REVEREND OLAJIDE AWOSEDO v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS (2019)

REVEREND OLAJIDE AWOSEDO v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS

(2019)LCN/13420(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of June, 2019

CA/L/146/2018

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

REVEREND OLAJIDE AWOSEDO Appellant(s)

AND

1. ASSET MANAGEMENT CORPORATION OF NIGERIA
2. KNIGHT BROOK LIMITED
3. FIBIGBOYE ESTATES LIMITED
4. GRANT PROPERTIES LIMITED
5. ABIMBOLA OLAJIDE AWOSEDO
6. OLAWUNMI OLAJIDE AWOSEDO Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is settled law that jurisdiction is the life-wire of every form of adjudication; where there is a challenge to the adjudicatory competence of any Court or Tribunal, such challenge must be considered and determined before any other step is taken. This is because, any proceedings no matter how well conducted, once it is found that the Court or Tribunal has no requisite jurisdiction to entertain and adjudicate the dispute, will be declared a nullity. See the decisions of the Supreme Court in the case of ORUGBO Vs. UNA (2002) 9 ? 10 SC 61; CEEKAY TRADERS LIMITED Vs. GENERAL MOTORS CO. LIMITED (1992) 2 NWLR (Pt. 222) 132; ONI Vs. CADBURY NIGERIA PLC (2016) LPELR ? 26061 (SC). PER KOLAWOLE, J.C.A.

GUIDE ON WHICH GROUNDS OF APPEAL ARE GROUNDS OF LAW, OF FACT, OR MIXED LAW AND FACTS

Before considering the nature of the grounds contained in the Notice of Appeal herein, I believe it is appropriate to reiterate the position of the law regarding when a ground of appeal will be deemed to be a ground of law, of fact simpliciter or that of law and facts. In a recent decision of the Supreme Court in the case of B.A.S.F (NIG.) LTD Vs. FAITH ENT. LTD. (2010) ALL FWLR (Pt. 518) 840 at 862- 863, para H; A-P, the Court, per ADEKEYE, JSC in the concurring judgment gave a detailed guide on which grounds are grounds of law; of facts simpliciter and of mixed law and facts. According to the learned Jurist:
?A ground of law has the under mentioned meanings: (a.) A question in which the Court has no discretion to exercise because it has to be answered in accordance with principle of law. It is already predetermined and resolved by the law. (b.) A question which calls for the argument and determination of what the true position is in law such usually arises out of the uncertainty of the law. (c.) Interpretation of documents which is a question of facts but is strictly within the duty of a Court. While the meaning of a question of fact in a ground of appeal relates to: (a) Any question not determined by the principle of law. (b) Any question that is to be answered by the jury rather than other judges.” See: the Supreme Court decision in OGBECHIE V ONOCHIE & ORS (1986) 1 NSCC 443.
There is no doubt that it is sometimes difficult to distinguish a ground of law from a ground of fact, the Supreme Court, per RHODES VIVOURS, JSC in ENTERPRISE BANK LIMITED Vs. DEACONESS F. BOSE AROSO & ORS (Unreported Suit No. 166/2003 ? judgment delivered on April 12, 2013) while re-emphasizing his earlier reasoning in OLABOMI & ANOR Vs. OYEWINLE & ORS (2013) LPELR ? 20969 (SC), held that ?before making a distinction between grounds of law, mixed law and facts, and facts, first of all read carefully the ground of appeal and its particulars to understand thoroughly the substance of the complaint. Find out if the grounds of appeal contests facts. If it does it can only be a ground of facts or mixed law and facts. Once facts are not in dispute. That is to say facts are settled, a ground of appeal can never be on facts or mixed laws and facts. The ground of appeal can only complain of the wrong application of the law to settled facts and that is a ground of law. ?.? As such, what is required of a Court is to examine thoroughly the grounds of appeal in case concerned to see whether the grounds reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts. See decisions of the Supreme Court in the case of EHINLANWO Vs. OKE (2008) LPELR ? 1054 (SC); and the Court of Appeal in the case of ESENE & ORS Vs. THE SPEAKER, EDO STATE HOUSE OF ASSEMBLY & ORS (2012) LPELR ? 19775 (CA). PER KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): The genesis of this case, according to the Appellant is that upon an action by the 1st Respondent as a Claimant in the lower Court for the recovery of the sum of N10,731,163,406.80 (Ten Billion, Seven Hundred and Thirty-One Million, One Hundred and Sixty-Three Thousand, Four Hundred and Five Naira, Eighty Kobo) from the Appellant and the 2nd to 6th Respondents, the said Court entered a default judgment against the Defendants on 3rd October, 2017. Subsequently, the Defendants, who were then being represented by the law firm of Bonajo Badejo & Co., filed an application seeking to set aside the said Default Judgment. When the application came up for mention on 7th December, 2017, learned senior counsel for the Claimant/1st Respondent raised objection to the appearance of the firm of Bonajo Badejo & Co., for the 2nd and 3rd Defendants/Respondents. Eventually, on 13th December, 2017, Mr. Alex Mouka of A. Mouka & Co. filed a Notice of Preliminary Objection ostensibly on the instruction of the Receiver/Manager of the 3rd and 4th Respondents appointed by the 1st Respondent

seeking for an order to disqualify the firm of Bonajo Badejo & Co., from appearing for the 3rd and 4th Respondents. A Representation Notice for the 3rd and 4th Respondents was also filed by the law firm of A. Muoka & Co.

Upon service of the said Notice of Preliminary Objection on them, the Appellant and the 2nd to 6th Respondents filed a Counter-Affidavit deposed to on 15th October, 2017 as well as a Notice of Preliminary Objection apparently in response to the Representation Notice filed. After hearing arguments on the preliminary Objections, the learned trial judge, per BUBA, J., granted the prayers contained in the Preliminary Objection filed by Mr. Alex Muoka of A. Mouka & Co., and dismissed the Appellant?s Preliminary Objection.

Expectedly unhappy and being dissatisfied with the Ruling of the learned trial judge, the Appellant approached this Court vide a Notice of Appeal dated 16th January, 2018 as reproduced at pages 1837 to 1844 of Volume V of the Record of appeal. In accordance with the Rules of this Court, the Appellant, 1st Respondent, 2nd Respondent as well as the 3rd and 4th Respondents duly filed and exchanged their

respective briefs of arguments.

