AMERICA SPECIFICATION AUTOS LIMITED & ANOR v. ASSET MANAGEMENT CORPORATION OF NIGERIA
(2017)LCN/10198(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of July, 2017
CA/L/66A/2013
RATIO
GROUNDS OF APPEAL: WHETHER THE LEAVE OF THE COURT IS REQUIRED TO FILE AND ARGUE GROUNDS OF APPEAL THAT BORDERS ON LAW
Accordingly, from close study of the grounds of appeal as I am bound to do; the said grounds of appeal are on law and did not require the leave of the Court to file and argue them on the appeal vide Section 241(b) of the 1999 Constitution and the cases of Akinyemi v. Odu’a Investment Co. Ltd. (2012) 17 NWLR (pt.1328) 209 at 232 – 233, Rabiu v. Adebajo (2012) 15 NWLR (Pt.1332) 125, Loveleen Toys Ind. Ltd v. Komolafe (2013) 14 NWLR (pt.1375) 542. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
INHERENT POWERS OF THE COURT: MEANING OF INHERENT POWERS OF THE COURT
In my modest view, inherent powers are such powers that are innate or reside in superior Court of record (the Court below, for instance) which are necessary for the proper, complete and effective administration of justice and essential to the existence of the superior Court of record for it to ensure that the stream of justice remains pure and unpolluted at all material times vide Ajayi v. Omorogbe (1993) 7 SCNJ 168, Dingyadi and Anor. v. INEC and Ors. (2010) 7-12 S.C. (pt.111) 1 or (2010) 18 NWLR (Pt.1224) 1. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH 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
1. AMERICA SPECIFICATION AUTOS LTD
2. CHIEF FELIX CHUKWUDI AMAEFUNA Appellant(s)
AND
ASSET MANAGEMENT CORPORATION OF NIGERIA Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the decision of the Federal High Court sitting in Lagos (the Court below), whereby it dismissed an application by the appellant for mandatory injunction to restore possession of the property No. 15 Isanlu Street, Ajao Estate, Lagos to them by way of re-possession from the respondent.
It happened that the respondent sought for and obtained ex parte injunctive orders for interim attachment of the landed property of the appellants located at Mushin, Lagos and for the bailiff of the Court below to be given possession of the property at No. 15 Isanlu Street, Ajao Estate and that the Inspector-General of Police should assist the bailiff in repossessing the property. The appellants’ application to have the order of re-possession set aside and possession thereof restored to them was refused by the Court below.
Not satisfied with the decision by the Court below the appellants filed a notice of appeal with three (3) grounds of appeal. The respondent filed a notice of preliminary objection to the notice of appeal on 21-06-16 which was argued in the
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respondent’s brief of argument filed on 21-06-16 to the effect that the decision refusing to set aside the ex parte orders being interlocutory and the grounds of appeal being on mixed law and facts the failure by the appellants to obtain the leave of the Court before filing the grounds of appeal in the notice of appeal rendered the grounds of appeal incompetent and deprived the Court of the competence and the jurisdiction to determine the appeal and should be struck out vide Ohajunwa v. Obelle (2008) 3 NWLR (Pt.1073) 52 at 72 – 73, Nwekeson v. Onuigbo (1991) 3 NWLR (pt.178) 125 at 131, Bello v. Pategi (2000) 8 NWLR (pt.667) 21 at 29, Nasiru v. Bindawa (2006) 1 NWLR (pt.961) (no pagination) Sections 241 and 242(1) of the 1999 Constitution, First Fuels Ltd. v. N.N.P.C. (2007) 2 NWLR (Pt.1018) 276 at 293, 295, Mobil Production Nigeria Unlimited v. Ayeni (2008) 1 NWLR (Pt.1067) 185 at 206, Madukolu v. Nkemdilim (1962) All NLR (pt.2) 581 at 583.
The reply brief filed on 16-05-17 contended against the preliminary objection that the order sought was for mandatory injunction and appealable as of right under Section 241(f)(ii) of the 1999 Constitution; more so the
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grounds of appeal are purely on law which does not also require the leave of the Court under Section 241(b) of the 1999 Constitution, which did not require the leave of the Court to have the appeal filed on the said grounds of appeal, therefore the preliminary objection should be dismissed.
