UNITED BANK FOR AFRICA PLC v. MODE NIGERIA LIMITED & ANOR (1999)

UNITED BANK FOR AFRICA PLC v. MODE NIGERIA LIMITED & ANOR

(1999)LCN/0561(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of November, 1999

CA/E/105M/99 (R)

JUSTICES:

EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria

SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC Appellant(s)

AND

MODE NIGERIA LTD.
2. OBIAJULU ONOCHIE Respondent(s)

RATIO

THE POWER OF THE COURT OF APPEAL TO MAKE INJUNCTIONS

UBAEZONU, J.C.A. (Delivering the Lead Ruling): Following a judgment (headed Ruling) of an Enugu High Court presided over by Ugwu C. J. delivered on the 15th day of June, 1999 ordering the applicant who was the 1st defendant in the Suit to pay the sum of N45,166,498.03 and costs to the plaintiff/respondent, the applicant filed a motion for a stay of execution of the said judgment. The motion was filed in the High Court of Enugu Judicial Division. The motion was duly argued, and ruling thereon reserved for 13th day of July, 1999. Before the said ruling was delivered, the applicant filed its present motion in this court. Its present motion dated 29th day of June, 1999 was filed in this court on the 30th day of June, 1999. The present motion is in the same terms as the one filed in the lower court for which the parties were waiting a ruling thereon, The present motion was fixed for hearing by the Registry of this Court on Monday the 4th October, 1999 at 9 O’clock.

On the 7th day of September, 1999 the plaintiff/respondent filed a Notice of Preliminary Objection in this Court against the said motion. The preliminary objection was duly argued by counsel on both sides on 4th October, 1999 being the date it was fixed by the Registry. The objection as contained in the said Notice is against the hearing of the applicant’s motion “with a prayer for its dismissal in limine on the grounds that (sic) is not a competent process and:
“‘(a) This Honourable Court lacks jurisdiction to entertain it, same having been filed before a ruling on the same application to the lower court had been delivered.
(b) The application is in contravention of the rules of this Honorable Court.
(c) The action of the Appellant is an abuse of the process of this Honourable Court clearly meant to over reach the Respondent.”

Arguing his preliminary objection Mozia Esq. Learned counsel for 1st respondent submits that the jurisdiction of this court is contingent on a prior application. The application is one for a stay of execution of the judgment of the lower court. He refers to L.S.D.P.C. v. Citymark (West Africa) Ltd. (1998) 8 NWLR (Pt. 563) 681 at 694; Consolidated Oil Ltd. v. Sumeroidd Nig. Ltd. (1998) 8 NWLR (Pt. 561) 184 at 192. Learned counsel submits that it is improper to file an application before this court asking for a stay of execution during the pendency of a similar application before the High Court. Such an application, counsel contends, is an abuse of the process of the court as well as an abuse of the freedom of access to the court by the applicant. Such an application should be struck out. He refers to Owoyemi v. Governor of Ogun State (1993) 2 NWLR (Pt. 278) 702 at 706. It is submitted that the ruling in the motion for stay of execution filed in the High Court was delivered on 13th July, 1999 whereas this application was filed in this Court on 30th June, 1999 i.e. before the ruling of the lower court was handed down. Counsel refers to Fareast Mercantile Co. Ltd. v. Boothia Maritime Incorporated & Ors. (1998) 5 NWLR (Pt. 551) 620 at 629; Globe Motors Holdings (Nig) Ltd. v. Honda Motors Co. Ltd. Japan (1998) 5 NWLR (Pt. 550) 373 at 382 and submits that “while all sorts of unethical behaviour may be regarded as cleverness in the market place, such is not permissible in the legal system of our country,” per Ayoola JCA (as he then was) in the Fareast Mercantile case (supra).

Chief Williams learned Senior Counsel for the applicant, in his reply posed the questions – When does the mover of a motion make his application to the court? Is it on the day he filed his motion in the Registry of the Court or on the day he appears in court and moves his motion? He submits that the mover of a motion makes his application on the day he appears in court and moves his motion. He refers to Missini v. Balogun (1968) 1 All NLR 318 and to Order 3 Rule 3(4) of the Court of Appeal Rules. He drew the attention of the court to the pro-forma for a motion i.e. Take Notice that on …. day …. the court will be moved … etc., and submits that the application is made on the day the applicant or his counsel moves his motion in court.

Learned Senior Counsel submits that there are two prayers in his motion. Besides the motion for stay of execution there is also a prayer for injunction. On the prayer for injunction he refers to Order 1 Rule 20(8) of the Court of Appeal Rules and submits that he did not need to make an application in the court below to bring a motion for injunction in this court. He urges the court to dismiss the preliminary objection.

