SKYE BANK PLC v. PRIMA IMPEX NIGERIA LIMITED
(2018)LCN/11810(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/E/251/2015(R)
RATIO
JURISDICTION: THE ISSUE OF JURISDICTION
“However, it is not every issue of jurisdiction that can be raised for the first time on appeal and without the leave of the Court. The issue of jurisdiction which can be raised for the first time on appeal must be one in support of which there is sufficient evidence or facts on record. See OLUTOLA V. UNILORIN (2004) LPELR 2632 (SC) AT 10 (C – E). Where the jurisdiction of the Court or lack of it is not ex – facie apparent on the record before the Court and it will therefore be necessary to call evidence in proof of the matters which will lead the Court to conclude that the trial Court has no jurisdiction to entertain or adjudicate on the matter brought before it or make an order being challenged as it is being done in the instant case, it is mandatory to raise same at the trial Court so that evidence in proof of the contentious fact(s) can be adduced by both parties.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
SKYE BANK PLC Appellant(s)
AND
PRIMA IMPEX NIGERIA LIMITED Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Lead Ruling):
Prima Impex Nigeria Limited, the respondent in this appeal instituted suit no. LD/604/05 at the High Court of Lagos State, Lagos Judicial Division and obtained a summary judgment on 7/2/2007 for the sum of N4,980,000 (Four Million Nine Hundred And Eighty Thousand Naira) being the cost of the goods supplied and delivered to Joemex Chemicals & Allied Distributors Limited with interest thereon at the rate of 21% per annum form 8th February, 2003 till the day of the judgment and thereafter at the rate of 4% per annum until full liquation of the judgment debt. A certified true copy of the judgment and a warrant of writ of execution were resealed in the High Court of Anambra State. The appellant by a motion filed on 10/4/13 commenced garnishee proceedings to enforce the judgment. An order of garnishee nisi was obtained against 13 Garnishees including Mainstreet Bank that was listed as the 8th garnishee on 18/1/2013.
The order nisi was served on all the garnishees. Other garnishees filed affidavits to show cause and they were discharged from the proceedings.
The 8th and 13 garnishees, Mainstreet Bank and Unity Bank did not file affidavit to show cause. On 10/3/14, the order of garnishee nisi was made absolute against those two garnishees. On 7/11/2014, Mainstreet Bank applied for an order setting aside the order of garnishee absolute. After hearing both parties, the Court below in its ruling delivered by Honourable Justice A.O Okuma on 13/5/2015 refused the application.
Dissatisfied with the ruling, Mainstreet Bank filed a notice of appeal on 22/5/2015. The notice of appeal contained one ground of appeal which is stated below with its particulars.
GROUND OF APPEAL
A. ERROR IN LAW
The learned trial judge erred in law when he held that the garnishee/appellant did not advance cogent and good enough reason to warrant the setting aside of the garnishee order absolute made against it on 10/3/14.
PARTICULARS OF ERROR
i. The learned trial judge in his ruling on 10/3/2014 made a garnishee order absolute against the appellant when there was no banking relationship between the appellant and judgment debtor as no account of judgment debtor was displayed on the motion paper and affidavit in support.
ii. The appellant brought an application before the learned trial judge to set aside the order for want of jurisdiction.
iii. The learned trial judge did not look at the further affidavit in support of the application to set aside the order absolute.
iv. The learned trial judge should have set aside the order on equitable grounds. A garnishee order is an equitable remedy which cannot be employed to work injustice.
Pursuant to an order of this Court made on 10/4/17 upon the motion on notice filed on 4/4/2017 by the respondent, Skye Bank Plc was substituted for Mainstreet Bank. By a motion on notice filed on 13/11/2017, the appellant applied for the following orders.
1. AN ORDER GRANTING LEAVE to the Appellant/Applicant to amend its Notice of Appeal by filling an Additional Ground of Appeal.
2. AN ORDER GRANTING LEAVE to the Appellant/Applicant to raise and argue fresh issue of law in terms of the Additional Ground of Appeal shown as Ground 2 contained in the proposed Amended Notice and Grounds of Appeal herein and marked Exhibit ?B? and to file an Amended Appellant’s Brief of Argument to that effect.
3. AN ORDER DEEMING the Amended Notice and Grounds of Appeal together with the Amended Appellant’s Brief of Argument as duly filed and served appropriate fees having been paid.