The prayers sought by the appellants at the Court below were for mandatory injunction directing the respondent to return possession of the property at No.15 Isanlu Street, Ajao Estate Lagos by the bailiff of the Court below assisted by the Inspector-General of Police to the appellants. Being an application for mandatory injunction which was refused by the Court below, the appellants were entitled as of right to file the notice and grounds of appeal against the decision of the Court below refusing to grant the prayer for mandatory injunction vide Section 241(f)(ii) of the 1999 Constitution thus-
?An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases;<br< p=””
</br<
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?
Where an injunction?.is granted or refused.”
The grounds of appeal in pages 105 – 106 of the record of appeal (the record) are grounds of law: ground 1 is on jurisdiction; ground 2 on the failure by the Court below to determine whether there was proper execution of its order and whether vesting the property in the bailiff of the Court when the bailiff had not been in possession thereof was right in law as possession is 9/10th of the law; and ground 3 on the refusal by the Court below to rule on the objection to its jurisdiction to entertain the application which is a ground on fair hearing and thus a ground of law.
Accordingly, from close study of the grounds of appeal as I am bound to do; the said grounds of appeal are on law and did not require the leave of the Court to file and argue them on the appeal vide Section 241(b) of the 1999 Constitution and the cases of Akinyemi v. Odu’a
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Investment Co. Ltd. (2012) 17 NWLR (pt.1328) 209 at 232 – 233, Rabiu v. Adebajo (2012) 15 NWLR (Pt.1332) 125, Loveleen Toys Ind. Ltd v. Komolafe (2013) 14 NWLR (pt.1375) 542. I would dismiss the preliminary objection for lacking in merit in consequence.
The appellants argued on the merit of the appeal that the respondent was not issued with a warrant of possession of immovable property so the execution of the order of the Court below during the pendency of the motion fixed the following day to set aside the ex parte order vesting the property in the bailiff of the Court below was done without jurisdiction and amounted to self help vide Government of Gongola State v. Tukur (1989) 1 S.C. 105, Sections 20, 24, 25, 35, 38, 44, 55, 57, 58, 65 and 82 of the Sheriffs and Civil Process Act, Ojukwu v. Governor of Lagos State (1985) 2 NWLR (pt.10) 806.
It was also argued that whilst the Court below restored possession of the property to the respondent, it reversed itself to order that the possession of the property be restored to the bailiff of the Court below when the bailiff was not in prior possession of the property and no application was made for such
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an order, therefore the Court below was wrong in making the order in favour of a party who did not request for it and was also not a necessary party in the case as to reap from the order of the Court below vide A.-G., Federation v. A.-G., Abia State (2001) 7 S.C. 32 at 102, Plateau State v. A.-G., Federation (2006) 1 S.C. (Pt.1) 1, MacFoy v. U.A.C. (1962) A.C. 152, Madukolu v. Nkemdilim (1962) 1 All NLR 587.
The appellants argued that Order 56 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 (rules of the Court below) under which the application was brought does not empower the Court below to use the might of the police to eject a man from his house when the person has not even been heard and when there was no application for committal proceedings; more so the Court below issued the order without relying on any evidence, consequently the appeal should be allowed vide Abbas v. Solomon (2001) 7 S.C. (Pt.11) 45.
?The respondent contended in the brief of argument that the statutory provisions of the Sheriffs and Civil Process Act referred to (supra) are on the execution of final judgment not interlocutory orders which cannot be enforced
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as final orders vide Government of Gongola State v. Tukur (supra), but that Order 56 of the Rules of the Court below read with Section 49 of Asset Management Corporation of Nigeria (AMCON) Act 2010 permit the Court below to enforce the interim order to prevent the appellants from selling or disposing of the property pending the determination of the action for the recovery of the debt of N246,441,799.39 owed by the appellants.