Mr. Mozia in his reply submits that the relevant date as postulated by applicant’s counsel is the date of filing the motion. See Owoyemi’s case (supra). He says that the Missini case (supra) did not deal with issue of stay of execution. Learned counsel concedes that under Order 1 Rule 20(8) of the Court of Appeal Rules, an application for injunction can be made in this court without the applicant going first of all to the court below.

The facts which gave rise to the preliminary objection are not in controversy. It is not in controversy that an application for a stay of execution in respect of the judgment in Suit E/106/99 between the parties to this motion was dismissed at the High Court Enugu on 13th July, 1999; that on the 30th June, 1999 while ruling in the said application had not been delivered the applicant filed another motion in this court praying this court for exactly the same reliefs as prayed in the High Court; that the motion filed in this Court on the 30th June, 1999 came up for hearing on the 4th October, 1999 being the date it was fixed by the Registrar of this Court; that learned counsel for the plaintiff/respondent raised a preliminary objection he filed on 7th September, 1999, to the hearing of the motion on its merits and prayed that it be dismissed in limine. His grounds for the objection as set out in his Notice of Preliminary Objection have been set out above in this ruling. This ruling is in respect of the preliminary objection.

The main plank of the objection is that this court lacks the jurisdiction to entertain the motion since ruling in a similar motion filed in the lower court had not been delivered at the time the motion was filed in this court and that the application contravenes the rules of this court. It is also complained that the application amounts to an abuse of the process of this court. The rule of this court which comes directly in focus is Order 3 Rule 3(4). It provides:
“Wherever under these Rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances which make it impossible or impracticable to apply to the court below.”
I understand Mr. Mozia’s contention to mean that since the rule provides that any such application “shall not be made in the first instance to the court” i.e. to this court, a party who has made the application in the court below must await the result of his application before making a similar application to this court. This is where the questions posed by Chief Williams become very relevant – when does the mover of a motion make his application? Is it on the day he filed his motion in the Registry of the court or on the day he appears in court and moves his motion? These are very intriguing questions. He contended that an application is made on the day the mover of the motion moves it in court; that the date of filing the motion is not relevant in this regard. He supported his argument with the case of Missini v. Balogun case (supra). This was where a motion relating to an appeal was filed before the appeal. The motion was filed on the 17th May, 1968 while the appeal was filed on the 21st May, 1968. On the 24th May, 1968 a counter-affidavit was filed by the 1st respondent. On the 28th May, 1968 counsel to the 1st respondent who had filed a counter-affidavit to the motion gave an oral notice of preliminary objection to the effect that at the time the application was brought there was no notice of appeal filed in the court and therefore there was no application properly before the court. The Supreme Court, following its earlier ruling in Abina v. Tika Tore Press Ltd. SC 99/1968 (unreported) ( now reported in (1968) 1 All NLR 210), expressed the view that the objection had already been overtaken by events as by the time it was made on the 28th May, 1968 there was a notice of appeal filed, and the present motion had not been dealt with. The Supreme Court went on to say that apart from the objection being overtaken by events, the application was not made in due time as it was not made at the first opportunity before the Court. Besides, the objection was only raised orally when a preliminary objection should under Order VII Rule 14 of the Federal Supreme Court Rules be given in writing 3 clear days before the hearing.
The case, however, which answers Chief Williams’ poser is the Supreme Court case of Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 173. The Supreme Court per Nnaemeka-Agu JSC while interpreting Order 3 Rule 3(4) had this to say:
“Implicit in the very words of Order 3 rule 3(4) of the Court of Appeal Rules, 1984, is the fact that the type of election, whether to apply first in the High Court or the Court of Appeal which appellant’s counsel relies upon does not exist. The applicant’s first port of anchor is the High Court, unless he can show special circumstances for any departure from the express words of the rule.
It appears clear to me:
(i) …..
(ii) …..
(iii) …..
(iv) That the rules made therefore by the President of the Court of Appeal requires that the application for such leave shall be filed in the first instance in the High Court unless there are special circumstances which make it impossible or impracticable to file the application first in the High Court (Order 3 Rule 3(4).
So even though the two Courts, the High Court and the Court of Appeal have concurrent jurisdiction in the matter in the sense that both have the jurisdiction to grant leave, the rule made under the authority of the Constitution itself directs that the application shall first be made in the High Court. The provisions are clear. So, any application filed in the Court of Appeal in the first instance is one filed by noncompliance with the rule. Learned counsel for the appellant was therefore in error when he submitted that the appellant had a right to elect in which of the two Courts he could file his application. Such is contrary to the letter of the Constitution and the rule which should be read together with them. The application could have been rightly filed in the Court of Appeal if special circumstances making it impossible or impracticable to have filed the application first in the High Court were shown. None was, however, shown.”
It will be noticed that the language of the Supreme Court as regards making of an application under Order 3 Rule 3(4) is “filed” or “file” throughout – not the time of moving the motion in court. In fact, filing the motion was used interchangeably with making the application. It is therefore my considered view that a person makes an application in the court at the time he files his application. The time of filing an application is within the control of the applicant, whereas the time of moving his application in court is at the discretion of the court. Suppose an application which was duly filed in a court is adjourned several times before it is heard, can it be said that that person has not made his application. I think not. He has made it but it has not been moved.

