GREAT NIGERIA INSURANCE PLC v. EZENWAKA CELESTINE AMARACHI
(2019)LCN/12539(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of January, 2019
CA/IL/78/18
RATIO
COURT AND PROCEDURE: WHERE A PRELIMINARY OBJECTION IS RAISED
“It is trite that where a preliminary objection has been raised, it is pertinent to dispose of same first. This is so because if it is successful, it would determine the fate of the appeal. In the present case, the preliminary objection was rightly raised in the Respondent’s brief of argument challenging the competence of the entire appeal, not having satisfied a condition precedent before filing the appeal. It is time saving. See PETGAS RESOURCES LIMITED VS. LOUIS N. MBANEFO (2017) LPELR – 42760 (SC) PP. 6 – 9, PARAS. C – F, where his lordship Ogubiyi, JSC of the Apex Court explained in detail the need to dispose of a preliminary objection first, the purpose and the effect on the substantive matter thus:
As a first line of action in this appeal, it is pertinent to dispose of the preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. See AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248 at 257 and 258 and FAWEHINMI VS. N.B.A. (NO. 1) (1989) 2 NWLR (PT. 105) 494 at 515 ? 516. See also OGIDI VS. EGBA (1999) 10 NWLR (PT. 621) 42 at 71 and SALAMI VS. MOHAMMED (2000) 9 NWLR (PT.673) 469.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
GREAT NIGERIA INSURANCE PLC Appellant(s)
AND
EZENWAKA CELESTINE AMARACHI Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):
The High Court of Kwara State on the 11th day of April, 2018 gave judgment in favour of the Respondent who was then claimant. The appellant as defendant was dissatisfied with the judgment thus this appeal.
The background facts are that the respondent is one of the customers of the Appellant, an Insurance Company operating in Nigeria with its head office in Lagos. The Respondent subscribed to one of the Insurance Policies of the Appellant.
The Respondent made out that during the course of transactions, one Mr. Okafor Peter, the Appellant’s marketing agent who was said to be at large defrauded him of his policy funds was not satisfied with the Appellant in refusing to assume responsibility for the acts of the said Mr. Peter Okafor, on the 10th day of November, 2017, the claimant took out a writ under the undefended list procedure at the lower Court. On the 6th of February, 2018 the Appellant filed a Notice to Defend with a counter Affidavit in opposition to the claimant?s Affidavit in support of the claim.
At the close of the trial, all the issues were resolved in favour of the Respondent and the trial Court entered judgment as per the claim filed by the claimant. The Appellant challenged the judgment of the trial Court and filed a Notice of Appeal containing five(5) grounds of Appeal. Two issues were distilled for the determination of the appeal thus:
1. WHETHER OR NOT THE TRIAL JUDGE ERRED IN LAW WHEN HE FAILED TO DISPASSIONATELY EXAMINE THE CASE AS PRESENTED BY THE DEFENDANT BY EVALUATING THE AFFIDAVIT EVIDENCE ADDUCED IN THE DEFENDANT’S COUNTER AFFIDAVIT DATED 10TH NOVEMBER 2017 ESPECIALLY ON THE POINT THAT THE CLAIMANT PRESENTED NO CREDIBLE EVIDENCE TO PROVE THAT HE MADE ANY FORM OF PAYMENT OR CONTRIBUTION TO THE CLAIMANT. (DISTILLED FROM GROUNDS 1 AND 2)
2. WHETHER THE TRIAL JUDGE WAS NOT WRONG WHEN HE RELIED HEAVILY ON THE AFFIDAVIT OF THE CLAIMANT IN ARRIVING AT THE DECISION THAT THERE WAS NO TRIABLE ISSUE IN RESPECT OF THE CLAIM.? (DISTILLED FROM GROUNDS 3, 4 & 5)
The Respondent on his part in response, in his brief of argument filed on 31/7/18, raised and argued a preliminary objection as follows:
TAKE NOTICE that the respondent shall be (sic) at the hearing of this appeal contend by way of preliminary objection challenging the jurisdiction and/or competency of the Court of Appeal to hear this Appeal.?
The sole ground upon which the objection is anchored is on the ground of law to the effect that the appellant failed to comply with the provisions of Section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) before filing the notice of Appeal, hence failure to obtain the requisite leave of the trial Court or that of the Court of Appeal before filing the notice of Appeal which renders same incompetent and invalid.
In the alternative, should the preliminary objection fail, the learned counsel to the Respondent in his brief of argument distilled a sole issue for the determination of the appeal thus:
‘Whether the trial Court properly evaluated the affidavit evidence of both the claimant and the defendant before arriving at a just determination of the suit.’
The Appellant’s learned counsel responded to the preliminary objection in the appellant?s reply brief filed on 22/10/18, deemed properly filed on 24/10/18.
