BARR. A. N. C. MBANEME & ORS v. G. N. NWOLISAH & ORS
(2019)LCN/13586(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of June, 2019
CA/OW/31/2018
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. BARR. A. N. C. MBANEME
2. DR. CHIKE OBIDIGBO
3. CHIEF CHRISTOPHER A. CHINWEZE
4. MAXWELL ONYEKWULUJE Appellant(s)
AND
1. G. N. NWOLISAH
(Trading under the name and style of G. B. VITALIS CO. NIG)
2. PASCHAL NWABUFOH
(Trading under the name and style of PASKODI MARITIME AGENCIES)
3. CHIEF REGISTRAR, HIGH COURT OF JUSTICE, ABIA STATE
4. THE COURT ADMINISTRATOR, HIGH COURT, ABA Respondent(s)
RATION
WHETHER OR NOT A GROUND OF APPEAL NOT RELATED TO A RATIO DECEDENDI IS VOID
A Ground of Appeal that is not related to a challenge to the validity of any ratio decidendi in the decision on appeal is void and liable to be struck out ? citing F. M. B. N. v. NDIC (1999) 2 NWLR (PT. 591) 333; NGIGE v. OBI (2006) 14 NWLR (PT. 999) 1; GALLAHER LTD v. B. A. T. (NIG) LTD (2015) 13 NWLR (PT. 1476) 325. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Abia State delivered on the 5th of December 2016.
The Appellants Applicants had filed an interpleader summons by action commenced at the High Court of Abia State.
The Respondents/Judgment Creditor filed a Notice of Preliminary Objection challenging the jurisdiction of the Court to entertain the interpleader summons.
The Court below dismissed the Interpleader Summons/Preliminary Objection.
While the Interpleader Summons was pending before C. C. T. Adiele J, the Administrative judge of Aba Judicial Division signed a Writ of attachment for the sale of the property known as No 114 Cameroun Road, Aba. When the Appellants protested; the matter was transferred back to Adiele J.
Appellants filed a motion on Notice to stay the sale of the property known as No 114 Cameroun Road Aba, and to set aside the Writ of attachment and sale of the said property.
Again, the Respondent Judgment Creditor brought a Preliminary Objection challenging the jurisdiction of the trial Court.
?The Court below upheld the
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Preliminary Objection of the Respondent/Judgment/Creditor and struck out the application to stay the sale of the property, and attachment of No 114 Cameroun Road, Aba.
Notably, according to the Appellant is that the Interpleader Summons of the Appellants was not entertained by the trial Court, even after in an earlier ruling, the Court has ruled that it has the jurisdiction to entertain the same.
This is why this Appeal.
The Appellants filed a Notice of Appeal on the 15th of December 2016 (Pages 151 ? 154 of the Record of Appeal) with three (3) Grounds of Appeal).
The Appellants? brief of argument was filed on the 12th of June 2018. It is settled by CHINEDUM ORJI, ESQ.
The 1st Respondent filed a brief of argument on the 4th of March 2019. It is settled by O. R. ULASI, SAN.
Pertinent to note that the 1st Respondent filed its brief of argument on the 4th of March 2019 (9 months after the receipt of the Appellants brief.) There is nothing to show that the 1st Respondent obtained an extension order from the Court. By the 1st Respondent?s brief it shows that it was filed clearly out of time.
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The Appellant distilled three (3) issues for determination from its brief of argument. They are:-
1. ?Whether the trial Court was right in ordering for the sale of No 114 Cameroun Road, Aba to satisfy the Judgment of the Judgment Debtor, who is not the owner of the said No. 114 Cameroun Road, Aba.
2. Whether the trial Court was right in holding that he lacked jurisdiction to entertain the Appellants? application.
3. Whether the trial Court was right in not hearing the Interpleader Summons of the Appellants?
The 1st Respondent proffered one (1) issue for determination which is:-
?Whether on the facts and materials placed before the Court, the learned trial Judge was right in upholding the 1st Respondent?s Preliminary Objection, and striking out the Appellants? motion on notice dated the 2nd day of October 2014, and filed on the 3rd day of October, 2014, for want of jurisdiction?
