MISABS INT’L LTD v. DIAMOND BANK PLC (2020)

MISABS INT’L LTD v. DIAMOND BANK PLC

(2020)LCN/13948(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, February 06, 2020

CA/L/733/2018

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Between

MISABS INTERNATIONAL LIMITED APPELANT(S)

And

DIAMOND BANK PLC RESPONDENT(S)

RATIO

WHETHER OR NOT A GROUND OF APPEAL WHICH COMPLAINS THAT THE DECISION OF THE TRIAL COURT IS AGAINST EVIDENCE OR WEIGHT OF EVIDENCE OR CONTAINS UNRESOLVED CONTRADICTIONS IN THE EVIDENCE OF WITNESSES IT IS PURELY A GROUND OF FACT THAT REQUIRES LEAVE OF COURT

The position of law is that before an appeal can be laid on such grounds, the party wishing to appeal must seek the leave of the Court below or this Court. No such leave is shown to have been sought or obtained by the appellant. They are incompetent grounds and are hereby struck out. See: Tilbury Construction Co. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt.74) 64; Idika v. Erisi (1988) 2 NWLR (Pt.78) 563…” (My Emphasis). PER IKYEGH, J.C.A.

IMPLICATION OF A GROUND OF APPEAL THAT IS AGAINST THE WEIGHT OF EVIDENCE RELIED UPON

The Supreme Court had cause to hold in the case of Anyaoke and Ors. v. Adi and Ors. (1986) 3 NWLR (pt.31) 731 at 742 per the lead judgment of His Lordship, Uwais, J.S.C., (later CJN) that where a ground of appeal such as the omnibus ground of appeal that judgment is against the weight of evidence is relied upon, the implication of the ground of appeal is that —
“… the trial Judge either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would support the findings of the trial Judge”.
See also the case of Ugwu v. State (supra). Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999, as altered (1999 Constitution) requires the appellant to obtain the leave of the Court below or the Court of Appeal on grounds of fact and/or mixed law and fact. The appellant did not obtain the said leave before it filed the notice and grounds of appeal on fact and/or mixed law and fact in the present appeal.
The effect of failure to seek and obtain the leave to appeal where it is required, as in this case, renders the appeal incompetent leading to want of jurisdiction of the Court to entertain the appeal vide the case of Obasi v. Mikson Establishment Industries Ltd. (2016) 16 NWLR (pt. 1539) 335 at 378 following the cases of Central Bank of Nigeria v. Okojie (2002) 8 NWLR (pt.768) 68, Unity Bank Plc v. Bouari (2008) 7 NWLR (pt.1086) 372, Okwuagbala v. Ikueme (2010) 19 NWLR (pt.1086) 372. see also Fasuyi and Ors. v. PDP and Ors. (supra). PER IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the decision of the Federal High Court sitting in Lagos (the Court below) whereby it upheld preliminary objection to a winding up petition.

The crux of the case at the Court below was that the Respondent alleged that the Appellant who owed it N252,885,663 was insolvent and unable to repay the debt hence the commencement of the winding up petition. The Appellant filed and argued a preliminary objection supported with affidavit evidence that the winding up petition was premature in that the condition precedent for the Respondent serving a demand notice on the Appellant was not complied with thus divesting the Court below of the jurisdiction to entertain the action.

The Respondent argued contrariwise. The Court below accepted the contention of the Respondent and dismissed the preliminary objection.

Not satisfied with the decision of the Court below, the Appellant filed a notice of appeal with sundry grounds of appeal.

