CHIEF THEODORE EZEOBI, S.A.N. v. DAILY TIMES OF NIGERIA PLC
(2013)LCN/6742(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2013
CA/L/898/2008
RATIO
WHETHER AN APPELLANT IS BOUND BY THE PRAYERS IN HIS MOTION
It is trite that parties are bound by the prayer(s) in the motion paper. See Commissioner For Works, Benue State and Anor. v. Devcon Development Consultants Ltd and Anr. (1988) 3 NWLR (pt. 83) 407 at 420 where the Supreme Court held in the lead judgment of Karibi-Whyte, J.S.C., that:-
“It is well settled that a plaintiff is bound by the case put forward in writ of summon, as in A.C.B. Ltd. v. Attorney-General, Northern Nigeria (1969) NWLR 231. Similarly, an applicant will be bound by the prayers in his motion.” (my emphasis). Per JOSEPH SHAGBAOR IKYEGH, J.C.A.
Before Their Lordships
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
Between
CHIEF THEODORE EZEOBI, S.A.N.Appellant(s)
AND
DAILY TIMES OF NIGERIA PLCRespondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal arose from a decision of the Federal High Court of Justice sitting in Lagos (the court below) refusing the motion brought by the appellant to direct the Official Receiver/Provisional Liquidator to protect the assets of the respondent pending the determination of the winding up petition filed by the appellant to liquidate the respondent.
Sketchily stated, the appellant, a Senior Advocate of Nigeria (SAN), was at all material times an external solicitor of the respondent. In the course of the retainership, the respondent who was experiencing chronic financial instability accumulated debts of N18 million from the legal services rendered her by the appellant. Concerted effort was made by the appellant to recover the debt. It yielded no positive result, as the respondent’s liquidity had dried up.
Sensing the respondent was cash strapped and could not discharge the admitted indebtedness, the appellant, as a creditor, filed a petition for the winding up of the respondent at the court below. By the calculation of the appellant, the liquidation of the respondent would afford him the opportunity to recover the N18 million admitted indebtedness from the sale or disposal of the assets of the respondents.
Hence the winding up petition at the instance of the appellant against the respondent at the court below and the move by the appellant to secure the assets of the respondent from dissipation by requesting the court below on motion on notice to direct the Official Receiver/Provisional Liquidator of the respondent, one Mrs. Mba, to gather together and protect the assets of the respondent pending the outcome of the winding up petition.
The court below refused the motion. It held that it would not appoint an Official Receiver on the grounds that a subsisting order of another Federal High Court (Nyako, J.) had appointed Official Receiver for the respondent and that the appellant should have sued for his solicitor’s fees in an ordinary action instead of bringing the winding up petition at the court below, upon which it struck out the winding up petition.
Not unnaturally, the appellant was dissatisfied with the decision of the court below. He challenged it in a notice of appeal containing five grounds of appeal on 19.10.07. In a brief of argument filed on 17.02.10, but deemed properly filed on 26.01.13, the appellant derived two issues for determination as follows-
“(i) Whether having regard to the facts and circumstances so far of this winding up petition, some of the conclusions properly reached by the trial judge in the Ruling under appeal including that,
“It is not in doubt that the petitioner is a creditor,” the learned trial Judge was right in going outside the prayers and reliefs in the motion paper as canvassed before the court by the parties, incorporating strange and irrelevant elements and purporting to determine the same and ending in, suo motu, striking out the entire winding up petition. (Grounds 1, 2, 3(b) & 5)
(ii) Whether, it was at all open to the trial Court to dictate to the petitioner/applicant which of various competing remedies the petitioner should pursue in a court of law.
(Grounds 3 (a) & 4).”
