ECCELENZA CO (NIG) LTD & ANOR v. DAV – MOORE VENTURES LTD
(2022)LCN/16392(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, November 18, 2022
CA/ABJ/CV/11/2022
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. ECCELENZA COMPANY NIGERIA LIMITED 2. MR. CHIGOZIE ONWUGBENU APPELANT(S)
And
DAV – MOORE VENTURES LIMITED RESPONDENT(S)
RATIO:
POSITION OF LAW ON GROUND OF APPEAL
It is the law, that a ground of appeal against a decision of the Court must relate to the decision complained about, and constitute a challenge on the ratio of the decision. It has therefore been held that grounds of appeal are not formulated in nubibus, they must be in firma terra, namely arise from a judgment, otherwise it becomes baseless and liable to be struck out. See, Saraki vs. Kotoye (1992) 9 NWLR (pt. 264) 156 and Garuba vs. Omokhodion (2011) 15 NWLR (pt. 1269) 145. In the recent case of Shuaibu Fulani Abdu vs. The State (2022) LPELR – 57689 (SC), it was held that a ground of appeal constitutes an Appellants’ complaint against the judgment appealed against. Also in Olawoye vs. The State (2022) LPELR – 57832 (SC), the Apex Court reiterated the legal position thus:
“Therefore, the ground of appeal consists of an error of law or fact alleged by the appellant as the defect in the judgment he is appealing against” HAMMA AKAWU BARKA, J.C.A.
MEANING OF A JUDICIAL DISCRETION
Judicial discretion is said to be a sacred power which enures to a Judge. An amour which the Judge exercises judicially and judiciously and not whimsically or to the caprices to any party in the litigation. HAMMA AKAWU BARKA, J.C.A.
WHEN AN APPELLATE COURT WILL INTERFERE WITH THE DEITION OF THE LOWER COURT
The appellate Court rarely interferes with the lower Court’s discretion except where the exercise was wrongly exercised or tainted with some illegality. See, Tari Vandighi vs. Sebastine Hale (2014) LPELR – 24196 (CA). HAMMA AKAWU BARKA, J.C.A.
DUTY OF PARTY CHALLENGING THE JURISDICTION OF COURT
To fault the exercise of the Court’s discretion in the matter, it is the duty of the party complaining to show that the discretion was improperly exercised. See, Ajonuma & Ors vs. Nwosu & Ors (2014) LPELR – 24015 (CA), or as stated by this Court per Abiru JCA, in Ashaka Cement Plc vs. Asharatul Mubashshurun Investment Ltd (2016) LPELR – 40196 (CA), that for a party to succeed in showing that a trial Judge exercised his discretion wrongly, that party had the onus of justifying that the discretion was not exercised judicially or that it was exercised upon wrong principles of law. HAMMA AKAWU BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is a fallout from the judgment of the Niger State High Court in suit No: NSHC/MN/09/21 and delivered on the 8th of March, 2021.
By the said ruling, located at pages 173 – 176 of the record, the lower Court conclusively held that: –
“since there is no contrary evidence before me in respect of the transaction that lead to this action I am left with no other option than to believe the averments of the Plaintiff/Applicant to be true and correct. Flowing from above reasons I hold that the defendant has no defense to this action. The application for summary judgment therefore succeeds. Accordingly, judgment is hereby entered in favor of the plaintiff.”
The salient facts as can be gleaned from the records started when the Respondent commenced the suit which generated the instant appeal by way of a motion on notice for summary judgment pursuant to the provisions of Order 11 of the Niger State High Court (Civil Procedure) Rules 2018. In compliance with Order 11 Rule 1 of the said Rules, Appellant filed along with the motion for summary judgment, a writ of summons, statement of claim in support of the motion, containing the grounds of the application is a writ of summons, statement of claim, and witness statements on oath as well as the documents relied upon all filed on the 14th of July, 2021.
Appellants as Defendants filed a memorandum of appearance, and a counterclaim, witness statement on oath and some documents which the Appellants sought to rely upon. On the 22nd of February, 2021, Respondent filed a reply to the joint statement of defense. The application for summary judgment was moved on the 1st day of March, 2021 leading to the vexed judgment delivered on the 8th of March, 2021. Not unnaturally, Appellants by way of an application prayed the Court to set aside the judgment delivered on the grounds of lack of fair hearing which application was refused, and on the 15th November, 2021, filed the present Notice of Appeal predicated upon four grounds of appeal.