It is important to observe that the 1st and 2nd and 3rd & 4th Respondents have filed their respective Notices of Preliminary Objection challenging the competence of the Appellant?s Notice of Appeal. It is settled law that jurisdiction is the life-wire of every form of adjudication; where there is a challenge to the adjudicatory competence of any Court or Tribunal, such challenge must be considered and determined before any other step is taken. This is because, any proceedings no matter how well conducted, once it is found that the Court or Tribunal has no requisite jurisdiction to entertain and adjudicate the dispute, will be declared a nullity. See the decisions of the Supreme Court in the case of ORUGBO Vs. UNA (2002) 9 ? 10 SC 61; CEEKAY TRADERS LIMITED Vs. GENERAL MOTORS CO. LIMITED (1992) 2 NWLR (Pt. 222) 132; ONI Vs. CADBURY NIGERIA PLC (2016) LPELR ? 26061 (SC).

It is instructive that even though the 1st and 2nd; 3rd and 4th Respondents have filed their respective Notices of Preliminary Objection, but for a better comprehension of the arguments canvassed, it is my view that whilst

highlighting the relevant submissions made by the respective parties through their counsel, I shall consolidate all the objections as one since they are all predicated on the same or virtually similar grounds. I shall however enumerate the arguments canvassed by the respective counsel in respect of the objections. For purpose of clarity however, in the 1st Respondent?s Notice of Preliminary Objection, the 1st Respondent seeks an order of this Court striking out/dismissing the present appeal for want of jurisdiction on the following grounds:
1. By the provisions of Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 24 of the Court of Appeal Act, Cap C36, Laws of the Federation of Nigeria, 2004, the Appellant ought to have obtained the leave of this Honourable Court before filing this Appeal given that the grounds of appeal contained in the Notice of Appeal dated 16th January, 2018 (?Notice of Appeal) are grounds of mixed law and fact.
2. The Appellant failed to seek the leave of this Honourable Court before filing the Notice of Appeal.
3. The position of the law is that failure of an

Appellant to seek and obtain leave before filing an appeal before this Honourable Court for which leave is required goes to the root of the appeal and the jurisdiction of this Honourable Court to determine same.
4. As a result of the failure of the Appellant to first seek and obtain the leave of this Honourable Court before filing this appeal, the Notice of Appeal dated 16th January, 2018 is incompetent and liable to be struck out.
5. At the proceedings which took place at the Ibadan Division of this Honourable Court, in Appeal No: CA/IB/319/2017 ? Rev. Olajide Awosedo & Ors. v. Asset Management Corporation of Nigeria & Ors. on 9th November, 2017, learned senior counsel for the Appellant, Mr. J. A. Badejo SAN, as counsel for the Appellant, amongst other parties, conceded that he can no longer provide legal representation on behalf of the 4th Respondent and other companies which are subject to the receivership of Mr. Lanre Olaoluwa.
6. As a result of the concession made by the Learned senior counsel for the Appellant at the Ibadan Division of this Honourable Court on 9th November. 2017, the counsel is estopped from raising this issue

and thus holding an inconsistent position before any other Court.
7. For the foregoing reasons, this Appeal is incompetent and this Honourable Court lacks the jurisdiction to entertain same.

ARGUMENT ON PRELIMINARY OBJECTION
On the Preliminary Objection, 1st Respondent?s counsel referred to the provision of Section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that the section permits an interlocutory appeal against a lower Court?s decision to be filed without leave where grounds of appeal are on law alone. Relying on the decision of the Supreme Court in ORAKOSIM Vs. MENKITI (2001) 9 NWLR (Pt. 719) 529, counsel argued that in order to ascertain the nature of grounds of appeal filed by the Appellant herein and whether they are grounds of law or mixed law and fact, the primary question this Court will address is whether the instant appeal would require this Court to review the evaluation of facts by the lower Court before the application of relevant law. He referred this Court to the decision of the Supreme Court in ABIDOYE Vs. ALAWODE (2001) 6 NWLR (Pt. 709) 463 at 476, paras C ? D

before submitting that the Notice of Appeal filed by the Appellant herein discloses grounds of mixed law and fact. Learned counsel undertook the analysis of the Grounds and enumerated the reasons for his contention.

It was concluded that the Notice of Appeal as presently constituted is irreparably incompetent and liable to be struck out owing to the failure of the Appellant to seek and obtain leave before filing same, citing the decisions in the case of BURAIMOH Vs. BAMGBOSE (1989) 3 NWLR (Pt. 109) 352 at 360; MADUKOLU & ORS. Vs. NKEMDILIM (1962) NSCC (Vol. 2) 374; and ALLANAH Vs. KPOLOKWU (2016) 6 NWLR (Pt. 1509) 1, to urge that the instant appeal be struck out for want of jurisdiction.

On the part of the 2nd Respondent?s objection, Counsel on its behalf referred to Sections 6, 241 & 242 of the Constitution of the Federal Republic of Nigeria, (as amended) to submit that an appeal shall lie from the High Court to the Court of Appeal with leave of the High Court or of the Court of Appeal, in the instances not covered by the provision of Section 241 of the Constitution. It is the submission of counsel that mere couching of the grounds of

appeal as error in law does not automatically make them so. Counsel submitted that a proper review of the grounds of appeal, reveals that Grounds 6, 7 and 9 are grounds of facts, as they are complaints against the evaluation of facts by the lower Court. Relying on the decision of the Court in OJUKWU Vs. KAINE (2001) 15 NWLR (Pt. 691) 516; Manual of Brief Writing authored by NNAEMEKA-AGU at page 7; the decision of this Court in UWAIFO Vs. UWAIFO (2005) 3 NWLR (Pt. 913) 479, counsel argues that the issues argued by the Appellant borders on issues of mixed law and facts which invariably makes the Notice of Appeal on them such that requires the leave of the Court before it could have been validly filed.It is the further submission of learned counsel for the 2nd Respondent that failure to obtain leave to file a Notice of Appeal, where so required, strips this Court of the requisite jurisdiction to entertain the appeal, relying on the decision of this Court in OBIEKWE Vs. UGO & ANOR (2017) LPELR ? 42796 (CA) and the decision of the Supreme Court in UCHENDU Vs. OGBONI (1999) 5 NWLR (Pt. 603) 337, per ESO, JSC. Counsel also submits that the failure of the

Appellant to seek and obtain leave of this Court renders the appeal incompetent and must be struck out, relying on the decisions in IRHABOR Vs. OGAIAMIEN (1999) 8 NWLR (Pt. 616) 517 and UKPONG & ANOR Vs. COMM. FOR FINANCE AND ECONOMIC DEVELOPMENT (2006) 19 NWLR (Pt. 1013) 187. Counsel then submit that ground 8 of the Notice of Appeal is vague and liable to be struck out.