Having answered the poser of learned Senior Counsel for the applicant, the position is that it is wrong in law, very wrong, for the applicant to make his present application in this court praying for stay of execution while his motion for a stay of execution was still pending in the lower court and there awaiting a ruling. In Owoyemi v. Governor of Ogun State (supra) at page 707 where a similar situation arose, the Court of Appeal had this to say:
“In our present case, the applicant quite rightly applied to the Court below for stay of execution of its judgment. However, before the court could deliver its Ruling, he came to this court and filed another application praying for the same reliefs. This he cannot do because it is a violation of Order 3 Rule 3(4). He should have waited for the court to deliver its Ruling. It is only when the court below refuses the application that he can file a similar application in this Court.”
I shall therefore strike out prayer I for a stay of execution as contained in the applicant’s motion. The prayer is hereby struck out.

As regards prayer 2 for injunction – Order 1 Rule 20(8) of the Court of Appeal Rules provides:
“(8) The Court shall have power to make orders by way of injunctions or the appointment of a receiver or manager and such other necessary orders for the protection of property or person pending the determination of an appeal to it even though no application for such an order was made in the court below.”
Thus, where the prayer in the motion is for an injunction an applicant need not apply in the court below before applying to this court. In the affidavit accompanying his preliminary objection the deponent swore in paragraph 2 as follows:
“2. The High Court of Justice, Enugu on 13/7/99 refused Appellant’s application for Stay of execution of the judgment of the said lower court. A copy thereof is marked as Exh. 1 thereto.”
Thus, from the deposition, the application at the lower court would seem to be only an application for stay of execution. No mention was made of injunction. Moreover, a copy of the motion at the lower court was not exhibited in this court. Consequently, we do not know the exact prayer/prayers in the lower court. Although the Ruling attached to the preliminary objection and marked Exh. 1 talks of a prayer “restraining the plaintiff ….. ” I wonder whether I should read into that prayer to mean a prayer for injunction. Order 1 Rule 20(8) of the Court of Appeal Rules specifically talks about “injunctions”. If I should read that meaning into the ruling, then the ruling runs counter to paragraph 2 of the affidavit in support of the preliminary objection which talks only about stay of execution. If on the other hand I do not read that meaning into the ruling, then there is no application for injunction in the court below. In such a situation, the application for injunction would be properly before this court. In the light of the absence of a certainty as to whether there was a prayer for injunction in the lower court it is better to take a course which will cause less hardship to the parties. I therefore hold that the 2nd prayer for injunction is properly before this court.

In the final analysis, the preliminary objection succeeds in part. The prayer for stay of execution is struck out. The prayer for injunction in the motion may be argued. Each party shall bear his own costs.

OLAGUNJU, J.C.A.: I have had a preview of the Ruling just delivered by my learned brother, Ubaezonu, JCA, with whose conclusion I agree that the application of the judgment debtor/applicant for stay of execution of the judgment of the Enugu State High Court is incompetent.

The decision of this court in Owoyemi v. Governor of Ogun State, (1993) 2 NWLR (Pt. 278) 702, 707, considered in the leading judgment the facts of which are in all fours with the facts of this application seems to have settled any doubt over when an application may be made to this court for a relief for which this court and the State High Court have a concurrent jurisdiction to grant but for which an application must first be made to the High Court by virtue of sub-rule 3(4) of Order 3 of the Court of Appeal Rules, 1981.
But the argument of the learned Senior Advocate about the timing of such an application is quite stunning as opening up a new vista on the interpretation of that rule. Chief Williams contended that under sub-rule 3(4) of Order 3 of the Court of Appeal Rules, 1981, an application filed in this court during the pendency of another application for a similar relief in the High Court but moved after the determination of the application before the High Court is not incompetent because the mover of a motion makes his application on the day he appears before the court and moves his motion and not on the day he filed the motion. The argument is refreshing as calling into mind the proverbial image of law as an ass.

Thus the distinction between ‘filing’ and ‘moving’ the motion becomes significant for the purpose of interpreting sub-rule 3(4) of Order 3 of the Rules of this Court. I share the reasoning in the leading judgment that draws a line between the two on a pragmatic basis resolving that because of the contingencies that may delay the moving of a motion filed and which may operate to the disadvantage of an applicant, especially where time is of essence, the logical interpretation is that an application is made on the day the motion is filed in this court and not on the day it is moved in the court which is at the discretion of the court.