The appeal having been entered to this Court on the 7th of January, 2022, Appellants filed a brief of argument on the 11th of January, 2022, and upon receipt of the Respondents’ brief filed on the 31st of January, 2022, filed a reply brief on the 8th of February, 2022.
On the 18/10/2022, being the date scheduled for hearing, both parties identified their various processes and urged the Court to grant their respective prayers.
In the brief settled by Osita Ibekwute Esq. of counsel for the Appellant, particularly at pages 2 thereof, the following issues were identified for the resolution of the appeal as follows: –
i. Whether by Order 3 Rule 2 and Order 11 Rule 1 and 4 of the High Court of Niger State (Civil Procedure) Rules, 2018 (applicable at the material time in this appeal) the disjointed filing of the originating process (writ of summons) and other accompanying processes at different dates before the trial Court is not a phantom and/or fundamentally defective as to have deprived the trial Court of requisite jurisdiction to have entertained the main suit at all.
ii. Whether by the preamble and Order 11 Rules 1 and 4 of the High Court of Niger State (Civil Procedure) Rules 2018 respondents’ application for summary judgment brought under the repealed rules of the trial Court did not occasion miscarriage of justice and well founded as to activate the jurisdiction of the trial Court to have entered summary judgment for the Respondent.
iii. Whether in the view of the proceedings of 1st and 8th March 2021 the learned trial Judge was right to have dismissed the appellants’ application on the 8th November, 2021 without reason.
iv. Whether the learned trial Judge was on a firm a terra when he assumed jurisdiction and proceeded with the garnishee proceeding despite non-compliance with Section 83 (2) of the Sheriffs and Civil Procedure Act (sic)
v. Whether the learned trial Judge can decide to hear and/or not hear the appellants’ counterclaim without giving reason for same.
Mr. J. G. Taidi the learned counsel who settled the Respondent’s brief, filed on the 31/01/2022, incorporated a preliminary objection argued at pages 2 – 4 of the brief. That notwithstanding, learned Respondent’s counsel adopted all the issues formulated by the Appellants in the event the preliminary objection is overruled.
I intend at this stage, to look at the Respondent’s preliminary objection, for where it succeeds there may be no need to go further with respect to the appeal. See, Ogboru vs. Uduaghan (2012) 11 NWLR (pt. 1311) 357 (SC).
The Preliminary Objection
The Respondent by way of a preliminary objection filed on the 15th of November, 2021, prayed the Court to strike out the appeal for being incompetent. The grounds for the objection are as follows: –
i. The ruling/judgment in the substantive suit was delivered on the 8th March, 2021.
ii. The ruling on Appellants’ application to set aside the judgment was delivered on 8th November, 2021.
iii. The Appellants filed their Notice of Appeal challenging the decision made on 8th November, 2021.
iv. There is no application made for leave to file Notice of Appeal and extension of time to appeal the decision of the trial Court made on 8th March, 2021 in this appeal.
v. The Appellants’ filed a motion on notice in appeal no: CA/ABJ/PRE/ROA/CV/956M1/2021 seeking for extension of time to appeal against the decision of the trial Court made on 8th March, 2021.
A single issue was identified for the resolution of the preliminary objection to wit; whether the notice of appeal filed on the 15th of November, 2021 is competent. It was submitted by learned counsel that the extant notice of appeal in this appeal is that dated and filed on the 15th of November, 2021. Counsel argued that the decision which gave rise to the instant appeal was that delivered on the 8th of March, 2021 and by virtue of Section 24 (2) (a) of the Court of Appeal Act, 2004, Appellants had 3 months within which to file a notice of appeal. He contended that the exercise of appellate jurisdiction of the Court of appeal is statutory and cited the case of Oshodi & Ors. Vs. Eyifunmi & Anor (2000) LPELR-2805 (SC), positing that where Appellants are unable to file the notice of appeal within three months, then the leave of Court must be sought for extension of time within which to appeal, reference was made to the case of Incar Nig. Plc. & Anor Vs. Bolex Enterprises Nig. Ltd. (1997) LPELR-1513 (SC), and further argued that the notice of appeal upon which the instant appeal is predicated upon was filed on the 15th of November, 2021, challenging the post judgment/ruling which is almost nine months after the final decision, and relying on the case of Ajayi Vs. Togunde (2017) LPELR-42549 (CA), of the view that the notice of appeal founding this appeal is incompetent having been filed outside the statutory period and without leave. In further argument counsel pointed out, that grounds one and two of the notice of appeal are challenging the originating process as well as the procedure adopted by the Respondent, and this he argued cannot cure the fact that the notice of appeal was filed outside the statutory period thus robbing the Court of the necessary jurisdiction, concluding the instant appeal is predicated on an incompetent notice of appeal.
