CYRIL CHUKWUWADO ARINZE V. AFRIBANK NIGERIA PLC & ORS(2000)

CYRIL CHUKWUWADO ARINZE V. AFRIBANK NIGERIA PLC & ORS

(2000)LCN/0703(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of February, 2000

CA/PH/176/94

JUSTICES

IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria

MICHAEL EYARUOMA A KPIROROH Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria

Between

CYRIL CHUKWUWADO ARINZE Appellant(s)

AND

AFRIBANK NIGERIA PLC
2. MRS. ENIOLA FADATOMI
3. MR. JOHN D. EDOZIEN
4. MR. S. IHIE AKANO
5. MR. O. O. ALABA
6. MR. M. A. USHAN
7. PRINCE G. DADA
8. MR. E.B.B. FAROUK
9. MR. E.S. DOR
10. MR. U. STOLTENBERG
11. MR. G. SAYVANET
12. MR. S. ZAYYAN Respondent(s)

RATIO

THE POSITION OF LAW IN DETERMINING WHERE A GROUND OF APPEAL INVOLVES A QUESTION OF LAW OR FACT

In Ojemen v. Momodu II (1983) 3 S.C. 173 (1983) 1 SCNLR 188 the Supreme Court held that “what is important in determining whether a ground of appeal involves questions or law or fact is not its cognomen, nor its designation as error of law”. It is rather that essence of the ground, the reality of the complaint embedded in that name that determines what any particular ground involves.
In Ojeme & Ors. v. Momodu II & Ors supra, Obaseki, J.S.C. held at page 211 (1983) 1 SCNLR of p.205;
“…I repeat that this Court will not be misled by the mere description of a ground of appeal, as a ground complaining of error in law when in fact, the particulars show clearly that the complaint or the substance thereof is against the evaluation, assessment weight of evidence, finding of the fact or a complaint or a misdirection on the fact” PER AKPIROROH, J.C.A.

WHETHER OR NOT NON-APPLICATION OR MISAPPLICATION OF UNDISPUTED FACT IS A QUESTION OF LAW

It is trite law that non application or misapplication of undisputed fact is a question of law.
In U.B.A. Ltd v. Stahlbau GMBH (1989) 3 NWLR (Pt. 110) 374 at 199, Karibi-Whyte, J.S.C. clearly explained the situation thus:-
“In my view the materials upon which the discretion is exercised will determine whether the exercise of the discretion involves questions of law alone, or it also in addition involves questions of facts. In all cases the exercise of Judicial discretion involves the drawing of conclusion from certain accepted and undisputed facts. The question then is on which side the conclusion falls. If the inference follows upon undisputed facts then it is a conclusion of law. if otherwise, it is one of facts…” PER AKPIROROH, J.C.A.