Whilst stressing the essence of a ground of appeal and relying on the decision of the Supreme Court in CBN Vs. OKOJIE (2002) 8 NWLR (Pt. 768) 48, counsel submitted that it is nigh impossible to formulate an issue for determination from the aforesaid ground as it contains no specific complaint against the Ruling of the lower Court. Counsel then urged that the Notice of Appeal be declared incompetent and be struck out.

On their part, the 3rd & 4th Respondents whilst arguing the issue as to whether the Appeal is competent, the 3rd and 4th Respondents? counsel referred to Section 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that an interlocutory appeal from decision of the lower Court will only be permitted without

leave of Court where the ground of appeal involves the question of law alone. He relied on ALLANAH & ORS Vs. KPOLOKWU (2016) 1 MJSC (Pt. 1) 75 at 101; OBASI Vs. MIKSON ESTABLISHMENT INDUSTRIES LIMITED (2016) 6 ? 7 MJSC 95 at 115; EKUNOLA Vs. CENTRAL BANK OF NIGERIA (2013) 4 MJSC 158 at 191; NJEMANZE Vs. NJEMANZE (2013) 2 ? 3 MJSC (Pt. 11) 30 at 46 to 50.

It is the submission of counsel that grounds 1, 2, 6, 7 and 9 are grounds of facts and mixed law and fact and incompetent, having been raised without leave of Court as required by Section 242(1) of the Constitution, as Amended. Also, that grounds 3, 4, 5 and 8 are incompetent, same not being in compliance with the provision of Order 7 Rule 2(2) of Court of Appeal Rules, 2016. Relying on the decisions in BAMGBADE Vs. BALOGUN (1994) 1 NWLR (Pt. 323) 718 at 736; and UDOSEN Vs. NATIONAL ELECTORAL COMMISSION OF NIGERIA (1997) 5 NWLR (Pt. 506) 570 at 583, he urged this Court to strike out grounds 3, 4, 5 and 8 of the Notice of Appeal for non-compliance with Order 7 Rule 2(2) of the Rules of Court.
?
In what the Appellant labelled ?Appellant?s Reply on Point of Law? dated

and filed May 9, 2018, the Appellant did not respond to the issue arising from the Preliminary Objection filed by the 1st Respondent.

In the Reply Brief filed in response to the 2nd Respondent?s Brief of Argument, Appellant?s counsel argued that the 2nd Respondent?s objection only challenges the competence of grounds 6, 7, 8 and 9 of the Notice of Appeal, while not attacking the other grounds 1 to 5 therein, so that the said objection is incapable of terminating the appeal, relying on the decisions of the Supreme Court in MADAM ADUNOLA & 2 ORS. Vs. MR. OLUDAYO OLAWIYE (2014) 12 NWLR (Pt. 1421) 252 at 279, paras E to H; NNPC & ANOR Vs. FAMFA OIL LTD (2012) ALL FWLR (Pt. 635) 204, (2012) 17 NWLR (Pt. 1328) 148; GENERAL ELECTRIC CO. Vs. H. AKANDE (2011) 4 NSCQR 611; (2010) 18 NWLR (Pt. 1225) 596.
?
It is the submission of learned counsel that the decision of the Federal High Court delivered on January 9, 2018 was a final decision on whether the firm of Alex Muoka & Co. appointed by the Receiver who was in turn appointed by the 1st Respondent could take over counsel representation for the 3rd and 4th Respondents. He submits

that Section 241(a) of the Constitution confers a right of appeal as of right against final decisions in any civil or criminal proceedings before the Federal High Court, referring to the decision of the Supreme Court in IWUEKE Vs. IMO BROADCASTING CORPORATION (2005) 7 NWLR (Pt. 955) 447 at 470. He also submits that Section 241(1)(b) of the Constitution equally confers a right of appeal on the Appellant, without leave of Court, where the ground of appeal involves question of law alone ? that grounds 1 to 5 of the Notice of Appeal are grounds of law alone.

It is the further contention of counsel that the facts upon which the application was heard and determined were settled and it is trite that a ground of law on uncontested facts requires no leave, relying on OLOGUNLEKO Vs. OGUNEYEHUN (2008) 1 NWLR (Pt. 1068) 397 at 411. Counsel noted that Ground 8 of the Notice of Appeal is not vague as it embodies the particulars of misdirection, relying on BARR. AMAECHI OKAFOR & ORS Vs. CHIEF CHUKWUMA UGOLO & ORS (supra).

On the 3rd and 4th Respondents? Brief of Argument, Counsel referred to Order 10 Rule 1 of the Court of Appeal Rules, 2016

which provides that a Respondent intending to rely on a Preliminary Objection should give the Appellant three days? notice before the hearing, setting out the grounds of objection, but the 3rd and 4th Respondents failed to comply with these mandatory provisions of the Rules, which renders the arguments on the Preliminary Objection incompetent, citing I.G.P. Vs. A.N.P.P. (2007) 18 NWLR (Pt. 1066) 457 at 482, paras E ? H.

Learned counsel for the Appellant?s counsel argued that the decision of the Federal High Court is a final decision, as the Court decided finally and disqualified the firm of Bonajo Badejo & Co., and/or any other legal practitioner or law firm briefed by the erstwhile directors of the 3rd and 4th Respondents. Counsel argued that the decision is not an interlocutory decision as the lower Court had become functus officio as regards the issue that were raised and determined in the Ruling, relying on the provision of Section 241(1)(a) of the 1999 Constitution and the decision of the Supreme Court in IWUEKE Vs. IMO BROADCASTING CORPORATION (2005) 17 NWLR (Pt. 955) 447 at 470. He stressed, relying on the provision of

Section 241(1)(b) of the 1999 Constitution, that the Appellant has a right of appeal where the grounds involves question of law alone. It was also contended that the facts upon which the application was heard and determined were settled and uncontested, citing OLOGUNLEKO Vs. OGUNEYEHUN (supra).

The Appellant?s Counsel argued that the reliance on the provision of Order 7 Rule 2(2) of the Court of Appeal Rules, 2016 and decision inBARR. AMAECHI OKAFOR & ORS. Vs. CHIEF CHUKWUMA UGOLO & ORS (Supra) is misplaced. Relying on AKANBI & ORS Vs. A-G., FEDERATION & ORS (2017) LPELR ? 43121, counsel submits that grounds 3, 4, 5 and 8 of the Notice of Appeal embody the particulars of the misdirection. To this extent, counsel urged the Court to disregard the Preliminary Objection.