The 1st Respondent had filed a Notice of Preliminary Objection which is subsumed in Paragraphs 3.0.1.a to 3.0.1.c. of the brief of Argument.
?
The Preliminary Objection is to the effect that the Appellants Grounds
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of Appeal are incompetent. The Grounds for the Preliminary Objection are as follows:-
a. None of the Appellants? grounds of appeal arose from the decision appealed against.
b. The Appellants? appeal is against the decision of the Abia State High Court, Aba Judicial Division, delivered on the 5th day of December, 2016 by Hon. Justice K. O. Wosu.
c. In the said decision, the learned trial judge after hearing argument on the Preliminary Objection merely declined jurisdiction to entertain the motion on notice dated the 2nd day of October, 2014, and filed on the 3rd day of October, 2014, because the Court of Appeal, Enugu Division, in appeal No CA/E/129/2013 ? NWOLISAH v. NWABUFOH, has become seized with the subject matter of the Appellants?, application.
d. No interpleader summons was filed by the Appellants.
e. The learned trial judge did not decline jurisdiction to hear any interpleader summons and none was dismissed by
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him?.
I deemed it pertinent to consider the Preliminary Objection first before I go on to consider the merits of the Appeal if necessary.
Arguing the Objection, the 1st Respondent submits that a the Ground of Appeal must be directed against a ratio decidendi of a lower Court. That an appeal presupposes the existence of a judgment, Ruling, decision or any pronouncement of a lower Court.
Therefore, he submits, a Ground of Appeal that is not related to a challenge to the validity of any ratio decidendi in the decision on appeal is void and liable to be struck out ? citing F. M. B. N. v. NDIC (1999) 2 NWLR (PT. 591) 333; NGIGE v. OBI (2006) 14 NWLR (PT. 999) 1; GALLAHER LTD v. B. A. T. (NIG) LTD (2015) 13 NWLR (PT. 1476) 325.
Submits that the Grounds of Appeal do not arise from the decision of the Court below.
?
That the Preliminary Objection is saying that the Court below has nothing to do with the
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interpleader proceedings, but the motion on notice dated 2nd of October 2014, and filed on the 3rd of October 2014. That this motion is not an Interpleader Summons as provided for by the provisions of the Sheriff and Civil Process Act, Cap 56 2004, and Order VI Rules 2 and 4, of the Judgment Enforcement Rules 2004.
Submits that the Appellants? having failed to anchor the Grounds of Appeal on the decision of the learned trial judge, all the Grounds of Appeal are incompetent and that the Appeal is liable to be dismissed.
Submits that assuming (but without conceding) that the Grounds of Appeal are competent, the 1st Respondent proposes to argue in the alternative the appeal on the merit, on the basis of the issue for determination proffered by the 1st Respondent.
?
The Ruling which is being appealed, emanated from a Notice in a motion filed on the 3rd of October 2014, praying the Court below for an order of Court for:-
(a) ?Stay of the sale of the property municipally known as and called No. 114 Cameroun Road, Aba in satisfaction of the judgment in suit No. SC/211/2013 G. N. Nwolisah V. Paschal Nwabufor and Anor
(b) An order
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setting aside the Writ of Attachment and sale of the said No. 114 Cameroun Road, Aba and the Notice of attachment issued by this Court?.
The Applicants had argued that the Court below had the requisite jurisdiction to determine the main application without addressing the jurisdictional implication of the appeal over the same, or subject matter, i.e. No. 114 Cameroun Road, Aba.