AKPIROROH, J.C.A. (Delivering the Leading Judgment): I will first of all consider the preliminary objection of learned Counsel for the respondents on the competency or the notice of appeal. The grounds of objection are as follows:-
(a) Raises issue or mixed law and fact for which I have is required but was not sought or obtained.
(b) Ground 2 of the Notice of Appeal contains no particulars.
On ground one, learned Counsel for the Respondents submitted that in determining the competency of a notice of appeal, the Court should not look at the Notice of Appeal alone, but the application which gave rise to the decision being appealed against and the judgment. It was further contended that the Court should determine from its own examination of the Notice of Appeal the nature of the grounds of appeal i.e. whether they are of law, mixed law and fact or of fact alone and that the Court should not rely on the Appellant’s description of the ground of appeal in determining its nature.
Reliance was placed on the cases of Ojemen vs. Momodu II (1983) NSCC 14 136 at 147: (1983) 1 SCNLR 188 and Ifediorah vs Ville (1988) 2 NWLR (Pt.74) 5 at 15. He then submitted that ground One or the Notice of Appeal raises issues of mixed law and fact and such it is required but no leave was sought and obtained and as such it is incompetent.
He also submitted that ground two is incompetent in that, it contains no particular of the error complained about, stressing that a ground of appeal which contains no particular is worthless and relied on Okorie v. Udoh (1960) NSCC 108 at 110 (1960) SCNLR and Ikonne v. Wachukwu (1991) 2 NWLR (Pt.172) 214 at 223 E-G. He finally submitted that, there is no competent Notice of Appeal before the Court upon which this appeal can be predicated and urges the court to strike it out.
In his reply, learned Counsel for the Appellant submitted that ground one does not raise issues of mixed law and fact but of law only.
He submitted that the case of Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) page 5 does not apply to the present case as there is no complaint of any disputed fact but complains about non-application of undisputed facts as they existed before the learned trial Judge and relied on the case of U.B.A. Ltd v. Stahlbau Gmbh & Co. (1989) 3 NWLR (Pt.110) 374 at 349.
On the second ground, he submitted that the ground is not without particulars but its single particular is included in the body of the grounds, stressing that there is no law requiring the mandatory separation of the particulars from the body of ground and cited in support Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267. He further argued that ground two is a complaint against the learned trial Judge’s decision that it was not necessary to consider the affidavits filed by the parties pointing out that the single particular is that the exercise of his discretion was not based on the affidavits be rare the Court.
He further submitted that failure to apply that affidavits before him in exercising his discretion is questionable by appeal, and it is a ground of law and not mixed law and fact and as such no leave is required and urges the court to dismiss the preliminary objection.
In order to appreciate the submissions of learned Counsel for the parties fully, I would like to reproduce the grounds of appeal.
Ground One: Error of Law
The learned trial Judge erred in law when he ordered a transfer of the case of the Lagos judicial division when there was no jurisdiction for such an order considering the materials placed before the court by the parties.
Particulars of Error.
(a) One of the Defendants was carrying on business within Port Harcourt Judicial Division or the Federal High Court.
(b) The Applicant did not present any case of inconvenience before the Aourt.
(d) Inconvenience is the only criteria for transfer of a case under order vii rule 4 of the Federal High Court.
Ground Two
The decision of the learned trial Judge is improper and erroneous, the same having not been based on affidavit evidence before the Court.
In Ojemen v. Momodu II (1983) 3 S.C. 173 (1983) 1 SCNLR 188 the Supreme Court held that “what is important in determining whether a ground of appeal involves questions or law or fact is not its cognomen, nor its designation as error of law”. It is rather that essence of the ground, the reality of the complaint embedded in that name that determines what any particular ground involves.
In Ojeme & Ors. v. Momodu II & Ors supra, Obaseki, J.S.C. held at page 211 (1983) 1 SCNLR of p.205;
“…I repeat that this Court will not be misled by the mere description of a ground of appeal, as a ground complaining of error in law when in fact, the particulars show clearly that the complaint or the substance thereof is against the evaluation, assessment weight of evidence, finding of the fact or a complaint or a misdirection on the fact”.
The above is a fitting introduction to the discussion of the first ground of appeal. What is the complain of the Appellant in ground one set out above? It is my view that ground one complains of misapplication of undisputed facts as existed before the learned trial Judge. In effect the particulars set out under ground one relate to undisputed facts. It is trite law that non application or misapplication of undisputed fact is a question of law.
In U.B.A. Ltd v. Stahlbau GMBH (1989) 3 NWLR (Pt. 110) 374 at 199, Karibi-Whyte, J.S.C. clearly explained the situation thus:-
“In my view the materials upon which the discretion is exercised will determine whether the exercise of the discretion involves questions of law alone, or it also in addition involves questions of facts. In all cases the exercise of Judicial discretion involves the drawing of conclusion from certain accepted and undisputed facts. The question then is on which side the conclusion falls. If the inference follows upon undisputed facts then it is a conclusion of law. if otherwise, it is one of facts…”
It is therefore my view that ground one of the grounds of appeal raises issues of law and not mixed fact and law and as such, leave of court is not required.