The parties filed and exchanged briefs of argument. The Respondent filed notice of preliminary objection on 29.08.18 to the appeal

which was argued in the Respondent’s brief filed on 29.08.18 to the effect that the appeal being an interlocutory appeal comprising grounds of mixed law and fact as expressed in the three (3) grounds of appeal, the failure of the Appellant to obtain the leave of the Court before filing the appeal renders the appeal incompetent and should be dismissed on that ground citing in support the cases of U.B.A. v. GMBH (1989) 3 NWLR (pt.110) 374 at 393, Ayoke v. Bello (1992) 10 NWLR (pt.218) 380, Confidence Insurance Limited v. Trustee of O.S.C.E. (1999) 2 NWLR (pt.591) 373, Ugwu v. State (2013) LPELR – 20177, Fasuyi and Ors. v. PDP and Ors. (2017) LPELR — 43462, Akpene v. Barclays Bank of Nigeria Ltd. and Anor. (1977) LPELR – 386.

The Appellant did not respond to the arguments on the preliminary objection. Pages 281 — 283 of the record of appeal (the Record) contain the notice of appeal with these grounds of appeal —
Grounds of Appeal
Ground One
The learned trial Judge erred in law when he accorded evidential weight to Letter dated March 29, 2016 (Exhibit AA1) which form the basis for the dismissal of the Applicant’s preliminary objection.

2
Particulars:
1. The learned trial Judge did not consider the totality of the evidence present by the Appellant before giving judgment in favour of the Respondent.
2. The credibility of the Appellant’s averments in its affidavits is strong enough to be relied upon by the Court to give judgment in favour of the Appellant against the Respondent.
3. The learned trial Judge did not consider the evidence of the Appellant before arriving at its decision.
4. Exhibits and evidence presented by parties in a proceeding are not meant to be used or disregarded, in a Ruling, at the convenience of the trial Judge.
Ground Two
The learned trial Judge erred in law in relying on Exhibit AA1 to dismiss the Appellant’s preliminary objection.
Particulars
1. Exhibit AA1 was admitted and relied upon, by the learned trial Judge in his Ruling, as duly served on the Respondent despite the obvious fact it did not carry any proof of such service.
2. Other letters served on the Applicant were duly acknowledged with the appropriate signatures and the designation of the persons acknowledging same.

Signature and designation has been mode of acknowledgement practiced by the Appellant since its inception.
4. The Respondent excluded this letter in its petition and only exhibited it upon receipt of the Appellant’s notice of preliminary objection with a clear difference between Exhibit AA1 and all other letters correspondences with the Appellant.
5. The learned trial Judge erred in law when he refused to follow the decision of the Supreme Court on FALOBI V. FALOBI to resolve the conflicts in the affidavit.
Particulars
1. When parties in a dispute render their facts into affidavit and there are conflicts in the affidavits, and the conflict is on the substance of the dispute, such conflicts should be resolved by having oral evidence from the parties.
2. The substance of the Appellant’s deposition in its affidavit was that it was not served with the demand.
3. The Respondent in its Counter-Affidavit deposed that it served demand notices on the Petitioner and exhibited Exhibit AA1 among other documents.
4. In response the Applicant in its further affidavit denied receipt of Exhibit AA1 or any other demand notice.
5. The affidavits of the patties are irreconcilably in conflict on the substance of the dispute between the parties.

Without oral evidence, the learned trial Judge relied on the averments of the Appellant to arrive at the decision that a demand letter was served on the Appellant.
7. A lower Court is bound to follow the decision of the superior Courts”.

The grounds of appeal (supra) are on non and/or improper evaluation of evidence. In the case of Akinyemi v. Odu’a Investment Co. Ltd. (2012) 17 NWLR (pt.1329) 209 at 230 – 233, His Lordship, Muhammad, J.S.C., (now CJN) held inter alia in the lead judgment that —
“l think the criteria for distinguishing a ground of law from that of mixed law and fact have, for quite long, been settled. For the purposes of elucidation, I consider it pertinent to summarise some of these principles as follows:
(1) The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(2) Where a ground complains of a misunderstanding by the

lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.
(3) Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.
(4) A around which raises a question of pure fact is certainly a ground of fact.
(5) Where the lower Court finds that particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.
(6) Where admissible evidence has been led the assessment of that evidence is entirely for that Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact
(7) Where the lower Court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.
(8) Where the lower Court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
(9) Where the lower Court reaches a conclusion, which cannot reasonably

