ACCESS BANK PLC v. ADESOYE HOLDINGS LIMITED & ORS
(2016)LCN/8485(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of April, 2016
CA/L/799/11
RATIO
PROCEDURE: PRELIMINARY OBJECTION; WHEN SHOULD A PRELIMINARY OBJECTION BE DETERMINED IN AN APPEAL
The law is that, the preliminary objection must be dealt with first before the Court embarks on dealing with the substantive appeal if necessary, see UWAZURIKE VS ATTORNEY GENERAL OF FEDERATION (2007) 8 NWLR (Pt.1035) 1. PER SIDI DAUDA BAGE, J.C.A.
JURISDICTION: EFFECT OF ABSENCE OF JURISDICTION BY COURT
The absence of jurisdiction by Court, the Supreme Court has defined it to be fundamental to the administration of justice, which will not be itself entitle a judge to pronounce on it, when the matter in the first place should not have been before him. See AKINBINU VS OSENI (1992) 1 NWLR (Pt.215) 97 at 110. PER SIDI DAUDA BAGE, J.C.A.
JURISDICTION: EFFECT OF ANY PROCEEDING CONDUCTED WITHOUT JURISDICTION
The exercise of jurisdiction by a Court over a subject matter must be one expressly excluded from its jurisdiction by the statutes, and that will be a breach of the law and any proceeding conducted without the required jurisdiction will amount to a nullity no matter how well conducted they may be. See MADUKOLU & ORS VS NKEMDELIM (1962) 1 ALL NLR 581; BRONIKS MOTORS LTD VS WEMA BANK LTD (1983) 1 S.C.N.L.R. 296; ADEFULU VS OYESILE (1989) 5 NWLR (Pt.122) 377; ABDULKADIR VS MUSA (1999) 1 NWLR (Pt.587) 348 at 357. PER SIDI DAUDA BAGE, J.C.A.
APPEAL: TIME PRESCRIBED FOR AN APPEAL TO BE ENTERED
By the provision of Order 18 Rule 2 of the Court of Appeal Rules, 2011 an Appellant shall within forty five days of the receipt of the record of appeal from the Court below file a written brief. Furthermore, by the provision of Order 4 Rule 10 of the Rules of this Court, 2011, an appeal is deemed entered in the Court when the record of proceedings in the Court below has been received in the Registry of this Court. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES:
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
ACCESS BANK PLC – Appellant(s)
AND
1. ADESOYE HOLDINGS LTD
2. FIRST ALSTATES SECURITIES LIMITED
3. MR. TAJU FOLAJI – Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the ruling of the Investment and Securities Tribunal sitting at Lagos delivered on 27th July, 2011 where in the said Tribunal granted garnishee order absolute following an application dated 16th May, 2011 at the Tribunal by the judgment Creditor/Respondent, 1st Respondent.
The summary of the facts of this case is as follows:
The first Respondent by an Ex-parte motion dated 16th May, 2011 sought a garnishee order nisi attaching all the funds, shares and stocks standing to the creditor of the judgment Debtor/Respondent (“the 2nd Respondent”) with the garnishee (“the Appellant”) for the purpose of satisfying the judgment entered in favour of the first Respondent on 3rd May, 2011. The Appellant herein in the Tribunal below field an affidavit dated 8th June, 2011 to show cause why such funds, stocks and/or shares if any, should not be attached. The 1st Respondent herein filed a counter affidavit with exhibits dated 23rd June, 2011. On 29th June, 2011, the Appellant filed a further and better affidavit with exhibits in further response to the 1st Respondent’s counter affidavit.
In a ruling dated 27th July, 2011, the Tribunal granted the garnishee order absolute (see pages 120 – 126 of the record). The Appellant being dissatisfied with the said ruling filed a notice of appeal dated 21st September, 2011 [see pages 1 – 5 of the supplementary record).