As a prelude to arguments on the issues (supra), the appellant’s brief made some scathing comments on the alleged treacherous manner some of his learned colleagues caused him to lose the retainership of the respondent and the grasping way the new owners of the respondent, Folio communication, Limited, were frittering away the assets of the respondent. The appellant’s swipe was in material particular on a chief Anthony Idigbe, SAN, who at a certain point in time was appointed interim or provisional Receiver/Manager of the respondent by Folio communications Limited. Some uncomplimentary statements were made concerning the person of Chief Anthony Idigbe, learned SAN, by the appellant in respect of his management of the affairs of the respondent as her erstwhile interim Receiver/Manager.
It was submitted that the court below digressed from the prayers sought in the motion paper to hold that the respondent was in receivership under the N.D.I.C. by an order of another Federal High court, (Nyako, J.), so the application by the appellant for the court below to appoint its Deputy chief Registrar official receiver of the respondent was not grantable, whereas no such prayer was asked for in the motion moved by the appellant and replied to by the respondent, and whereas pages 55 – 57 of the record of appeal (the record) mentioned the appointment of counsel for the respondent, not the appointment of the receiver of the respondent by the said Federal High Court. Consequently, the court below veered off the mark when it held that Nyako, J., had settled the issue of the appointment of an Official Receiver for the respondent which was not one of the prayers in the motion paper, therefore the court below erred by ignoring the prayers in the motion paper to issue orders not asked for and unrelated to the application before it vide Ekpenyong and Ors. v. Nyong and Ors. (1975) 2 SC 71, Commissioner for Works, Benue State and Anor. v. Devcon Development Consultants Ltd. and Anor. (1988) 3 NWLR (pt. 83) 407, Fadlallah v. Arewa iles Ltd (1997) 8 NWLR (pt. 518) 546 at 559.
It was argued on the second issue that it was not the function of the court below to advise the appellant on the remedy open to him when the court below found as a fact that the appellant was the respondent’s creditor, therefore for the court below to turn round to hold that the appellant was wrong to institute winding up proceedings against the respondent was perverse having regard to the appellant’s undoubted right to maintain the action vide International Merchant Bank (Nigeria) Ltd. v. Speegalfs Company (Nigeria) Ltd. (1997) 3 NWLR (pt. 494) 423, Pure Way Corporation Nigeria Ltd. (1978) 2 LRN 70 at 72 read with section 410 (1) (6) of the companies and Allied Matters Act (CAMA).
The appellant then urged that the appeal be allowed and the ruling of the court below set aside with consequential order that the motion be heard afresh by this Court under section 16 (now section 15) of the Court of Appeal Act read with Order 4 of the Court of Appeal Rules, 2007, and the case of Victoria Okotie-Eboh and Ors. v. Adolo Okotie-Eboh and Ors. (1986) 1 SC 479 at 495 – 502.
The respondent’s brief was filed on 30.3.12, but deemed properly filed on 15.01.13. The brief submitted a single issue for determination as follows-
“Whether having regard to the proceedings on the winding up petition the court below was correct to have struck it out.”
The respondent referred to another ruling of the court below delivered on 18.10.2006, respecting the role of Chief Anthony Idigbe, SAN, in running the affairs of the respondent and observed that the ruling was not appealed against. The respondent added that the complaints relating to the systematic dissipation of her assets were addressed in earlier proceedings and, that in the course of arguing the appellant’s motion the respondent submitted on the propriety of the winding up petition based on her preliminary objection to the petition itself and the preliminary objection to the motion, which the court below utilised in its ruling striking out the winding up petition for lacking in good faith having regard to the Legal Practitioner’s Act.
The brief proceeded to submit on the issue for determination on the appeal in this vein. That it is the duty of the Court to an appellate to see whether the decision of the court below is correct, not whether its reasons are sustainable, as it is not every error that would lead to a reversal of the judgment of a trial court, except the error is shown to have caused miscarriage of justice vide I.T.P.P. Ltd. v. U.B.N. PLC (2006) 12 NWLR (pt. 995) 483 at 504, Nwavu v. Okoye (2008) 18 NWLR (pt. 1118) 29 at 51; that the essence of the decision of the court below was that the winding up petition was an abuse of the process of the court and; consequently the application of the appellant which was based on the winding up petition was incompetent as well as the winding up petition itself, as submitted by the respondent at the court below, therefore the court below was right to terminate the incompetent winding up petition in the course of ruling on the appellant’s motion, which it was also right in refusing at the end of the day vide Ojo v. A.G. Oyo State (2008) 15 NWLR (pt. 1110) 312 at 327 – 328, Abubakar v. B.O.A.P. Ltd. (2007) 18 NWLR (pt. 1066) 319 at 378.