As I said earlier, learned Counsel contended vigorously that ground two of the notice of appeal is incompetent in that it contains no particulars of the error complained about, the single particular that the exercise of the discretion of the trial judge was not based on the affidavit before him, is incorporated in the particulars of error.
It is trite law that a ground of appeal alleging an error in law or a misdirection must contain particulars, it is not mandatory though it is customary to state particulars in a separate paragraphs of the main ground.
It is permissible to include the particulars in the main ground itself where this can conveniently be done as was done in this case. See Atuyeye v. Ashamu, supra.
From what I have said, that the two grounds of appeal are competent and the preliminary objection is accordingly overruled.
I will now proceed to hear the appeal on its merits having disposed of the preliminary objection filed by the Respondents.
This is an appeal against the ruling of Sanyaolu J. of the Federal High Court of Nigeria holden in Port Harcourt, delivered on 29th day of March, 1994 in suit No.PHC/PH/12/94 where in the preliminary objection was upheld and the suit was transferred 10th Lagos Division of the Federal High Court for hearing and determination.
Dissatisfied with the ruling, the Appellant appealed against it and filed this appeal. Two grounds of appeal were filed and in accordance with the rules of this Court, the parties filed their briefs of argument.
The Appellant formulated only one issue for determination:-
“Whether the learned trial Judge exercised his discretion judicially and judiciously by making an order of transfer of the case given the deposed facts in the affidavits filed by the parties”.
The Respondents also formulated one issue for determination:-
“Whether the learned trial Judge in the circumstances, came to the right decision in ordering a transfer of the case having regard to the meaning and construction of Order VII rule 4 of the Federal High Court Rules’.
Learned Counsel for the Appellant submitted that as the learned trial Judge predicated his ruling on Order VII. Rule 4 of the Federal High Court Rules. It is no longer a case of improper venue under Order VII, Rules 1-3 of the Federal High Court Rules, but that of convenience which is the object of Order 7. Rule 4 supra. He contended that the learned trial Judge misdirected himself when he based his judgment on the place of residence of the Respondents and not on convenient venue. He then referred to Order VII. Rule 4 or the Federal High Court (Civil Procedure) Rules and submitted that the first provision of the section is subject to the second provision of it, stressing that when a provision in a section is said to be subject to the provisions of another section, the earlier provision is subordinate to the provision of the other section Reliance was placed in the case of Kadayisi v. Komolafe (1985) 5 NLR 525 at 529. Counsel further argued that, the second provision of Order VII. Rule 4 supra overrides the first provision, once an application is brought in objection to venue under the said Rule 4.
It was further argued that once an objection is brought under Rule 4, place of residence or business yields to venue as the Court is enjoined to make the order to achieve the ‘most convenient arrangement for the trial of the suit’.
He however conceded that such order is discretionary. Learned Counsel contended that the learned trial Judge in his ruling discussed residence and place of service as the basis for deciding convenience in his ruling but from the facts deposed to in the affidavit by parties, none of them based his case on residence, stressing that the Respondents did not depose to any fact as to how service on them in Lagos would make the hearing of the case in Port Harcourt Division would inconvenient them. He also referred to paragraph (b) of the Appellant’s affidavit in which he deposed to the inconvenience he would suffer if tile case is transferred to Lagos for hearing and the facts were not controverted by the Respondents.
It was further argued that for a proper exercise of discretion, the learned trial Judge should have restricted himself to the affidavits before him and relied on U.B.A. V. Stahlbau GMBH (1989) 3 NWLR (Pt. 110) 374 at 388. He also relied on the case of University of Lagos State v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148 and Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 at 63 as a wrong exercise of judicial discretion by a Judge.
It was finally submitted that, since the learned trial Judge failed to apply the facts before him and considered extraneous matters, he urged the Court to allow the appeal, set aside the order of transfer of the case to Lagos Division of the Federal High Court and order its trial in Port Harcourt Division of the Federal High Court.
On the submission of learned Counsel for the Appellant that the proviso to Order VII. Rule 4 supra overrides the second part of the rule, learned Counsel for the Respondents argued to the contrary. He contended that the words ‘subject to’ qualify and modify the exercise of the Court’s discretion in respect of only the second part of Rule 4 and that the question of the words ‘subject to’ overriding the rest or the provisions of Rule 4 arises only where there is a clash between the main provisions or the Rule i.e. the first and second parts on one hand and the qualifying and modifying part of the Rule i.e. the third part and cited in support the cases of L.S.D.P.C. v. Foreign Finance Corporation (1987) 1 NWLR (Pt.50) 413 at 461 and Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 542. It was further contended that the principles enunciated in the above case support his contention on the proper meaning or Order VII. rule 4. Learned Counsel also submitted that the meaning of the rule as argued by the Appellant would lead to absurdity because whenever there is a challenge venue by any of the parties or even suo motu by the Court, the first and most paramount consideration would be the ‘most convenient venue’ even if there is only one defendant in the case, the court would still consider the ‘most convenient venue’ and the case may be ordered to be tried in a Judicial Division which the Defendant neither resides or does business.
