CONTRACT RESOURCE NIGERIA LTD V UNITED BANK FOR AFRICA PLC

CONTRACT RESOURCE NIGERIA LTD V UNITED BANK FOR AFRICA PLC

(2011) LCN/3769(SC)

In the Supreme Court of Nigeria

Friday, July 8, 2011


Case Number: SC.292/2003

 

JUSTICES:

ALOMA MARIAM MUKHTAR, JUSTICE, SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE, SUPREME COURT

FRANCIS FEDODE TABAI, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

BODE RHODES-VIVOUR, JUSTICE, SUPREME COURT

 

BETWEEN

 

APPELLANT:

1. CONTRACT RESOURCE NIGERIA LTD

2. MODE NIGERIA LTD

 

RESPONDENTS:

1. UNITED BANK FOR AFRICA PLC

 

RATIO:

1. PURPOSE OF APPEAL: 

“An appeal is a review of the decision of the court below by a higher court. The purpose being to see if the court below considered the facts properly and arrived at the correct decision. By the provisions of Section 243(a) of the Constitution it is a party in a suit or an interested party that can appeal against a judgment of the court, See In Re: Arowolo 1993 2 NWLR pt.275 pg.1 Ogunbiyi v. Mustapha 1996 4 NWLR pt. 442 pg. 337” PER RHODES-VIVOUR, J.S.C.

2. FILING OF AN APPEAL: 
Whether an incorporated party/litigant can file, attend and argue an appeal before the court:

“It is settled law that whereas a party/litigant who is a natural person can file and argue an appeal before the courts, an incorporated party/litigant, being an artificial entity cannot file, attend and argue an appeal before the courts in person/personally but can do so only through legal practitioner(s) on its instructions, See also section 15(1) of the Supreme Court Act which provides as follows:- “Subject to the provisions of any other enactment, in all proceedings before the Supreme Court the parties may appear in person or be represented by a legal practitioner entitled by or under enactment or rules of court to practice in that court” PER ONNOGHEN, J.S.C.

3. APPEAL –PRELIMINARY OBJECTION: 
When an affidavit is necessary in a preliminary objection:

“Preliminary objections are usually on Law consequently no affidavit is necessary, but where the need to produce or rely on facts becomes necessary an affidavit ought to be filed.” PER RHODES-VIVOUR, J.S.C.

4. APPEAL – NOTICE OF APPEAL AND BRIEF OF ARGUMENT: 
Whether the Notice of Appeal and Briefs of argument in civil appeal must be prepared and signed by counsel and is the right of audience before the Supreme Court restricted to counsel only:

“In Civil Appeals the Notice of Appeal and Briefs of argument shall be prepared and signed by counsel. The only exception is where the party is a natural person, and insists on handling his appeal himself. Right of audience is open to counsel and/or the party in the appeal. In the case of a Corporation, the Notice of Appeal and Brief of argument shall be prepared and signed by counsel and the right of audience before this court is restricted to counsel. This is so as a corporation being an unnatural person, needs someone learned in the Law to handle its appeal, and that person can only be a Legal Practitioner. The Notice of Appeal and the appellants’ brief of argument are incompetent having been signed by a layman” PER RHODES-VIVOUR, J.S.C.

5. APPEAL – INTERESTED PARTY: 
Whether a party who was not in the lower courts but seeks to appeal must obtain leave to be a party in the appellate court:

“The law requires that a party who was not a party in the lower courts and seeks to appeal against a decision of which he did not take part in the proceedings, to seek and obtain leave to be a party in an appellate court. In the instant case, Contract Resource Nigeria Ltd did not obtain such leave, and so he lacks locus to be an appellant in this court. In the circumstance that leave was not obtained the appeal becomes incompetent. See Akande v. General Electric Ltd. 1979 3 – 4 SC. 115, and Ikweki v. Ebele 2005 11 NWLR part 936 page 396.” PER MUKHTAR, J.S.C.

6. APPEAL – INTERESTED PARTY: 
What is the mandatory pre-condition that an interested party must satisfy before filing an appeal:

“Section 243(a) of the Constitution makes leave a mandatory pre-condition that must be sought and obtained before an interested party can appeal. An applicant filing an appeal without satisfying or fulfilling that pre-condition is merely wasting his time.” PER RHODES-VIVOUR, J.S.C.

