OMOKU ACHIEVERS CO-OPERATIVE INVESTMENT & CREDIT SOCIETY LTD & ORS v. ADINDU LEONARD EMERONYE
(2019)LCN/12689(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of February, 2019
CA/PH/378/2016
RATIO
APPEAL: RIGHT TO APPEAL
“The right of appeal is a constitutional right conferred on and guaranteed to the citizens under Sections 241, 242 and 243 of the Constitution of the Federal Republic of Nigeria, 1999(as amended). Section 241 (1) thereof provides that;
(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 case;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED
“It is now trite that the question of jurisdiction is a very fundamental one in any adjudication and its absence robs any Court of its powers. The issue of jurisdiction is threshold and can be raised at any stage of proceedings and even in the Supreme Court for the first time and no leave is required to raise it; See OKARIKA VS SAMUEL (2013)7 NWLR (PT.1352) 19; FGN VS SHOBU (NIG.) LTD (2014) 4 NWLR (PT. 2396). One of the factors that determine the competence of a Court as elaborately stated in MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341 is that the case must have come before the Court by due process of law and upon fulfillment of any condition precedent. See also OKOROCHA VS PDP (2014) 7 NWLR (PT.1406) 211.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
1. OMOKU ACHIEVERS CO-OPERATIVE INVESTMENT & CREDIT SOCIETY LTD
2. DR. ISAAC A. UTUH
3. MAKNATH E. ACHIAKWO
4. MR. MONDAY ELECHI
(Principal Bailiff, Magistrate Court, Omoku) Appellant(s)
AND
ADINDU LEONARD EMERONYE Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment):
This appeal emanates from the Ruling of the High Court of Rivers State (the lower Court) delivered on 9th June, 2016 in suit No OHC/52/2014 which the claimant now respondent instituted by virtue of the Writ of Summons filed on 22/05/2014 seeking declaratory orders and monetary awards as damages for wrongful execution on the properties in the office of the claimant and for trespass into the claimant?s office. This monetary claim was a total of N80,000,000.00 made up of N50,000,000.00 general damages against the defendants (now appellants) jointly and severally and N30,000,000 against the 3rd defendant (now 3rd Appellant) for trespass into the claimant?s office and participating in the execution and attachment of properties belonging to the office of the claimant. The defendants filed their Statement of Defence. The suit No. OHC/52/2014 had arisen from the execution of the judgment of the same High Court delivered on 14/08/2013 in suit No. OHC/72/2912.
The Ruling that led to this appeal is the decision of the lower Court in respect of the motion filed by the claimant on 10/11/15 for three prayers thus:-
1. An Order restraining the defendants/respondents whether by themselves, agent, servants, privies or howsoever called from further execution and attachment and sale or auction of the office properties of the clamant Applicant or his tools of trade pending the determination of the substantive suit.
2. A further Order of interlocutory injunction restraining the defendants/respondents particularly the 3rd and 4th Respondents either by himself (sic), agents, servants, privies or howsoever called from further trespassing into the office of the claimant or his house for the purpose of execution or attachment of any property belonging to the claimant/applicant’s house or his office pending the determination of the substantive suit.
3. A further Order of Court suspending the execution and further attachment of the office properties of the claimant/applicant and his tools of trade pending the determination of the substantive suit.
The motion was filed with a supporting affidavit of 21 paragraphs to which documents were attached as Exhibits while the 1st to 3rd Respondents filed Counter Affidavit with documents attached as Exhibits in opposition thereto.
The Ruling of the lower Court now the subject of this appeal was concluded thus:
Soon after counsel adopted their respective processes this Court draw the attention of the claimant and 3rd defendant both of whom are lawyers that once parties submit to the jurisdiction of the Court in litigation all parties are by law required to refrain from conducting of the case and particularly not to interfere or deal with the subject matter of the litigation. This is the position of this case and of this Court. This Court will therefore not explore the merits and otherwise of this interlocutory application, moreso since all parties have filed and exchanged their pleadings. Parties are directed not to deal with the subject matter of the litigation and rather pursue the merit of the substance of the case. See page 143 of the Record of Appeal.
The Appellants as Respondents to the motion at the lower Court showed their dissatisfaction with the decision of that Court by filing Notice of Appeal on 14th June, 2016 with a sole ground of appeal followed by the Appellants’ Brief prepared by D.N. Nwakiri of counsel, and filed on 30/8/16 while the Respondent’s Brief of Argument prepared by A.L. Emereonye of counsel and filed on 3/11/16 was deemed filed on 1/2/18. The Appellant’s Reply Brief was filed on 13/2/18.
From the single ground of appeal the Appellant has formulated or distilled three (3) issues as follows:
1. Whether it was proper and in accordance with law that once parties submit to the jurisdiction of a Court in a litigation, all the parties are required to refrain from dealing with the subject matter of the litigation to the extent of staying execution of a judgment in a different and already concluded suit when there was no pending valid and competent appeal against that judgment.
2. Whether in law it is proper to deny a judgment creditor the benefit of the judgment by staying execution when the judgment debtor has not filed any appeal and therefore could not establish any exceptional special and/or substantial reason or circumstances to warrant the Court ordering a stay of execution of its judgment.
3. Whether the learned trial judge?s act of initially making an interim order staying execution in suit No. OHC/72/2012 and later succinctly making the stay of execution interlocutory does not amount to the learned trial judge sitting on appeal over his previous judgment in suit No. OHC/52/2014 wherein the application and order of stay of execution was made and granted.