RESOLUTION OF THE PRELIMINARY OBJECTION
As I had earlier mentioned, the Preliminary Objections filed by the 1st and 2nd as well as the 3rd and 4th Respondents respectively (?Respondents?) are predicated on similar grounds, to wit, having conceded that he can no longer provide legal representation on behalf of the 4th Respondent and other

companies which are subject to the receivership of Mr. Lanre Olaoluwa in Appeal No. CA/IB/319/2017, learned senior counsel for the Appellant, Mr. J. A. Badejo SAN is estopped from holding an inconsistent position before any other Court. Also, that the grounds of appeal contained in the Notice of Appeal filed by the Appellant against the interlocutory decision of the lower Court are incompetent being grounds of mixed law and facts in respect of which no prior leave was sought and obtained. While it is the contention of the Respondents that the Appellant?s appeal is without leave of Court obtained is incompetent and liable to be struck out for failure to seek and obtain leave of Court to appeal against an interlocutory decision of the lower Court, the position of the Appellant however, is that the decision being appealed against is a final decision and also that the grounds of appeal contained in the Notice of Appeal filed are those of law alone, which are appealable as of right.
?
My Lords, let me quickly express the view, that the issue as to whether the learned Appellant?s counsel is estopped from contending to the contrary, with regard to his

concession in Appeal No. CA/IB/319/2017 that he no longer provides legal representation on behalf of the 4th Respondent and other companies under the receivership of Mr. Lanre Olaoluwa, is not a matter that can rightly be made a ground of objection to challenge the competence of an appeal. As a matter of fact, it is my view that, if the Respondents seriously hold their position, that ground may only be appropriately canvassed in response to the issue of counsel?s representation as a ?shield? and not a ?sword? to the Appeal filed by the Appellant. Such question cannot, in my view be appropriately considered and determined at this stage or in the instant appeal. I shall therefore refrain from considering the said ground in the light of the grounds of appeal filed against the Ruling of the lower Court delivered on 9/1/18.

In relation to whether the Appellant ought to have sought and obtained leave before filing the present appeal, it is no doubt, a useful judicial exercise to reproduce the provision of Section 241(1) of the Constitution. It provides thus:
Section 241(1)
?An appeal shall lie from decisions of

the Federal High Court or a High Court to the Court of Appeal 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;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitutions;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court ?
(i) where the liberty of a person or the custody of an infant is concerned;
(ii) where an injunction or the appointment of a receiver is granted or refused;
(iii) in the case of a decision determining the case of a creditor or the liability of a

contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability; and
(v) in such other cases as may be prescribed by any law in force in Nigeria.”
Whereas, Section 242(1) implies that unless an appeal falls within the narrow scope of Section 241 supra, any other appeal from the decisions of the Federal High Court or a High Court to the Court of Appeal shall only lie, with leave of either the Federal High Court, the High Court or the Court of Appeal.

The apposite question here is whether the decision of the Federal High Court, being appealed against by the Appellant is a final decision, falling under Section 241(1)(a) supra or if found to be an interlocutory decision, whether the grounds contained in the Notice of Appeal are grounds of law alone falling under Section 241(1)(b) supra.
As far back as 1986, the Supreme Court in one of its seminal decisions in the case of AKINSANYA Vs. UNITED BANK FOR AFRICA LIMITED (1986) LPELR ? 355 (SC), while construing the provision

of Section 31 of the Supreme Court Act, the Supreme Court endeavoured in elaborate manner, to espouse this issue in our jurisprudence vis-a-vis the decisions of English Court, and in my view, it had seemingly settled the vexed issue as to when a decision of the Court can be regarded as a ?final decision? or ?interlocutory decision?. According to the apex Court, ?the issue of “finality” in this respect must be decided from the question as to whether the Court of Appeal has finally disposed of the matter on appeal before it. The Supreme Court, per KAYODE ESO, JSC (Rtd) (of blessed memory), explained extensively and perhaps comprehensively this concept as follows:
?In other words, if the Court of first instance orders that a matter before it be terminated (struck out) for it has no jurisdiction to determine the issue before it, that is the end of all the issues arising in the cause or matter and there is no longer, any issue between the parties in that cause or matter that remains for determination in that Court. But it would be interlocutory if its order is that it has jurisdiction for there will be reference of

the remaining issues in the case to itself. When a Court of Appeal rules and orders that a Court of first instance had no jurisdiction in a cause which has been brought before it that is the end of the matter in so far as that particular litigation goes between the parties in that Court of Appeal. There is no further reference to the Court which has made the order in either case. And that has determined the rights of the parties in both cases before the Court making the order. And applying that test to the instant case, if the order made by the majority of the Court of appeal had been made by the trial Court itself that that trial Court had no jurisdiction, that is final. And according to the nature of that order, there is no further reference to that Court of trial. If the order had been by the trial Court that it had jurisdiction, that is interlocutory according to the nature of the order made as there are issues still to be determined. The result will not be the same if the nature of the proceedings or application test is followed?
Now, what is the test suggested by this Court in Omonuwa v. Oshodin? Karibi-Whyte J.S.C. said-
“All the cases

cited agree on the proposition that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties (and not merely an issue) in the cases. Where only an issue is the subject matter of an order or appeal the determination of that Court which is a final decision on the issue or issues ‘before it, which does not finally determine the rights of the parties, is in my respectful opinion interlocutory” ….
The learned Justice of the Supreme Court went on with full concurrence of all the other Justices:
“In my opinion, the ideal approach is to consider both the nature of the application, and the nature of the order made in determining when an order or judgment is interlocutory or final in respect of the issues before it as between the parties to the litigation …..?
I think the correct attitude is to be found in the dictum of Brett M.R. in the case of Ex parte Moore, In re Faithful which I have referred to supra. Once there is no further reference to a Court after it has made its order, that something be done according to the answer to the enquiries, all the rights and not

just an issue or some issues, have been determined?.?
The Learned Authors of HALSBURY’S LAWS OF ENGLAND, Fourth Edition Reissue, Volume 37 (Practice and Procedure) at paragraph 1502 (19) on page 486, of their authoritative statement of the law in England, states that ?Final decision? means a decision of a Court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the Court decided the issues before it. Therefore, a decision of a Court can only assume the character of a final judgment when it finally determines the right of the parties and not merely an issue relating to the proceedings ? a microcosm of the matter before the Court. Certainly, where the matter or issue disposed of brings the matter before the Court to an end and nothing further remains to be determined and considered by the Court, the authorities are settled that that decision is a final decision; if it is however to the contrary, it will be deemed as an interlocutory decision. See the decisions of the Supreme Court in the case of BALOGUN & ORS Vs. ALHAJA SHIFAWU ODE & ORS ?