be drawn from the facts as found, the appeal Court will assume that there has been a misconception of the law. This is a ground of law.
(10) Where the conclusion of the lower Court is one of possible resolutions but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.
(11) Where a trial Court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law not of fact.
(12) When the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not of law.
(13) Where the appeal Court interferes in such a case and there is a further appeal to a higher Court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of appeal is a ground of law not of fact.
(14) A ground of appeal which complains that the decision of

the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses it is purely a ground of fact (which requires leave for an appeal to a Court of Appeal or a further Court of Appeal).”
…Ground of appeal No.3 challenges the holding of the lower Court that there was no enforceable contract between the parties as there was no agreement between the parties. This, in my view, relates to assessment of evidence. That of course, is entirely the business of the trial Court. The ground is that of fact Ground 4 complained about proper evaluation of the evidence and consideration of the case. It is also a ground of fact. Thus, grounds 3 and 4 appear to be grounds of fact. The position of law is that before an appeal can be laid on such grounds, the party wishing to appeal must seek the leave of the Court below or this Court. No such leave is shown to have been sought or obtained by the appellant. They are incompetent grounds and are hereby struck out. See: Tilbury Construction Co. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt.74) 64; Idika v. Erisi (1988) 2 NWLR (Pt.78) 563…”
(My Emphasis).

Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999, as altered (1999 Constitution) requires the appellant to obtain the leave of the Court below or the Court of Appeal on grounds of fact and/or mixed law and fact. The appellant did not obtain the said leave before it filed the notice and grounds of appeal on fact and/or mixed law and fact in the present appeal.
The effect of failure to seek and obtain the leave to appeal where it is

required, as in this case, renders the appeal incompetent leading to want of jurisdiction of the Court to entertain the appeal vide the case of Obasi v. Mikson Establishment Industries Ltd. (2016) 16 NWLR (pt. 1539) 335 at 378 following the cases of Central Bank of Nigeria v. Okojie (2002) 8 NWLR (pt.768) 68, Unity Bank Plc v. Bouari (2008) 7 NWLR (pt.1086) 372, Okwuagbala v. Ikueme (2010) 19 NWLR (pt.1086) 372. see also Fasuyi and Ors. v. PDP and Ors. (supra).

Accordingly, the preliminary objection to the appeal is upheld and the appeal being incompetent is hereby struck out with N300,000 costs against the appellant in favour of the Respondent.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother J.S. IKYEGH, JCA in this appeal and completely agree, for the law is now trite that where leave is required for an appeal, it becomes a condition precedent for the appeal and if it was not sought for and obtained before filing an appeal, the appeal is incompetent for failure to fulfil or satisfy a condition precedent for its validity. See Asogwa v. PDP (2013) 7 NWLR (pt. 1353) 207, Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600,

Jev v. Iyortyom (2014) 14 NWLR (Pt. 1428) 575. In the presence of the prior leave of the Court required by the law as a pre-condition for an appeal from the lower Court to the Court on grounds of mixed law and facts, the appeal is incompetent thereby depriving the Court of the necessary jurisdiction to adjudicate over it.Ekunola v. CBN (2013) 15 NWLR (Pt. 1377) 224, Conoil Plc v. I.T.F. Gov. Council (2015) 9 NWLR (Pt. 1464) 399, Obasi v. Mikson Est. Ind Ltd. (2016) (Pt. 1539) 335.

I join in upholding the preliminary objection and striking out the appeal for being incompetent, in terms of the lead judgment.

TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother Joseph Shagbaor Ikyegh JCA, granted me the privilege of reading in draft the lucid Judgment prepared and rendered in this appeal.

I am in total agreement; I endorse the entire reasoning and conclusion and adopt the Judgment as my own. I have nothing extra to add.

Appearances:

Appellant was served hearing notice but was unrepresented. For Appellant(s)

Mr. J. Akose For Respondent(s)