NEEDS TO OBTAIN LEAVE FROM THE LOWER COURT BEFORE FILLING AN APPEAL
“…whether the Appellant needed to obtain leave from the lower Court before filing the appeal. The law on this issue is clear. By the provision of Section 242 of the Constitution of the Federal Republic of Nigeria, the Appellant will need leave to appeal against interlocutory matter if it is based on fact or mixed law and fact. See Ajuwa & Anor vs. SPDC Nig. Ltd (2011) 12 SC (Pt. IV) 118; Onwubuariri & Ors vs. Igboasoyi & Ors (2011) 3 NWLR (pt 1234) 357. In Nwosu & Anor vs. Offor (1997) 2 NWLR (pt 487) 274, the Supreme Court per Ogwuegbu, JSC as follows:
Under the provisions of Section 220(1)(a) and (b) there is a general right of appeal as of right from the decision of the High Court to the Court of Appeal in all final decisions both in civil and criminal proceedings before the High Court sitting at first instance; and where the grounds of appeal involve questions of law alone in non-final decisions in both civil and criminal proceedings. Section 220(1)(b) is concerned with non-final or interlocutory decisions. See Ajani vs. Giwa (supra) and Rabiu vs. Kano State (supra). I have carefully examined the grounds of appeal. I am satisfied that the questions raised in them are of facts or at best, of mixed law and facts. Furthermore, the ruling in respect of which the grounds of appeal relate was not a final decision since it did not finally dispose of the rights of the parties in the suit. See Blay vs. Solomon (1947) 12 WACA 175 @ 176; Bozson vs. Altrincham Urban District Council (1903)1 KB 547 and Akinsanya vs. U.B.A. Ltd (1986)4 NWLR (Pt. 35)273. The decision is interlocutory. Consequently, appeal on those grounds could not possibly have been as of right under Section 220 of the Constitution. An appeal on those grounds required leave under Section 221(1) of the Constitution.” PER TOBI EBIOWEI, J.C.A.
COURT AND PROCEDURE: WHERE PRELIMINARY OBJECTION ARISES
“This is what the law demands and requires. Once there is a preliminary objection, a Court will first determine same before looking at the merit of the appeal. See: Lotatex Nig. Ltd & Anor vs. Bank of Agriculture (2017) LPELR-43094 (CA); FBN Plc vs. T.S.A. Industries Ltd (2010) 4-7 SC (Pt. 1) 243; NDP vs. INEC (2013) 6 NWLR (Pt. 1350) 39” PER TOBI EBIOWEI, J.C.A.
COURT AND PROCEDURE: WHERE GROUNDS OF LAW IS MIXED WITH FACT
“There is no doubt that it is always not easy to distinguish a ground of appeal in law alone from that of mixed law and fact. One has to examine not only the bare wording of the ground, but also the relevant particulars supplied. It is only through that, that one can be able to ascertain whether the ground is a pure ground of law as couched or it is of mixed law and fact. The Supreme Court in its endeavor to minimise the difficulties being faced by the lower Courts in this regard, has provided some useful guidelines in Ogbechie & Ors. v. Onochie & Ors. (1986) S.C. 54 wherein Eso, J.S.C., said- “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine.” ” PER TOBI EBIOWEI, J.C.A.
INTERPRETATION: CONSEQUENTIAL ORDER
“It is trite law, that a Court has inherent power to make consequential order. A consequential order is simply one which flows directly and naturally from the decision or order made on issues litigated upon and inevitably consequent upon it. See; Akapo vs. Hakeem-Habeeb [1992] 2 NWLR (Pt. 247) 266 or (1992)7 SCNJ 119 or (1992) LPELR 325 (SC). A consequential order is one which gives effect to a judgment or order to which it is consequential. See Funduk Engineering Ltd vs. Mcarthur & Ors (1996) 7 NWLR (Pt. 459) 153; Obayagbona vs. Obazee (1972) SC 247; Odofin & Anor vs. Agu & Anor (1992) NWLR (Pt.229) 350. Every Court, be it of first instant or appellate has the power and in fact has the duty and obligation to make any consequential order in the interest of justice and it is irrelevant and of no moment that the particular order was not specifically asked for by either party to the proceedings or appeal. See: Prince Yahaya Adigun & Ors vs. Attorney General of Oyo State & Ors (1987) 1 NWLR (Pt.53) 678 at 710; Chief Ebenezer & Ors vs. S.K. Owodunni & Anor (1987) 2 NWLR (Pt. 57) 367.” PER TOBI EBIOWEI, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
CHIEF GUY IKECHUKWU IKOKWU
(Trading Under the Name & Style of G. Ike Ikokwu & Co) Appellant(s)
AND
ASSET MANAGEMENT CORPORATION OF NIGERIA Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment):
The Appellant in this appeal was the Defendant in the lower Court while the Respondent was the Claimant. During the pendency of the suit registered as Suit No FHC/L/CS/1876/2014, the Appellant filed a motion on 6/5/2015 praying the Court to vacate an order made in favour of the Respondent affecting the Appellant’s fund in financial institutions and to further allow the Appellant operate his accounts.
1. An order of this Honourable Court vacating the order made on the 13th day of February, 2015 attaching the Applicant’s funds in the financial institutions in Nigeria and his movable and immovable assets.