4. AND for such further Order or Orders as the Honourable Court may deem fit to make in the circumstances.
The GROUNDS for the application are as follows:
1. The Appellant is desirous of raising fresh issue of law bothering on jurisdiction of the Court which was not canvassed before the lower Court and the Appellant do not intend to call additional evidence but to rely on evidence contained in the Records of Appeal.
2. The Appellant/Applicant’s proposed Amended Notice and Grounds of Appeal have been prepared and is attached to his application.
3. The amendment sought by way of additional ground of appeal is to raise and argue issue of lack of jurisdiction of the lower Court which is fundamental.
4. The Appellant/Applicant has also prepared an Amended Appellant’s Brief of Argument to incorporate arguments on the additional ground/issue sought to be introduced and the said Appellant’s proposed Amended Brief of Argument is also attached to this application.
The motion is supported by seven (7) paragraph affidavit filed along with the motion, a five (5) paragraph Further Affidavit filed on 18/12/2107 and the exhibits attached to the affidavits.
The respondent opposed the motion with a twenty (20) paragraph counter affidavit filed on 23/11/2017 and a nineteen (19) paragraph additional affidavit filed on 12/2/18. Pursuant to the order of this Court made on 28/11/2017 parties filed and exchanged written addresses that were adopted as their arguments for and against the motion on 19/4/2018.
The appellant’s counsel, formulated the issue for determination as follows;
”Whether in the circumstances of the appellant’s application, the Court can exercise its discretion in favour of the appellant by granting the application.”
The appellant’s counsel submitted that by virtue of Order 7 Rule 8 of the Court of Appeal Rules, 2016, a notice of appeal can be amended with the leave of Court at any time before judgment. He referred to F.B.N. PLC V. MAY MEDICAL CLINICS AND DIAGNOSTICS (2001) 27 WRN 162. OLORO V. FALANA (2011) 17 NWLR (PT. 1278) 207 AT 216. JOPANPUTRO & ANOR V. NDUBISI & ORS. (2009) 8 NWLR (PT. 1144) 454 AT 461. He further submitted that the amendment being sought is an issue of jurisdiction which is the lifeblood of every adjudicatory process and a party is allowed to raise such issue at the appellate Courts for the first time even without leave.
He referred to AKINTARO V. EEGUNGBOHUN (2007) 9 NWLR (PT. 1038) 319. FUMUDOH V. IKE & ORS (2017) LPELR 42241 (CA). According to counsel, the amendment being sought is to advert the mind of the Court to its jurisdiction at the time the order nisi was made absolute as it is now within knowledge of the appellant that the judgment creditor failed to serve a copy of the order nisi on the judgment debtor before it was made absolute. He submitted that failure to serve the order nisi on the judgment debtor renders the order absolute incurably defective. He referred to N.B. PLC V. DUMUJE (2016) 8 NWLR (PT. 1515) 555 – 558. WEMA BANK PLC V. BRASTEM STERR (NIG) LTD. & ANOR. (2011) 6 NWLR (PT. 1242) 58. ZENITH BANK PLC V ERUNKE & ORS (2015) LPELR 40592 (CA). Section 83 (2) of the SHERIFFS and CIVIL PROCESS ACT.
The respondent’s counsel in his address formulated the issue for determination as follows:
”Are the reliefs sought by the applicant grantable by the Honourable Court?”
Counsel conceded that as a general rule, a party is entitled to amend his notice and grounds of appeal at any time before judgment but where the grant of an application will serve no useful purpose but delay proceedings, the Court will refuse the application. He referred to ASSOCIATED DISCOUNT HOUSE LTD. V. AMALGAMATED TRUSTEES LTD. (2007) 10 MJSC 49 AT 53, 67 (A) AND 96 (F). He submitted that the Court will be engaging in an academic exercise by granting the appellant’s application because the complaint is that the order nisi was not served on the judgment debtor before the order was made absolute but the affidavit of facts deposed to by the Court bailiff who effected service of the processes shows that the process was served on the Managing Director of the judgment debtor at No. 5, Madueke Street, Odoakpu, Onitsha on 12/12/2013 and he acknowledged the receipt of same in writing.
He further submitted that a grant or refusal of an application like the instant one is at the Court’s discretion which discretion must be exercised judicially and judiciously and not in vain. He referred to OKOROCHA V. P.D.P & ORS. (2014) 2 MJSC (PT. 111) 1 AT 7 and 36 (G). P.H.C.N PLC V. OFFOELO (2012) 12 MJSC (PT. 11) 106 AT 114 – 115 and 136 (D – G).