7. APPEAL – INTERESTED PARTY: 
Whether a party who was not a party in the lower court can seek an appeal:

“Where a party who was not a party in the court below seeks to appeal to this court, he can only do so if he seeks and obtains leave from this court, and he would obtain leave if and only if he is able to satisfy this court that he is an interested party. An appellant is a person appealing from a decision or applying for leave to appeal.” PER RHODES-VIVOUR, J.S.C.

8. APPEAL – PRELIMINARY OBJECTIONS: 
Requirement for filing preliminary objections:

“Order 2 Rule 9 of the Supreme Court Rules provides for the filing of preliminary objections. The fundamental requirement is that the preliminary objection must be filed and served on the appellant three days before the hearing of the appeal thereby removing the element of surprise and giving the appellant enough time to respond. The purpose of a Preliminary objection is to contend that the appeal is defective or incompetent. If sustained the appeal would no longer be heard. A successful preliminary objection terminates the hearing of an appeal. See NEPA v. Ango 2001 15 NWLR pt. 737 pg.627 Ndigwe v. Nwude 1999 11 NWLR pt.626 pg. 314” PER RHODES-VIVOUR, J.S.C(P. 10, Paras. C-F) (…read in context)

9. INTERPRETATION OF STATUTE – ORDER 6 RULE 5(1)(B) OF THE SUPREME COURT RULES: 
Interpretation of Order 6 Rule 5(1)(b) of the Supreme Court Rules as to whether artificial entity can argue an appeal personally:

“Order 6 Rule 5(1)(b) of the Supreme Court Rules States that: “Order 6 Rule 5(1)(b) of the Supreme Court Rules States that: “The brief which may be settled by counsel shall contain what are, in the appellants’ view the issues arising in the appeal, If the appellant is abandoning any point taken in the court below, this shall be so stated in the brief. Equally, if the appellant intends to apply in the course of the hearing for leave to introduce a new point not taken in the court below, this shall be indicated in the brief. ” It is now well settled by this court that the word “shall” does not always mean “must” a matter of compulsion. It could be interpreted, where the context so admits as “may” whereas “may” is also not always “may”. It may sometimes be equivalent to “shall”. See Ifezue v. Mbadugha 1984 1 SCNLR pg.427 “May” in Order 6 Rule 5(1)(b) accommodates a Litigant who is a natural person, a party, handling the appeal by himself. An artificial entity cannot argue an appeal personally. The right of audience for such an entity is limited to counsel instructed on the corporation’s behalf. “May” is equivalent to shall when an artificial entity is a party in an appeal. Its brief shall be prepared and the appeal argued on its behalf by a legal practitioner. Indeed in Halsbury’s Laws of England, paragraphs 754 and 756, the right of audience before the House or an appellate committee is restricted to counsel instructed on behalf of a party or, where the party is a single person, the party himself. In Tritonia Ltd & Ors v. Equity and Law Life Assurance Society 1943 2 All England Report pg. 401. The house of Lords (now Supreme Court of England) held inter alia that: ”when an appeal is argued before the House of Lords, no one has any right of audience except counsel instructed on behalf of a party or (when the litigant is a natural person) the party himself. In the case of a corporation, in as much as the artificial entity cannot attend and argue personally, the right of audience is necessarily limited to counsel instructed on the corporations behalf.” Also in RE London CC and London Tramways Co. 1897 13 TLR Pg. 254. A litigant was allowed to appear in person, but a company must appear by counsel who could instruct counsel on their behalf. See also Scriven v. Jescott (Leeds) Nig. 1908 53 Sol. J. Pg. 101 where it was stated that a company could only be represented by attorney and it was not in the same position as a litigant in person. Section 15(1) of the Supreme Court Act supports all that I have been saying. It states that: “Subject to the provisions of any other enactment, in all proceedings before the Supreme Court the parties may appear in person or be represented by a legal practitioner entitled by or under enactment or rules of court to practice in that court.” PER RHODES-VIVOUR, J.S.C.

 

BODE RHODES VIVOUR, J.S.C. (Delivering the Judgment by the Court): This is an appeal from the judgment of the Court of Appeal delivered on the 12th day of June, 2003, wherein that court allowed the appeal and ordered a rehearing of the third party claim before another judge of the Enugu State High Court other than the learned trial Chief Judge.

The 1st appellant as plaintiff in Suit No. E428/99, sued the 2nd appellant as defendant. Trial was in the Enugu High Court, Enugu State. Ugwu CJ (as he then was) presided. The plaintiff claimed the sum of N46m from the defendant. The sum was debt due to the plaintiff which became payable from a contract agreement dated the 15th of June, 1998. The plaintiff further claimed 25% compound interest on the sum from 20th day of December 1998 till judgment and post judgment interest of 10%. The defendant admitted liability but claimed that its default in paying its debt was due to the negligence of its bankers, UBA PLC.

