HONEYWELL FLOUR MILLS PLC VS ECO BANK NIGERIA LTD
In the Supreme Court of Nigeria
Friday, July 13, 2018
Case Number: SC.401/2016
OLABODE RHODES – VIVOUR JUSTICE SUPREME COURT
MARY UKAEGO PETER-ODILI JUSTICE SUPREME COURT
CHIMA CENTUS NWEZE JUSTICE SUPREME COURT
JOHN INYANG OKORO JUSTICE SUPREME COURT
AMIRU SANUSI JUSTICE SUPREME COURT
HONEYWELL FLOUR MILLS PLC (RCN0.55495)
G. C. DURU for the Respondent and with him is O. A. Divine.
ECO BANK NIGERIA LTD (RCN0.89773)
(DELIVERED BY AMIRU SANUSI, JSC)
The respondent on 16th of October 2015 filed a Winding Up petition against the appellant before the Federal High Court, Lagos (the trial court) in Suit No FHC/L/1569/15 along with a Motion Exparte. On the 27th of October, 2015 and in a well-considered ruling, trial court refused to grant the orders; instead the trial judge directed the respondent to put the appellant, on notice and adjourned the proceeding to a later date.
The learned counsel for the appellant stated that as a result of unsuccessful effort to obtain the Exparte orders against the appellant the petitioner represented the application before Justice J. Tsoho who as well as refused to grant the Exparte orders and presented them to the Registry of the same FHC as designated as NO.FHC/L/CP/1689/2015. On the 18th November, 2015, Justice Yunusa of the same court granted the Exparte orders which had earlier been expressly declined by Justice Tsoho which are found at pages 39-49 of the Record, while the one granted by yunusa J are found at pages 674-678 of the Record.
The facts leading to the institution of this appeal is that, in satisfaction of the liabilities arising out of bank/customers relationship between the appellant and the respondent. Both parties agreed that the sum of N3.5 Billion be paid as full and final liquidation of the said indebtedness. After the payment of the sum was completed in January, 2014, the respondent still communicated to the appellant that it was indebted to it, despite the payment of N3.5 Billion, advancing various reasons.
In reaction, the appellant commenced Dispute resolution Proceedings before the Bankers’ Committee which comprises, the CBN, and a representation from both parties The Committee reached a decision in favour of the appellant to the effect that the agreement to pay the sum N3.5 Billion in full and final liquidation of the appellant, was valid and that those payments discharged those obligations. It was stated that it was after the respondent’s insistence that the appellant was still indebted to it and the respondent’s refusal to abide by the Bankers Committee’s decision and the refusal to release all securities used as a collaboration that led to the commencement of Suit No FHC/L/1219/15 for the determination that the appellant was no longer indebted to the respondent, among other prayers.
The learned appellant’s stated further that the respondent filed Suit No FHC/1219/15 on the 6/10/15 (See pages 142-178) of the Record contending that the FHC did not have jurisdiction to hear the dispute between it and the appellant and that it is only the State High court that could adjudicate in the dispute being a matter of simple contract between them. While that and the ruling on the issue of jurisdiction were all pending, the respondent yet commenced a Winding’ Up proceedings at the FHC on the same facts as those on which issues had been joined in suit No FHC/L/1219/2015. He stated that in view of the fact the Winding Up petition before Yunusa, J was abusive of the one filed before Tsoho J all of the same FHC, the appellant filed an application dated November 23rd, 2015 requesting the discharge of the Exparte order granted by Yunusa J. The trial court, (coram Yunusa J) heard the Appellant’s application but failed to discharge the Exparte orders.
On appeal to the court below, the Exparte orders were discharged and the court struck out some grounds of appeal before it, on the basis that leave to appeal was required in respect of the said grounds even though the appeal was in respect of grant of injunction by the trial court. It is on this premise that the appellant has presented this appeal against the portion of the judgment of the court below.
