ACCESS BANK v. GENERAL TELEPHONE ELECTRONICS LIMITED
(2015)LCN/7940(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of July, 2015
CA/L/419/2014
RATIO
APPEAL: GROUND OF APPEAL; WHETHER ONE GROUND OF APPEAL ON GROUND OF LAW IN A NOTICE OF APPEAL CAN SUSTAIN THE APPEAL
It is trite that if there is one ground of appeal on ground of law in a notice of appeal, it can sustain the appeal. See NWAOLISAH v. NWABUFOH [2011] LPELR-2115 (SC); DAIRO v. UNION BANK OF NIGERIA PLC & ORS. [2007] 16 NWLR (PT.1059) 99. MOHAMMED v. OLAWUNMI [1990] 2 NWLR (PT.1330) 458; ODUNUKWE v. OFOMATA (supra); SOUTH ATLANTIC PET. LTD. V. MINISTER PETROLEUM RESOURCES [2013] LPELR-21892 (SC). per.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPEAL: PRELIMINARY OBJECTION; WHEN IS PRELIMINARY OBJECTION FILED AND WHETHER A PRELIMINARY OBJECTION IS FILED ONLY AGAINST THE HEARING OF THE APPEAL AND NOT AGAINST ONE OR MORE GROUNDS OF APPEAL
In ODUNUKWE v. OFOMATA (supra) the court held that a ground of appeal and the particulars must be comprehensively examined. If the ground of appeal reveals a misunderstanding by the court below of the law or a misapplication of the law to facts admitted or proved, it is a ground of law. Where the ground of appeal questions evaluation of evidence before the application of the law, it is a ground of mixed law and fact. Rhodes Vivour, JSC at pages 12-13, paras D – A in the same case held: “A preliminary objection is filed only when the respondent is satisfied that there is some fundamental defect in the appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence…Nowadays, preliminary objections are filed once a respondent notices any error in the appellants processes. This is wrong. Where the respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal, the respondent ought to file a motion on notice to strike out the incompetent grounds and not a preliminary objection… Finally and for emphasis, a preliminary objection is filed only against the hearing of the appeal and not against one or more grounds of appeal.” See also NDIGWE v. NWUDE [1999] 11 NWLR (PT.626) 314; NEPA v. ANGO [2001] 15 NWLR (PT.737) 627; MUHAMMED v. MILITARY ADMINISTRATOR PLATEAU STATE [2001] 16 NWLR [PT.740) 524; NDIC v. ORANU [2001] 18 NWLR (PT.744) 183. per.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES:
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
ACCESS BANK – Appellant(s)
AND
GENERAL TELEPHONE ELECTRONICS LIMITED – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Lead Ruling): The Appellant/Applicant filed a Notice of Motion dated and filed on 27/6/2014 for the following:
1. An Order of this court extending the time within which the Appellant may seek leave to appeal on additional grounds of mixed law and facts and/or facts simpliciter, against the decision of the High Court of Lagos State, Lagos Judicial Division as contained in the ruling delivered by Onyeabo, J. on 4th April, 2014.
2. An Order of this Court granting leave to Appellant to appeal against the ruling on grounds of mixed law and facts and or facts simpliciter.
3. An Order of this Court for an extension of time within which the Appellant may file the additional grounds of appeal reproduced in the schedule to the application which are grounds of mixed law and facts or facts simpliciter.
4. An Order granting leave to the Appellant to amend the Notice of Appeal dated 14/4/14 by incorporating additional grounds of appeal to the grounds of appeal reflected in the Proposed Amended Notice of Appeal.
5. An Order extending the time within which Appellant may file its Brief of Argument in respect of the present appeal.
6. Such further order or other orders this Court may deem fit to make in the circumstance.
As indicated above, the said Motion on Notice was filed on six grounds and a schedule of the additional grounds of mixed law and facts together with an affidavit of 19 paragraphs deposed to by Adedunmade Onibokun. Also annexed to the motion on notice are Rulings of 4th April, 2014 marked Exhibit FOF 1; Notice of Appeal marked Exhibit FOF 2 and Proposed Notice of Appeal marked Exhibit FOF 3.
The Appellant’s counsel, Fagbohungbe SAN moved in terms of the application. Respondent’s counsel G. K. Abdusalam Esq. who came in at the end of the submission of Appellant counsel referred to the following processes filed.