The respondent’s brief elaborated on what constituted abuse of the process of the court below that the alleged debt asserted by the appellant was unascertained and not within the contemplation of CAMA; that a petition for winding up was not a prescribed procedure for the recovery of professional fee owed a legal practitioner, as the special procedure for the recovery of such fee is provided under the Legal Practitioners Act which prevails over the provisions of CAMA; that the petition itself was premised on the alleged acknowledgement of the debt by a Chief Idigbe, SAN, or someone claiming to be company Secretary of the respondent as her Receiver/Manager which position was swept away by a ruling of the court below delivered on 18.10.2006, which removed the substratum upon which the petition stood; all the more so the court below found that the appellant and Chief Idigbe, SAN, were “hand in gloves” or in a conspiracy to bring about a result that would harm the interest of the respondent, which was a finding of bad faith on the part of the appellant which sufficed to earn the striking out of the petition.
The respondent’s brief also argued that for section 210(a) of CAMA to apply in a winding up petition for the recovery of professional fee by a Legal Practitioner, the debt must be one which is seen objectively or acknowledged as owing and arising from certain or express agreement, not a disputed debt or one arising from contract or one that did not charge interest thereon, unlike the 40% interest claimed on the alleged debt by the appellant which was not recoverable in a winding up petition vide Hamza International Ltd. v. Mobil Producing Nigeria (1994) 9 NWLR (pt.306) 76; that the winding up petition founded on alleged debt premised on claim for legal fee was not subjected to the procedure for recovery of legal fee stipulated by the Legal Practitioners Act and is on that basis incompetent and an abuse of the process of the court vide G.M.O. Nworah and SMS Ltd. v. Afam Akpata Esq. (2010) 6 NSCR 69 at 84.
It was further argued by the respondent that the findings and conclusion of bad faith on the part of the appellant made by the court below in its ruling of 18.10.2006 put an end to the winding up petition which was rightly struck out as unfairly oppressive and an abuse of the process of the court, consequently, the appeal should be dismissed.
The issues formulated by the appellant are more in tandem with the grounds of appeal than the issue identified by the respondent and the former will be followed in the discourse.
I think the first port of call is to look at the ambit of the interlocutory application that was argued that gave rise to the appeal. The body of the motion in question dated 8.12.2005 was reproduced in the ruling of the court below on pages 200-201 of the record of appeal, unedited, as follows:-
“MOTION ON NOTICE
BROUGHT PURSUANT TO SECTION 6 (6) (a) OF THE CONSTITUTION OF THE FEDERATION OF NIGERIA 1999; ORDER 34 OF THE FEDERAL HIGH COURT RULES 2000; SS. 412, 413, 415, 417, 419, 420, 422, 423, 424, 425 0F THE COMPANIES AND ALLIED MATTERS ACT AND THE INHERENT JURISDICTION OF THE COURT
TAKE NOTICE that this Honourable Court will be moved on… the …Day of ….2006 at the hour of 9’0 clock in the forenoon or soon thereafter as the petitioner/Applicant may be heard for the following Orders:
1. An order directing Mrs. Mba or other the Official Receiver/Provisional Liquidator of (Daily Times of Nigeria Plc) to take full charge and control of all the property and assets of the Daily Times of Nigeria Plc. Including choses in action and immediately assume and exercise his full powers under the Companies and Allied Matters Act so as to give full protection to the interests of and for the benefit of the Petitioner/Applicant, other creditors and contributories in the winding up as required of him by law.