The learned counsel for the Appellants, Responded to the lone issue in the reply brief. He referred the Court to pages 165 – 168 and 180-182 as to the particular decision being appealed on, opining that the only decision being appealed upon is the decision delivered on the 8th of November, 2021. He argued that both parties are bound by the record and cannot go outside same, maintaining that the appeal emanated from the decision of the Court delivered on the 8th of November, 2021, well ahead of the 14 days allowed by Section 24 (2) (a) of the Court of Appeal Act. He argued still that the grounds of appeal borders on lack of jurisdiction and fair hearing which are issues of law contending that Appellant does not in the circumstance need any leave to prosecute the appeal. He finally urged the Court to dismiss the preliminary objection and to hold that the notice of appeal is competent and to proceed to hear the appeal on the merit.
I have accorded the submissions of the learned counsel with regards to the preliminary injunction a deep sober consideration. In doing so, I minutely examined the grounds of appeal filed by the learned counsel for the Appellants. I also perused the record of appeal all with a view to finding whether the notice of appeal filed was competent or not.
For ease of reference let me reproduce the grounds of appeal filed at page 165 – 167 of the record, thus:
Ground one.
The learned trial Judge with respect erred in law when he refused to decline jurisdiction and/or set aside the entire judgment and or ruling delivered on the 8th day of May, 2021 as it relates to the main suit for want of jurisdiction.
Particulars of Error.
i. The originating process that is writ of summons and other accompanying processes were filed at different dates.
ii. The writ of summons was dated 11th January 2020 but filed on the 11th January 2021, while other accompanying processes to the writ of summons particularly witness statement on oath and application for summary judgment were filed on the 2nd October, 2020.
iii. The learned trial Judge failed to be guided by Order 3 Rule 2 and Order 11 Rules 1 of the High Court of Niger State (Civil Procedure) Rules, 2018 before assuming jurisdiction at all and to enter judgment in the main suit for the respondent under summary judgment procedure.
Ground Two.
The learned trial Judge with humility wrongly assumed jurisdiction to enter judgment for the respondent in the main suit under summary procedure.
Particulars of Error.
i. The application for summary judgment was brought under the repealed rules of the trial Court that is 2012 rules as opposed to 2018 rules invoke when the application for the said summary judgment was made at the trial Court.
ii. The above issue was timeously brought to the attention of the trial Judge by the appellants but the learned trial Judge grossed over same and obviously failed to consider same.
Ground Three.
The learned trial Judge erred in law when he held that appellants’ application to set aside the judgment and/or ruling delivered on the 8th of March, 2021 lacked merit and dismissed same.
Particulars of the Error.
i. The learned trial Judge respectfully failed to dispassionately consider substantive issues on jurisdiction raised by the appellants to set aside the proceedings, judgment and/or ruling delivered on the 8th of March, 2021.
ii. The learned trial Judge failed to state and/or demonstrate the grounds or reason upon which his reason was based in the ruling of 8th November, 2021.
Ground Four.
The learned trial Judge erred in law when he proceeded with the hearing of the garnishee proceedings without the appellant being served with the garnishee order nisi and/or being put on notice as to the garnishee proceedings.
i. The appellants were not put on notice as to the hearing of the garnishee proceedings.
ii. The appellants’ right to fair hearing were breached by refusal to put them on notice as to the hearing of the garnishee proceedings’
iii. The trial Court has no jurisdiction to proceed with the hearing of garnishee proceedings without the appellants being put on notice as to same and necessary Court processes served on them.
iv. The appellants were not served with the garnishee order nisi and/or any other process in the garnishee proceedings.
Ground Five.
The learned trial Judge was in grave error in law when he failed to make any pronouncement and/or grant leave for the appellants’ counterclaim pending before him to be heard but proceeds only with the garnishee proceedings upon entering judgment for the respondent under summary judgment procedure.
Particulars of Error.
I. THE APELLANT FILED A COUNTER CLAIM PENDING BEFORE THE TRIAL COURT WHICH THE LEARNED TRIAL JUDGE CLOSED HIS EYES TO AND REFUSED TO MAKE ANY PRONOUNCEMENT AS TO THE FATE OF THE COUNTERCLAIM AND/OR GRANT LEAVE FOR SAME TO BE HEARD.
II. THE LEARNED TRIAL JUDGE HAS REFUSED TO HEAR THE COUNTERCLAIM OF THE APPELLANTS PENDING BEFORE HIM.
iii. THE COUNTER CLAIM OF THE APPELLANTS PENDING BEFORE THE TRIAL COURT ARE YET TO BE HEARD IN ANY FORM WHATSOEVER.