Parties filed and exchanged briefs of argument. An appellant Brief of Argument, settled by Olabode Olanipekun was filed on 15th August, 2016. In the said b of argument, Brief three issues were decoded for determination which is set out hereunder:-
1. Having regard to the fact that the appellant’s appeal at the lower court arose in respect of a decision relating to the grant of interim orders of injunction against the appellant and also in respect of issues of pure law, whether the lower court was not in error when it struck out grounds 4, 5 and 6 of the appellant’s Notice of Appeal before it (Ground I)
2. Whether the lower court was not in grave error and also acted in breach of appellant’s right to fair hearing, when it refused to consider and pronounce on diverse fundamental issues validly raised before it by the appellant (Ground 2, 3, 5, 6, 7 and 8)
3. Considering the facts and circumstances of the case before the lower court, whether the said court was not wrong in failing to dismiss the Winding Up petition before it and the trial court as an abuse of court process. (Ground 4)
On its part, the respondent filed a brief of argument on 30th May, 2017 which was deemed filed on 15/11/2017. Three issues for determination were proposed in the said brief which read as below:-
A. Whether the Appellant’s Notice of Appeal pursuant to the Ruling of the trial Court of 4th day December, 2015, and the grounds contained therein, are grounds of law alone or an APPEAL against grant or refusal of injunction or appointment of Receiver to justify the finding of same without leave of the trial court or Court of Appeal being sought and obtained?
B. Whether the petition herein presented by the respondent at the Registry of the trial court constitutes abuse of judicial process?
C. Whether a superior court is bound to make pronouncement on any issue rose before it even when not validly raised or where court is of the view that a consideration of an issue will dispose of the appeal?
A cursory look at the three issues raised by the parties leaves one in no doubt, that they are more or less the same or similar in context even though those they differ in the wordings used in couching them. I think it will not be out of place, if I consider the 2nd issue for determination raised in the appellant’s brief of argument first which tallies with the third issue raised in the Respondents brief of argument, which borders on jurisdiction before considering the remaining two issues, if the need arises.
As I posited supra, this issue is similar to the third issue raised in the respondent’s brief of argument. On this issue the appellant in his brief of argument made a catalogue of complaints on the failure of the court below to make pronouncement on some points raised before it which I will reproduce presently. The said points include folio wings:-
1. Whether the petition before the lower court constitutes abuse of court process in view of suit No FHC/L/CP/1569/2015 – Eco Bank Nigeria Ltd Vs Honeywell Flour Mill Plc and Suit No FHC/L/CS/1219/2015 – Anchoro rage Leisures Ltd & 2 ors vs Eco Bank Nigeria Ltd.
2. Whether the petition was aborted and liable to be struck out in view of the suspension of advertisement of Winding Up petition by the trial court.
3. Whether or not the respondent’s counter affidavit and written address as argued in the appellants brief of argument before the lower court were pronounced.
4 Whether the lower court should order stay of proceedings in view of the agreement by parties to go for arbitration as contained in the arbitration clause pending the outcome of the arbitration proceedings.
5. Failure of the lower court to make pronouncement on the issues 5, 6 and 7 which are distinct fundamental issues presented before the lower court for determination especially issue no.5 which the appellant complained of denial of fair hearing by the trial court for not affording the opportunity to hear his position.
In arguing this appeal, the learned counsel for the appellant, distilled 3 issues for determination. Issue No.1 deals with whether the court was not in error when it struck out Grounds 4, 5 and 6 of the appellant’s notice of appeal when the issue before it relates only to the grant of interim orders against the appellant.
The learned counsel to the appellant submitted that it was not in doubt that the appeal before the court was in respect of the grant or Exparte orders against the appellant by the trial court. He argued that since the appeal before the court below arose from the decision of court granting interim order of injunction against the appellant as well as in respect of issue of pure law, the appellant was well within its constitutional right of appeal as of right in approaching the lower court, vide an appeal. He submitted that Section 241(1) (f)(11) of the Constitution clearly gives right of appeal without leave against the decision, wherein injunction is granted. He contended that the court below failed to appreciate the input of the appellant’s argument on the applicability of Section 241(1) of the Constitution which is not exhaustive as each condition is independent of the other and that the court cannot import the requirement of condition(s) when considering condition (d) e.tc. He cited the case of ATTAMAH v ANGLICAN BISHOP OF NIGER
(1999) 12 NWLR (pt.633) 6; He argued further, that even if the said grounds 4, 5 and 6 are subjected to the list in section 24i(i)(b) 0f the Constitution are grounds of law. He cited the case of FBN V TSA INDUSTRIES LTD (2010) 15 NWLR (pt 1216) 247 at 291-292 where the Supreme Court itemised instances that would amount to grounds of appeal that are of pure law. He referred to the judgment of the court below at page 1242 on the validity of ground 4, and submitted that having reached a decision that ground 4 was a ground of law; the court below was without jurisdiction to revisit its decision on the said ground as it had become functus officio. He therefore submitted that the decision of the court below to strike out Ground 4 of the appellant’s notice of appeal is of no moment as it lacks power to take such decision. He cited the case of MOHAMMED v HUSSEINI (1988) 14 NWLR (pt.584)108 at 163. The learned counsel also referred to Grounds 5 and 6 and submitted that none of the 3 grounds seeks to question the exercise of discretion by the trial court to have necessitated the leave of the court. He then urged the court to resolve this issue in favour of the appellant.