2. An order of this Honourable Court discharging all the financial institutions holding the Applicant’s funds and allowing the Applicant to operate his account without hindrance.
The Respondent upon been served with the process, instead of filing counter affidavit filed a notice of preliminary objection. The application was made in line with Sections 49 (3) and 50 (2) of the AMCON Act, 2010, while the preliminary objection was brought on the premise that the application did not comply withdirection 3.3 (1) (2) & (3) of the AMCON Practice Direction. The lower Court in the ruling held that both the application of the Appellant filed on 6/5/2015 and the Respondent’s preliminary objection filed on 8/6/2015 are incompetent, the preliminary objection was struck out and the application was dismissed. At page 210-211 of the records which contain the ruling, the lower Court held:
There is no law that allows a Respondent to an application to file a notice of preliminary objection to the application. There is no such provision in the Rules of this Court or under AMCON Practice Direction. The Claimant’s notice of preliminary objection is unknown to law. Under the rules of Court, a Respondent to a suit can only file an objection to a substantive suit. There is no law that allows a preliminary objection to be filed against a motion. If a Defendant files an application that the claimant believes is incompetent, he has just one step to take and that is either he files a counter affidavit that may be accompanied by a written address or he files a written address in opposition. There is no provision in the rules of this Court or AMCON Practice Direction that allows an objection to be filed to a motion.
The Claimant’s notice of preliminary dated of 8/6/2015 is incompetent, is an abuse of Court’s process. It is accordingly struck out, I so hold.
The above is the order of the Court with respect to the preliminary objection. With regard to the application, the lower Court held in the judgment in pages 212-213 of the records thus:
Under Order 26 Rule 11 of the Rules of this Court, the Defendant had 7 days from 22/4/15 to have filed the instant application as of right. 7 days for them to file the instant application as of right expired on 29/4/15. After the expiration of 7 days, the Defendants require leave of Court for an order extending time for him to bring an application to discharge the exparte order made on 13/2/2015. It cannot after 7 days apply to discharge order as of right. In this case the application was filed 6/2/2015 without an order extending time for them to apply to set aside the exparte order dated 13/2/2015. The fact that the Defendant were subsequently served the exparte order on 18/5/2015 is immaterial and of no moment. This is so because he has already been informed of the existence of the order by the bank officials. It is immaterial that it was not the bailiff that served the order on it but it knew of the existence of the order on 22/4/2015. Ignorance of the law is not an excuse, I so hold. The Court is relying on the provisions of Order 26 Rule 11 of the Rules of this Court because there is no similar provision in AMCON Practice Direction.
Put differently, before the Defendant can validly raise the issue that the Claimant did not file debt recovery claim within 14 days from the date the order was made failing which the order should lapse, it ought to have filed the application itself within the period of 7 days upon becoming aware of the existence of the exparte order attaching funds in its accounts in the commercial bank. The instant application having been argued on the merit, it lacks merit, it is reckless and hopeless abuse of judicial process. It is hereby dismissed with cost of N15,000 in favour of the Claim (sic) payable by the Defendant before any further steps in the proceedings. The restraining order takes effect at the end of today proceedings.
The Appellant dissatisfied with the ruling appealed against it. The notice of appeal contains two grounds of appeal. Appellant’s brief of argument filed on 14/11/18 was settled by his counsel Chigbo Anaenugwu Esq., and adopted on 24/1/19. Learned Counsel raised two issues for determination, these are;
(i) Whether failure to commence debt recovery action against the Appellant within the statutory period of 14 days as provided by Sections 49(3) and 50(2) of the AMCON Act, 2010 nullifies the order of the lower Court made on 13th February 2015 for non-compliance? (Distilled from ground 1).
(ii) Whether the learned trial judge was right in holding that non-compliance with Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rules 2009 was fatal to the Appellant’s application (Distilled from ground 2)
In addressing issue 1 in the affirmative, counsel submitted that the Respondent mandatorily should have filed recovery proceedings within 14 days the order was made. Failure to do this makes the order to lapse. The word ‘shall’ in Sections 49 (3) & 50 (2) are to be given the strict and mandatory interpretation. He referred to Echelunkwo John vs. Igbo-Etiti Local Government Area (2013) 7 NWLR (Pt. 1352) 1; Mr. Sylvester Mako vs. Barrister Felicia B. Umoh (2010) 8 NWLR (Pt. 1195) 82 @ 107-108; Kalu vs. Nigerian Army (2010) 4 NWLR (Pt. 1185) 433; Bernard Amasike vs. The Registrar- General, Corporate Affairs Commission (2010) 13 NWLR (pt 1211) 337. It is counsel further submission that the lower Court was wrong in not looking at the merit of the application and this amounted to miscarriage of justice. He submitted further, that the Court should have set aside the order it had made. He cited Oyewale vs. Oyesoro (1998) 2 NWLR (Pt. 539) 663; Udeagha vs. Omegara (2011) 11 NWLR (Pt. 1204) 168; Olofu vs. Itodo (2010) 18 NWLR (Pt. 1225) 545.
On issue 2, it is counsel submission that there is no provision in the AMCON Act that gives the Appellant time frame within which to bring the application to vacate the interim order and further that relying on Order 26 Rule 11 of the Federal High Court Rules is a misnormer. In the alternative, even if the rules apply, the non-compliance will be treated as an irregularity.