(2007) LPELR ? 719 (SC); and the Court of Appeal in the case of EHIGHIBE Vs. EHIGBIBE (2016) LPELR ? 40047 (CA).
It remains to be said that, as it relates to the controversy leading to the appeal before us, that the law firms of Bonajo Badejo & Co., as well as Alex Muoka & Co. ipso facto, are not parties before the Court and the issue as to whether the board of the 2nd and 3rd Respondents can appoint a counsel to represent the companies while the said companies are under receivership pursuant to an order of the Federal High Court, made on 16/8/16, ratifying the appointment (see pages 1233-1242 of Vol. IV of the Record of Appeal), is a localized issue which does not, in my view, affect the substantive rights of the parties before the Court. It needs to be re-emphasized, that at the heart of the instant appeal as a cause of action having regards to the ratio of the Ruling of the lower Court delivered on 9/1/18, it was not even the substantive issue of the appointment of a Receiver/Manager to the 3rd & 4th Respondents which may have been construed liberally, to bring the instant appeal under the provision of Section 241(1)(f)(ii) of the Constitution ?

which can be initiated as of right that was in issue. But, it is more about the power of the Receiver/Manager to appoint the law firm of A. Muoka & Co., as counsel to the 3rd & 4th Respondents who hitherto were the clients of Bonajo Badejo & Co. before the said appointment. It is to this extent, and particularly on the strength of the decision of the Supreme Court in AKINSANYA Vs. UBA (supra) that I hold the view, that the Ruling of BUBA, J. of the Federal High Court delivered on 9/1/18, being appealed against remains an interlocutory decision as long as it did not determine the rights of the parties in the proceedings.

On the basis of the foregoing, having appealed against an interlocutory decision of the Federal High Court, the provision of Section 242(1) of the Constitution requires that leave of this Court must have been sought and obtained before this Court can validly entertain and determine the Appellant?s appeal as presently constituted, and unless it is established that the grounds contained in the Notice of Appeal are grounds of law alone, in which case the need for leave of the Court will be dispensed with,

the extant Notice of Appeal is in the eyes of the law as I had endeavoured to espouse it, incompetent and liable to be struck out.

documents which is a question of facts but is strictly within the duty of a Court. While the meaning of a question of fact in a ground of appeal relates to: (a) Any question not determined by the principle of law. (b) Any question that is to be answered by the jury rather than other judges.” See: the Supreme Court decision in OGBECHIE V ONOCHIE & ORS (1986) 1 NSCC 443.
There is no doubt that it is sometimes difficult to distinguish a ground of law from a ground of fact, the Supreme Court, per RHODES VIVOURS, JSC in ENTERPRISE BANK LIMITED Vs. DEACONESS F. BOSE AROSO & ORS (Unreported Suit No. 166/2003 ? judgment delivered on April 12, 2013) while re-emphasizing his earlier reasoning in OLABOMI & ANOR Vs. OYEWINLE & ORS (2013) LPELR ? 20969 (SC), held that ?before making a distinction between grounds of law, mixed law and facts, and facts, first of all read carefully the ground of appeal and its particulars to understand thoroughly the substance of the complaint. Find out if the grounds of appeal contests facts. If it does it can only be a ground of facts or mixed law and facts. Once facts are not in dispute. That is to

say facts are settled, a ground of appeal can never be on facts or mixed laws and facts. The ground of appeal can only complain of the wrong application of the law to settled facts and that is a ground of law. ?.? As such, what is required of a Court is to examine thoroughly the grounds of appeal in case concerned to see whether the grounds reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts. See decisions of the Supreme Court in the case of EHINLANWO Vs. OKE (2008) LPELR ? 1054 (SC); and the Court of Appeal in the case of ESENE & ORS Vs. THE SPEAKER, EDO STATE HOUSE OF ASSEMBLY & ORS (2012) LPELR ? 19775 (CA).
In the light of the foregoing, I have taken the liberty to reproduced hereunder the grounds contained in the Appellant?s Notice of Appeal reproduced in pages 1837 to 1844 of Volume V of the Record of Appeal, which read as follows:?
?GROUNDS OF APPEAL
(1) The Learned Trial Judge erred in law when he dismissed the Appellant?s Notice of Preliminary Objection dated 15th December, 2017 without considering the grounds of the objection when:

(a) the Preliminary Objection is not against any Preliminary Objection;
(b) the Preliminary Objection of the Appellant is against the Representation Notice filed by Mr. Alex Mouka & Co. dated 13th December, 2017.
(c) the Representation Notice is not in compliance with Order 9 Rule 35 of the Federal High Court (Civil Procedure) Rules, 2009.
(d) the Representation Notice is incompetent.
(2) The learned Trial Judge erred in law when he failed to hold that the Notice of Preliminary Objection filed by MR. ALEX MOUKA of A. MOUKA & CO. on behalf of the 3rd and 4th Respondents dated 13th December, 2017 is incompetent when:
(a) the Representation Notice upon which the Preliminary Objection is based in incompetent.
(b) the said process filed by MR. ALEX MOUKA of A. MOUKA & CO. is not a Preliminary Objection.
(c) the authority given to the Firm of A. MOUKA & CO. to take over the conduct of the case for the 3rd and 4th Respondents was not exhibited to the Affidavit in Support.
(3) The Learned Trial Judge erred in law when he failed and/or refused to consider the effect of the pending application for Injunction in Appeal

No: CA/L/CS/1026/2016 which sought for an Order to restrain the Receiver/Manager from taking over the Assets or Management of the Affairs of the 3rd and 4th Respondents, among other Prayers.
(4) The Learned Trial Judge erred in law when he failed to consider and apply a long line of judicial decisions as encapsulated in the Judgment of this Honourable Court in Abbi vs. Princewill & Ors (2011) LPELR 3952 CA where it was held that:
where proceedings are pending before a Court wherein injunctive reliefs are sought, the party against whom those reliefs are sought is under obligation to refrain from doing that which is sought to be restrained, even when no temporary order of injunction may have been granted. See Ezegbu vs. F.A.T.B. (1991) 1 NWLR (Pt. 220) 669 at 725 ? It is now therefore trite that no one is allowed to interfere with the Judicial process or take steps during the pendency of a suit that will tend to whittle down or impinges on the powers of the Court before which the proceedings subsist or which will anyway frustrate its course?.?
(5) The Learned Trial Judge erred in law when he held that the