The Court below had said inter alia:-
?There is no doubt that under the authorities earlier cited and relied on by the Appellants that this Court has the jurisdiction in an interpleader proceeding since the subject matter is within jurisdiction. However the question is whether the trial Court still has the jurisdiction to proceed with same when it has been clearly and undisputedly demonstrated that appeal has been entered with respect of the said interpleader proceedings. The exhibits particularly exhibits GNN2, GNN3, GNN4 and GNN5 show that the said appeal is not pending but has been entered
It continued
This Court qualifies as a trial Court and is bound by the settled principle that the trial Court or lower Court
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lacks every jurisdiction to take any proceedings interlocutory or otherwise after appeal has been entered?
The Preliminary Objection was upheld on the ground that the Court below lacks the jurisdiction to proceed with the main application ? Pages 179 ? 180 of the Record of Appeal.
Let me reproduce verbatim the Grounds of Appeal filed by the Appellant, shorn of their particulars.
GROUND ONE ? ERROR OF LAW
?The learned trial judge erred in law by ordering the sale of the property of the Applicants to satisfy judgment debt of another person?
GROUND TWO ? ERROR OF LAW
?The learned trial judge erred in law in dismissing the interpleader summons initiated by the Applicants/Appellants?
GROUND THREE ? ERROR OF LAW
?The learned trial judge erred in law when he held that he lacked jurisdiction to entertain the interpleader summons?
It seems to me that while Ground No 1 of the Grounds of Appeal does not flow from the Ratio decidendi of the Ruling of the 5th of October 2016, Grounds 2 and 3, however flow from the Ratio decidendi in the
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Ruling.
Accordingly Ground No 1 of the Grounds of Appeal is hereby struck out. Issue No 1 founded on it is hereby struck out. The Preliminary Objection is upheld in part.
THE MAIN APPEAL
A Cursory look at the three issues for determination proffered by the Appellants, shows that the fulcrum of the issues is the refusal and/or failure of the Court below to entertain the Appellants? application for want of jurisdiction, and failure to entertain the Interpleader Summons of the Appellants.
Ground No 1 having been struck out, carries along with it Issue No 1 founded on it.
Simply put, I am of the view that the reasons adduced by the Court below, for not entertaining the application of the Appellant in the Court below is that the appeal in respect of the subject matter of the suit has been entered in the Court of Appeal.
Interestingly, the Appellant has not controverted any of this observation by the Court.
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If indeed there was an appeal filed by the judgment debtor against the decision of the Anambra State High Court presided over by Hon. Justice P. C. Obiorah for the attachment and sale of the judgment debtor?s
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immovable property including No 114 Cameroun Road, Aba, and the said appeal is pending in the Court of Appeal, Enugu Division and same having been entered, it is now the Court of Appeal, Enugu Division that is seised of the matter.
Records show that dissatisfied with the decision of the Anambra State High Court granting leave to the judgment creditor to issue a Writ of attachment and sale of the judgment debtor?s immovable property including No 114 Cameroun Road, Aba, the judgment debtor appealed same to the Court of Appeal Enugu Division. Indeed the appeal came up for hearing on the 20th of October 2014, and was adjourned to 28/1/2015. That the property the subject matter of this appeal had been attached and fixed for sale on the 20th of October 2014, but the sale could not go on because a motion for the stay of the sale was filed by the Respondents/Applicants.
The Court below was therefore right to have declined jurisdiction to entertain the matter, and upholding the Preliminary Objection as he did.
The issues formulated by the Appellants are therefore resolved in favour of the Respondents and against the Appellants.
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The Appeal is
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devoid of merit and same is dismissed by me. The Ruling of the High Court of Abia state holden at Aba, delivered on the 9th of December 2016 in suit No. O/127/86, is hereby affirmed.
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N30,000 in favour of the 1st Respondent only and against the Appellants.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree
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Appearances:
CHINEDUM ORJI, ESQ.For Appellant(s)
O. R. ULASI, SAN.For Respondent(s)
Appearances
CHINEDUM ORJI, ESQ.For Appellant
AND
O. R. ULASI, SAN.For Respondent