This issue deals with the failure of the court below to consider and pronounce on some fundamental issues. The learned counsel for the appellant for instance listed 4 issues at page 13 of its brief, as examples of issues which the court below refused to make pronouncement on. He stated that issue No.5 relates to the breach of the appellant’s right to fair hearing by the trial court when having raised the issue of mareva injunction suo motu without affording the FHC, which is the only court with jurisdiction, to hear same while the suit filed by the appellant relates to a simple contract and can only be entertained by the state High Court. He stated that the challenge of the jurisdiction of the FHC is a subject of an appeal at the Supreme Court in SC.40/2016. He urged the court to hold that the alleged abuse of court process by the appellant has not been made out.
Issue No.3 deals with whether a superior court is bound to make pronouncement on any issue rose even when not validly raised.
The learned counsel for the respondent submitted that it is a settled principle of law that the court may consider all issues presented before it by parties and that it will be an exception where the court concerned is of the view that a consideration of one of such issues is enough to dispose of the appeal. He cited the case of 7UP BOTTLING CO. v ABIOLA & SONS BOTTLING CO. LTD (2001) 6 SC among others. He submitted further that where issues are not validly raised, the court is not bound to make any pronouncement on same.
He argued that this shows the conduct of the lower court in withholding its pronouncement on other issues between parties is deliberate and not an omission on the part of the court below which expressed its reasons for the action.
On arbitration, he submitted the allegation is in correct because the trial court in its ruling clearly stated that an arbitration clause does not oust the jurisdiction of the court and that the appellant had already taken steps in the proceedings. He referred to the judgment of the trial court at pages 1081-1082. He argued that the appellant went beyond filing memorandum of appearance by filing Motion Exparte seeking to discharge interim order which include stay of proceedings. He argued that the appellant voluntarily assumed the risk of approaching the court without first having recourse on the arbitration clause and cannot therefore be heard to complain about the noncompliance thereof by the respondent. He urged the court to resolve this issue in favour of the respondent and to dismiss the appeal.
REPLY OF THE APPELLANT
The learned counsel to the appellant argued that issue no.3 cannot be tied to any of the issues formulated for determination related to any ground of appeal.
As could be gleaned from the brief of argument filed by the respondents, it can be deduced that he conceded that the lower court actually failed to make pronouncements on some or all the issues highlighted above as complained of by the appellant in the latter’s brief of argument. The learned respondent’s counsel however rightly argued that where an issue is subsumed by another issue, it is no longer necessary to make any pronouncement on the subsumed issue. See Adebayo vs AG Ogun State (2008) 2-3 SC (pt.11) 50; AI.I.B. Ltd vs IDS Ltd & 2 Ors (292) 5 SC (pt.11) 112. Similarly, added the learned respondent’s counsel, where issues are not validly raised, the court is not bound to make any pronouncement on it. He also as a concession of the complaint by the appellant’s counsel, admitted or agreed that the lower court deliberately withheld its pronouncement on the issues raised and he argued, that the lower court was faultless in withholding its pronouncement, as some of the issues complained of are mere academic issues which were not the crux or subject matter of the appeal. See Union Bank of Nigeria Ltd Vs Femi (1993) 5 NWLR (pt.295) 612; Adelaja v Alade (1999) 4 SC 81
There is no gain saying that the lower court had actually failed to make pronouncement on the issues highlighted above which were competently raised before the lower court by the appellant. It is not correct to say that those issues were not important, crucial or apt for the determination of the case presented before the lower court for determination by the appellant. Also on Issues No. 5, 6 and 7 which the lower court failed to consider and decide one way or other, it will also not be correct to say that they were subsumed by any of the other issues the lower court made pronouncement on. The said issues which it failed to pronounce on which it glossed over are in my view, distinct and independent issues each of which stands on its own.