On 20/3/2000, the plaintiff filed Motion for judgment against the defendant, and on 4/4/2000 the learned trial Chief Judge entered judgment for the plaintiff for the sum of N46m plus interest. Meanwhile the defendant had taken out third party claim against UBA PLC. The learned Chief Judge fixed hearing for the 9th of May 2000, but in unexplained circumstances the third party claim was heard on the 7th of April, 2000 in the absence of UBA PLC, and judgment entered against UBA PLC for N46m UBA PLC quickly lodged an appeal. The Court of Appeal, Enugu Division allowed the appeal, and remitted the third party claim for hearing all over again before a judge of the Enugu State High Court other than the learned Chief Judge of Enugu State.

This appeal is against that judgment, but interestingly the 1st appellant who was not a party in the third party claim and not a party in the court below is the 1st appellant before this court. The respondent, UBA PLC filed a Preliminary objection on the 14th of July 2004 to the hearing of this appeal. Order 2Rule 9 of the Supreme Court Rules provides for the filing of preliminary objections. The fundamental requirement is that the preliminary objection must be filed and served on the appellant three days before the hearing of the appeal thereby removing the element of surprise and giving the appellant enough time to respond. The purpose of a Preliminary objection is to contend that the appeal is defective or incompetent. If sustained the appeal would no longer be heard. A successful preliminary objection terminates the hearing of an appeal. See NEPA v. Anao 2001 15 NWLR pt. 737 pg.627 Ndigwe v. Nwude 1999 11NWLR pt.626 pg. 314

Preliminary objections are usually on Law consequently no affidavit is necessary, but where the need to produce or rely on facts becomes necessary an affidavit ought to be filed. In this case the respondent filed a Notice of Preliminary objection supported by a 14 paragraph affidavit. In the circumstances an affidavit is necessary because there is reliance on facts, and facts have no views. They are sacred.

The grounds of the Preliminary objection are:

  1. Contract Resource Nigeria Limited has no locus standi in this appeal since it was not a party in the lower court and has neither applied for nor obtained leave to appeal as an interested party;
  2. The appeal is incompetent because the notice of appeal was signed by a person who is not a legal practitioner, the proper appellant (Mode Nigeria Ltd) being an artificial person; and
  3. The appellants brief of argument is incompetent, not having been signed by a legal practitioner on behalf of the true appellant, an artificial person.

Relevant extracts from the affidavit in support read thus:

  1. This appeal originated from suit No.E/428/99 instituted in the Enugu State High Court sitting at Enugu with Contract Resource Nigeria Limited, as plaintiff, Mode Nigeria Limited, as defendant, and United Bank for Africa PLC as third party.
  2. On 4/4/2000 the court gave judgment in favour of the plaintiff and the third party claim between Mode Nigeria Ltd and UBA PLC was adjourned to 9/5/2000.
  3. In its absence and without hearing notice having been issued and served on UBA PLC, the court entered judgment prematurely against UBA PLC on 12/4/2000 sequel to an experte motion filed by Mode Nigeria Ltd.
  4. On 11/7/2000 UBA PLC filed a notice of appeal CA/E/158/2000 to have the judgment of 12/4/2000 set aside by the Court of Appeal as a nullity on grounds of serious violation of UBAs right to fair hearing.
  5. The applicants counsel, DR. A .J.C. Mogbana, has advised the third party and it believes that the said appeal was between the third party (UBA PLC) as appellant and the defendant (Mode Nig Ltd) as respondent.
  6. The Court of Appeal, Enugu Division, on 12/6/2003 allowed the appeal, declared the judgment in the third party claim as a nullity and set it aside.
  7. The defendant/respondent in the Court of Appeal appealed to this court against the judgment of the lower court in favour of the third party.
  8. The said applicants counsel has informed the applicant and it believes that Contract Resource Nig Ltd was not a party in the lower court, and not having obtained leave to appeal as an interested party, has no right to appeal to the Supreme Court against the decision of the lower court.
  9. The notice of appeal and appellants brief in this appeal have been signed by Ifeanyichukwu Okonkwo.
  10. Ifeanyichukwu Okonkwo is not a legal practitioner empowered by Law to sign such processes.