ISSUES FOR DETERMINATION
The Appellant submit that having regard to the grounds of appeal filed by the Appellant, the issues which arise for determination are as follows:
1) Whether the Honourable Tribunal had jurisdiction to grant the ex-parte application for garnishee order nisi and/or make the garnishee order absolute generally or on the particular circumstances of this case.
2) Whether the Honourable Tribunal was right in granting the garnishee order absolute without taking cognizance of the zero balance in the subject Account number 0101614059 purchased by Assets Management Corporation of Nigeria (AMCON).
3) Whether the Honourable Tribunal rightly held that there was no proof of the judgment Debtor’s (2nd Respondent) indebtedness to the Appellant in making the garnishee order absolute.
The 1st Respondent on the other hand formulated the following two (2) issues for determination, and they are as follows:
1) Whether the Lower Court had jurisdiction to entertain garnishee proceedings.
2) If the answer to the issue No. 1 above is positive, whether the Lower Court was right in making the garnishee order absolute having regard to circumstances of the evidence before the Court.
Also the 2nd and 3rd Respondents have formulated a sole issue for determination to wit:
“Whether the 2nd and 3rd Respondents have a duty to defend this appeal given that they filed a separate notice of appeal against the judgment that gave rise to the garnishee proceedings.”
After examining the sets of issues set out by the parties, this Court shall be guide by the two (2)issues as set out in the 1st Respondent’s brief of argument, for it has adequately captured the three (3) as set out for determining by the Appellant in dealing with the appeal.
Before proceeding to consider the arguments canvassed by the parties to the issues, the learned counsel to the 1st Respondent filed a notice of preliminary objection in opposition to the hearing of the appeal. The law is that, the preliminary objection must be dealt with first before the Court embarks on dealing with the substantive appeal if necessary, see UWAZURIKE VS ATTORNEY GENERAL OF FEDERATION (2007) 8 NWLR (Pt.1035) 1.
The preliminary objection dated and filed on the 15th December, 2011, was brought pursuant to Order 7 Rule 1, Order 10 Rule 1 and Order 18 Rule 10 of the Rules of this Court 2011 and the inherent jurisdiction of this Court. The Respondent/Applicant prays as follows:
1) An order striking out grounds 1, 2, 3 and 4 of the notice of appeal and issues 1, 2, 3 in the Appellant’s brief for being incompetent.
2) And for such other orders as this Honourable Court may deem fit to make in the circumstances of this case.
The grounds upon which the 1st Respondent’s objection is predicated are as follows:
a) The Appellant’s ground 1 as contained in the notice of appeal and issue 1 arising therefrom relate to a fresh issue not canvassed at the Lower Court and thus incompetent, as the Appellant failed to first seek and obtain the leave of the Court before filing the notice of appeal.
b) The Appellant’s grounds 2, 3 and 4 as contained in the notice of appeal and issues 2 and 3 arising therefrom relate to grounds of mixed law and fact or facts and thus incompetent, as the Appellant failed to first seek and obtain the leave of the Court before filing the notice of appeal.
c) The Appellant’s brief was filed outside the period allowed by the rules without first seeking and obtaining the leave of the Court.
The said preliminary objection is supported by a 12 paragraphs affidavit. The learned counsel for the 1st Respondent proffered argument to his preliminary objection at page 7 of their brief of argument.
Learned counsel submitted that though the record of appeal was filed on 12th August, 2011, the Appellant did not file its Appellant’s brief of argument until 4th November, 2011. The condition precedent to the filing of the notice of appeal have not been fulfilled, thus rendering the grounds of appeal incompetent and so also, the Appellant’s brief of argument filed out of time without leave of the Court is incompetent. By the provision of Order 18 Rule 2 of the Court of Appeal Rules 2011, an Appellant shall within forty five days of the receipt of the record of appeal from the Court below file written brief, Furthermore, by the provision of Order 4 Rule 10 of the Court of Appeal Rules, 2011, an appeal is deemed entered in Court when the record of proceedings in the Court below has been received in the Registry of the Court. The time to file Appellant’s brief begins to run from the day the record is received at the registry of Court. See FAWOLE AJAYI & ANOR VS IGIEROBO OMOROGBE (1993) 6 NWLR (Pt.301) 512 at 527 paras E-G.