(a) A Preliminary Objection filed on 6/8/14;
(b) Further and Better Affidavit of 7 paragraphs in support of Notice of Preliminary Objection dated and filed 25/6/15; and
(c) Counter Affidavit of 8 paragraphs dated and filed on 6/8/14 and deposed to by Thompson Ashojo.
Learned Abdusalam Esq. then submitted that the Notice of Appeal is defective and therefore incompetent since the grounds of appeal are on mixed law and facts and leave was not obtained. It will amount to curing a defect if the application is granted. He submitted that it is an interlocutory appeal. He relied on FBN v. MAIWADA [2013] 5 NWLR (PT.1348) 444; NALSA & TEAM ASSOCIATION v. NNPC [1991] 8 NWLR (PT.212) 652 at 656; UWAZURIKE v. AGF [2007] 8 NWLR (PT.1035) 1 at 77.
He urged the court to refuse the application.
Fagbohungbe SAN in reply urged the court to discountenance the preliminary objection as premature and submitted that all the grounds are grounds of law. He referred to ODUNUKWE v. OFOMATA [2010] 18 NWLR (PT.1225) 404; EHINLAWO v. OKE [2008] 16 NWLR (PT.113) 357 to submit that an examination of the grounds would show what it is; at the substantive of the appeal stage counsel is required to file objection in the Respondent’s brief.
It is trite that once a preliminary objection is filed, it must be dispensed with first as to know the destiny or fortune of the substantive appeal. See ISIAK & ANOR v. OPOBIYI [2012] LPELR-8540 (CA); ODEDO v. INEC [2008] 17 NWLR (PT.1117) 554; SPDCN LTD. v. AMADI [2011] 14 NWLR (PT.1266) 157, ADELEKAN v. ECU-LINE NV. [2006] 12 NWLR (PT.993) 33; OKOLO v. UBN LTD. [2004] 3 NWLR (PT.859) 87.
The preliminary objection filed by the Respondent is as follows:
a. An Order of this Court dismissing the appeal herein in its entirety for being grossly incompetent.
b. An Order of the court declining jurisdiction to entertain the appeal herein.
c. An Order setting aside the Appellant’s Notice of Appeal dated 14th April, 2014 for being incompetent.
d. An Order of the court setting aside and dismissing the Appellant’s Application of 27th June, 2014 same having been predicated on an incompetent appeal herein.
The preliminary objection is supported by Thompson Ashojo’s 15 paragraphs affidavit, a ruling of 4th April, 2014 and the Notice of Appeal filed by the Appellant dated 14/4/14. The grounds of the preliminary objection are that the Ruling is an interlocutory ruling for which leave of court is required before appealing same on grounds of mixed law and facts or facts simpliciter. Leave of court ought to have been obtained at the Lower Court first and if refused then leave will be sought and obtained at the Court of Appeal. The Notice of Appeal of 14/4/14 failed to satisfy the constitutional and statutory condition precedent for bringing an interlocutory appeal on grounds of mixed law and facts or facts simpliciter. The notice of appeal is incompetent and cannot be cured by an amendment.
Section 241(1)(b) states that from the decision of the court where the ground of appeal involves question of law, appeal shall be as of right. Section 242 of the Constitution, stipulates that appeal shall lie from decisions of Federal High Court or High Court of a State to the Court of Appeal with the leave of the Court below or Court of Appeal and in 242 (2), the Court of Appeal may dispose of any application for leave to appeal from the decision of the Federal High Court or High Court of the state. Therefore, any decision of the Lower Court which is not a ground of law whether interlocutory or final, appeal must be with the leave of court.
This is an interlocutory appeal. The grounds for challenging the application are that the grounds are grounds of mixed law and fact. The objection did not specify which of the grounds; the argument appears scrappy to my mind. The Notice of Appeal contains 3 grounds of appeal.
It is also trite that the proper time to raise such an objection is not at the stage of amending the notice of appeal but at the appeal stage upon a motion on notice for complaint on the grounds and not by way of preliminary objection. In ODUNUKWE v. OFOMATA (supra) the court held that a ground of appeal and the particulars must be comprehensively examined. If the ground of appeal reveals a misunderstanding by the court below of the law or a misapplication of the law to facts admitted or proved, it is a ground of law. Where the ground of appeal questions evaluation of evidence before the application of the law, it is a ground of mixed law and fact.