He referred to Stabilini Visinoni Ltd vs. Mallinson & Partners Ltd (2014) 12 NWLR (Pt. 1420) 134 & 186; Shuaibu vs. Muazu (2014) 8 NWLR (Pt. 1409) 207. The issue of non compliance counsel submitted was raised and resolved suo motu by the lower Court which the Court should not have done. He referred to Chukwuma Okwudili Ugo vs. Amamchukwu Obiekwe (1989) 1 NWLR (Pt. 99) 566 @ 578; Chief Kafaru Oje vs. Chief Ganiyu Babalola (1991) 4 NWLR (Pt. 185) 267 @ 280; Stirling Civil Engineering (Nig.) Ltd vs. Ambassador Mahmoud Yahaya (2005) 11 MJSC 138 @ 171. It is counsel’s final submission that the order was not served on the Appellant within the time frame to fall outside the time anticipated by Order 26 Rule 11 of the Rules.
The Respondent’s brief was settled by Aloy C. Ezenduka Esq., and adopted on 24/1/19. He adopted the two issues raised for determination by the Appellant in his brief. It is his submission that non compliance with Order 29 Rules 1 & 2 of the Federal High Court (Civil Procedure) Rules, 2009 and Direction 3.3 (1) of the AMCON Practice Direction 2013 makes the application incompetent as the Appellant did not file a conditional appearance. He referred to Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Shitta-Bey vs. Fed. Public Service Commission (1981) 1 SC 40; Dr. Ajewumi Bili Raji vs. University of Ilorin & Ors (2018) LPELR 44692; Chief Guy Ikechukwu Ikokwu vs. Asset Management Corporation of Nigeria CA/L/313/2016 of 28/4/17 (Unreported). It is his submission that based on that, there was no valid appeal.
The Respondent raised preliminary objection to the appeal on 10 grounds for which 3 issues are formulated which were argued together. The 3 issues are:
(i) That the appeal is against an interlocutory decision of E. O Abang (Judge) of the Federal High Court dated 23rd December 2015 to which there is no valid pending appeal.
(ii) The ruling and order of the lower Court on appeal are on grounds of mixed law and facts and the notice of appeal was filed without the leave of either the trial Court or the Court of Appeal.
(iii) That the appeal is against a valid and subsisting order of E. O. Abang (Judge) of the Federal High Court to the effect that the Appellant failed to bring his application dated 5th May 2015 but filed at the Registry of the Federal High Court on the 6th of May 2015 within 7 days as required under Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rules 2009 which is a ground of mixed law and facts.
The failure of the Appellant to file a representation notice is fatal to the appeal and therefore the notice of appeal is defective, counsel submitted. He referred to Abiodun vs. FRN (2016) 9 NWLR (Pt. 1516) 126. The lower Court, counsel submitted had no jurisdiction to entertain the matter and so no valid appeal can arise from it. The second issue in the objection is that the appeal is on mixed law and fact and therefore the Appellant needed to apply for leave before the appeal. This the Appellant did not do and so the notice of appeal is defective. He cited Ekunola vs. CBN (2013) 15 NWLR (Pt. 1377) 224; Okorocha vs. PDP & 4 ORS 2014 Legalpedia SC Y9D. The issue of non compliance is a question of mix law and fact.
On the substance of the appeal, it is counsel submission that the mandatory nature of Section 49 (3) & 50 (2) of the AMCON Act is not in dispute but the real issue is that the Appellant did not bring the motion within the period stated by law.
He referred to Alfred Onyemaizu vs. J.A. Ojiako & Anor (2010) 1-2 SC 41; Owner of the M.V. Arabella vs. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182 @ 206. It is counsel’s submission that ground 1, of the issues raised by the Appellant does not arise from the ruling and therefore should be struck out. It is also counsel’s submission that a notice of preliminary objection can be used to challenge an incompetent motion on notice. He referred to Shinning Star Nigeria Limited & Anor vs. ASK Steel Nigeria Limited & 2 Ors 2011 Legalpedia SC DAMF Appeal No SC 101/2010 delivered on Jan. 14, 2011. He finally urged Court to dismiss the appeal.
The Appellant while exercising his right of reply submitted that the preliminary objection to the appeal is unfounded as the grounds of appeal are not mixed law and fact. In that respect, counsel submitted that the important consideration is the grounds of appeal and not the judgment of the lower Court. He referred to Hon. Justice Babatunde Adejumo vs. Hon. Justice P.N.C. Agumagu & Ors (2015) NWLR (Pt. 1472) 1. It is further submitted that since there was no appeal against the aspect of the ruling dealing with dismissal of the preliminary objection in the lower Court, it is an abuse of Court process to repeat same application in the Court of Appeal. He referred to Michael Uzoagba & Anor vs. C.O.P. (2014) 5 NWLR (Pt. 1401) 1441; Modern Oil Nig Ltd vs. George (2014) 15 NWLR (pt 1431) 624 and NJC vs. Hon. Justice P.N.C. Agumagu (2015) 10 NWLR (pt 1467) 365.