In arguing the preliminary objection, the learned counsel to the Respondent, Sunday Ikeh Esq., submitted that the Appellant failed to comply with the provisions of Section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), (hereafter referred to as the Constitution). It was argued that an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right where the ground of appeal involves questions of law alone. While Section 242 of the Constitution, subjects its provision to Section 241 which states that an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal. Further, that an appellant seeking to appeal against a decision of a High Court does so, as of right only where the ground of appeal involves questions of law alone and when it involves a question of facts or mixed law and facts, there is need to obtain the leave of Court. With a look at the notice of appeal, it was argued that the grounds of appeal are of fact and/or mixed law and fact.
Reference was made to Ground 5 of the Notice of Appeal which is a summary of the grounds of appeal. It was contended that the Appellant ought to have obtained the leave of either the trial Court or the Court of Appeal before filing same. See ABIOLA & SONS BOTTLING COMPANY NIG. LTD. VS. FIRST CITY MERCHANT BANK LTD (2013) 10 NWLR (PT. 1363) 501, P. 521, PARAS. D ? F, ORGAN VS. NIGERIA LIQUEFIED NATURAL GAS LTD (2013) 16 NWLR (PT. 1381) 506 (P. 531, PARAS. D ? F) and TIMOTHY VS. FABUSUYI (2013) 1 NWLR (PT. 1335) 379 (PT. 392, PARAS. A ? E). Also, NJEMANZE VS. NJEMANZE (2013) 8 NWLR (1356) 376, PAGE 403, PARAS. C – E and LOULEEN TOYS IND. LTD VS. KOMOLAFE (2013) 14 NWLR (PT. 1375) 542 (P. 5651 PARA. F).
It was submitted that where leave is not obtained where required, when the notice of appeal is of mixed law and fact, it is a condition precedent without which the processes should be thrown out. Reliance was placed on ABUBAKAR VS. DAKWAMBO & ORS (2015) 10 SCM, 1 at PAGE 17, PARAS. H ? I. It was contended that the Appellant failed to comply with the precondition enunciated under Section 242 (1) of the Constitution (as amended).
It was submitted that the notice of appeal upon which the other processes filed are anchored is incompetent and a nullity. We were urged to strike out the appeal for lacking in merit and award substantial costs.
In response, the learned counsel to the Appellant Ogochukwu Chinedu distilled a sole issue for the resolution of the preliminary objection thus:
‘Whether the Appellant require (sic) leave of Court to Appeal against the judgment delivered by O.A. Akinpelu on the 11th April, 2018 being judgment delivered under the undefended list procedure.’
It was contended by the learned counsel to the Respondent that Sections 241 – 242 of the Constitution (as amended) reveals that an appeal may lie before a High Court/Court of Appeal as of right and also with the leave of the Lower Court or the Court of Appeal. The provision of Section 241 (1)(a) of the Constitution was reviewed. It was submitted that leave is not required to appeal against a final judgment and that the decision of the lower Court under the undefended list procedure is a final judgment from where the appeal is as of right.
See UKO VS. EKPENYONG (2006) ALL FWLR (PT. 324) 1927. It was argued that the judgment from which the appeal emanated is a final judgment under the undefended list, for which leave of the High Court or this Court is not required, as the appeal is as of right. We were urged to discountenance the Preliminary objection.
It is trite that where a preliminary objection has been raised, it is pertinent to dispose of same first. This is so because if it is successful, it would determine the fate of the appeal. In the present case, the preliminary objection was rightly raised in the Respondent’s brief of argument challenging the competence of the entire appeal, not having satisfied a condition precedent before filing the appeal. It is time saving. See PETGAS RESOURCES LIMITED VS. LOUIS N. MBANEFO (2017) LPELR – 42760 (SC) PP. 6 – 9, PARAS. C – F, where his lordship Ogubiyi, JSC of the Apex Court explained in detail the need to dispose of a preliminary objection first, the purpose and the effect on the substantive matter thus:
As a first line of action in this appeal, it is pertinent to dispose of the preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. See AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248 at 257 and 258 and FAWEHINMI VS. N.B.A. (NO. 1) (1989) 2 NWLR (PT. 105) 494 at 515 ? 516. See also OGIDI VS. EGBA (1999) 10 NWLR (PT. 621) 42 at 71 and SALAMI VS. MOHAMMED (2000) 9 NWLR (PT.673) 469.
In other words, it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense. Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance the case of EFET VS. INEC (2011) ALL FWLR (PT. 565) PAGE 203 at 216 is extant wherein this Court held:-
‘The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be.’
Also in RABIU VS. ADEBAJO (2012) ALL FWLR (PT. 634) 1836 at 1842 this Court said:- ‘A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.’