At the hearing of the appeal on the 11th day of April, 2011 learned counsel for the respondent, DR A.J.C. Mogbana observed that the 1st appellant has no locus standi, as it was not a party in the court below, and it was not granted leave to appeal as an interested party. He further observed that the appellants brief was settled by someone who is not a legal practitioner. Concluding he submitted that the appellants brief and the Notice of Appeal are incompetent, and the appeal ought to be struck out. Urging the court to dismiss the Preliminary objection, learned counsel for the appellants argued that by the provisions of Order 6 Rule 5(b) of the Rules of this court, the brief and Notice of Appeal may be settled by counsel, contending that the provision supra accommodates a situation where the appellant can prepare both documents.

An appeal is a review of the decision of the court below by a higher court. The purpose being to see if the court below considered the facts properly and arrived at the correct decision. By the provisions of Section 243 (a) of the Constitution it is a party in a suit or an interested party that can appeal against a judgment of the court. See

In Re: Arowolo 1993 2 NWLR pt.275 Pg.1 ogunbiyi v. Mustapha 1996 4 NWLR pt. 442 pg. 337

Where a party who was not a party in the court below seeks to appeal to this court, he can only do so if he seeks and obtains leave from this court, and he would obtain leave if and only if he is able to satisfy this court that he is an interested party.

An appellant is a person appealing from a decision or applying for leave to appeal.

Section 243 (a) of the Constitution makes leave a mandatory pre-condition that must be sought and obtained before an interested party can appeal. An applicant filing an appeal without satisfying or fulfilling that pre-condition is merely wasting his time. Contract Resources Nig Ltd was not a party in the third party claim, neither was it a party in the court below. It never applied for leave (permission) to appeal against the judgment of the Court of Appeal. In the absence of leave Contract Resources Nig Ltd is a meddlesome interloper with no real stake in the appeal. In the circumstances the preliminary objection is upheld on ground one.

I now turn to the 2nd appellant, Mode Nigeria Limited. The Notice of Appeal, Appellants’ brief were signed on behalf of a corporate body by a person who is not a legal practitioner, a layman, one Ifeanyichukwu Okonkwo, who described himself as Company Director of No.14 Ishielu Avenue Independence Layout, Enugu, Enugu State. The Issue is

Whether a layman, a company Director is allowed to file court processes on behalf  of a corporate body.

The Notice of Appeal and the appellants brief were signed by Ifeanyichukwu Okonkwo, a layman, Company Director. The appeal was argued by MR. J.O.N. Ikeyi, a legal practitioner. That is to say a legal practitioner argued an appeal in which the appellants’ brief was prepared by a layman.

Order 6 Rule 5 (1)(b) of the Supreme Court Rules States that:

“The brief which may be settled by counsel shall contain what are, in the appellants’ view the issues arising in the appeal. If the appellant is abandoning any point taken in the court below, this shall be so stated in the brief. Equally, if the appellant intends to apply in the course of the hearing for leave to introduce a new point not taken in the court below, this shall be indicated in the brief.”

It is now well settled by this court that the word ‘shall’ does not always mean ‘must’- a matter of compulsion. It could be interpreted, where the context so admits as ‘may’ whrereas ‘may’ is also not always ‘may’. It may sometimes be equivalent to ‘shall’. See

Ifezue v. Mbaduqha 1984 1SCNLR pq.427

‘May’ in Order 6 Rule 5(l)(b) accommodates a Litigant who is a natural person, a party, handling the appeal by himself. An artificial entity cannot argue an appeal personally. The right of audience for such an entity is limited to counsel instructed on the corporations behalf. ‘May’ is equivalent to shall when an artificial entity is a party in an appeal. Its brief shall be prepared and the appeal argued on its behalf by a legal practitioner.  Indeed in Halsburys Laws of England, paragraphs 754 and 756, the right of audience before the House or an appellate committee is restricted to counsel instructed on behalf of a party or, where the party is a single person, the party himself.   In Tritonia Ltd & Ors v. Equity and Law Life Assurance Society 1943 2ALL England Report pg. 401. The House of Lords (now Supreme Court of England) held inter alia that:

‘When an appeal is argued before the House of Lords, no one has any      right of audience except counsel instructed on behalf of a party or (when the litigant is a natural person) the party himself. In the case of a corporation, inasmuch as the artificial entity cannot attend and argue personally, the right of audience is necessarily limited to counsel instructed on the corporation’s behalf.’

Also in RE London CC and London Tramways Co 1897 13 TLR pg. 254. A litigant was allowed

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