RMM GLOBAL COMPANY LIMITED & ANOR v. STANBIC IBTC BANK PLC
(2019)LCN/13582(CA)
(2019) LPELR-48092(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of June, 2019
CA/K/390/2017
Justice
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. RMM GLOBAL COMPANY LTD
2. MR. RAMZI TAHERAppellant(s)
AND
STANBIC IBTC BANK PLCRespondent(s)
RATIO
THE DUTY OF THE COURT IN DETERMINING WHETHER A GROUND OF APPEAL IS ONE OF LAW OR FACT OR MIXED LAW AND FACT
A ground of appeal is not necessarily that which it is said or labeled to be. See Comex Ltd v. NAB Ltd (1993) 3 NWLR (P. 496) 656. When confronted therefore with situations such as this as to whether a ground of appeal is one of law or one of fact or one of mixed law OR not, the Court seized with the matter, necessarily has to take a close look at the grounds and the particulars thereto, in order to determine the true nature of the complaint covered by that ground of appeal. See Abubakar v. Dankwambo (2015) 18 NWLR (Pt. 1491) 215; Comex Ltd v. NAB Ltd (supra).
Fortunately, decision of this Court and those of the Apex Court have provided us with useful guides as to what amounts to:
(i) Grounds of law
(ii) Grounds of fact
(iii) Grounds of mixed law and facts.
In the case of (ii) and (iii) above, leave of Court must first be sought and obtained to validate the hearing of any of those grounds in any appeal case. See Section 242 of the Constitution of FRN, 1999 (as amended).
In the case of Abubakar v. Dankwambo (supra) the Apex Court held:
If the ground of appeal contest facts, it can only be a ground of facts or mixed law and facts. Once facts are set in dispute, that is to say facts are settled, a ground of appeal can never be on facts or mixed law 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..
See further decisions in Metal Const. (W/A) Ltd v. Migliore ln Re Miss C Ogundare (1990) 1 NWLR (Pt. 126) 299.
In Akinyemi v. Odua Invest. Coy. Ltd (2012) 17 NWLR (Pt. 1329) 209, 231 the Apex Court also held:
Where a trial Court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to the Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law. PER HUSSAINI, J.C.A.
WHETHER OR NOT ORDERS OF THE COURT MUST BE OBEYED
Orders of Court are meant to be obeyed so long as they are subsisting orders and it does not matter whether the order was wrong or right. They remain binding orders until set aside. See Eshenake v. Gbinije (2006) 1 NWLR (Pt. 961) 288; Oshiomhole v. FGN (2005) 1 NWLR (Pt. 907) 414. Hence Courts should be reluctant in granting audience to the party who is in disobedience of Courts orders especially where the disobedience constitutes a clog to proper administration of Justice. See Hadkinson v. Hadkinson (1952) 2 ALL E. R. 567; F. A. T. B v. Ezegbu (1992) NWLR (Pt. 264)132; Ojukwu v. Lagos State (1986) 2 SC 277; Rossek & 2 Ors v. ACB Ltd & 2 Ors. (1993) 8 NWLR (Pt. 312) 382, 438. PER HUSSAINI, J.C.A.
WHETHER OR NOT AN ODER OF INJUNCTION IS INTERIM AND NOT PERPETUAL WHEN IT IS MADE EXPARTE
An order of injunction is interim and not perpetual when it is made exparte to last for a short period or until the determination of the motion on Notice. It is not made to spite or humiliate the respondents rather the restraining order is made to last pending the determination of the Motion on Notice to sustain the status quo ante bellum and afortiori, keep the res intact. See: Okeke v. Okoli (2000) 1 NWLR (Pt. 643) 641; Kotoye v. CBN (1989) 1 NWLR (1989) 1 NWLR (Pt. 98) 419; Igbinoba v. Igbinoba (2003) 2 NWLR (Pt. 803) 39. PER HUSSAINI, J.C.A.
WHETHER OR NOT A COURT CAN CONSTITUTE ITSELF INTO AN APPELLATE COURT OVER ITS OWN DECISION
A Court cannot constitute itself into an Appellate Court over its own decision. Our laws forbid it. See Dan’ asabe v. Babale (2013) LPELR 22360 (CA).