The Respondent filed a preliminary objection to the appeal. The Respondent raised 3 issues for determination from the notice of preliminary objection filed against the appeal. In summary, the issues are firstly, whether there is a valid appeal before this Court; secondly, whether the appeal filed by the Appellant is on grounds of mixed law and fact and thirdly, whether Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rules is applicable to the case before the lower Court? This third issue is the same issue with the 2nd issue raised by the Appellant on the appeal as formulated in the brief of the Appellant.
I will address the preliminary objection raised by the Respondent to the appeal. This is what the law demands and requires. Once there is a preliminary objection, a Court will first determine same before looking at the merit of the appeal. See: Lotatex Nig. Ltd & Anor vs. Bank of Agriculture (2017) LPELR-43094 (CA); FBN Plc vs. T.S.A. Industries Ltd (2010) 4-7 SC (Pt. 1) 243; NDP vs. INEC (2013) 6 NWLR (Pt. 1350) 392.
The Respondent’s argument on the first ground of the objection is that there was no valid appeal. The premise of the objection on that ground is that the Appellant should have filed a representation notice to the suit before filing the motion of 6/5/15. The failure to file the Representation Notice makes the motion of 6/5/2015 incompetent. While the authorities cited by the Respondent’s counsel in the brief are good law but there is need to consider whether they are applicable in the case before this Court. The law as cited by the Respondent’s counsel is that no objection can be taken on the jurisdiction of a Court without the party filing the Representation Notice. The Representation Notice can only be filed when the Special Claim Form in line with AMCON Track Form 1B is served on the Appellant. It is after this has been done that the Appellant can file and serve the Representation Notice. What is clear from the record of appeal is that the motion found in pages 179-182 of the record was filed on 6/5/15. The preliminary objection to the motion in pages 186-187 of the record was filed on 8/6/15. The Special Claim Form with all the processes attached to it was served on 18/5/15. This is found in page 199 of the record.
The Representation Notice was filed on 12/6/15, found in page 195 of the records. It is therefore clear that the Representation Notice was filed after the motion has been filed. Also clear is that the motion was filed before the Special Claim Form was served on the Appellant. This was 12 days after the motion was filed. The natural implication is that the Appellant could not have filed a Representation Notice to a Claim he has not seen. Similarly, he is not expected to wait indefinitely for the Claim to have been filed before taking any action on the matter. The Respondent did not act on time to file the Claim and by law she cannot enjoy the benefit of her belated act. See Ballantyne vs. Ayi & Ors (2011) LPELR- 8825 (CA); Saleh vs. Monguno & Ors (2006)7 SC (Pt. II) 97.
That point alone throws away the first leg of the preliminary objection of the Respondent to the appeal.
That apart, the Representation Notice is required before a party challenges the jurisdiction of the Court below. The question is whether the motion of 6/5/15 in the Court below amounts to challenging the jurisdiction of the lower Court. It will not be out of place to now reproduce the prayers in the motion. At pages 179-180 of the record, the prayer of the Appellant is as follows:
1. An order of this Honourable Court vacating the order made on the 13th day of February, 2015 attaching the Applicant’s funds in the financial institutions in Nigeria and his moveable and immoveable assets.
2. An order of this Honourable Court discharging all the financial institutions from holding the Applicant’s funds and allowing the Applicant to operate his account without hindrance.
The ground upon which the application is made is that the interim order had lapse after 14 days as provided by Sections 49 (3) & 50 (2) of the AMCON Act. To determine the jurisdiction of a Court, the Court will also look at the claim whether it falls within the powers conferred on the Court. The question now is whether the prayers sought are questions that challenge the jurisdiction of the lower Court? What is the purport of the prayer sought? In my view, the prayers sought in the motion as produced above are not challenging the jurisdiction of the lower Court to entertain the matter or make the order of 13/2/15 in the first place. It is only when the Appellant is challenging the jurisdiction of the lower Court to make the order of 13/2/15 that it can be a question of jurisdiction. The motion is centered on vacating an earlier order made. This is not because the lower Court had no jurisdiction to make the order but rather that the order had lapsed because the Special Claim Form was not filed when it ought to have been filed. The consequence of that is that, in line with Sections 49 (3) & 50 (2) of AMCON Act the order has lapsed. Since the motion is not challenging the jurisdiction of the lower Court, there is therefore no legal requirement that the Appellant needed to file the Representation Notice before filing the motion. The first issue in the preliminary objection to this appeal is resolved in favour of the Appellant as there is a valid appeal before this Court.