The court below did not give convincing or cogent reason why it failed to make pronouncements on them except that it was “deliberate” as the learned counsel for the respondent stated in their brief of argument which said reason was not convincing at all.
It is trite law that a court of law should always make pronouncement on or must determine all the issues raised before it by parties. See 7Up Bottling Company vs Abiola Sons Bottling Company Ltd (2001) 6 SC 73. In this instant appeal and as I stated supra, none of issues 5, 6 and 7 had not been subsumed by any other issue. This 2nd issue raised by the appellant is therefore hereby resolved in favour of the appellant against the respondent.
In the result, in view of my resolution of the 2nd issue in favour of the appellant, it will be presumptuous to proceed to consider at this stage, the other remaining two issues. It is therefore hereby ordered that this appeal be remitted to the lower court for it to consider Issues No 5, 6 and 7 which were validly raised and argued before it but were not determined by it, as well as the other complaint made by the appellant in his Amended Brief of Argument as itemised above. The Appeal therefore succeeds and is allowed. I make no order as to costs. Case is remitted to the court below to consider the issues mentioned supra.
JOHN INYANG OKORO, JSC: I read before now the lead judgment of my learned brother Amiru Sanusi, JSC just delivered and I am in agreement that there is merit in this appeal and deserve to be allowed.
Although the appellant herein succeeded at the court below by convincing the lower court to reverse the ex-parte order made by the learned trial judge, it however picked holes in the said judgment in respect of certain issues submitted before it but which were not considered at all. The issues are as follows as contains on pp. 13 -14 of the appellant’s brief of argument.
“(i) The legal issue that the petition before the lower court constitutes/constituted an abuse of court process in view of the earlier filed SUIT NO:FHC/L/CP/1569/2015-ECOBANK NIGERIA LTD V. HONEYWELL FLOUR MILLS PLC and SUIT NO: FHC/I/CS/1219/2015 -ANCHORAGE LEISURES LTD & 2 ORS v. ECOBANK NIGERIA LTD. Argued at pages 12 – 16 of appellant’s brief before the lower court appearing at pages 723-743 Vol.11 of the record.
(ii) The legal issue that in view of the suspension of the advertisement of the winding-up petition by the trial court, the petition had become aborted and liable to be struck out or dismissed-argued at pages 17-19 of appellant’s brief before the lower court appearing at pages 742 – 744 Vol. II of the record.
(iii) The legal issue as to the incompetence of respondents counter affidavit and written address argued at pages 26-29 of appellant’s brief at the lower court appearing at pages 751- 754 Vol. II of the record.
(iv) The legal issue presented in the alternative that considering the arbitration clause in the agreement between the parties, the trial court ought to have made an order for stay of proceedings pending arbitration-argued at pages 21 – 25 of appellant’s brief appearing at pages 746 -750 Vol. II of the record.
Further to the above, is the failure of the lower court to consider and pronounce on appellant’s issues 5, 6 and 7 which were standalone fundamental issues, each of which was sufficient on its own to determine the appeal before the lower court? Appellant’s issue 5 relates to the breach of the appellant’s right to fair hearing by the trial court when having raised the issue of mareva injunction suo motu, it did not afford the appellant an opportunity to be heard before arriving at its decision and granting reliefs not sought against the appellant. Issues 6 borders on appellant’s alternative prayer at the trial court which was for stay of proceedings pending arbitration in line with the agreement between the parties. Whilst issue 7 relates to the validity of respondent’s counter-affidavit and written address in opposition to appellant’s application dated 23rd November, 2015. Appellant had contended before the lower court that in view of the defective nature of counter-affidavit and written address, the trial court ought to have taken the appellant’s application as unchallenged. These issues were not considered by the lower court in its entire judgment. In Fact the court had held in respect of these issues thus:
“With the resolution of the said issue a further discourse on issues 5, 6 and 7 will amount to an unnecessary academic exercise having become moot… on the whole, this appeal succeeds and its accordingly allowed.”