Before going into arguments rendered with regards to the foregoing issues distilled by the appellant, it is pertinent to state that the respondent filed on 3/11/18, a Notice of Intention to Rely Upon Preliminary Objection Pursuant to Order 10 Rule 1 of Court of Appeal Rules, 2011 based on the 14 grounds stated by the objector, one of which is that the sole ground of appeal did not relate to the decision appealed against. Other material grounds are that the sole ground of appeal and its particular is incompetent and the incompetence robs this Court of its jurisdiction and competence to determine this appeal, and that leave of Court is required in this appeal but the Appellants failed to seek and obtain leave before filing the Notice of Appeal.
In the Written Address in support of the preliminary objection it was contended that the Notice of Appeal filed by the Appellants was without the leave of Court whereas the appeal is on mixed law and facts. The Respondent/objector has distilled five issues for determination in respect of the objection, but in my candid view, the material issue that will sufficiently determine and dispose of the objection is the first issue which is, whether leave to appeal in this instant appeal is necessary and a condition precedent and if so, was it sought and obtained before the Appellants filed their Notice of Appeal and ground of Appeal.
The learned counsel for the Respondent cited the case of OKOMU OIL PALM CO. VS TAJUDEEN (2016) 3 NWLR (PT. 1499) 284 on classification of grounds of appeal and submitted that a perusal of the only ground of appeal here reveals that it is of mixed law and facts notwithstanding that it is described as a ground of law; NWADIKE VS IBEKWE (1987) 4 NWLR (PT. 67) 718.
In the Appellant’s Reply Brief the learned counsel for Appellant submitted that before the Respondent can validly raise a fresh issue in the Respondent?s Brief, he must first seek and obtain the leave of Court; OLORUNTOBA-OJU VS ABDULRAHEEM (2009) 13 NWLR (PT. 1157) 83. It was contended that the instant appeal is not the type in which the appellants are required to first seek and obtain the leave of Court before filing the Notice of Appeal.
There is no doubt that the Respondent has by this objection challenged the competence of the Notice and Ground of Appeal filed in commencement of this appeal and by general implication, the competence of this Court to hear and determine the appeal.
It is now trite that the question of jurisdiction is a very fundamental one in any adjudication and its absence robs any Court of its powers. The issue of jurisdiction is threshold and can be raised at any stage of proceedings and even in the Supreme Court for the first time and no leave is required to raise it; See OKARIKA VS SAMUEL (2013)7 NWLR (PT.1352) 19; FGN VS SHOBU (NIG.) LTD (2014) 4 NWLR (PT. 2396). One of the factors that determine the competence of a Court as elaborately stated in MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341 is that the case must have come before the Court by due process of law and upon fulfillment of any condition precedent. See also OKOROCHA VS PDP (2014) 7 NWLR (PT.1406) 211.
The ground of appeal of the appellants at page 144 of the Record of Appeal excepting the particulars is that;
‘The learned trial judge erred in law when he granted a stay of execution of his previous Judgment in Suit No. OHC/72/2012 – OMOKU ACHIEVERS CO-OPERTIVE INVESTIMENT AND CREDIT SOCIETY LTD VS LEO AMEREONYE without the Respondent establishing any exceptional and special or substantial reason or circumstances to warrant the Court ordering a stay of execution.’
No one is left in doubt that a consideration of this ground of appeal will involve not only the applicable law but also the facts and circumstances relating thereto and for which reason it cannot be described as ground of law alone, but at best that of mixed law and facts.
The right of appeal is a constitutional right conferred on and guaranteed to the citizens under Sections 241, 242 and 243 of the Constitution of the Federal Republic of Nigeria, 1999(as amended). Section 241 (1) thereof provides that;
(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 case;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
Section 242(1) provides that subject to the provisions of Section 241 of the 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.
From the background facts of the instant case it is clear that the appeal is an interlocutory appeal that is not on ground of law alone and in respect of which no prior leave was sought and obtained and thereby rendered incompetent. See UNION BANK OF NIGERIA PLC VS OLUBOSI SOGUNRO & ORS (2006) 10 NWLR (PT. 1006) 504; AUGUSTIVE VS HOGAN (2008) 16 NWLR (PT. 1112) 95.
The consequence of the foregoing is that the Appellants have failed to seek and obtain the required leave of Court. On the consequence of failure to obtain leave of Court, this Court, per Sanusi JCA (as he then was) stated in EKWEREKWU VS EGBOCHE (2010) LPELR -4093 CA that ‘The law is well settled and it is trite too that where an appeal requires leave of Court to be obtained and the leave was not sought and obtained; such appeal is incompetent and will be struck out. This is obviously because a Court of competent jurisdiction has no jurisdiction to hear an incompetent appeal.’
For the reasons I have so far advanced, I find merit in this objection by the Respondent and I uphold same. I resolve this issue against the Appellants as I hold that this appeal is incompetent.
My determination of this issue of jurisdiction has rendered other issues in the appeal academic and unworthy of consideration. See IKECHUKWU VS. FRN (2015) VOL. 3 MJSC (PT.1) 123.
Consequently I hold that this appeal is incompetent and it is accordingly struck out.
No order as to costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
M. N. E. Osi, Eq.For Appellant(s)
A.L. EmereonyeFor Respondent(s)