The order for interim injunction was put in place sometimes on the 8th February, 2017 and last until the hearing of the Motion on notice for interlocutory injunction. The interim order could not have abated by reason of Order 39 Rules (3) of Kano State High Court Procedure Rules. In any case it does not lie in the mouth of the Court below to so state as it amounts to the Court sitting over its own ruling or order and reviewing same. See LSPDC v. Adeyemi-Bello (2005) 8 NWLR (Pt. 927) 330; Koden v. Shidon (1998) 10 NWLR (Pt. 571) 662, 675; NICON v. P.I.E. Coy. Ltd (1990) 1 NWLR (Pt. 129) 697. PER HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered at the High Court of Kano State on 7th June, 2017 by which ruling or decision, the High Court dismissed appellants application, a motion on Notice dated and filed on 10th April, 2017 (pages 214-217 of record of appeal) seeking as it were the 5 (five) reliefs contained in the motion paper. As indicated before, the High Court of Kano State, hereinafter referred to as the Court below dismissed the application.
Against this order of dismissal, the appellant vide the Notice of appeal dated 22nd June, 2017 and filed on 23rd June, 2017 has appealed to this Court on 8(eight) grounds. See the record of appeal at pages 351-359.
Parties herein filed their briefs of argument and exchanged them upon the record of appeal brief transmitted to this Court.
The appellants in the brief of argument filed on their behalf on 14th September, 2017 but deemed filed on 6th December, 2017 raised 4 (four) issues for determination from the 8 (eight) grounds contained in the Notice of appeal, thus:
(i) Having regard to the
1
fact that the lower Courts ex-parte order of 9th February, 2017, was granted pending the hearing of the Appellants Motion on Notice for Interlocutory Injunction, and bearing in mind also that the said motion on notice for Interlocutory Injunction had not been heard, whether the lower Court was right to hold that the said ex-parte Order of 9th February, 2017, had abated after 7 (seven) days on account of Order 39 Rule 3 of the High Court of Kano State Civil Procedure Rules 2014. (Grounds 1 and 2)
(ii) Having regard to the Respondents established and continued act of contempt against the lower Courts order of 9th February, 2017, Appellants application to foreclose the Respondent from defending the action. (Grounds 3, 4 and 7)
(iii) In the absence of an appeal or an application to set aside the lower Courts order of 9th February, 2017, whether the lower Court was right to have constituted itself into an appellate Court in holding that the said order or 9th February, 2017, had abated by virtue of Order 39 Rule 3(3) of the High Court of Kano State Civil Procedure Rules 2014. (Grounds 5 and 6)
(iv) Whether the
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lower Courts prejudicial findings that the Appellants delayed serving the ex-parte order of 9th February, 2017 on the Respondent and that the Appellants occasioned a delay in the hearing of the pending Motion on Notice is borne out of the record of the lower Court.
The Respondent, in the brief of argument filed on their behalf on 5th January, 2018 have distilled 2(two) issues at page 11 of the brief. There is also, in the said Respondents brief of argument, the Notice of Preliminary Objection, by which the respondent challenged the competency of all the grounds of and indeed the Notice and grounds of appeal. Refer to pages 611 of respondents brief of argument, paragraph 3.00-3.13.
This point of objection was taken up in lemine when the appeal came up on the 25th March, 2019 for hearing. The response to the Preliminary Objection is contained in the Appellants Reply brief of argument dated 14th March, 2019 and filed on the 15th March, 2019, paragraphs 2.0-3.0 at pages 2-10 of the Reply brief.
Learned counsel at the hearing both adopted their respective briefs of argument. All the Preliminary Issues raised in this appeal
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deserve our first attention and consideration. The objection, in the main, as indicated before, raises questions of the competency of all the 8(eight) grounds of appeal said to be grounds of facts or grounds of Mixed Law and Facts of which leave of this Court or the Court below was needed or required under Section 242 of the Constitution of FRN 1999 (as amended) to legitimize those grounds of appeal. In the absence of which, as it is contended, rendered the appeal stillborn and ought to be struck out.