Rhodes Vivour, JSC at pages 12-13, paras D – A in the same case held:
“A preliminary objection is filed only when the respondent is satisfied that there is some fundamental defect in the appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence…Nowadays, preliminary objections are filed once a respondent notices any error in the appellants processes. This is wrong. Where the respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal, the respondent ought to file a motion on notice to strike out the incompetent grounds and not a preliminary objection… Finally and for emphasis, a preliminary objection is filed only against the hearing of the appeal and not against one or more grounds of appeal.”
See also NDIGWE v. NWUDE [1999] 11 NWLR (PT.626) 314; NEPA v. ANGO [2001] 15 NWLR (PT.737) 627; MUHAMMED v. MILITARY ADMINISTRATOR PLATEAU STATE [2001] 16 NWLR [PT.740) 524; NDIC v. ORANU [2001] 18 NWLR (PT.744) 183.
To my mind, the preliminary objection appears premature in that the Appellant seeks to obtain leave to bring in additional grounds of mixed law and facts and this leave is only for the newly added not to the existing ones hence the application for amendment before the court. It is clear that even from the brief it is glaring to the court which one of the grounds is defective for being mixed law and fact. It is at this stage that the Respondent can file a motion on notice against the grounds. At the moment, the preliminary objection is vague; it does not state all the grounds or which one of the grounds is affected. The court cannot go on assumption or speculation. It is trite that if there is one ground of appeal on ground of law in a notice of appeal, it can sustain the appeal. See NWAOLISAH v. NWABUFOH [2011] LPELR-2115 (SC); DAIRO v. UNION BANK OF NIGERIA PLC & ORS. [2007] 16 NWLR (PT.1059) 99. MOHAMMED v. OLAWUNMI [1990] 2 NWLR (PT.1330) 458; ODUNUKWE v. OFOMATA (supra); SOUTH ATLANTIC PET. LTD. V. MINISTER PETROLEUM RESOURCES [2013] LPELR-21892 (SC).
The court is vested with power to strike out the incompetent grounds of appeal and retain only the competent ground of appeal where the objection raised is by motion on notice questioning a particular or some of the grounds of appeal complained to be incompetent. In this appeal, the preliminary objection raised failed to nail a particular ground of appeal as incompetent, therefore this Court cannot speculate. The court cannot throw the baby away with the bathwater by dismissing the appeal because of one incompetent ground.
Much as it’s the law that an amendment cannot cure an incompetent appeal. The cases cited by Respondent are cases where the issue was raised at the appeal stage. This therefore are not relevant except that it is a principle of law that leave must be had and obtained before notice of appeal containing grounds of mixed law and facts are filed. The preliminary objection is therefore premature and is hereby struck out.
I shall now determine the application of the Appellant dated 27/6/14 wherein it seeks the orders earlier reproduced. The application was brought pursuant to Sections 36(1) and 242(2) of the Constitution of Federal Republic of Nigeria, 1999; Section 24(4) of the Court of Appeal Act and Order 6 Rule 15 and Order 7 Rules 4 and 10 of Court of Appeal Rules, 2011. Same is supported by a 19 paragraphs affidavit deposed to by one Adedunmade Onibokun. I shall reproduce parts of the affidavit in the determination of the motion on notice.
“1. ….
2. ….
3. ….
4. ….
5. ….
6. ….
7. ….
(i) He has started preparing the Appellant’s Brief of Argument in respect of this appeal.
(ii) After reading the Notice of Appeal dated, 14/4/14 as well as the ruling of the Lower Court delivered on 4/4/2014, he realized that the Notice of Appeal earlier filed in the proceedings had not been amended contrary to his notion.
(iii) It is necessary to amend the Notice of Appeal to incorporate additional grounds of appeal.
8. I was earlier instructed by the learned senior counsel for the Applicant to prepare the requisite application for leave to appeal against the ruling of the Lower Court on additional grounds of appeal, which are grounds of mixed law and facts and/or facts simpliciter, immediately after the initial Notice of Appeal dated 14/4/2014 was filed on behalf of the Applicant.