Similarly, where all the Defendants reside in one Judicial Division, the Court would still have the discretion on the basis of ‘most convenient venue’ to order the case to be tried in another Judicial Division. He further argued that the trial Judge was correct in deciding the question of proper venue solely on the issue of residence and not of convenience.
In the event the Court holds that the issue of convenience is relevant, he submitted that on the materials before the lower Court.There was a stronger case of inconvenience in favour of the Respondents than the appellant to hear the case in Port Harcourt in favour of the respondents as regards the issue of convenience.
The main plank of the argument of learned Counsel for the appellant is that the learned trial Judge was wrong in deciding the question of proper venue solely on residence and not convenience. It was his contention that since the learned trial Judge predicated his ruling on Order VII Rule 4 of Federal High Court (Civil Procedure) Rules. it was no longer a case of improper venue but that of convenience which is the sole object of Order VII Rule 4.
Order VII Rule 4 provides as follows:-
“All other suits may be commenced and determined in the judicial division in which the Defendant resides or carries on business. If there are more Defendants than one resident in different judicial divisions, the suit may be commenced in anyone of such judicial division, subject. However, to any order which the Court may upon the application of any of the parties or on its own motion think fit to make with a view to the most convenient arrangement for the trial of such action”.
A cursory look at the first part of Order VII Rule 4 set out above shows clearly that residence or place of business is the factor that determines venue.
In the second part, which is the issue of most convenient arrangement i.e. the proviso to my mind only arises where there are more Defendants than one resident in different judicial divisions. It is therefore my view that in order to invoke the exercise or the Court’s discretion in relation to the most convenient arrangement, he must show that there are more Defendants than one resident in different judicial divisions and this, he has failed to show in his affidavit in support.
Paragraphs 2 and 5 of the affidavit in support or the application at page 17 of the records only show that one of the defendant, (the bank) resides in Lagos where the other defendants also reside and carries on business through its Aba, Owerri and Port Harcourt, all places within the geographical jurisdiction of the Federal High Court.
The Respondent’s affidavit at page 15, 16 or the records shows that they were all served with the civil summons and particulars of claim at their addresses at Lagos.
Assuming I am wrong in the construction of the proviso to Order VII Rule 4. by serving all the respondents with the civil summons and the particulars of claim at their addresses in Lagos. the proper venue for the trial of the case is Lagos and not Port Harcourt.
At page 30 of the records, the learned trial Judge said:-
“In paragraph 2 & 3 of the affidavit in support of the present application, it was deposed therein that each of Defendants/Applicants’ address is in Lagos State and that the civil summons and particulars of claim served on each of them had an endorsement for service at Afribank Nigeria PLC. 94 ,Broad Street (Tinubu) Lagos. The Civil summons and the particulars of claim were attached to the said affidavit as Exhibits ‘A-A10’ and ‘B-B10’ respectively. Again, from the Court’s record, the affidavit of service is to the effect that the Defendants/Applicants were served with all the processes in respect of the cause or matter at 94, Broad Street, the Head Office of the 1st Defendant/Respondents”.
The finding of fact by the learned trial Judge to my mind cannot be faulted because by his own showing, the appellant conceded that all the Respondents are resident in Lagos. I am unable to accede to the submission of learned Counsel, for the Appellant that once an objection is brought or considered under Order VII Rule 4, place of residence or business yields superiority of consideration to convenience as the Court is then enjoined to make the order to achieve the most convenient venue so also his contention that the proviso in Rule 4 overrides the first and second parts of the Rule.
It is my view that the question of the words ‘subject to’ overriding the rest of the provisions of Rule 4 arises where there is a clash between the main provisions of (i.e. the first and second parts) on one hand and the qualifying and modifying part of the Rule i.e. (third part).
At page 10 of the records, the learned trial Judge said:-
“From the totality of the documentary evidence before me, inclusive of the affidavit evidence I am of the view that the place where the 1st Defendant/Applicant has its central management and control is 94, Broad Street, Lagos, Lagos State and I do hold that this is also the place of residence of the 1st Defendant/Applicant fort he purpose of Order 7 Rule 4 of the Rules of Court relating to place of instituting and trial of suits. I also hold that this is the place of residence for the each of the other eleven Defendants/Applicants for the purpose of the said Rule 4 and that the venue for the trial of the present suit is the Lagos Judicial Division of this Court”.
See also the case of University of Nigeria, Nsukka v. Orazulike Trading Company Limited (1989) 5 NWLR (Pt.119) 19 at 26 on place of management and control.
From what I have said above, I am or the clear and firm view that the learned trial Judge was right in having the consideration of the matter before him on residence and not convenience.
This is more so when all the Respondents were served with the summons and the particulars of the claim in Lagos.
In conclusion this appeal lacks merit and it is hereby dismissed with N3,000.00 in favour or the Respondents against the Appellant.