The respondent contended that the particulars on ground 3 of the notice of appeal do not flow from the complaint in the ground of appeal nor does issue two flow from the ground of appeal therefore the ground 3 of the notice of appeal and issue 2 should be struck out, and that, in the alternative, the Court below enforced the interim order to preserve and protect its dignity and guard its inherent powers and regularise the proceedings vide Mobil Oil (Nigeria) Ltd. v. Assan (1995) 8 NWLR (Pt.412) 143, Globestar Eng. Co. (Nig.) Ltd. v. Malle Holdings Ltd. (1999) 10 NWLR (pt.622) 270 at 285, A.G., Anambra State v. Okeke (2002) 12 NWLR (Pt.782) 113; upon which the respondent advocated for the dismissal of the appeal.
The ex parte order enforced by the Court below was interim,
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not final; so the provisions of the Sheriffs and Civil Process Act (supra) dealing with the enforcement of final orders do not apply here. Rather Section 6(6)(a) of the 1999 Constitution vests inherent powers and sanctions in the Court below to inter alia give effect to its interim orders notwithstanding anything to the contrary in the Constitution or any other written law.
In my modest view, inherent powers are such powers that are innate or reside in superior Court of record (the Court below, for instance) which are necessary for the proper, complete and effective administration of justice and essential to the existence of the superior Court of record for it to ensure that the stream of justice remains pure and unpolluted at all material times vide Ajayi v. Omorogbe (1993) 7 SCNJ 168, Dingyadi and Anor. v. INEC and Ors. (2010) 7-12 S.C. (pt.111) 1 or (2010) 18 NWLR (Pt.1224) 1.
The Court below was thus right in enforcing the preservative order in question and refusing to issue a mandatory order restoring the property back to the appellants as to have done otherwise would have made nonsense of the
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preservative powers of the Court over property in dispute pending the determination of the dispute as provided by Sections 49 and 50 of AMCON Act read with the omnibus Order 56 of the Rules of the Court below as well as Section 6(6)(b) of the 1999 Constitution and Sections 287(3) and 318(1) thereof charging all authorities and persons all over the Federation to enforcing the decision (judgment, decree, order, conviction, sentence or recommendation, my emphasis) of the Court below (the Federal High Court).
The Court below also acted aright, in my opinion, when it vested the control of the property in its officer, a neutral person, who stood to gain nothing from the property as to suggest the property was given to a party in the litigation ex gratia for that party to obtain an edge or advantage over the adversary in the case vide Order 28 Rule (2) and Order 30 of the Federal High Court (Civil Procedure) Rules 2009 (the rules of the Court below) and the case of Anyanwu v. EFCC (2013) 3 BFLR 183.
?I agree that ground 3 of the notice of appeal in page 106 of the record does not have any particulars on the role of the police in enforcing the ex parte order
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of the Court below, therefore the arguments on the role of the Nigerian Police Force in the matter go to no issue; but out of the abundance of caution, I respectfully state that by enlisting members of the police force to enforce the interim preservation order, the Court below acted within Sections 287(3) and 318(1) of the 1999 Constitution.
On the whole, I find the appeal unmeritorious and hereby dismiss it and uphold the decision of the Court below (Idris, J.).
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the opportunity of reading the judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH, J.C.A. and I agree with the reasoning and conclusion reached.
I also dismiss the appeal and abide by all the consequential orders made in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, JOSEPH SHAGBAOR IKYEGH, JCA afforded me an opportunity of reading in draft the leading judgment just delivered.
?I am of the modest view that a combined construction of the Section 6(6)(b), 287(3) and 318(1) of the 1999 Constitution and the miscellaneous
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provisions of Order 56 of the Federal High Court Rules, clearly empowers the Court to enforce the order, albeit interim, made by the Lower Court.
?I have nothing more useful to add other than to say that I agree with the fuller reasoning in the leading judgment to hold that this appeal is devoid of merit.
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Appearances:
Mr. J. DuruFor Appellant(s)
Mr. C. Nneke with him, Mr. F. IhedoroFor Respondent(s)
Appearances
Mr. J. DuruFor Appellant
AND
Mr. C. Nneke with him, Mr. F. IhedoroFor Respondent