The second issue is whether the Appellant needed to obtain leave from the lower Court before filing the appeal. The law on this issue is clear. By the provision of Section 242 of the Constitution of the Federal Republic of Nigeria, the Appellant will need leave to appeal against interlocutory matter if it is based on fact or mixed law and fact. See Ajuwa & Anor vs. SPDC Nig. Ltd (2011) 12 SC (Pt. IV) 118; Onwubuariri & Ors vs. Igboasoyi & Ors (2011) 3 NWLR (pt 1234) 357. In Nwosu & Anor vs. Offor (1997) 2 NWLR (pt 487) 274, the Supreme Court per Ogwuegbu, JSC as follows:
Under the provisions of Section 220(1)(a) and (b) there is a general right of appeal as of right from the decision of the High Court to the Court of Appeal in all final decisions both in civil and criminal proceedings before the High Court sitting at first instance; and where the grounds of appeal involve questions of law alone in non-final decisions in both civil and criminal proceedings. Section 220(1)(b) is concerned with non-final or interlocutory decisions. See Ajani vs. Giwa (supra) and Rabiu vs. Kano State (supra). I have carefully examined the grounds of appeal. I am satisfied that the questions raised in them are of facts or at best, of mixed law and facts. Furthermore, the ruling in respect of which the grounds of appeal relate was not a final decision since it did not finally dispose of the rights of the parties in the suit. See Blay vs. Solomon (1947) 12 WACA 175 @ 176; Bozson vs. Altrincham Urban District Council (1903)1 KB 547 and Akinsanya vs. U.B.A. Ltd (1986)4 NWLR (Pt. 35)273. The decision is interlocutory. Consequently, appeal on those grounds could not possibly have been as of right under Section 220 of the Constitution. An appeal on those grounds required leave under Section 221(1) of the Constitution.
The appeal is obviously an interlocutory appeal. There is also no leave obtained by the Appellant before filing the appeal. The only ground under which this appeal will be competent before this Court in the circumstance is, if the grounds of appeal are purely based on law or on question of law. In Dairo vs. Union Bank & Anor (2007)16 NWLR (Pt. 1059) 99, Muhammad, JSC held:
The settled principle of law on the validity of a notice of appeal is that when a ground of appeal involves a question of law, it alone can sustain that notice of appeal. Thus, by the provision of Section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, such a ground of law confers right of appeal on an appellant without the necessity of seeking or obtaining leave from any Court including this Court or the Court below.
In considering this point, I agree with the Appellant that the document to be considered is not the ruling but rather the grounds of appeal contained in the notice of appeal. The notice of appeal found in pages 215-217 has two grounds of appeal. I will reproduce the grounds of appeal.
GROUND 1
The learned Justice of the lower Court erred in Law in considering matters and issues that were extraneous or irrelevant to the question of whether the plaintiff/Respondent complied with the strict requirements of Sections 49(3) and 50(2) of the Asset Management Corporation of Nigeria Act 2010 thereby occasioning a miscarriage of Justice.
GROUND 2
The learned Justice of the lower Court erred in law by relying solely on non compliance with the provisions of Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rules 2009 in arriving at the conclusion that the Defendant/Appellant’s application lacked merit.
The question therefore is, are the above grounds purely on law or mix law and facts? A ground of law alone is a ground that deals with purely issues dealing with the misunderstanding, interpretation and the application of the law. What stands for consideration in a ground of appeal dealing with law alone is a ground where the law is the main focus of the ground. In this regard, the centre of attraction in the appeal is the interpretation and the application of the law. Anything apart from that will amount to mixed law and fact. In Ifediorah & Ors vs. Ume & Ors (1988)2 NWLR (Pt. 74) 5, the apex Court held:
There is no doubt that it is always not easy to distinguish a ground of appeal in law alone from that of mixed law and fact. One has to examine not only the bare wording of the ground, but also the relevant particulars supplied. It is only through that, that one can be able to ascertain whether the ground is a pure ground of law as couched or it is of mixed law and fact. The Supreme Court in its endeavor to minimise the difficulties being faced by the lower Courts in this regard, has provided some useful guidelines in Ogbechie & Ors. v. Onochie & Ors. (1986) S.C. 54 wherein Eso, J.S.C., said- “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
As mentioned earlier an appeal on question of law alone is based on the law or the application of the law. If it goes into evaluation of facts before the application of the law, it will amount to mixed law and fact. An appeal purely on law puts the law on the main burner for consideration. In Anoghalu & Ors vs. Oraelosi & Anor (1999) 10-12 SC 1; (1999) LPELR 496 (SC) at pages 16-19 Ogundare JSC (of blessed memory) held thus extensively on this issue:
In Metal Construction (West African) Ltd. vs. D. A. Migliore & Ors: in Re Miss C. Ogundare (1990) ANLR 142; (1990)1 NWLR (Pt. 126) 299 ? this Court examined at length, the phrases: ‘a question of law’ and ‘a question of fact’ and referred to a number of cases on the point. On question of law, this Court in that case, per Karibi-Whyte J.S.C. at pages 149-150 of the former report had this to say: Generally considered, the term ‘question of law’ is capable of three different meanings. First it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the Court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in this sense is one predetermined and authoritatively answered by the law. The second meaning is as to what the law is. In this sense an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning. The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only. Thus any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge.
And on question of fact the learned Justice of this Court, at page 150, said: “Now turning to what is a question of fact it is easy to postulate that it is anything which falls outside the meaning of question of law. That will not be entirely correct, because there are exceptions. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact. A matter is generally held to be one of fact if it is one on which reasonable men may arrive at discrepant conclusions on the same evidence before them. When perception and evaluation of primary findings result in the conclusions in which a layman as well as a person instructed in the law give an acceptable opinion, it is a matter of fact. What are to persons trained in the law matters of fact, are often to laymen matters of opinion. In a narrow and more specific sense a question of fact does not include all questions that are not questions of law, but only some of them. It is opposed to a question of judicial discretion which is one of the exceptions.” Similarly, the apex Court per Galadima, JSC in Njemanze vs. Njemanze (2013) 8 NWLR (Pt. 1356) 376 held thus:
This Court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact. Some of these principles can be summarized in the following manner:
(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(ii) Where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
(iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact.