In his reply to the submissions and argument of the respondent’s counsel, the appellant’s counsel submitted that the additional ground of appeal and the issue being raised does not stricto senso require the leave of the Court in that the additional ground is predicated on fundamental issue of jurisdiction occasioned by failure to serve the order nisi on the judgment debtor before same was made absolute. He referred to AGBITI V. N.N (2011) LPELR 2944 (SC).
RESOLUTION
The main objective of the appellant’s application is to raise and argue a fresh issue of law. The fresh issue the appellant wants to raise is as contained in exhibit B attached to the application. It is stated below:
GROUND 2
ERROR IN LAW
The trial Court erred in law and proceeded without jurisdiction by making the garnishee Order Nisi Absolute when the judgment debtor was not served with the Order Nisi.
PARTICULARS OF ERROR
1. Service of the Order Nisi on the Judgment Debtor is mandatory.
2. The learned trial judge failed to realize that the Order Nisi was not served on the Judgment Debtor, a failure which robed the Court of jurisdiction to make the Order Nisi absolute.
3. Failure to serve the Judgment Debtor the Order Nisi made the entire proceeding a nullity and an exercise in futility.
It is clear from the submissions of both counsels that the issue of service of the order nisi was not raised at the Court below. The issue of whether or not the order nisi was served on the judgment debtor is one that calls for determination in the appeal if this application succeeds. Therefore, this Court must refrain from making any pronouncement which may jeopardize or prejudice that issue and that includes the regularity or otherwise of the supplementary record transmitted to this Court on 15/1/2018 especially when there is a pending application to regularize the record of appeal.
The principles guiding a grant of an application to raise a fresh point or issue on appeal was stated by the Supreme Court in BANKOLE & ORS. V. PELU & ORS. (1991) LPELR 749 (SC) AT 24 – 25 (D – D) where the Court stated that:
“The circumstances in which the Supreme Court will entertain or refuse an application to raise new points of law for the first time before it have been considered at length in the case of Attorney General of Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 1, where the general principle was stated that “an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court, but where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision on them, the Court will allow the question to be raised and the points taken and prevent an obvious miscarriage of justice.” Vide AKPENE V. BARCLAY BANK (1977) 1 SC 47; SHONEKAN V. SMITH (1964) 1 ALL NLR 168. Such a point cannot be decided in favour of an appellant unless this Court is satisfied beyond doubt – “(a) that it has before it all the facts bearing on the new contention as completely as if it had been raised in the lower Court (i.e. Court of first instance), and (b) that no satisfactory explanation could have been given in the Court below if it had been so raised”. Vide FADIORA V. GBADEBO (1978) 3 SC 219.
“Furthermore, this Court will grant leave to a party to raise a point not raised in the Court below where the point of law raised discloses ex facie that that Court has no jurisdiction vide OKPAKU V. OKPAKU (1947) 12 W.A.C.A.137. But it will refuse leave to raise a point not raised in the Court below where(a) the point of law raised introduces a new line of defence completely differrent from the issues fought by the parties in the Court below vide Ejiofodomi v. Okonkwo (1982) 11 S.C. 74; (b) all the materials necessary for the Court to decide the point of law raised are not on the record vide AYOOLA V. OGUNJIMI (1964) 1 ALL N.L.R. 188; AWOTE V. OWODUNNI (1986) 5 N.W.L.R. (PT. 46) 941; UOR V. LOKO (1988) 2 N.W.L.R. (PT. 77) 430; (c) the point of law could have been raised at the trial in the Court of first instance but was not raised Vide C.F.A.O V. ONITSHA INDUSTRIES LTD (1932) 1 N.L.R 102; (d) if the point was raised in the Courts below it could have been effectively answered by appropriate evidence, and where the Court of first instance would be in a more suitable position to deal with the point of law raised vide FADIORA V. GBADEBO (SUPRA). Per OMO, J.S.C (Pp. 24-25, paras. D-C.” See also CORPORATE IDEAL INSURANCE LTD. v. AJAOKUTA STEEL COY. LTD & ORS. (2014) LPELR 22255 (SC) AT 23 (D – F) where the Court held that the ”Court would readily grant leave to raise new grounds or issues not canvassed at the Court below where the new grounds involve substantial points of law substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice.”