2. An Order directing Mrs. Mba or other the Official Receiver/Provisional Liquidator of (Daily Times of Nigeria Plc) to procure and receive from whosoever has possession of the same, including the Nigerian Deposit Insurance Corporation as the liquidator of Hallmark Bank Plc the sum of N500 million belonging to the Daily Times of Nigeria Plc from the proceeds of sale of its Stock Exchange Building and hold the same in a specially designated account in First Bank of Nigeria plc for the payment of debts due to the Petitioner and other Creditors in the winding up.
3. An Order directing MRS. MBA or other the Official Receiver/Provisional Liquidator of (Daily Times of Nigeria Plc) to procure from the present and immediate past controllers of DTN including Chief Anthony Idigbe SAN and Managing Director, Mr. Okey Igwe appropriate statements as to the affairs of the Daily Times of Nigeria Plc to be verified by affidavit and submitted to the Official Receiver/Provisional Liquidated within such specified time as the Official Receiver/Provisional shall direct as required by law.
4. Accelerated hearing of the winding up petition.
And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.”
The court below held in its ruling on page 211 – 212 of the record, unedited, that:-
“The Petitioner then filed a Motion the subject of this ruling wherein he is praying the court to appoint the Chief Registrar of this Court as the Official Receiver of the Company since there is a vacancy. It is pertinent to note that there is a subsisting order of this court made by Justice Nyako in suit No.FHC/ABJ/CS/409/05, which I mentioned in my earlier ruling that contained that the Receivership of Daily Times is in the N.D.I.C, who is represented by D. V. Izinyon (SAN). The Court cannot therefore appoint anybody as a liquidator to the same company.
The issue whether the petitioner is properly before the court or whether his claim falls within those who can institute a winding up proceedings should have been taken earlier.
It is not in doubt that the Petitioner is a creditor and the proper thing for him to do; instead of filing this Motion is to table his claim before the NDIC who are the official Receivers to settle his claim. It is not encourage by the Court for a Counsel to initiate a winding up proceedings against his clients just because they did not settle his bitts or claims for services rendered. He can come by way of recovery of debt as provided by law. This petition shouldn’t have been filed in the first instance, by the counsel. The application for appointment of the Deputy Registrar as the Official Receiver of the company is refused, since there is already a Receiver in the name of NDIC.
The case is also struck out.”
Also, pages 56 – 57 of the record which contain the ruling of Nyako, J., state, unedited, that:-
“RULING
This ruling stems from the disagreement of Counsel before the Court as to who is competent to represent the Plaintiffs.
On the first Plaintiff, Mrs. Chunu argued to the effect that the 1st Plaintiff being in receivership by the order of Hon. Justice Ogie of the Lagos Division of the Federal High Court only the receiver can institute and undertake any action on behalf of the 1st Plaintiff.
Dr. Izinyon SAN argues otherwise that the order of Court does not say any such and that they were duly appointed to represent the Plaintiff by its Board of Directors. I have read the processes before the Court and either Counsel failed to exhibit the order or if it is the order of Ogie J. made on 5th April, 2005, then I must say that I fail see where in that order, the DTN PLC the 1st Plaintiff in this Suit was placed under receivership to Chief Anthony Idigbe SAN. The 1st Plaintiff in that Suit over which the SAN was made receiver is FCL i.e. the 2nd Plaintiff in this action.
Further, the Defendants in that Suit over which the order was made did not include the 1st Plaintiff herein. It is only the shares of the 1st Plaintiff therein in the 1st Plaintiff herein that were vested in the receiver.
It is elementary law that a Company is a legal entity on its own. Its shares are only part of it and not its whole entity. At this stage I do not find that because Folio Communication Ltd. is a shareholder of Daily Times Nigeria the receivership of Folio Communication Ltd extends to Daily Times Nigeria consequently, I find that Daily Times Nigeria be represented by its Counsel Dr. Izinyon SAN. Further Folio Communication Ltd which is specifically placed under receivership by the order of Ogie J. can only be represented by its receiver.