(iv) A ground which raises a question of pure fact is a ground of fact.
(v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.
(vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
(vii) Where the lower Court approached the constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.
(viii) Where the lower Court or tribunal applying the law to the facts in a process which requires the skills of a trained lawyer, this is a question of law.
(ix) Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the Appeal Court will assume that there has been a misconception of law. This is a ground of law.
(x)Where the conclusion of the lower Court is one of possible resolutions but one which the Appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.
(xi) Where the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of appeal are issues of fact and not of law.
(xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of appeal is a ground of law not of fact.
(xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a Court of appeal or a further Court of appeal).
See the cases of BOARD OF CUSTOMS &. EXCISE vs. BARAU (SC) 48 and OGBECHIE vs. ONOCHIE (1986) 3 SC 58 – 64, where this Court interpreted the provisions of Section 213 (3) and 214 (3) of the Constitution of the Federal Republic of Nigeria, in pari material with the instant provisions of Section 233(2) and 233(2)(a) of the said Constitution. Other cases relied on by the Appellant in which the basis or perimeters for deciding whether a ground of appeal raises questions of law alone or of mixed law and fact and of fact are as follows:
(i) OJEMEN vs. MOMODU (1983) 3 SC 173 at 207.
(ii) RABIU vs. ATTORNEY GENERAL KANO STATE (1980)8-11(SC) also (1982)2 NCLR 117.
(iii) NWADIKE vs. IBEKWE (1987) 4 NWLR (Pt. 67).
(iv) ABIDOYE vs. ALAWODE (2001) 6 NWLR (Pt. 709) 463 at 472.
(v) IFEDIORA V. UMEH (1988) 2 NWLR (Pt. 74)5.
(vi) OFORKIRE v. MADUIKE (2003)5 NWLR (Pt. 812) 166 at 176.
(vii) IDOWU V. STATE (2000) 12 NWLR (Pt. 680) 48 at 68 – 69.
It has been further decided by this Court that in determining whether a ground of appeal includes question of law alone or of mixed law and fact, both the ground of appeal and the particulars of error or of misdirection shall be thoroughly examined to see whether it is ground of law alone or mixed law and of fact. See U.B.A vs. GMBH (1989) 3 NWLR (Pt. 110) at 389 to 390.
The rule issue for consideration as clearly brought out in the grounds of appeal in my firm opinion is not the understanding or otherwise, the interpretation or otherwise or the application or otherwise of the law in this instance Sections 49 (3) & 50(2) of the AMCON Act and Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rule. Yes, those provisions are issues for determination in this appeal but the appeal is not purely based on those laws in relation to understanding, interpretation and application of those laws. The provisions are clear in understanding to all the parties. The issue is that of noncompliance. There is a difference between an appeal been declared incompetent for grounds of jurisdiction and an appeal declared incompetent for noncompliance. The legal consequences of both are different. An appeal which is incompetent on grounds of jurisdiction is completely struck out and cannot be amended in any way as all proceeding based on it will be a nullity. On the other hand if it is based on incompetent on grounds of noncompliance, it can be amended because on the face of the law, it is a mere irregularity which can be regularized.
To determine noncompliance, there will be need to refer to facts within the matter. Indeed, the affidavit and counter affidavit filed by the parties in the lower Court are all indications that there is no way a person can be complaining of noncompliance without referring to facts. Indeed, the particulars of the grounds of appeal also refer to facts. The noncompliance with Sections 49 (3) & 50 (2) of the AMCON Act is to the effect that the Respondent did not file the Special Claim
Form within 14 days of the order made. This is the issue. What is before this Court is not the purport of the sections? It is whether there was a noncompliance and if so whether there is any good excuse for the non compliance. This in my opinion is not a ground of appeal that is purely on law or an appeal founded on question of law alone. This is a ground of mixed law and fact. The ground one is talking of the lower Court considering other matters extraneous and irrelevant to the question of non-compliance. This again is not a pure question of law.
Similarly ground 2 in the notice of appeal is also on the issue of noncompliance. This time it is Order 26 Rule 11 of the Federal High Court Rules. This rule requires that any application to set aside an exparte order must be made within 7 days of the order. The purport of ground 2 of the notice of appeal is whether the lower Court was right in applying the provision of Order 26 Rule 11 of the Federal High Court Rule in the matter before the lower Court. This is the main purport of this ground of appeal. While, that ground is not based on the understanding and the interpretation of Order 26 Rule 11 but it is on the application of the said rule in the matter that was before the lower Court. In the circumstance ground 2 is not a ground of mix law and fact but a ground of law purely for which the Appellant does not need to apply for leave. Ground 1 been a ground of mix law and fact, the Appellant should have obtained leave. I cannot say so of ground 2 which in my opinion is a ground which is on question of law as to whether Order 26 Rule 11 of the Federal High Court is applicable to the matter in the lower Court which is a matter brought under the AMCON Act. Even if I strike out ground 1 on ground of incompetence for not obtaining leave of the lower Court, I cannot strike out or dismiss the appeal on the premise of refusal to obtain leave. This is because, ground 2 is a ground of pure law and this ground alone can sustain the appeal. This second issue on the preliminary objection fails and I resolve it in favour of the Appellant.