See also HELEN JOHNSON UDO V. THE RTD. TRUSTEES OF THE BROTHERHOOD OF THE CROSS & STAR (2013) LPELR 19910 (SC) AT 14 (A – C). ADESOKAN & ORS. V. ADETUNJI & ORS (1994) LPELR 152 (SC) AT 14 – 15 (G – A). SALATI V. SHEHU (1986) 1 NWLR (PT. 15) 198, (1986) LPELR 2986 (SC) MBANEFO V. AGBU & ANOR (2014) LPELR – 22147 (SC) AT 27 – 28 (G – A).
From the plethora of authorities on the principles guiding the exercise of the Court’s discretion to grant leave to raise and argue fresh issue not canvassed at the trial Court, the applicant seeking leave to argue and raise fresh issue(s) on appeal must establish the following;
(1) That the new issue involves substantial issue of law.
(2) That no further or additional evidence is required for the consideration of the new issue.
(3) That all the facts necessary for the determination of the new issue are on the record.
(4) That with all due diligence, it was impossible to raise the new issue and have it determined by the trial Court.
(5) That the new issue will not prejudice or overreach the other party.
(6) That the new issue will prevent an obvious miscarriage of justice.
(7) That the new issue is not attempting to set up an entirely different or new case in the appeal. or;
(8) That the new issue ex – facie discloses lack of jurisdiction of the Court to adjudicate on the matter.
The appellant’s contention is that the issue of service of order of garnishee nisi is an issue of jurisdiction which can even be raised without the leave of the Court. It is a general rule that a party will not be allowed to raise and argue a new issue not canvassed at the Court below except the leave of the cCourt is sought and obtained. The exception to the general rule is where the issue touches the jurisdiction of the Court.
However, it is not every issue of jurisdiction that can be raised for the first time on appeal and without the leave of the Court. The issue of jurisdiction which can be raised for the first time on appeal must be one in support of which there is sufficient evidence or facts on record. See OLUTOLA V. UNILORIN (2004) LPELR 2632 (SC) AT 10 (C – E). Where the jurisdiction of the Court or lack of it is not ex – facie apparent on the record before the Court and it will therefore be necessary to call evidence in proof of the matters which will lead the Court to conclude that the trial Court has no jurisdiction to entertain or adjudicate on the matter brought before it or make an order being challenged as it is being done in the instant case, it is mandatory to raise same at the trial Court so that evidence in proof of the contentious fact(s) can be adduced by both parties.
See NNONYE V. ANYICHIE & ORS. (2005) LPELR 2061 (SC) AT 34 ? 35 (B ? E), (2005) NWLR (PT. 910) 623. I am of the firm view that the general principle that an issue of jurisdiction can be raised at any time even on appeal is not as absolute as it seems. Like every general principle of law, it has its own exceptions and one of such exceptions is where the issue of jurisdiction involves a dispute as to facts which have to be established first by evidence before the application of the law. An example of such facts is compliance with a condition precedent to the exercise of the Court’s jurisdiction.
The argument of the appellant is that service of the order nisi on the judgment debtor is a condition precedent to making the order nisi absolute. Obviously, it is necessary to establish first whether or not the order nisi was served on the judgment debtor before applying the law. It is therefore inevitable that such an issue be raised at the trial Court. Where that is not done and further evidence is necessary as in the instant case, the Court of appeal will not allow a party to raise the issue or grant leave to argue the issue. The Court of appeal will only grant leave to raise a fresh issue on appeal where no further evidence is necessary. See SALISU & ANOR V. MOBOLAJI & ANOR. (2013) LPELR 22019 (SC) AT 19 20 (B – A).
I am of the firm view that the appellant has failed to satisfy this Court on any of the conditions stated above and which conditions must co – exist before the Court can exercise it discretion in favour of the appellant.
For the above reasons, the application to raise a fresh issue on appeal as stated above is hereby refused. Accordingly, prayers 1, 2 and 3 in the application filed on 13/11/2017 are refused. The application is dismissed. Parties shall bear their own costs.
IGNATIUS IGWE AGUBE, J.C.A.: I agree
JOSEPH TINE TUR, J.C.A.: I agree
Appearances:
C. J OkekeFor Appellant(s)
Boniface N. Ugwu with him, V. N IgweFor Respondent(s)