And I so order.”
I think it is advisable to limit the discussion to what came out of the Ruling of the court below (supra) in connection with what the warring parties ventilated before it. The severe comments on certain named persons made in the parties’ respective briefs who are not parties to this case are not germane to the ruling that brought about the appeal. I refrain from proffering any opinion on them. I most respectfully say no more on that aspect of the case.
The holding of the court below (supra) which determined the motion in question had no bearing on the prayers in the motion paper (supra). For the prayers in the motion did not invite the court below to decided the propriety or otherwise of the appellant’s winding up petition. Nor did the motion request for the appointment of the Deputy Chief Registrar of the court below as interim or provisional Receiver/Manager of the respondent. It did not therefore matter that the respondent made submissions on the said issues which there alien to the motion in question. What was germane and called for the determination of the court below were the prayers in the said motion paper, not the submissions of the respondent that were not hinged on or tied to the said prayers, in my view.
The subsisting order of Nyako, J., referred to by the court below had nothing to do with the removal of Chief Anthony Idigbe SAN as provisional Receiver/Manager of the respondent. It stated categorically on the issue that –
“If it is the order of Ogie J. made on 8th April, 2005, then I must say that I fail to see where in that order, the DTN Plc the 1st plaintiff in this suit was placed under Receivership to Chief Anthony Idigbe SAN. The 1st plaintiff in that suit over which the SAN was made receiver is FCL i.e., the 2nd plaintiff in the action”.
It had to do with the legal representation of the respondent which it settled in favour of Dr. D. V. Izinyon, SAN. So the court below misunderstood the said order and came to the erroneous decision that it related to the removal of Chief Anthony Idigbe, SAN, as Receiver/Manager to the respondent and his replacement therefore by N.D.I.C.
All that the appellant requested in the motion paper was for the court below to order the current Receiver/Manager of the respondent to safeguard or protect the assets of the respondent and to, also, recover the monies belonging to the respondent that were in the hands of third parties for the monies to be in the safe custody of the respondent’s Receiver/Manager in order to ensure the solvency of the respondent so that in the event the winding up petitions succeeds funds will be available for the satisfaction of the debt owed the appellant by the respondent.
It is trite that parties are bound by the prayer(s) in the motion paper. See Commissioner For Works, Benue State and Anor. v. Devcon Development Consultants Ltd and Anr. (1988) 3 NWLR (pt. 83) 407 at 420 where the Supreme Court held in the lead judgment of Karibi-Whyte, J.S.C., that:-
“It is well settled that a plaintiff is bound by the case put forward in writ of summon, as in A.C.B. Ltd. v. Attorney-General, Northern Nigeria (1969) NWLR 231. Similarly, an applicant will be bound by the prayers in his motion.” (my emphasis).
The Supreme Court re-affirmed the position of the law that parties and the Court are bound by the prayers in the motion paper in Government of Gongola State v. Alhaji Umaru Abba Tukur (1989) 4 NWLR (Pt. 117) 592 at 603, where the lead judgment of Obaseki, J.S.C., stated:-
“The Court of Appeal cannot go outside the terms of the motion however, misconceived it is. It is bound by the terms or prayer in the motion filed (Commissioner for Works Benue State v. Devcon Construction Co. Ltd. (1988) 3 NWLR (pt. 83) 407 at 420).”
Finally, in Chief Okoya and Ors. v. S. Santili (1990) 2 NWLR (pt. 131) 172 at 205, the Supreme Court followed both Commissioner For Works Benue State (supra) and Government of Gongola State (supra) to hold that parties and the court are bound by prayers in the motion paper. Karibi-Whyte, J.S.C., added on page 226 of the law report that the case of a party is considered and granted on the relief(s) he has asked for, not otherwise. See also Olatunji v. Owena Bank PLC (2002) 15 NWLR (Pt. 790) 272 at 291-292 per Onnoghen, J.C.A., (now J.S.C.), Fadlallah at 559 (supra).