I will now determine the third issue of the preliminary objection to this appeal with the second issue raised for determination in the main appeal which is whether the lower Court was right in holding that the non compliance with Order 26 Rule 11 of the Federal High Court Rules was fatal to the Appellant’s application. The AMCON Act and the AMCON Practice Direction has made provision for interim orders to be made by a Court. The Court with jurisdiction to handle AMCON matters and make the order is the Federal High Court. The power to grant such order is found in Section 49 (3) & 50 (2) of the AMCON Act and Paragraph 4.2 of the AMCON Practice Direction. These provisions especially, the Act make provision that the ex parte order will last for 14 days to enable AMCON file the claim. If the Claim is not filed within 14 days, the interim order lapses automatically. This in my opinion is that it has no legal force any more. This is an automatic elapsing of the order. There is however no provision for when the other party can challenge or bring a motion for the discharge of the order.
In the circumstance, I am in agreement with the lower Court that once the AMCON Acts and Practice Direction does not make provision for the time frame to file a motion for vacating of an ex-parte order, the rules governing the Court with jurisdiction in AMCON matters will govern such a situation not covered by the AMCON Acts and Practice Direction. In this circumstance, the Federal High Court (Civil Procedure) Rule 2009 which has made provision for a period of 7 days for a party against whom an ex-parte order has been made to bring a motion to challenge same will apply. The law has made provision for the party to seek for leave should the application to vacate the order is not made within 7 days. See; Aso Timdoz Nig. Ltd & Ors vs. Timdozs Eng. Nig Ltd (2005)9 NWLR (Pt. 929) 189.
The Appellant is of the view that the provision of Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rules does not apply. I do not agree with him. The Court with jurisdiction in AMCON Matters is the Federal High Court. This is the provision of Section 53 of the AMCON Act. It stands to reason therefore that if a situation arises for which the AMCOM Act and Practice Direction makes no provision, the Federal High Court (Civil Procedure) Rules will apply. I have no difficulty in holding that the Federal High Court Rules apply in the matter involved in this appeal. We will now look at the Rules. Order 26 Rule 11 provides thus:
Where an order is made ex-parte, any person affected by it may, within seven days after such service of it, or within such further time as the Court shall allow, apply to the Court by motion to vary or discharge it; and the Court may, on notice to the party obtaining the order, either refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to cost or security, or otherwise, as seems just.
For this order to apply as it relates to the 7 days, the rule requires that the time will start running from when the Appellant is served with the order. The facts before this Court as shown in the record is that the order was made on 13/2/15. The Appellant was served with the order on 18/5/15. This means the order was served on the Appellant almost 3 months after the order was made. By this time, the order has lapsed by operation of law. The motion to vacate the order was filed on 6/5/15. This means that the Appellant filed the motion before he was served with the order. He filed the motion 13 days before he was served. What then is the base of the application? Where did the Appellant get the information that made him to file the motion?
Apparently, it was filed based on the information he got from the bank. This information was received when he went to the bank to effect a transfer. He was informed about the Court order and a copy of the order was made for him. The lower Court in its ruling said that the Appellant knew of the order on the 22/4/15. While by law I am to respect the finding of fact by the lower Court but I am at a loss where the lower Court got that information from which informed the finding of fact. The Appellant in paragraph 4 of the affidavit in support of the motion found in page 181 of the record said the bank staff gave him the information. He did not however state when the information was given to him. All we can deduce is that it was given to him before 5/5/15 when he made the deposition. What is clear from paragraph 5 of the affidavit in support is that the motion was filed before he was served with the order. Since, by law I can interfere with the finding of fact, if it is not in line with the evidence, I make bold to say there is no evidence before the lower Court for the Court to come to the conclusion that the Appellant is out of time when he filed the motion of 6/5/2015. I have no evidence in the record of appeal to hold that the motion was not filed within 7 days of service or when the knowledge of the order got to him. I therefore cannot see my way clear to agree with the lower Court. I therefore hold that the motion was filed within the time limit of 7 days. This makes the motion competent before the lower Court. I resolve this issue in favour of the Appellant as there is no evidence of non compliance with the provision of the Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rule.
The preliminary objection of the Respondent to this appeal fails in its entirety. The preliminary objection is according dismissed. I have held that the first ground of appeal is not competent because the Appellant did not obtain the leave of the lower Court since the ground is mixed law and fact. This means technically, I cannot decide on the issue covered by the first ground of appeal. Taking a look at the first ground it is really an allegation against the lower Court to the effect that it considered issues in the ruling which is extraneous to the issue of compliance with the provision of the AMCON Act.
I cannot see where the lower Court decided on issues not related to the provisions of Sections 49 (3) & 50 (2) of the AMCON Act.