The law is well settled that it is the duty of a court either of first instance or appellate jurisdiction to consider all the issues joined and argued by the parties before the court and where it failed to do so, valid reasons must be advanced for the neglect. Particularly, for penultimate courts which decisions are subject to appeal to either the court of appeal or the Supreme Court, there is need for them to pronounce on all issues articulated before them so that the Appellate Court may have the opportunity of being seized of the facts and to assess the decisions on each such issues in order to avoid situations where the ultimate court may have to remit a case to the lower court for hearing. It is only the Apex Court that can determine a case on a single issue which terminates the proceedings or appeal. See Ebba v. Ogodo & anor (1984) 1 SCNLR 372, Ojogbue v. Nnubia (1972) 1 ALL NLR (pt.2) 226 at 232, Ifeanyi Chukwu (Osondu) Co. Ltd v. Soleh Boneh Nig. Ltd (2000) 5 NWLR (pt. 251) 322.
The above issues raised by the appellant before the Court of Appeal, apart from the issue of abuse of court process, which the lower court preferred should be determined by the trial court, the other issues were not decided and I think the lower court failed in its adjudicatory duty. These issues are weighty which can turn the scale one way or the other. I agree that they ought to be decided by the court below and not to allow this court to take up their duty.
Based on the above few words of mine and the elaborate reasons in the lead jugdment also find merit in this appeal and I allow same.
I also agree that this appeal be remitted back to the court below to decide those issues they failed to do in their judgment of 30th March, 2016. I shall make no order as to costs.
OLABODE RHODES-VIVOUR, JSC: I have had the benefit of reading before today a draft of the leading judgment delivered by my learned brother, Sanusi JSC. I am in full agreement with the reasoning and conclusion that the appeal partially succeed. I too remit this appeal to the Court of Appeal for consideration of outstanding issues. See Okonji v Njokanma (1991) 7 NWLR (Pt.202) p.131 Okoala v Nigeria Breweries PLC (2017) LPELR – 43826 (SC) p. 17 are instructive on this point. Appeal partially succeeds.
CHIMA CENTUS NWEZE, JSC: I had the advantage of reading the draft of the leading judgement which my Lord, Sanusi, JSC, delivered now. I, entirely, agree with His Lordship that this appeal, partially, succeeds.
It is now well-settled that, except in clearest of terms it is the duty of all lower Courts to consider all issues placed before them, A. G. Leventis Plc v Akpu (2007) LPELR – 5 (SC); Owodunni v Registered Trustees of Celestial Church of Christ and Ors  6 SC (pt. II) 60;  6 SCNJ (pt. 299) 426,422; Ikpeazu v Otti and Ors (2016) LPELR – 40055 (SC) 19; A – C; Katto v CBN  9 NWLR (pt. 240) 126, 149; Okonji v Njokanma  7 NWLR (pt. 202) 131,150; Chukwu v Sonen Bonen  2 SCNJ
18, 38; Brawal Shipping (Nig) Ltd v. F.I. Onwadike Co. Ltd [2.000] 6 SCNJ 508, 522; Ojogbue v Nnubia  6 SC 227; Yakassai v. Incar Motors Ltd.  5 SC 107; Citec International Estate Limited & Ors v. Josiah Oluwole Francis & Ors (2014) LPELR – 22314 (SC); C. N. Okpala and Sons Ltd v Nigerian Breweries Plc (2017) LPELR – 43826 (SC) 17; A-F.
It is for these, and the more elaborate, reasons in the leading judgement that I, too, shall remit this appeal to the lower court for the consideration of Issues 5, 6 and 7. Appeal, partially, succeeds.
MARY UKAEGO PETER-ODILI, JSC: I am in total agreement with my learned brother, Amiru Sanusi JSC in the judgment just delivered and to register the support I have for the reasoning’s from which the decision came about, I shall make some remarks.
On the 30th day of March 2016 the Court of Appeal, Lagos Division or Court below or Lower court, Coram: S. D. Bage JCA (as he then was), S. C. Oseji and A. O. Obaseki – Adejumo JJCA delivered a judgment setting aside the Ruling of the Federal High Court per Yunusa J. delivered on the 4th day of December, 2015. The Court below had allowed the appeal in part and struck out the cross-appeal filed by the respondent.