Receiver has powers to appoint Counsel for the 3rd and 4th Respondents contrary to a long line of binding Judicial Authorities of Superior Courts.
(6) The Learned Trial Judge erred in law when he held that the second Ruling of this Honourable Court in European Soaps Detergent Limited vs. MV Beer & Co. Ltd. (2017) LPELR ? 41873 (CA) is inapplicable to the facts of this case when:
(a) there is uncontroverted Affidavit evidence in support of the allegation of conflict of interest, collusion, connivance, compromise, waiver and abuse of process.
(b) the decision in European Soaps Detergent Limited vs. MV Beer & Co. Ltd.(supra) relevant and applicable to this case.
(7) The Learned Trial Judge erred in law when he held that Counsel to the Appellant had conceded that he has no authority to appear for the 3rd and 4th Respondents when:
(a) there is no evidence before the Court to support such finding
(b) the Counter-Affidavit of the Appellant on the issue is uncontroverted.
(c) the power to appoint Counsel in the proceedings is a question of law which the Counsel cannot concede.
(8) The Learned Trial Judge erred

in law when he failed to consider and pronounce on several diverse and fundamental issues raised by the Appellant.
(9) The decision of the Lower Court is against the weight of Affidavit evidence.
My Lords, without any iota of doubt, it is my considered opinion that though the grounds of appeal reproduced supra raised fundamental issues for consideration by this Court, a careful and clinical review of the said grounds as well as the issues formulated thereupon in the Appellant?s Brief of Argument, leave no one in doubt as to the fact that, as the learned Respondents? counsel rightly argued, are grounds of mixed law and facts. As a matter of fact, I cautiously and painstakingly read through the arguments canvassed by the Appellant?s counsel predicated on the issues hinged on the said grounds, whereby the Appellant is urging us to find in his favour and set aside the decision of the lower Court, and I have no hesitation that this Court is being called upon, by the said grounds of appeal, not only to consider the rightness or otherwise of the decision of lower Court on matter of law; on the contrary, this Court will invariably

have to engage in the judicial evaluation of facts in order to apply the law to such facts in the circumstances.
I agree totally with the Respondents, particularly the 1st Respondent that Ground one invites this Court to make a finding of fact that as per the nature of the preliminary objection filed by Bonajo Badejo & Co dated December 15, 2017 and apply the law to such fact; whereas by ground two, the Court is being invited to ascertain the fact as to whether A. Muoka & Co. indeed had the requisite authority to take over the conduct of the 3rd and 4th Respondents? case. Similarly, by Ground six, this Court is being invited to evaluate facts and make finding as to the existence of conflict of interest, collusion, connivance, compromise, waiver and abuse of process and if they exist apply the position stated in an earlier decision of the Court. Ground Seven presupposes that there exist facts in support and against the finding that the Appellant?s counsel had conceded that he has no authority to appear for the 3rd and 4th Respondents. This indeed is a ground of fact. The complaint in ground Nine is that the decision of the lower Court

is against the weight of evidence and no one can argue to the contrary that this is a ground of fact.

In ground Eight, the Appellant?s complaint is that the learned trial judge erred in law when he failed to consider and pronounce on several diverse and fundamental issues raised by the Appellant. This, in my view, is not a clear complaint. I must say that the essence of a ground of appeal is to apprise the opposite party of the nature of the Appellant?s complaint clearly and unambiguously. See the provision of Order 7 Rule 3 of the COURT OF APPEAL RULES, 2016. It is trite that where a ground of appeal alleges misdirection or error in law, its particulars and nature of the misdirection or error should be clearly stated. See: Order 7 Rule 2(2) & (3) of the Court of Appeal Rules, (supra) A ground of appeal should be concise, distinct and unambiguous, it should not be vague and must be based on the ratio of the decision appealed against. In the instant case, ground eight of the notice of appeal was couched in a rather fluid and ambiguous terms, and with no specific issues or particulars which may have assisted to provide clarity of the

Appellant?s complaint in the said ground both to the Respondents and the Court. It is not enough for the Appellant to merely state that the lower Court failed to consider and pronounce on several diverse and fundamental issues he had raised, the Appellant ought, for clarity sake and to enable the opposing party to anticipate the case he is expected to meet on appeal, to have stated clearly the scope of his complaint and not leave it open ended as done here. See Order 7 Rule 3 of the COURT OF APPEAL RULES, 2016. In the circumstance, I find that grounds one, two, six, seven and nine, are grounds of mixed law and facts and are incompetent for failure to seek and obtain leave and they are hereby struck out. Whereas, ground eight is deemed incompetent and struck out for being vague. However, a careful consideration of the arguments canvassed by the Appellant?s counsel in the Appellant?s Brief of Argument shows that issue five formulated from ground five, albeit competent, cannot be considered in isolation. As a matter of fact, counsel argued issues five, six, seven, eight and nine together in the said Brief of Argument, and I have no doubt,

that it will be difficult, if not impossible to consider and determine the said issue five in isolation of the other issues argued together by counsel. For the avoidance of doubt, to answer the question as to whether the learned trial judge erred in law when he held that the Receiver has powers to appoint Counsel for the 3rd and 4th Respondents, this Court will have to consider the merit of the Appellant?s assertion at paragraph 5.06 of the Appellant?s brief of argument and make a finding that there is no evidence that the instrument of appointment purportedly filed with the Corporate Affairs Commission as conveyed by the uncertified Exhibits JA1 and JA2 attached to the Affidavit of Mr. James Akpan gives the Receiver/Manager the powers to inter alia ?institute or defend an action in the name and on behalf of the 3rd and 4th Respondents.? My view, is that ground 5 must suffer the same fate as the other grounds argued together by the Appellant. In the circumstance, we are left with only grounds three and four of the Notice of Appeal. To this extent, the Preliminary Objections are upheld in part in relation to the grounds which I had

adjudged as grounds of facts or mixed law and fact, or as in ground 8 which are vague and are incompetent except grounds 3 and 4 which are of law alone. Ground 5 has become unarguable, perhaps it has become stranded because, it was argued with grounds 6,7,8 and 9 which I have struck out as incompetent grounds of appeal.

SUBSTANTIVE APPEAL
I shall proceed forthwith to consider the issues formulated from the remaining competent grounds, to wit;
1. Whether the Learned Trial Judge ought to have considered the pendency and effect of an application for Injunction on Appeal No. CA/L/CS/1026/2016 seeking for an Order to restrain the Receiver/Manager from taking over the Assets or Management of the Affairs of the 4th Respondent, among other Prayers.
2. Whether the learned Trial Judge is right to have failed to consider a long line of Judicial Authorities including ABBI VS. PRINCEWILL & ORS (2011) LPELR ? 3952 CA and EZEGBU Vs. F.A.T.B (1991) 1 NWLR (Part 220) Page 669.