A Court of law exists to do justice and this is justices in its substantial sense and not in its technical sense. When parties approach a Court, it is the expectation of the parties that one of them will win while the other will lose. In other words, one of the parties will go home rejoicing and the other unhappy. It is not very likely to have a win-win situation in a matter litigated before a Court. This is why in appropriate cases; a Court is empowered to make consequential order basically to meet the justice of the case. In Noekoer vs. Executive Governor of Plateau State & Ors (2018) LPELR (SC), the apex Court per Sanusi, JSC at page 20-21 held:
It is trite law, that a Court has inherent power to make consequential order. A consequential order is simply one which flows directly and naturally from the decision or order made on issues litigated upon and inevitably consequent upon it. See; Akapo vs. Hakeem-Habeeb [1992] 2 NWLR (Pt. 247) 266 or (1992)7 SCNJ 119 or (1992) LPELR 325 (SC). A consequential order is one which gives effect to a judgment or order to which it is consequential. See Funduk Engineering Ltd vs. Mcarthur & Ors (1996) 7 NWLR (Pt. 459) 153; Obayagbona vs. Obazee (1972) SC 247; Odofin & Anor vs. Agu & Anor (1992) NWLR (Pt.229) 350. Every Court, be it of first instant or appellate has the power and in fact has the duty and obligation to make any consequential order in the interest of justice and it is irrelevant and of no moment that the particular order was not specifically asked for by either party to the proceedings or appeal. See: Prince Yahaya Adigun & Ors vs. Attorney General of Oyo State & Ors (1987) 1 NWLR (Pt.53) 678 at 710; Chief Ebenezer & Ors vs. S.K. Owodunni & Anor (1987) 2 NWLR (Pt. 57) 367.
In this regard, the apex Court also upheld this power on the lower Court to make consequential orders. In Layinka & Ors vs. Gegele (1993)3 NWLR (Pt. 283) 518 Ogundare, JSC held as follows:
I hold the view that the learned trial Judge made the consequential order in the interest of justice which he was entitled to do. In the case of Garba vs. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 Obaseki J.S.C., agreed that the High Court has power to grant consequential orders not specifically prayed for. Also by Order 34 Rule 1 of the Kwara State High Court (Civil Procedure Rules) 1975, the High Court may in all cases and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.
See also Ezeonwu vs. Onyechi & Ors (1996)3 NWLR (Pt. 438) 499; Eyigebe vs. Iyaji (2013) 11 NWLR (Pt. 1365) 407.
It will not meet the tenet of justice to leave the matter in this position. This puts the parties in a confused state. I will therefore make consequential order as the justice of this case demands. In this respect, it is therefore necessary at this stage to look at the provisions of Sections 49 (3) & 50 (2) of the AMCON Act. I will start with Section 49 (3). This section provides as follows: For ease of reference, Section 49(3) provides as follows:
(3) the corporation shall commence debt recovery action against the debtor or debtor company in respect of whose property an order subsists pursuant to Subsection (1) of this Section within 14 days from the date of the order, failing which the order shall lapse?. (Emphasis supplied).
Section 50 (2) of the Act of the Act provides thus:
(2) the corporation shall commence debt recovery action against debtor or debtor company in respect of whose account has been frozen by a Court order issued under Subsection (1) of this section within 14 days from the date of the order failing which the order shall lapse.
The above provisions are clear in wordings and interpretation. Whichever rule of interpretation is used, it will arrive at the same interpretation. This is because the words are clear and not complicated. By the provision reproduced above, the interim order is to last for 14 days. This is because within 14 days, the Respondent should have filed the Claim otherwise, the order is deemed to have elapsed. The provision makes the lapsing of the interim order automatic by operation of law if the Claim is not made within 14 days of the granting of the order. The order was granted on 13/2/15 while the Claim was made on 17/3/15. The claim titled special claim form is in pages 93-95 of the records. This was served on 18/5/15. When it was filed it was 1 month 4 days after the order was made. That is precisely 35 days. It is 21 days beyond the period that will make the order lapse automatically.
The motion was filed on 6/5/15; this is after the order has lapsed. As at when the motion was filed, the claim form has been filed except that the Appellant never knew of it. It is therefore true that as at when the claim was filed the order has lapsed automatically. There was therefore no need to have filed the motion to vacate as the order by operation of law is vacated.
That notwithstanding, this appeal succeeds and it is allowed. The decision of the lower Court delivered on 11/12/15 by Hon. Justice O.E. Abang is therefore set aside. I am however unable to make the order sought for in the motion has it has been overtaken by events since by operation of law it ought to have lapsed. This is moreso that the claim has been filed even before the lower Court took the decision it did.
I award N150,000:00 (One Hundred and Fifty Thousand Naira) in favour of the Appellant against the Respondent.
TIJJANI ABUBAKAR, J.C.A.: I read the Comprehensive lead Judgment in this appeal prepared and rendered by my lord and learned brother Ebiowei Tobi JCA
My learned brother fully covered the field, he dealt with the issues nominated for determination, I have nothing extra to add, so doing may amount to repeating what has been discussed fully by my Lord, the reasoning and conclusion are in accord with mine, I therefore adopt the entire Judgment as mine, I have nothing extra to add. I also abide by all consequential orders including the order on
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in draft the leading judgment of my learned brother, Ebiowei Tobi, JCA, which has just been delivered.
The manner of resolution of the Respondent’s preliminary objection and the substantive issues in the appeal are in accord with my views. Accordingly, I equally join in allowing the appeal on the same terms as contained in the leading judgment.
Appearances:
Chigbo Anaenugwu, Esq. with him, Emmanuel Orama, Esq.For Appellant(s)
P. A. Ezenduka, Esq.For Respondent(s)