Indeed, it needs no gainsaying that the exercise of the appellate jurisdiction of the Court of appeal is statutory. See Oshodi & Ors vs. Eyifunmi & Anor (2000) LPELR – 2805 (SC). Thus Section 24 (2) (a) of the Court of Appeal Act stipulates that any appeal against an interlocutory decision shall be brought within 14 days, while an appellant is granted three months where the decision is a final judgment in any civil proceedings. It was contended by the Respondent’s counsel that the appeal was filed out of the time allowed, and that no extension of time was sought and obtained.
From the record before the Court, specifically at pages 165 – 168, the notice of appeal said to originate the instant appeal, appears to have been filed on the 15th of November, 2021. The record goes on to depict that the decision being appealed against is that rendered on the 8th day of November, 2021 that the judgment being appealed on was delivered on the 8th of November, 2021. And on the face of the record, the 8th day of November appears thereat as the date on which the ruling was delivered. Our attention has however been drawn to the fact that the final ruling/judgment of the Court was delivered on the 8th of March, 2021. The argument proffered on the point is that grounds 1, and 2 of the grounds of appeal attacks the originating process as well as the procedure employed by the Court in arriving at its decision. That the date of 8th November on the face of the records is a ploy to mislead the Court, but cannot cure the defect it seeks to cover. Invariably the record of appeal binds both the parties and the Court. See Garuba vs. Omokhodion (supra). In adopting his brief, learned counsel for the Appellants was heard as saying that he is predicating his appeal on the judgment delivered on the 8th of November, 2021. It is noteworthy stating that the ruling delivered on the 8th of November, 2021 principally complains about the judgment delivered on the 8th of March, 2021. In the said ruling located at pages 180A – 181 of the record, the lower Court rightly deduced as follows:
This application was filed on the 3rd of August 2021. It comprises the following prayers:
i. An order of stay of proceedings and/or execution of the ruling/judgment of this Court delivered on 8/3/2021 pending the hearing and determination of this application.
ii. An order setting aside the proceedings of this Court held on 8/3/2021 for lack of jurisdiction and breach of fair hearing.
iii. An order of this Court setting aside the proceedings of this Court held on 8/3/2021 and 1/7/2021 for want of jurisdiction and violation of fair hearing
iv. An order dismissing/striking out the main suit for lack of jurisdiction while granting leave on the applicant to proceed with same hearing of the counterclaim.
It is upon the prayers set out above that the lower Court considered in dismissing the application as lacking in merit. The pertinent question therefore is whether the extant grounds of appeal can be said to have been predicated on the said ruling.
Ground one in the Appellants’ notice of appeal complains about the failure of the lower Court to decline jurisdiction and/or set aside the entire judgment and/or ruling delivered on the 8th of March, 2021. Ground two complains about the assumption of jurisdiction by the lower Court in the main suit under summary judgment procedure. Ground three also complains about the lower Court’s ruling refusing to set aside the judgment or ruling of the Court delivered on the 8th of March, 2021, while ground four complains about the proceedings of the lower Court with the garnishee proceedings without the Appellants having been served with the garnishee order nisi and/or being put on notice as to the garnishee proceedings.
In my humble view, whereas grounds 1, 2 and 4 of the grounds of appeal, are complains emanating on the judgment of the 8th of March, 2021, only ground 3, can be linked to the ruling of the Court delivered on the 8th of November, 2021.
It is the law, that a ground of appeal against a decision of the Court must relate to the decision complained about, and constitute a challenge on the ratio of the decision. It has therefore been held that grounds of appeal are not formulated in nubibus, they must be in firma terra, namely arise from a judgment, otherwise it becomes baseless and liable to be struck out. See, Saraki vs. Kotoye (1992) 9 NWLR (pt. 264) 156 and Garuba vs. Omokhodion (2011) 15 NWLR (pt. 1269) 145. In the recent case of Shuaibu Fulani Abdu vs. The State (2022) LPELR – 57689 (SC), it was held that a ground of appeal constitutes an Appellants’ complaint against the judgment appealed against. Also in Olawoye vs. The State (2022) LPELR – 57832 (SC), the Apex Court reiterated the legal position thus:
“Therefore, the ground of appeal consists of an error of law or fact alleged by the appellant as the defect in the judgment he is appealing against”
In the case at hand, I have no doubt whatsoever those grounds 1, 2 and 4 of the grounds of appeal raised are not derivable from the ruling of the Court delivered on the 8th of November, 2021, but rather against the judgment of the lower Court delivered on the 8th of March, 2021. That being the case, it is obvious that the named grounds of appeal offended Section 24 (1) of the Court of Appeal Act, having been lodged more than the three months allowed by law, and for which the leave of this Court was neither sought and obtained, rendering the stated grounds incompetent and liable to be struck out. In the event the grounds specified and all issues founded on same are hereby struck out. The Preliminary objection accordingly succeeds in part, and grounds 1, 2 and 4 as well as issues 1, 2, 4 and 5 are accordingly struck out.