In the leading judgment, the full details of the facts from which this appeal emanated are found and so dispensing with a repeat herein except there comes a need to make a reference to any part thereof.
On the 23rd April 2015 date of hearing, learned counsel for the appellant, Olabode Olanipekun Esq. adopted its brief of argument filed on 15/8/16 and a reply brief filed on 4/10/17. In the brief of argument appellant raised three issues for determination which are stated hereunder, viz:-
i) Having regard to the fact that appellant’s appeal at the lower court arose in respect of a decision relating to the grant of interim orders of injunction against the appellant and also in respect of issues of pure law, whether the lower court was not in error when it struck out grounds 4, 5 and 6 of the appellant’s Notice of Appeal before it. – Ground 1.
ii) Whether the lower court was not in grave error and also acted in breach of appellant’s right to fair hearing when it refused to consider and pronounce on diverse fundamental issues validly raised before it by the appellant. – Grounds 2, 3, 5, 6 7 and 8.
iii) Considering the facts and circumstances of the case before the Lower court, whether the said court was not wrong in failing to dismiss the winding up petition before it and the trial court as an abuse of court process. – Ground 4.
G. C. Duru Esq., learned counsel for the respondent adopted the brief of argument settled by Kunle Ogunba Esq. filed on 31/5/17 and deemed filed on 15/11/17. In it were raised three issues for determination which are thus:-
(a) Whether the appellant’s Notice of Appeal pursuant to the ruling of the trial Court of 4th of December, 2015 and the grounds contained therein are grounds of law alone or an APPEAL against grant or refusal of injunction or appointment or Receiver to justify the filing of same without leave of the trial court or Court of Appeal being sought and obtained.
(b) Whether the petition herein as presented by the respondent at the Registry of the trial court constitutes an abuse of judicial process.
(c) Whether a Superior Court is bound to make pronouncement on any issue rose before it even when not validly raised or where court is of the view that a consideration of an issue will dispose of the appeal.
For ease of reference I shall make use of the issues as crafted by the appellant which are substantially the same in content as those of the respondent.
Having regarded to the fact that appellant’s appeal at the lower court arose in respect of a decision relating to the grant of interim orders of injunction against the appellant and also in respect of issues of pure law. Whether, the lower court was not in error when it struck out grounds 4, 5 and 6 of the appellant’s Notice of Appeal before it.
In advancing the position of the appellant, learned counsel Olabode Olanipekun Esq, contended that grounds 4, 5 and 6 of the grounds of appeal at the Lower Court could be presented without a need for leave of court as by the nature of the complainants therein were grounds of law. He cited Section 241 (i) (f) (ii) of the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN for short); Calabar Central CO-operative and Thrift Society Ltd v Ekpo (2008) 1-2 SC 229; Awolowo v Shagari (1979) 6-9 SC 51; Attorney General of the Federation v Abubakar (2007) All FWLR (Pt. 375) 405 at 547; F. B. N. v TSA Industries Ltd (2010) 15 NWLR (Pt.1216) 247 at 291-292 etc.
Learned counsel for the respondent. G. C. Duru Esq. contended that the ruling of the trial court subject of the said appeal did not involve the grant or refusal of injunction but involved variation of injunction which did not fall within the ambit of section 241 (i) (f), (II) CFRN. The reason being as learned counsel submitted is that the statute made mention of specific things or persons and so the intention was to exclude those not mentioned. He referred to Buhari v Yusuf (2003) 6 SC (Pt II) 156; Awoyale v Ogunbiyi (1986) 2 NWLR (Pt.2) page 626.
That a clear perusal of Grounds 4, 5 and 6 of the appellant’s Notice of Appeal at the lower court shows that those grounds cannot be appealed as of right but with leave of the court expressly sought and obtained. He cited First Fuel Ltd v NNPC (2007) 2 NWLR (Pt.1018) 276; Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718 etc.
For a clearer view I shall recast the application of the appellant at the Trial Court which ruling was delivered by that court on 4-12-15 and the prayers are thus:-
“1. AN ORDER discharging and/or vacating the interim Orders of injunction granted by this Honourable Court in favour of the Petitioner/Respondent on 18th day of November, 2015.