I agree with the appellant that the court below erred by straying outside the prayers in the motion paper to enter an order striking but the winding up petition when there was no substantive prayer covering the said drastic order, and to also rule that it could not appoint its Deputy Chief Registrar provisional Receiver/Manager of the respondent when such a prayer was not asked for by the appellant or the respondent in the said motion over which the appellant and the respondent joined issues and argued before that court.
I respectfully hold and repeat that even if the court below was disposed to reject the motion, it was not open to it to grant to the respondent an order striking out the winding up petition, as there was no such prayer in the motion scheduled and argued as the business of that day at the court below. See Union Beverages Ltd. v. Owolabi (1988) A.N.L.R. 102 at 109 thus:-
“… The trial Court and Court of Appeal must advert only to those matters that are clearly in issue between the parties. Relief not claimed must not be awarded. Etim Ekpenyong and Ors. v. Inyang Effiong Nyong and Ors (1975) 2 S.C. 71; University of Lagos v. Dada (1971) U.I.L.R. (ppt.111) 344; Nigerian Housing Development Authority and Anor. v. Mumuni (1977) 2 S.C. 57, 81.” (per Belgore, J.S.C.).”
Nnaemeka-Agu, J.S.C., (now of, blessed memory) added his voice on the same page 109 of the law report:-
“A Court of Law ought not to award … a substantive relief … not claimed. See Bonny and Ors. v. Theophilus B. Yougha and Ors. (1969) 1 All N.L.R. 395, at 402.”
See also Chief Registrar, High Court of Lagos State and Anor. v. Vamos Navigation Limited (1976) 1 S.C. 33 at 41, and also Obioma and Ors. v. Olomu and Ors. (1978) 3 S.C. 1 at 7 where Ekpenyong v. Nyong (supra) was cited with approval to the effect that the reliefs granted in that case were not those sought by the applicants and went beyond the jurisdiction of the court when it purported to grant such reliefs ex gratia. See again Yahaya v. Chukwura (2002) 3 NWLR (pt.753) 20 at 40 – 41.
In the result, I find merit in the appeal. I hereby allow it and set aside the said ruling of the court below (Auta, J., as he then was). The appellant requested that the motion on notice in question be re-heard here under section 15 (former section 16) of the Court of Appeal Act, 2004. Although section 15 (former section 16) of the Court of Appeal Act empowers the Court to treat the matter before it as if the suit was filed in the first instance before it vide Jadesimi v. Okotie-Eboh (1986) 1 NWLR (pt.16) 264 cited by the appellant read with Igboho Local Government Council and Community v. The Boundary Settlement Commissioner and Anor. (1988) 1 NWLR (pt. 69) 189, it is not an appropriate occasion to invoke it here for reasons I give anon.
It is necessary to state that the motion in question was argued before the court below, but it misconceived the prayers before it as presented or prayed for in the motion paper. The misconception led the court below to come to erroneous conclusion on the live issues as stated in the motion paper before it. The misconception of the appellant’s motion by the court below therefore materially affected its decision in striking out the winding up petition. The matter was accordingly one that the court below slipped into error in considering it.
So where a trial court misconceived or misdirected itself on the issue(s) before it as in this case and/or made a wrong assessment of the evidence before it, or where there was misbehaviour of a judge in the course of considering a case, the appropriate order after allowing the appeal is retrial of the matter. See Ezeoke and Ors. v. Nwagbo and Anr. (1999) 1 NWLR (pt.72) 616.
Further, it was held by the Supreme Court (per Idigbe, J.S.C., now of blessed memory) in Anukanti v. Ekwonyeaso (1978) 1 LRN 346 that a new trial or retrial is the appropriate order to make where the trial judge had not applied his mind to the true issues in the case. Section 15 of the Court of Appeal Act can be invoked if doing so would settle the entire case once for all, which is not the case here as the motion even if determined in the present proceedings would not dispose of the substantive case which is yet to be heard. So it is better to have first-hand opinion of the court below on the motion in question, than for this Court to handle the dispute by instalment.