The appellants offered contrary argument wherein it was submitted on their behalf that all the 8(eight) grounds of appeal being grounds of law alone and not grounds of fact or grounds of mixed law and fact, prior leave of Court was not required to appeal over grounds which otherwise are grounds of law.
The 8(eight) grounds of appeal are set out in the Notice of appeal at pages 351 to 359 of the record of appeal.
Ground 1 in the Notice of appeal is a complaint against the holding of the Court below about the abatement of its order made on the 9th February, 2017 on account of Order 39 Rule 3(3) of the Rules of the High court of Kano State.<br< p=””>
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Ground 2 is a complaint about the misapplication of the provisions of Order 39 Rule 4 of the High Court of Kano State Civil Procedure Rules.
Ground 3 of the grounds of appeal is a complaint against the refusal of the Court below to foreclose the respondents from defending the suit resulting from their acts of disobedience to Courts orders.
Ground 4 (four) is a complaint against the lower Courts order of dismissal of the application of the appellant made to set down the case for hearing based on appellants claim alone.
Ground 5 is the complaint for lack of jurisdiction in the way the lower Court acted in the manner akin to the setting aside of its own decision.
Ground 6 is the complaint against the lower Courts review of its own decision and by so doing constituted itself into an appellate Court.
Ground 7 of the grounds of appeal is the complaint of the failure or refusal of the Court below, in the exercise of her discretion to sanction respondents acts of disobedience to Courts orders.
Ground 8 is the complaint that the Court below on its own introduced extraneous matters into the case
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and these matters are prejudicial to the appellant.
A ground of appeal is not necessarily that which it is said or labeled to be. See Comex Ltd v. NAB Ltd (1993) 3 NWLR (P. 496) 656. When confronted therefore with situations such as this as to whether a ground of appeal is one of law or one of fact or one of mixed law OR not, the Court seized with the matter, necessarily has to take a close look at the grounds and the particulars thereto, in order to determine the true nature of the complaint covered by that ground of appeal. See Abubakar v. Dankwambo (2015) 18 NWLR (Pt. 1491) 215; Comex Ltd v. NAB Ltd (supra).
Fortunately, decision of this Court and those of the Apex Court have provided us with useful guides as to what amounts to:
(i) Grounds of law
(ii) Grounds of fact
(iii) Grounds of mixed law and facts.
In the case of (ii) and (iii) above, leave of Court must first be sought and obtained to validate the hearing of any of those grounds in any appeal case. See Section 242 of the Constitution of FRN, 1999 (as amended).
In the case of Abubakar v. Dankwambo (supra) the Apex Court held:
If the ground of appeal
6
contest facts, it can only be a ground of facts or mixed law and facts. Once facts are set in dispute, that is to say facts are settled, a ground of appeal can never be on facts or mixed law 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..
See further decisions in Metal Const. (W/A) Ltd v. Migliore ln Re Miss C Ogundare (1990) 1 NWLR (Pt. 126) 299.
In Akinyemi v. Odua Invest. Coy. Ltd (2012) 17 NWLR (Pt. 1329) 209, 231 the Apex Court also held:
Where a trial Court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to the Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law.
Having therefore considered the submissions made by counsel on both sides in their briefs on this Preliminary points of objection, I hold, the view and this is my verdict, relying on the decisions aforesaid among others, that grounds 1, 2, 3, 4, 5, 6, 7 and 8 are grounds of
7
law and not grounds of fact or grounds of mixed law and fact as erroneously contended by counsel for the respondent on this point. In effect I overrule them on the Preliminary Objection and dismiss same.
Turning to the merit of this appeal, I wish to adopt the 4(four) issues formulated by the Appellants in their brief of argument.
ISSUE NO. 1
The question posed by issue 1 is clear enough and needs no further explanation. The appellant, approached the lower Court with a clear mindset and that is with an application, the motion on Notice, dated and filed on the 10th April, 2017 for which they sought for, among other reliefs, the prayer for:-
2. An order of interim injunction restraining the defendant acting by itself or through any other agents servants etc from taking any step in any manner whatsoever to exercise any of its powers pending the hearing of the motion on Notice filed by the plaintiffs before this Honourable Court.