I proceed to the hearing of the main appeal.
Now the only surviving ground is ground 3, earlier reproduced. Can it sustain the appeal?
The two particulars filed to support the ground of appeal are that:
i. The learned trial Judge respectively failed to dispassionately consider issues on jurisdiction raised by the appellants to set aside the proceedings, judgment and/or ruling delivered on the 8th of March, 2021.
ii. The learned trial Judge failed to state and/or demonstrate the grounds or reasons upon which his reason was based in the ruling of the 8th of November, 2021.
The learned counsel for the Appellants from the four grounds of appeal, formulated five issues therefrom. Even then, the only issue that comes near the surviving ground is issue three which reads; whether in the lens of the proceedings of 1st and 8th March, 2021, the learned trial Judge was right to have dismissed the appellants’ application on the 8th of November, 2021 without reason. The issue is said to have arisen from ground 3 of the grounds of appeal.
At page 182 of the record, the trial Judge in dismissing the application concluded that:
“I have carefully perused the documents filed by both parties, their submission on the issues and the judicial authorities thereof. I am of the view that the applicant has failed to establish any reason in law that supports his application. No reason known in law has been established by the applicant to enable me to either set aside my judgment, stay proceedings or stay execution of my judgment. All the reasons stated by the applicant failed. I am inclined in believing the submission and argument of the respondent. On the whole, this application lacks merit and same is hereby refused.”
The application made by the Appellants which gave birth to the ruling delivered on the 8th of November, 2021 is obviously discretionary. Judicial discretion is said to be a sacred power which enures to a Judge. An amour which the Judge exercises judicially and judiciously and not whimsically or to the caprices to any party in the litigation. The appellate Court rarely interferes with the lower Court’s discretion except where the exercise was wrongly exercised or tainted with some illegality. See, Tari Vandighi vs. Sebastine Hale (2014) LPELR – 24196 (CA). To fault the exercise of the Court’s discretion in the matter, it is the duty of the party complaining to show that the discretion was improperly exercised. See, Ajonuma & Ors vs. Nwosu & Ors (2014) LPELR – 24015 (CA), or as stated by this Court per Abiru JCA, in Ashaka Cement Plc vs. Asharatul Mubashshurun Investment Ltd (2016) LPELR – 40196 (CA), that for a party to succeed in showing that a trial Judge exercised his discretion wrongly, that party had the onus of justifying that the discretion was not exercised judicially or that it was exercised upon wrong principles of law. This the Appellants failed to advance before the Court.
The inevitable conclusion therefore is that the lower Court rightly exercised his discretion in fidelity with the law.
From all of the foregoing, I am unable to side the Appellants and to thereby conclude that the trial Court failed to exercise his discretion in the matter as demanded by law. This issue is resolved against the Appellants.
The end result is that this appeal is wanting in merit and it is accordingly dismissed. I award costs of N200,000.00 against the Appellant and in favor of the Respondent.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading the draft judgment of my Learned Brother, BARKA, JCA.
I agree with his reasoning and conclusion that the appeal is wanting in merit and same is also dismissed by me.
The decision of the Niger State High Court in Suit No. NSHC/MN/09/21 delivered on the 8th day of March, 2021, is hereby affirmed. I agree with the consequential order on Costs as made in the leading judgment.
DANLAMI ZAMA SENCHI, J.C.A.: I have had the opportunity of reading in draft, before now the lead judgment of my learned brother, HAMMA AKAWU BARKA, JCA just delivered and I agree with the reasoning, finding and conclusion reached therein that this appeal lacks merit and it is dismissed by me as well.
Accordingly, the judgment of the Niger State High Court in Suit No. NSHC/MN/09/2021 delivered on 8th day of March, 2021 is hereby affirmed.
I abide by the Order for costs made in the lead judgment and I adopt same as mine.
Appearances:
Osita Ibekwute For Appellant(s)
J.G. Taidi For Respondent(s)