Learned counsel submitted further that, all rights of appeal including the ancillary question of filing briefs of argument by the parties in an appeal are statutory and for a party to enjoy or exercise such right, he must comply with the statutory provisions upon which the right is founded. Furthermore, where the Appellant has filed its brief outside the mandatory period stipulated by the rules without leave of Court, the brief so filed is incompetent and the result is an order of striking out. See JOSEPH IRO & 3 ORS V CHRISTOPHER ECHEWENDU & 3 ORS (1996) 8 NWLR (Pt.468) 629 at 639 paras D & E, Ratio 3. The failure on the part of the Appellant to seek leave of Court before filing the notice of appeal incorporating ground 1 which is a fresh issue and grounds 2, 3 and 4 renders it incompetent and same is liable to be struck out. We urge this Court to so hold, see OWONIBOYS TECHINICAL SERVICES LTD VS UBN LTD (supra) at para C and KOTUN & 2 ORS VS OLASEWERE & 2 ORS (supra) at 112 line 37; AUGUSTINE BASSEY EPE VS CHIEF ASUQUO ASIKPO & ANOR (2010) 14 WRN 132 at 116 lines 15 – 25.
In reply to the arguments of the learned counsel to the 1st Respondent to their preliminary objection, the learned counsel to the Appellant submitted that, contrary to the arguments of the 1st Respondent, the Court of Appeal in JOSEPH IRO & 3 ORS VS CHRISTOPHER ECHEWENDU & 3 ORS (relied on by the Respondent) held that, non -compliance with the rules of Court does not vitiate the merit of appeal, except where there has not been any application for extension of time that such brief would be struck out. The Appellant filed its brief of argument dated 3rd November, 2011 filed 4th November, 2011 and on 25th November, 2011 filed a motion on notice for an order granting the Appellant extension of time to file and serve its brief of argument which had already been filed and served on the Respondent. The Respondent in turn had filed a notice of intention not to contest dated 30th March, 2012, which renders the point of law raised by the Respondent incompetent or deemed abandoned.
Learned counsel submitted further that, in specific response to paragraph 5.1.4 at page 7 of the Respondents’ brief, contrary to its assertions, the leave of Court is not required to file fresh issue which bothers on jurisdiction. See OWNERS OF M/V GONGOLA HOPE & ANOR VS SMURFIT CASE NIGERIA LTD & ANOR (2007) 15 NWLR (Pt.1056) 189; GAJI VS PAYE (2003) 1 NWLR (Pt.823) 583.
From the point view of this Court, the preliminary objection of the learned counsel to the 1st Respondent is argued in two (2) planks, and that is:
1) The brief of argument of the Appellant was filed outside the mandatory period stipulated by the rules of this Court, and no leave was sought for; and obtained; before the filing of the said brief of argument.
2) No leave was sought for, and obtained from this Court, before filing the notice of appeal incorporating ground 1 which is a fresh issue, and grounds 2, 3 and 4 which renders it incompetent and same is liable to be struck out.
In the instant case in dealing with the second (2) plank, the Appellant admitted it had filed the notice of appeal incorporating ground 1 which is a fresh issue, and grounds 2, 3 and 4 without seeking for, and obtaining the leave of this Court, as the said fresh ground is a jurisdiction at question. The Appellant strenuously argued that once it is a jurisdictional question, it is already settled by the Supreme Court that no such leave would be required for. The Appellant cited in aid the OWNERS OF M/V GONGOLA HOPE & ANOR VS SMURFIT CASE NIG LTD & ANOR (supra) OBIAKOR VS STATE (supra) GAJI VS PAYE (supra) SAPO & ANOR VS SUNMONU (supra).