Having already allowed the appeal and set aside the ruling of the court below, the appropriate order to make which I hereby make is to remit the matter to the learned Chief Judge of the Federal High Court who shall assign it to another learned Judge of that Court for hearing and determination of the said motion. For the avoidance of doubt, the substantive action for the winding up of the respondent still subsists. Parties to bear their cost.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the judgment just delivered by my learned brother, Ikyegh, JCA, I agree that the instant appeal is meritorious. Thus, the appeal is hereby allowed by me. The ruling of the Federal High Court, Lagos judicial Division, delivered by I. N. Auta, J. (as the learned trial judge then was) on July 20, 2007, is hereby set aside.
Hence, I abide by the consequential order, remitting the suit No.FH/L/CP/917/2005 to the court below for reassignment by the Chief Judge to another judge for hearing and determination of the vexed motion.
No order as to costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, IKYEGH, JCA. I agree with the reasoning contained therein and the conclusions arrived thereat.
It is not in doubt that the learned trial Judge misconceived the import of the application made by the appellant. Although the appellant had a winding up petition, he was yet to come to it. His concern for the moment was for an order directing the official Receiver/Liquidator of the Respondent to gather the assets of the company and keep it safe for the benefit of the applicant and other creditors pending the outcome of the winding up petition. A rather insidious application I would say. The learned trial Judge fell into the trap and jumped the gun. In the process of refusing the motion his Lordship struck out the winding up petition. It should be noted that relief 4 of the application prayed for accelerated hearing of the winding up petition. I consequently agree entirely with my learned brother that the appellant was right in his contention that the; lower court strayed outside the prayers in the motion paper when it entered an order striking out the winding up petition.
On the application of the appellant that as a consequential order, his motion be heard afresh by this court under Section 16 (now section 15) of the Court of Appeal Act, it is not in doubt that the Section can be invoked in order to facilitate the speedy administration of justice. In the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 42, the Supreme Court set out the preconditions for invocation of the appeal under section 16, court of Appeal Act 2004. Referring to the very wide powers given to the Court of Appeal under the Section, the Supreme Court observed:
“….However, that court does not exercise the power to rehear on every occasion. It is expected to do so only where the justice of the case before it demands that the power should be exercised. Similarly, certain fundamental conditionalities must be met before the court can exercise the very wide powers conferred by the section. Such conditions that must exist include:
(a) Availability of the necessary materials to consider and adjudicate in the matter;
(b) The length of time between the disposal of the action at the trial court and the hearing of the appeal; and
(c) The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing and the hardship such an order would cause on either or both parties in the case.”
No doubt the conditionalities exist in this case. The motion and the various affidavits filed by the parties are all before us. The appeal came before this court in 2008, five years ago. Remitting the case to the lower court will lead to further delay. But the nature of the case is such that there is no real urgency necessitating the invocation of the powers without allowing the lower court to make its input in the matter. The Supreme Court had held that the power was appropriately invoked in the case of Dapianlong v. Dariye (2007) 8 NWLR 332 which concerned the removal or impeachment of a Governor of a State and time was of the essence. Similar consideration impelled the Supreme Court to exercise its own powers to hear the case in Idakoju’s case which also concerned the tenure of a Governor. In these cases time was of the essence. Basically, the power is a discretionary one, hence the view of the Supreme Court in Dapianlong v. Dariye (supra) that everything depends on the peculiar facts and circumstances of each case and that no one exercise of the discretion of the Court under the Section is a binding precedent for any subsequent exercise of the discretion. In the circumstances, there is no doubt that the appropriate order to make is to remit the matter to the lower court for rehearing by another judge of the court.
I agree with my learned brother that the appeal has merit. I also allow the appeal and abide by the consequential, orders in the lead judgment.
Appearances
Appellant in PersonFor Appellant
AND
Mr. C. Nwachukwu (with Mr. T. Uzokwe)For Respondent