The same foregoing principle of law was applied also in the case of AKERE VS. GOVERNOR OYO STATE (2012) ALL FWLR (PT. 534) 53 OR 84 wherein this Court stated the position of the law on the succinctly when it said thus:- However vague or a minute a preliminary objection is, it must be first considered before the Court can go forth, since the competence of the process is questioned.
It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead. Other related authorities on the same principle are ABE VS. UNILORIN (2013) ALL FWLR (PT. 697) 682 at 691 – 692; AGBAREH VS. MIMRA (2008) ALL FWLR (PT. 409) 3 SCNJ 24; ONYEMEH VS. EGBUCHULAM (1996) 4 SCNJ 237; and YARO VS. AREWA CONSTRUCTION LTD & ORS. (2007) 6 SCNJ 418, (2008) ALL FWLR (PT. 400) 603. On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal.
In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. .It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See ABE VS. UNIVERSITY OF ILORIN (SUPRA); UTUK VS. NPA (2005) 6 SC (PT. 11) 69, and UWAZURIKE VS. ATTORNEY ? GENERAL, FEDERATION (2007) ALL FWLR (PT. 367), 834. The Black?s Law Dictionary, 9th Edition at page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a Tribunal impossible or unnecessary.
For the resolution of the preliminary objection, it is necessary to reproduce the provisions of Section 242 (1) of the 1999 Constitution (as amended) for clarity. It provides as follows:
242(1): Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
But, by the provisions of Section 241 of the 1999 Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right where the ground of appeal involves questions of law alone. Section 242 of the Constitution is subject to Section 241 and clearly states that an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal. Section 241 (1)(a) and (b) provides as follows:
241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases :
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
From the above provisions, it means that an appellant seeking to appeal against a decision of a High Court does so as of right only where the ground of appeal involves questions of law alone, therefore when it involves a question of facts or mixed law and facts, the need for the leave of Court is required.
Generally, it is difficult to distinguish between a ground of law from a ground of mixed law and fact or fact simpliciter. When a ground of appeal reveals a misunderstanding by the trial Court, of the law or a misapplication of the law to the facts already proved or admitted, the ground is one of law. But, where the ground questions the evaluation of facts by the trial Court before the application of the law, then that would amount to a question of mixed law and fact. His Lordship of the Apex Court, Augie, JSC in FASUYI & ORS VS. PDP & ORS (2017) LPELR 43462 (SC) P. 32, PARAS. B – D distinguished a ground of law, a ground of mixed law and fact and a ground of fact and a ground of fact simply thus:
‘Admittedly, it is not easy to distinguish a ground of law from a ground of fact or mixed law and fact. But it is settled that if a ground of appeal reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, it will be a question of law; if it requires questioning the evaluation of facts before application of law, it amounts to a question of mixed law and fact. see OGBECHIE VS. ONOCHIE (1986) 2 NWLR (PT. 23) 484.’
See also GLOBAL WEST VESSEL SPECIALIST NIGERIA LIMITED VS. NIGERIA NLG LIMITED & ANOR (2017) LPELR 41987 (SC) PP. 27 ? 28, PARAS. F – D per Ariwoola, JSC and NDALILE & ORS VS. ABUBAKAR & ORS (2010) CA PP. 7 ? 8, PARAS. E ? D, per Bada, JCA.
It is clear from the above authorities that where leave is required, it is a pre-condition before an appellant could file a notice of appeal, containing grounds of mixed law and fact, an appellant who files a notice of appeal without satisfying or obtaining that pre-condition would have his process discarded as rightly argued by the learned counsel to the Respondent. For instance, the Appellant?s ground 5 of her Notice of Appeal reads thus:
GROUND 5:
‘The Ruling of the trial Court is against the weight of evidence.’
The above ground 5 is not a question of law but, of fact, that removes the appeal from the ambit of Section 241 (1) (a) and (b) of the Constitution because the grounds of appeal involve facts or mixed law and facts. The appellant ought to have obtained the leave of the High Court or this Court before filing the appeal. Having failed to obtain such leave, the appeal is incompetent and this Court lacks the jurisdiction to entertain the appeal. In the present case, the Appellant failed to comply with Section 242 (1) of the Constitution (as amended) therefore, the notice of appeal upon which all other processes filed are anchored is incompetent and a nullity.
The essence of a preliminary objection is an attack on the competence of the appeal and its resolution would determine whether or not the appeal would be determined on the merit. The present preliminary objection is sustained and has the effect of terminating the appeal. Therefore, further proceedings before this Court are impossible.
With the success of the preliminary objection, there would be no need to go into the substantive appeal to consider the alternative argument. The resultant effect is that the appeal is incompetent, same is hereby struck out.
Parties are to bear their respective costs.
HAMMA AKAWU BARKA, J.C.A.: I agree
BALKISU BELLO ALIYU, J.C.A.: I agree
Appearances:
Ogochukwu ChineduFor Appellant(s)
Sunday IkehFor Respondent(s)