PATS-ACHOLONU, J.C.A: The control point of this case is what appropriate construction shall be placed on Order VII Rule 4 of the Federal High Court Civil Procedure Rules. From the concession made by the Appellants all the Respondents live in Lagos hence they were effectively and properly served there. There are of course more than one defendant but they are by a stroke of coincidence resident in Lagos. The Court apparently did not consider convenience before transferring the case to Lagos. It seems to me that the objective interpretation of Order VII Rule 4 is that all other suits of which the present action is one, should be commenced where the Defendant/Respondent reside unless they reside in diverse areas.
In this case, they are all resident in Lagos where they was squarely served. It goes without saying that the lower court’s ruling is in order. I agree with the judgment of my learned brother Akpiroroh, J.C.A and i abide by the consequential order contained therein.

IKONGBEH, J.C.A.: Before now I had a preview of the judgment just delivered by my learned brother Akpiroroh, J.C.A. I agree with his conclusion that the preliminary objection raised on behalf or the Respondent is totally devoid of merit and ought to he overruled. Ground 1 does not in any way involve any issue of fact. The complaint highlighted in particulars (a) and (b) is that the trial Court was erroneous in its conclusion that Lagos rather than Port Harcourt was the more appropriate venue for the trial of the Appellant’s action. This, according to the complaint, is because the evidence before the Court showed, firstly, that one of the Defendants carried on business in Port Harcourt and. Secondly, that the Defendants/Respondents did not present a case of inconvenience.
It must be admitted that the Appellant’s counsel has given room for this aspect of the objection to be made. If in framing the two particulars counsel had made it clear that the complaint was against only the conclusion drawn by the learned Judge from facts then had been undisputed ab initio and were accepted by the Judge the objection could never had been raised in the first place. As it is, the way the particulars were framed suggested at first sight that the complaint was also against facts that went still at large. Instead of putting particular (a) in the bland statement that one of the Defendants carried on business within jurisdiction, it would have been safer if counsel had made it clear in the particular that the fact was undisputed as indeed it was.
I agree also that the appeal itself lacks merit, I also dismiss it. The learned Judge was right in ruling that the trial should take place in Lagos where, as the affidavit evidence shows, All the defendants reside.
The interpretation placed on Order 7, Rule 4 of the Court of Appeal Rules, 1981, by Chief Ahamba, SAN., in the Appellant’s brief is, with respect, faulty. His error stems from an obvious miscomprehension of the grammatical structure of the provision of the rule. He correctly observed that it has two arms. He however missed the demarcating line between the two arms. According to him, the first arm is-
“All other suits may be commenced and determined in the judicial division in which the Defendant resides or carries on business. If there are more Defendants than one resident in different judicial division, the suit may be commenced in anyone of such judicial division”. The second is –
“Subject, however, to any order which the court may upon the application of any of the parties, or on its motion, think fit to make with a view to the most convenient arrangement for the trial of such suit”.
A cursory glance shows, however, that the rule contains only two sentences, each sentence marking off one arm. It does not have three as the learned Senior Advocate has broken it into. The first sentence, which coincides with the first arm reads.
“All other suits may be commenced and determined in the judicial division in which the defendant resides or carries on business.”
The second arm reads:
“If there are more defendants than one resident in different judicial divisions, the suit may be commenced in anyone of such judicial divisions; subject, however, to any order which the Court may upon the application of any of the parties or on its motion, think fit to make with a view to the most convenient arrangement for the trial of such suit”.
The Learned Senior Advocate missed the point because he did not pay the requisite attention to the punctuation marks in the provision. He converted the semi-colon between ‘divisions’ and ‘subject’ in the second sentence into a full stop, thus attempting to convert that single sentence into two. This is not possible because what the learned Senior Advocate terms the second arm of the rule is not a complete sentence. It is just the subordinate clause in second sentence. There is no way it can stand on its own, if it is to have any meaning, inseparably tied to the main clause.
Had the Learned Senior Advocate thus put this clause in its proper perspective, he would have seen that it does not qualify or in any way affect the first arm of the rule. It comes into play only if there are more Defendants in the case than one and they or some of them reside in different judicial divisions. If there is only one defendant or if there are more than one but they all reside in one division, then this clause has no effect.
Even where it does apply it does not limit the discretion of the Court. On the contrary, it widens it. A careful reading of the second arm shows that what is being said is that if there are more than one Defendants and they or some of them reside in different divisions then the action may be commenced and tried in any of the divisions where any of the defendants resides, depending on which division the court considers to be the most considers to be the most convenient venue. It can take up the issue of which is the most convenient venue either suo motu or on the application of any of the parties.
My overall understanding of Order 7, Rule 4 is in complete accord with that of Mr. M. D. Belgore as expressed in the Respondent’s brief and endorsed by my learned brother in the lead judgment. If there is only one defendant then the prospective plaintiff may commence and prosecute this action in the judicial division where the Defendant resides or carries on business. If, however, there are more than one Defendant resident in different division, then the plaintiff may commence his action in any of the divisions involved. Whether or not the case is eventually tried there would depend on the discretion of the Judge.
For these reasons and the more detailed reasons given in the lead judgment, I overrule the preliminary objection and dismiss the appeal. I abide by the consequential orders made in the lead judgment.
Appeal dismissed.