In the instant case, the fresh ground introduced by the Appellant relates to the Lower Court granting the ex-parte application for garnishee order nisi and/or make the garnishee order absolute, generally, or in particular circumstances of the case, it failed to take cognizance of the fact that garnishee proceedings is a separate and distinct action between the creditor and debtor.
Looking at this point raised by the Appellant, is it a jurisdictional question, or put in another way can leave to argue or not additional ground of appeal without more enable Appellant to raise or argue fresh point. The Appellant has not said this was an issue canvassed in the Lower Court. The absence of jurisdiction by Court, the Supreme Court has defined it to be fundamental to the administration of justice, which will not be itself entitle a judge to pronounce on it, when the matter in the first place should not have been before him. See AKINBINU VS OSENI (1992) 1 NWLR (Pt.215) 97 at 110.
The Appellant has not shown whether the application for a garnishee order nisi or ABSOLUTE cannot be made before the trial Court. The query is as to the failure of the trial Court to take cognizance of the fact that garnishee proceedings is a separate and distinct action between the creditor and debtor. This no doubt is procedural and not jurisdictional. The exercise of jurisdiction by a Court over a subject matter must be one expressly excluded from its jurisdiction by the statutes, and that will be a breach of the law and any proceeding conducted without the required jurisdiction will amount to a nullity no matter how well conducted they may be. See MADUKOLU & ORS VS NKEMDELIM (1962) 1 ALL NLR 581; BRONIKS MOTORS LTD VS WEMA BANK LTD (1983) 1 S.C.N.L.R. 296; ADEFULU VS OYESILE (1989) 5 NWLR (Pt.122) 377; ABDULKADIR VS MUSA (1999) 1 NWLR (Pt.587) 348 at 357.
From the above, it is clear that, the point made by the Appellant for raising a fresh issue to ground one (1) is one that is procedural and not jurisdictional. The leave of the Court remains sine quo non in the given circumstance. The Supreme Court per Onu JSC (as he then was) in OBIOHA VS DURU (1994) 8 NWLR (Pt.365) 631 at 646 – 647 stated as follows:
“Learned counsel for the Plaintiffs has additionally raised an objection to the ground from which it is distilled, i.e. additional ground 5. It is that leave of this Court was neither sought nor obtained before raising it. Merely asking leave of Court to file additional grounds of appeal, it is argued, does not automatically confer a party with the right to argue a fresh point without leave. It is enough to say that, leave not having been specifically sought or obtained by the Defendants to canvass additional ground 5 as a fresh point, issue 2 from which it is formulated is not properly before this Court. This number of cases including AMUSA OPOOLA ADIO VS THE STATE (1986) 2 NWLR (Pt. 24) 581 at 588 and ALHAJI LATIFU AJUWON & ORS VS MADAM ALIMOTU ADEOTI (1990) 2 NWLR (Pt.132) 271 at 283, 296; that in order to urge issues or matters which were not argued in the Court below, one has to apply specifically for leave to do so. The same not having been done in the instant case. Additional ground 5 is incompetent and it is accordingly struck out. With additional ground 5 struck out, the argument on issue 2 is rendered inept and of no avail to the Defendants.”
I say no more. The ground 1 which is a fresh issue, and any issue which might have emanated from it is inept, and does not avail the Appellant. The said ground 1 introduced by Appellant without the leave of this Court is hereby truck out.