On the issues above, Appellant?s counsel contends that being aware of the pending application in Appeal No. CA/L/CS/1026/2010, seeking to restrain the

Receiver/Manager from exercising his powers in respect of the land which is the subject matter of dispute, the Claimant and/or Receiver/Manager cannot proceed to appoint Counsel for the 3rd and 4th Respondents until the application is disposed of. It is the submission of counsel that to allow the Receiver/Manager to appoint counsel for the 3rd and 4th Respondent will be to sanction their clear determination to ignore and overreach the said application pending before this Court, relying on the decision of this Court, per EKO, JCA (as he then was) in ABBI Vs. PRINCEWILL & ORS (2011) LPELR ? 3952 (CA) and the decision of the Supreme Court, per WALI, JSC in FIRST AFRICAN TRUST BANK LTD & ANOR. Vs. BASIL O. EZEGBU & ANOR (1992) 9 NWLR (Pt. 264) 132 at 147, paras B ? C.

Let me quickly observe that the arguments canvassed by 1st, 2nd, 3rd and 4th Respondents? counsel in their respective briefs of argument are on the same ground. To this extent, I shall consider the Respondents? position jointly in response to the Appellant?s submission by highlighting the arguments canvassed by the 1st Respondent?s counsel.

1st Respondent?s counsel contends that the Appellant?s arguments are without merit as the records are clear that the said application for injunction pending appeal dated 18th October, 2016 was preceded by the Deeds of Appointment dated June 27, 2016; the letters of confirmation from the Corporate Affairs Commission which are dated 14th July, 2016 and the subsisting Order of the Federal High Court of 16th August, 2016 in Suit No. FHC/AB/CS/69/2016. Counsel also noted that Appeal No. CA/L/1026/2016 is not an appeal against the subsisting order of the Federal High Court. It is the submission of counsel that the said application was filed in respect of a completed act, against which an order of injunction cannot lie, citing A-G., ABIA STATE Vs. A-G., FEDERATION (2006) LPELR ? 613 (SC). He further argued that order of Court is valid and subsisting and must be obeyed unless set aside, citing NDIGWE Vs. NWADE (1999) 11 NWLR (Pt. 626).

In the Reply Brief, Appellant?s counsel argued that the Respondents? argument to the effect that the Receiver was entitled to continue to act in defiance of the pending application is against all known

rules of practice and an attack on the Rule of law. It is the submission of the Appellant?s counsel that the Respondents? argument that the power of the Receiver to appoint a Counsel for the company in receivership, which was done on 13th December, 2017 was a completed act is only suitable in response to the application for injunction and not an answer or justification for carrying on in defiance of the pending application, citing the decision of this Court, per OWOADE, JCA in OLUSI & ANOR Vs. OBANOBI & ORS (2014) LPELR ? 22089.

RESOLUTION
I must say that I agree with the learned Appellant?s counsel that the argument that the act sought to be restrained by the Application for Injunction which was pending at the relevant time before this Court in Appeal No. CA/L/1026/2016 has no practical relevance to the present issue before this Court. As the learned Appellant?s counsel rightly posited, such an argument is only proper in response to the Appellant?s submissions put forward in support of Application for Injunction and here where the issue before the Court is whether a Receiver/Manager can proceed, in the

face of a pending application before the Court seeking to suspend his purported appointment, to carry on acts in pursuance of the said appointment, to wit, instruct counsel to act on behalf of the company in receivership.
Appellant?s counsel on the backdrop of the decisions in ABBI Vs. PRINCEWILL & ORS. (supra); FIRST AFRICAN TRUST BANK LTD & ANOR Vs. BASIL O. EZEGBU & ANOR (supra) and OLUSI & ANOR Vs. OBANOBI & ANOR (supra) has vehemently argued and thereby created the impression that the moment the Application for Injunction in CA/L/1026/2016 is filed and becomes pending, the Receiver/Manager cannot carry out any of his duties, particularly the appointment of counsel for the 3rd and 4th Respondents until the application is disposed of. The authorities relied on by the Appellant?s counsel have made it clear, and I believe that is the correct position of the law that where proceedings are pending before a Court wherein injunctive reliefs are being sought, the party sought to be restrained is under obligation, even where no specific order of injunction has been made, to refrain from doing such acts which have the tendency of

overreaching the application pending before the Court. Counsel quoted a certain part of the decision of the Supreme Court in FIRST AFRICAN TRUST BANK LTD & ANOR Vs. BASIL O. EZEGBU & ANOR (supra) where WALI, JSC held as follows:
?As shown in Ojukwu?s case supra, the Plaintiffs, having been put on notice of the Defendant?s appeal and his motion to set aside the order of the extra-ordinary general meeting ordered to be held by the Federal High Court, they are duty-bound to hold on until the hearing and disposal of the motion. Instead, they went ahead and held the meeting, taking far reaching decisions affecting the defendants?.?
The fact of that case appears somewhat similar in certain respect to the circumstances of the present appeal. A brief fact will therefore suffice. Upon delivery of judgment by JINADU, J. of the Federal High Court on November 1, 1991 inter alia directing the plaintiffs to conduct an extra-ordinary general meeting of the 1st Plaintiff, the Defendants therein filed a Notice of Appeal against the decision of the Federal High Court on 4th November, 1991 and served on the plaintiff?s

counsel?s Law Firm, Chief Williams’ Chambers on 6th November, 1991. Also on the same day, that is 4th November 1991, Chief G.O.K, Ajayi, S.A.N learned Counsel for the defendants filed a Motion on Notice before the same learned trial Judge praying inter alia for an order that the order made in the judgment of the Court for the summoning of a meeting of the members of the 1st Plaintiff/Bank on the basis of the register of members in Exhibit “B” consisting of 20 names, be suspended until the determination of the appeal lodged herein. The Application was served on Chief Williams’ Chambers on 5th November, 1991 and was subsequently fixed for hearing on 11th November, 1991. By a Notice dated 4th November, 1991 issued out by Chinelo Nkemena (Miss), Company Secretary/Legal Adviser to the 1st Plaintiff and published on the 6th of November, 1991 in one of the daily newspapers, an Extra-Ordinary General Meeting of the 1st plaintiff was called to hold on 9th November, 1991 at 11 a.m. at the 1st plaintiff’s premises, ALLCO Plaza Afribank Street, Victoria Island, Lagos. Before the Motion filed on 4th November, 1991 was heard, the Plaintiff proceeded to hold the