9. Upon the preparation of the additional grounds of appeal and an Amended Notice of Appeal incorporating the said additional grounds of appeal, I inadvertently forgot to prepare and file the necessary application in that regard until my attention was drawn to that fact on 16/6/2014 by the Applicant’s learned senior counsel.
10. …
11. ….
12. The additional grounds of appeal referred to in paragraph (11) above raised substantial issues relating to the assignment of the Respondent’s indebtedness to Asset Management Corporation of Nigeria and whether the Applicant, indeed, acquired the subject matter of the suit before the Lower Court from the defunct Intercontinental Bank Plc.
13. The additional grounds of appeal sought to be filed by the Applicant are very fundamental to the Applicant’s appeal and, are arguable and stand a reasonable chance of success.
14. I know that the Applicant cannot effectively prosecute the present appeal without the benefit of the additional grounds of appeal sought to be filed by the Applicant.
15. …
16. …
17. The Applicant is willing to pursue the present appeal expeditiously and diligently.
18. The Applicant will be seriously prejudiced by the refusal of this application.
19. …”
The Respondent countered the Appellant’s application by 8 paragraphs Counter Affidavit deposed to by Thompson Ashojo wherein he denied averments contained in paragraphs 6 – 18 of the Appellant’s application as well as contended that the grounds of appeal in the Appellant’s notice of appeal contained grounds of mixed law and facts and that the notice of appeal dated 14/4/2014 did not satisfy the condition precedent by obtaining leave of the court.
I have combed the affidavit in support of the application and the counter affidavit of the Respondent; the rule of this court accommodates with leave; the filing of additional grounds of appeal, Order 6 Rule 15 of the Rules of this court provides that a notice of appeal may be amended by or with the leave of the Court at any time. In INEC & ORS v. EJEZIE & ORS. [2010] LPELR-43119(CA), this court held that all that is required for an appellant who appealed within time and wishes to file additional grounds out of time is to obtain the leave of this court to do so. It is trite that once there is a valid appeal, the grounds of appeal can be amended. See also INTEGRATED DATA SERVICES v. ADEWUNMI [2006] ALL FWLR (PT.292) 143 at 154; TAHIR & ANOR v. BANK OF THE NORTH (2007) ALL FWLR (PT.288) 1072 at 1090 -1091. I adopt the reasoning of the court in the cases cited above as mine that the Appellant is required to seek the leave of this court in filing additional grounds of appeal which are grounds of mixed law and facts and/or fact. The leave of court for an extension of time is a preliminary step to the amendment. From the application of the Appellant, the leave for an extension of time was sought as well as leave to amend the notice of appeal to incorporate the new grounds. Order 7 Rule 10 (1) of the Rules of this Court states:
“(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.”
The depositions in the Affidavit in support of the Appellant’s application are to the effect that the additional grounds of appeal raised issues that are related to the indebtedness of the Respondent to Asset Management Corporation of Nigeria and whether the Applicant acquired the subject matter of the suit before the Lower Court from the defunct Intercontinental Bank Plc.
I am of the view that having held that the initial notice of appeal is valid, same can be amended to incorporate the new grounds of appeal, for the purpose of ventilating the grouse of the Appellant before the court.
On this note, I shall allow the prayers contained in the application of the Appellant dated 27th June, 2014, save for prayer (2) which does not relate to the additional ground of appeal. Prayer (2) of the said motion is therefore struck out. The said Amended Notice of Appeal is to be filed within 14 days of this Ruling and Appellant’s brief is to be filed and served accordingly. No order as to cost.
SIDI DAUDA BAGE, J.C.A.: I have read, before now, the detailed judgment in draft just delivered by my learned brother, Abimbola O. O. Adeiumo, JCA. I must say that the reasoning and conclusion reached in the Ruling are in accord with mine. I adopt them as mine, and in conclusion, I too join my learned brother in holding that the Amended Notice of Appeal is to be filed within 14 days of this Ruling and Appellant’s brief is to be filed and served accordingly.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I have the honour of reading in print the succinct ruling prepared by my learned brother Abimbola Osarugue Obaseki-Adejumo, J.C.A., with which I agree and adopt as my ruling with nothing extra to add.
Appearances
Chief F. O. Fagbohungbe SAN with Yomi Adeniran For Appellant
AND
G. K. Abdusalam For Respondent