3. An order of interim injunction restraining the defendant, their agents, servants or privies howsoever described
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from reporting the 1st plaintiffs state of accounts to the Credit Risk Management System of the Central Bank of Nigeria, Economic and Financial Crimes Commission etc pending the hearing of the motion on notice filed before this Honourable Court.
An order of injunction is interim and not perpetual when it is made exparte to last for a short period or until the determination of the motion on Notice. It is not made to spite or humiliate the respondents rather the restraining order is made to last pending the determination of the Motion on Notice to sustain the status quo ante bellum and afortiori, keep the res intact. See: Okeke v. Okoli (2000) 1 NWLR (Pt. 643) 641; Kotoye v. CBN (1989) 1 NWLR (1989) 1 NWLR (Pt. 98) 419; Igbinoba v. Igbinoba (2003) 2 NWLR (Pt. 803) 39.
The appellants in bringing that application are aware of the limited scope of the application for interim injunction hence the prayer rightly in my view, was made to last pending the determination of the Motion on Notice. That is the prayer or request which the Court below also granted by reason of the
9
enrolled order contained at pages 210-211 of the record of appeal. The trial Court upon the grant of the Exparte application for interim injunction further adjourned the case to the 21st February, 2017 for hearing of the motion on Notice. The motion exparte for interim injunction was taken and granted on or about 9th February, 2017.
Having therefore taken this position as done by the Court below, it is thus preposterous in my view, for the same Court to turn around when it held that the interim order of injunction had abated by reason of the operation of Order 39. The Court below knew of the existence of Order 39 Rule 3(3) when it granted an order of interim injunction pending the hearing of the Motion on Notice. That is, as per the reliefs sought and contained the Motion paper, prayers 2 and 3.
I want to believe that Order 39, Rule 3(3) is meant to cater for situations where exparte orders for interim injunction were left open, then in that case, provisions of Kano State High Court Rules, Order 39 Rule 3(3) come in handy to fill the void since interim orders of injunction are not granted to last ad inifinition, or in
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perpetuity against the interest of the adversed party.
Okeke v. Okoli (2000) 1 NWLR (Pt. 642) 641.
This is why this Court in Igbinoba v. Igbinoba (2003) 2 NWLR (Pt. 803) 39 frowned at such open orders being made in relation to interim injunction which is granted only upon situation of real urgency being established. It should be granted for a specifically defined period of time since it is an interlocutory Court process which should abate the moment the application for interlocutory injunction is heard.
As a principle, therefore, applications for interim order of injunction can be granted and the Court below rightly granted same pending the hearing of the Motion on Notice, when it adjourned proceedings to the 21st February, 2017 for hearing of the application for injunction but the Court got it all wrong when it held that the exparte interim order issued by it on 8th February, 2018 had abated when the interlocutory application for injunction had not been taken.
During the subsistence of the lower Courts interim order, the respondents on the 14th March, 2017 wrote to the Economic and Financial Crimes
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Commission (EFCC) a petition concerning the appellants on issues which are the subject of the interim order previously issued at the Court below and still, a subsisting order of Court. It will appear to me that the petition to the EFCC by the respondents precipitated the action by way of the Motion on Notice dated and filed on the 10th April, 2017 by which the appellants sought several reliefs to wit:-
(1) An order of this Honourable Court prohibiting the Defendants/Respondent from defending this suit, save this application, unless and until it complies with the order of this Honourable Court dated 9th February, 2017, the said order which remains valid for all interests and purposes, same having not been set aside this Hounorable Court or by an appellate Court.
(2) An order of this Honourable Court striking out all the processes filed by the defendant/Respondent in this matter which were filed by the said defendant/respondent despite its disobedience of this Honourable Courts order of 9th February, 2017.
(3) An order foreclosing the Defendant/Respondent from filing a defence to the plaintiffs claim until and unless it
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complies with the order of this Honourable Court made on the 9th February, 2017.
(4) An order of this Honourable Court setting down the suit for hearing on the plaintiffs pleadings alone in terms of relief 3 above.
(5) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.
As stated before now, the Court below heard that application and dismissed same.