Extra-ordinary General Meeting of the 1st Plaintiff on 9th November, 1991, and when the parties appeared on November 11, 1991 to argue the Motion, Chief Ajayi S.A.N., informed the Court that despite the service of the then pending motion, the Plaintiffs had held the meeting and had taken some far reaching decisions affecting the control and operation of the 1st plaintiff. When the motion was argued, the learned trial Judge, in a Ruling delivered on 18th November, 1991 refused the defendants’ application. The defendants filed an appeal against the Ruling and also an application in the Court of Appeal praying the Court to set aside the proceedings and decisions of the General Meeting of the 1st plaintiff held on 9th November, 1991 and to nullify any decisions taken and implemented subsequent to the meeting. The Court heard the application and ruled in the Defendant?s favour. Upon appeal by the Plaintiffs and in a Ruling on an application filed by the Plaintiffs, the Supreme Court aptly noted in its judgment that at that stage, the Court was not hearing the substantive appeal but only dealing with the objection on whether the Plaintiffs are entitled to be heard

on their motion when they have refused to implement the orders made in the decision of the Court of Appeal. It is against this background that the learned Justice, per WALI, JSC made the statement of law which I had comprehensively reproduced above.
It is important to state that cases are decided on their peculiar facts and law, and it will be inappropriate in an attempt to urge a lower Court to follow a decision of a higher Court without isolating the peculiar facts and circumstances of the matter before it. It is instructive to note that the issue in FIRST AFRICAN TRUST BANK LIMITED (supra) was solely within the narrow compass that as long as the order of a Court, whether properly or otherwise made, subsists and as long as a party refuses to implement it, the Court will generally not give such a party a hearing on any application brought before it, until when such a party purges itself of acts of contempt. In the case before this Court, there is certainly no allegation that the 1st Respondent has acted in contempt of any subsisting Court order; but on the contrary, the complaint of the Appellant herein is that the 1st Respondent and the Receiver/Manager

it had appointed, ought not to have acted regardless of a subsisting Court order and/or that it should be restrained from acting as such. Also, in FIRST AFRICAN TRUST BANK LIMITED (supra), it is instructive to note that the Defendants in that case directly appealed against the decision of the lower Court which directed the 1st Plaintiff?s Company Secretary to convene an Extra Ordinary General Meeting of the 1st Plaintiff. In this case, there is nothing on record to show the steps, if any, taken by the Appellant to set aside the subsisting order of August 16, 2016 made by Honourable Justice A. M. Anka of the Federal High Court in Suit No FHC/AB/CS/69/2016 wherein the appointment of Receiver/Manager made by the 1st Respondent by a Deed of appointment of 27/6/16 was judicially ratified by the Federal High Court on 16/8/16. Unless and until the said order is set aside, the 1st Respondent is duty bound, as a statutory corporation to act in pursuance thereto. My learned brother, GEORGEWILL, JCA rightly said in EUROPEAN SOAPS AND DETERGENT LIMITED Vs. MW BEER & COMPANY LIMITED (2017) LPELR ? 41873 (CA), that the fact that the order of the Court

approving the appointment of the Receiver/Manager is being challenged by the Appellant does not render the said Appointment invalid and ineffective unless and until it is duly set aside by a Court of competent jurisdiction. As a matter of fact, I adopt as mine the reasoning and statement of the law made by my learned brother that ?in law unless and until the order of Court approving the appointment of a Receiver, whether made Ex-parte or on Notice, is set aside by a Court of competent jurisdiction, the powers of the Receiver over the assets and subject matter within his Receivership remains sacrosanct and supersede the powers of the Directors of the Company under Receivership.?
I am therefore unable to agree and accept as well founded, the submission of the learned Appellant?s counsel implying that the powers of the Receiver/Manager would be affected or put in abeyance once there is an action in Court challenging his appointment. As such, the fact that the Appellant has filed an Application in Appeal No. CA/L/1026/2016 seeking to set aside the purported appointment of the Receiver/Manager is of no moment because, it is a fundamental

proposition of the law, that judgment or an order of a superior Court of record is presumed to be right until the contrary is established in a competent proceedings before a competent Court. See: Court of Appeal?s decision in NIDB V LIMANI NIG ENTERPRISES LTD (1998) 10 NWLR (Pt 568) 97; and the Supreme Court?s decision in EZE-OKAFOR V EZEILO (1999)9 NWLR (Pt 619) 513. The appointment was not only ratified by an extant order of the Federal High Court made by Anka, J on 16/8/16, the said appointment also predated the Appellant?s Motion on Notice for an injunction filed on 18/10/16. It is an elementary proposition of the law, that a completed act cannot be restrained as that will amount to ?bolting the stable after the horse had escaped?, and more importantly, the Appellant has not challenged the order made on 16/8/16 by Anka, J. These are, in my view, the peculiar facts which make the application of the ratio of the Supreme Court?s decision in F.A.T.B V EZEGBU, (supra) inappropriate in this case. This extensive analysis was advisedly made in order that the Appellant would not have the impression that this Court will, in the

exercise of its inherent disciplinary jurisdiction, shut its eyes to steps taken and act done by any party to subvert the sanctity of the Court?s processes the notice of which they already had. See: GOVERNOR OF LAGOS V OJUKWU & ANOR (1986) 1 NSCC 304. This issue is thus resolved in the Respondents? favour.

In the final analysis, I found no merit in the Appellant?s appeal. Same is hereby dismissed in its entirety. The Ruling of the Federal High Court, Coram BUBA, J., in Suit FHC/L/CS/744/2017 delivered on 9th January, 2018 is hereby affirmed. Costs of N100,000 is awarded against the Appellant in favour of each of the 1st Respondent, 2nd Respondent as well as 3rd and 4th Respondents respectively, the 5th & 6th Respondents did not participate in these proceedings are to bear their costs if any.

MOHAMMED LAWAL GARBA, J.C.A.: I agree

TIJJANI ABUBAKAR, J.C.A.: My learned Brother Gabriel Omoniyi Kolawole JCA, granted me the privilege of reading in draft the leading Judgment prepared and rendered in this appeal. My Lord has fully and sufficiently covered the field, I therefore endorse

the entire reasoning and conclusion and adopt the Judgment as my own I have nothing extra to add.

Appearances:

J.A. Badejo, SAN with him, O. A. Owolabi, F.D. Oloruntoba, Agba EimujezeFor Appellant(s)

I.A. Adedipe, SAN with him, Jide Olasite, O.E. Kolajo, M.O. Aderuku, K.O. Atuchukwu, J.P. Ojo for 1st Respondent.
Temitayo Opajobi with her, M.S. Awinoren for 2nd Respondent.
Alex Mouka with him, O. Jolayemi for 3rd and 4th Respondent.
Ajibola Ariba with him, Temitayo Ogundare for 5th Respondent.
Emmanuel D. Ugbor for 6th RespondentFor Respondent(s)

Appearances

J.A. Badejo, SAN with him, O. A. Owolabi, F.D. Oloruntoba, Agba EimujezeFor Appellant

AND