As to the 2nd plank of the preliminary objection to wit the Appellant filing its Appellant’s brief of argument outside the time allowed by the Rules of this Court. The record of appeal from the record before this Court was transmitted to this Court on the 12th August, 2011. The Appellant in paragraph 2.11 at page 6 of its reply brief admitted that, the Appellant’s brief of argument was dated 3rd November, 2011, and filed on the 4th November, 2011. On the 25th November, 2011, the Appellant filed a motion on notice for an order granting the Appellant extension of time to file and serve its brief of argument which had already been filed and served on the Respondent. The Respondent in turn had filed a notice of intention not to contest dated 30th March, 2012 which renders the point of law raised by the Respondent incompetent or deemed abandoned. It is worthy of note here that, the Appellant has not stated whether its application of the 25th November, 2011 praying the Court for an order of extension on the filed and served brief of argument on the Respondent to be regularized, and to deem same as properly filed and served before the Court. This Court has examined the said Appellant’s brief of argument dated 25th November, 2011, it was filed on the 2nd December, 2011. There is no endorsement on the face of that application to show that it ever moved before the Court and granted. Assuming such an application was taken in chambers by the Court under Order 7 Rule 6 of this Court’s Rules, no enrolled order of this Court was placed before this Court granting this application, or the Appellant stating the date of such an order. In the absence of any of these, the presumption is that, the said application of the Appellant, dated 25th November, 2011 filed on the 2nd December, 2011 was never moved, and granted by this Court.
By the provision of Order 18 Rule 2 of the Court of Appeal Rules, 2011 an Appellant shall within forty five days of the receipt of the record of appeal from the Court below file a written brief. Furthermore, by the provision of Order 4 Rule 10 of the Rules of this Court, 2011, an appeal is deemed entered in the Court when the record of proceedings in the Court below has been received in the Registry of this Court. From record, the record of appeal was transmitted into the Registry of this Court on 12th August, 2011. The Appellant filed its brief of argument on 4th November, 2011 precisely 83 days after the transmission of the records of appeal. The law provides that, the Appellant “shall” within forty five [45] days of the receipt of the record of appeal, file his written brief of argument. The Appellant was clearly out of time which it has admitted itself by about 38 days. The law allows the Appellant in such circumstance to take steps and apply for extension of time, to give life to the dead brief of argument. The record has shown that the Appellant took the first step by filing his motion on notice dated 25th November, 2011 and filed 2 December, 2011. However, there is no record before this Court to show that such an application was ever moved and or granted by this Court. Such a fundamental defect cannot be cured by the simple fact that, the Respondent had filed his notice of intention not to contest the Appellant’s application dated 30th March, 2012. The Appellant’s brief of argument dated 3rd November, 2011 and filed on 4th November, 2011 remains defective having been filed outside the time mandatorily allowed by the Rules of this Court. I only need to add that, the mandatoriness of compliance in the statutory provision such as the rules of this Court, where it provides for a particular method of performing a duty it must conform to that duty, and this is settled by a long line of authorities see CO-OPERATIVE AND COMMERCE BANK NIG LTD VS ATTORNEY GENERAL OF ANAMBRA STATE (1992) 8 NWLR (Pt.361) 526 at 528; IBRAHIM VS INEC (1999) 8 NWLR (Pt.614) 334 at 352; BUHARI VS DIKKO YUSUF (2003) 14 NWLR (Pt.841) 449 at 498. The Appellant’s brief of argument dated 3rd November, 2011 and filed on the 4th November, 2011 is hereby struck out for being defective.
On the whole therefore, the notice of appeal incorporating ground 1 and grounds 2, 3 and 4 which is a fresh issue is struck out for absence of leave of Court to file such. Also the Appellant’s brief of argument is also struck out for being filed outside the time allowed by the Rules of this Court. The entire appeal therefore cannot stand on nothing, it is hereby struck out.
No costs awarded.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, SIDI DAUDA BAGE, JCA and I am in agreement with the reasoning and conclusion arrived at in the lead judgment.
I also strike out the appeal. I abide by the consequential orders made in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, SIDI DAUDA BAGE, JCA obliged me with an advance copy of the judgment which he just delivered. I agree with his reasoning and conclusion reached therein. In the same terms as the leading judgment, I also find the Appellant’s brief of argument to be incompetent and same is hereby struck out. I abide by the order as to cost made therein.
Appearances
J. O. Omisade with him, D. D. Dibi For Appellant
AND
K. G. Raji with him, T. Kareem and O. J. Alao for 1st Respondent For Respondent