2. AN ORDER dismissing and/or striking out this petition.
3. IN THE ALTERNATIVE TO (2) ABOVE, AN ORDER staying proceedings in this suit for reference of the despite between the parties to arbitration.
4. SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this petition.”
The trial court in its ruling varied the order of Interim Injunction made in favour of the respondent on 18/11/15 and also suspended the earlier order made for the advertisement of the petition; it was this decision of the 4-12-15 of the trial court that the appellant appealed against at the court below. Clearly what is at the base of the appeal is not the grant or refusal of injunction but rather the matter of the variation of the injunction. The Notice of Appeal of the appellant at the Court below was clearly that appellant was dissatisfied with the ruling of 4th December, 2015 and not only the aspect of the ruling that varied the order of injunction. The next question would be if such a complaint is a matter of pure law to which Section 241 (1) (f) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) would apply and thus dispose of the need for leave before appeal.
A full look at grounds 4, 5, and 6 of the Notice of Appeal shows a grouse on the trial court’s exercise of its discretion which in effect is a ground of mixed law and facts and requiring leave of court before an appeal can validly be made. Also to be said is that the said ruling was predicated on an interlocutory application wherein the facts brought before the court are through affidavit evidence and so cannot be classified as an issue of law but one of facts or at best mixed law and facts. See Awoyale v Ogunbiyi (1986) 2 NWLR (Pt.2) 626; Global Trans-Oceanic S. A. Free Ent. (Nig.) Ltd (2001) 5 NWLR (Pt.706) 526; First Fuel Ltd v NNPC (2007) 2 NWLR (Pt. 1018) 276.
The Court below had in concluding at the appeal held thus:-
“However, GROUNDS 4, 5 and 6 questions the exercise of discretion of the Learned Trial Judge which is a ground of mixed law and fact and such needs the leave of Court before it can be filed and argued.”
The above situation as stated in excerpts of the Ruling of the Court of Appeal is distinct from the position of the case of Attamah v Anglican Bishop on the Nigeria (1999) 12 NWLR (Pt.633) 6 which appellant is relying on as in Attamah’s case (supra) a case under the 1979 Constitution involved the grant and refusal of injunction simply. The case at hand on its own part went beyond the grant and refusal of injunction and so Attamah’s principle would not inure to the benefit of the appellant to dispense with the need for leave to appeal.
I am guided by the dictum of this court in Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718 where the Supreme Court observed that it is more difficult to distinguish between a ground of appeal based on error of law and as ground of appeal on mixed law and fact as the line of distinction is always very thin and so bringing into effect the need for care to be taken not to inadvertently convert a ground based on mixed law and fact into a ground based on error of law.
To cut a long story short in this instance, the issue is the question of the exercise of discretion of the court in making an order which certainly is a matter of evidence and falling squarely into the category of mixed law and fact or even fact but definitely not pure law. Therefore grounds 4, 5 and 6 are incompetent having been brought without the necessary leave of court and so not valid. The suffer what occurs in the existence of such incompetence and that is a striking out. For effect grounds 4, 5 and 6 of the Grounds of Appeal are hereby struck out.
Whether the Lower Court was not in grave error and also acted in breach of appellant’s right to fair hearing when it refused to consider and pronounce on diverse fundamental issues validly raised before it by the appellant.
Learned counsel for the appellant stated that the lower court failed to consider and pronounce on material and fundamental issues canvassed by it by the parties. That this failure resulted in the appellate court going in the opposite direction of what ought to have obtained being the dismissal of the petition on winding up. He referred to NTA v Babatope (1996) 4 NWLR (pt. 440) 75 at 89; Okonji v Njokanma (1991) 7 NWLR (202) 131 at 150; Air Via Ltd v Oriental Airline Ltd (2004) 9 NWLR (Pt.878) 298 at 329, etc
That the arbitration clause in the agreement at the base of this dispute cannot validly be ignored and so not having the arbitration sorted out placed the approach to the court of trial as a jumping of the jun. he cited MV Lupex v N.O.C. & C. Limited (2003) 15 NWLR (Pt. 844) 469 at 491; Fawehinmi Cons. Co. Ltd v O. A. U. (1998) 6 NWLR (Pt.553) 171 at 183, etc.