Having therefore considered counsels arguments or submission on this point, I will answer issue No. 1 formulated in the appellants brief of argument in the negative, accordingly the said issue No. 1 is resolved in favour of the appellants. Issues 2, 3 and 4 all hang on issue No. 1 as discussed above and I should say, without much ado, that the same i.e issue Nos. 2, 3 and 4 be and same are hereby also resolved in favour of the appellants. I will however proceed to elaborate albeit, briefly on Issue No. 2 and 3 as follows:
ISSUE NO. 2
Having regard to the Respondents established and continued act of contempt against the lower Courts order of 9th February, 2017, Appellants application to
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foreclose the Respondent from defending the action?
On the facts presented on the printed record of appeal, it is clear to me that the interim order of injunction issued by the Court below on the 8th February, 2017 was still in operation as at the 14th March, 2017 when the petition was written against the appellants. One of the terms of the interim order of injunction is the order which prohibited the respondent from taking any step to report the 1st appellant to either Central Bank of Nigeria (CBN) or the EFCC. The petition of the 14th March, 2017 is a clear violation of that interim order.
Orders of Court are meant to be obeyed so long as they are subsisting orders and it does not matter whether the order was wrong or right. They remain binding orders until set aside. See Eshenake v. Gbinije (2006) 1 NWLR (Pt. 961) 288; Oshiomhole v. FGN (2005) 1 NWLR (Pt. 907) 414. Hence Courts should be reluctant in granting audience to the party who is in disobedience of Courts orders especially where the disobedience constitutes a clog to proper administration of Justice. See Hadkinson v. Hadkinson (1952) 2 ALL E. R. 567; F. A. T. B v. Ezegbu (1992) NWLR
14
(Pt. 264)132; Ojukwu v. Lagos State (1986) 2 SC 277; Rossek & 2 Ors v. ACB Ltd & 2 Ors. (1993) 8 NWLR (Pt. 312) 382, 438. Issue No. 2 is resolved in favour of the appellants and against the respondents.
ISSUE NO. 3
In the absence of an appeal or an application to set aside the lower Courts order of 9th February, 2017, whether the lower Court was right to have constituted itself into an appellate Court in holding that the said order or 9th February, 2017, had abated by virtue of Order 39 rule 3(3) of the High Court of Kano State Civil Procedure Rules 2014.
A Court cannot constitute itself into an Appellate Court over its own decision. Our laws forbid it. See Dan’ asabe v. Babale (2013) LPELR 22360 (CA).
The order for interim injunction was put in place sometimes on the 8th February, 2017 and last until the hearing of the Motion on notice for interlocutory injunction. The interim order could not have abated by reason of Order 39 Rules (3) of Kano State High Court Procedure Rules. In any case it does not lie in the mouth of the Court below to so state as it amounts to the Court sitting over its own ruling or order and reviewing
15
same. See LSPDC v. Adeyemi-Bello (2005) 8 NWLR (Pt. 927) 330; Koden v. Shidon (1998) 10 NWLR (Pt. 571) 662, 675; NICON v. P.I.E. Coy. Ltd (1990) 1 NWLR (Pt. 129) 697.
This appeal, on the whole is allowed. The ruling of the High Court of Kano State delivered on the 12th June, 2017 is set aside.
An Order is entered directed on the Court below to hear and consider the application, the Motion on Notice before it for an order of Interlocutory Injunction, if any.
Ordered accordingly.
Due to official commitments elsewhere this judgment could not be delivered last week as I wanted it.
HUSSEIN MUKHTAR, J.C.A.: I was privilege to read in advance the lead judgement of my learned brother, Saidu Tanko Hussaini, JCA. I agree entirely with the reasoning therein and the conclusion that the appeal has merit.
I allow the appeal and subscribe to all the consequential orders made in the judgement.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft the lead Judgment delivered by my learned brother, Saidu Tanko Hussaini, JCA.
I adopt the reasoning
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and conclusion reached in the Judgment. The appeal is thus meritorious, and is hereby allowed. The ruling of the Lower Court is hereby set aside.
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Appearances:
A. A. Usman, Esq.For Appellant(s)
Oseni Sefiullahi, Esq.For Respondent(s)
>
Appearances
A. A. Usman, Esq.For Appellant
AND
Oseni Sefiullahi, Esq.For Respondent