Learned counsel for the appellant further contended that the breach of fair hearing was occasioned by the ex-parte orders made by the trial court against non – parties to the petition and in disregard to the condition precedent being the matter of the arbitration clause. He cited Tijani Nenbe v Yusuf Adetunji (1997) 1 SC 1 at 8; Green v Green (1997) 3 NWLR (Pt.61) 80; Olumesan v Ogundepo (1996) 2 NWLR (Pt.433) 628 at 645: Idakwo v Ejiga (2002) 13 NWLR (Pt.683) 156 at 165 – 167
For the respondent it was submitted that the trial court ruled that the arbitration clause does not oust the jurisdiction of the court. That Sections 4 and 5 of the Arbitration and conciliation Act were extinguished in the subject suit and Suit NO. FHC/L/CP/1219/2015 pending before the Idris J. of the Federal High Court Lagos wherein the appellant is one of the plaintiffs, he cited L.A.C. v A.A.N. Ltd (2006) 2 NWLR (Pt.963) 49 at 73: Obembe v Wemabod Estate Ltd (1977) Vol. II NSCC pace 271.
The question raised here is interesting, in that the Court below fully appreciated that the court of trial failed to address all the issues as brought before it, then the court below went on to carry out its function but inadvertently failed to consider and determine those issues left behind at the court of trial and which itself noted as such, if the lower court had taken its own advice, this grouse brought up now of a breach of fair hearing of the appellant would not have arisen. I shall cite excerpts of the said position at the Lower Court thus:-
“I however observe that subsequently in the said Ruling, except for the pronouncements on the grant of interim orders as well as whether an order other issues such as abuse of court process and Ex-parte orders made against persons who are not parties to the Petition were not considered in the said Ruling.”
There is every necessity for a tribunal to make findings and pronounce on material and fundamental issues canvassed before it by the parties because failure to do so may result in a miscarriage of justice. See page 1257 of vol.iii of the record. See also the case of Usman v Umaru (1992) 7 NWLR (Pt.254) 377 at 398-399 paras. F-A, where this Court held thus:
“It is now settled that under the doctrine of stare decisis, the court below as an intermediate Court of Appeal between the court below it and this court as final appellate court, is bound by its own decisions…”
For a fact the Court below did neither consider nor pronounced on certain material and fundamental issues canvassed before it by the parties which issues he despatched as follows:-
“With the resolution of the said issue a further discourse on issues 5, 6 and 7 will amount to an unnecessary academic exercise having become moot……. On the whole, this appeal succeeds and it’s accordingly allowed.”
It is now a settled matter that once issues are presented before a court it has to attend to each and every one of them saves for when any aspect is subsumed in the already considered issue that it can be taken as settled. In this I call in aid the following dicta. NTA v Babatope (1996) 4 NWLR (Pt.440) 75 at 89, Pats – Acholonu JCA (as he then was) held that:-
“In considering the case put forward by the parties, I note with regret that the learned trial judge did not seem to have applied his mind analytically to the two sides of the case, i.e., the address of both counsel, it does not matter what his conclusions would have been, but a judgment which when viewed from all parameters, seems to be based pointedly on the case or submission of one party, does not quite reflect the orthodox method of adjudication. Even if the other parties are talking legal nonsense, he should make a finding of that nonsense.”
In Okonji v Njokama 7 NWLR (Pt.202) 131 at 150 paras. G-H, the Supreme Court per Uwais JSC held as follows:-
“It is the duty of the court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the court fails to do so without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of Justice that every court has a duty to hear, determine and resolve such question.”
The material points raised in the issues 5, 6 and 7 unattended being so salient, it is necessary that the Court below do the needful and consider and resolve them in the interest of fair hearing which was clearly breached for that failure. The natural conclusion therefore ensuring is to send this case back to the Court below for it to deal with all the issues before it including those of 5, 6, and 7.
Therefore for this reason above stated and the fuller and better reasoning in the lead judgment, I allow this appeal in part and remit the case to the Court of Appeal and another panel for a rehearing fully on the merits.
OLABODE OLANIPEKUN for the Appellant and with him are; Faith Adarighofua, Shola Bojuwoye – Opemipo Olorunfemi, Kolawole Aro.