That conclusion is a practical demonstration that if the law be an ass it will still fulfil its mission of doing justice so long as guides, the courts, are not asinine. But more significantly the pragmatic approach to the interpretation of the symbiotic expressions, filing and moving, is vindicated by the forging of a harmony between a writ of summons and a motion as regards the date of commencement. An action commences on the date when application is made for a writ of summons and the necessary fees paid and not on the date the writ is signed. See Alawode v. Semoh (1959) SCNLR 91; (1959) 4 FSC 27, 28-30; Akinnola v. Akinyosoye. (1973) NCLR 185, 191 – 192; Iyizoba v. Olanipekun, (1979) 2 FNR 130, 133; and Ahmed v. Gusau Local Government, (1980) FNR 491,496. Indeed, the reasoning in the leading judgment that led to what choice to make between the date of filing and moving a motion anticipated the rationale behind what was held to be the commencement of an action by the Supreme Court in Alawode v. Semoh, supra. From the conclusion that the application to this court was made on the date the applicant filed his motion for a stay of execution two related consequences follow ineluctably.

Since as of 30/6/99 the application before the Enugu State High Court was pending and had not been determined as of that date the applicant lacks the capacity to file the application before this court. As a corollary this court lacks jurisdiction to entertain the application on the analogy that where a cause of action is not in existence at the time when a writ of summons is issued the claim based on the writ is null and void as a claim which the judge lacks the capacity to adjudicate upon. See Esin v. Matzen & Timm (Nigeria) Ltd., (1966) 1 All NLR 233, 235.

For the foregoing reasons but for the fuller reasons given in the leading ruling I too will strike out the prayer for stay of execution. I abide by the consequential orders made in the leading ruling including the entertainment in due course of the second limb of the motion for a relief for an interlocutory injunction.

M.D. MUHAMMAD, J.C.A.: The facts upon which the preliminary objection the subject of the lead ruling read by my learned brother Ubaezonu JCA was predicated are as elaborately contained therein. I had a preview of the said lead ruling and do agree with the reasonings and conclusions therein reflected.

The real issue raised by Respondent in their objection to the hearing of Applicant’s motion for stay of execution of the judgment of Ugwu J. of the High Court Enugu delivered on 15th day of June, 1999, pertains to the propriety of the application before us.
It is glaring to me that the applicant had filed a similar application to the High Court. The court below having heard arguments in respect of the application had reserved ruling on same for 13th July, 1999. The application for stay in this court was filed on 30th June, 1999. Ruling on their application at the High Court had not been delivered by this date.

A resolution of the issue raised by the objection to the hearing and grant of the application for stay hinges decidedly on the provision of Order 3 rule 3(4) of the rules of this court 1981. It provides:
“Wherever under these Rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court of Appeal except where there are special circumstances which make it impossible or impracticable to apply to the court below. (Italics for emphasis).

It is obvious from the provision of the relevant court order supra that an applicant whose application is caught by the state rule of court has no choice of forum for the presentation of his application. The same rules of court specify certain conditions to be met if the prayers of such an applicant before us are to be considered. Such an applicant must have “made” his application in the first instance to the court below.

The choice and use of the verb “Make” in the past tense is not by coincidence. It is deliberate. The word “Made” in the context it appears indicates the applicant’s position of having moved the court below and the court had taken a position in the application before it. Of course where special circumstances had made it impossible or impracticable for such an applicant to even make his application in the first instance at the court below, he is allowed as of necessity to come to the Court of Appeal in the first instance.

The application before us for stay by the applicant is not in the sequence allowed by the rule of this court. The application was filed before a ruling on his earlier application by the court below. The applicant cannot be said to have “made” his application to the lower court in the first instance, for that court had not taken a decision on applicant’s prayers before the subsequent application before us was filed. Applicant cannot abandon his application midstream in the court below and succeed in moving this court on the same subject matter. In Ojosipe v. Ikabak (1972) 4 SC 33 the Supreme Court having found itself in the same position as the one this court finds itself held that the application before it was incompetent. As pointed out in the lead ruling the Supreme Court again had course to declare an application similar on the facts with the one before us incompetent in Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 172.

I must emphasize that forum shopping cannot be read into the provision of the relevant rules of court.
The Respondent’s objection is well taken in respect of the aspects of application for the stay of execution of Ugwu J’s judgment. That aspect of the application is incompetent and an abuse of court process. But the application contained two prayers. The second prayer was for injunction.
From the affidavit in support of Respondent’s objection, only such facts as were opposed to those aspects pertaining to stay of execution of the lower court’s judgment were averred to. In any event, by virtue of Order 1 Rule 20(8) of the rules of this court, an application for an injunction is in a different class from the one for stay of execution of judgment.

In the light of the foregoing reasons and the much more elaborate reasons given in the lead ruling, I hold that the objection has succeeded in part. I make the same consequential orders as made in the lead Ruling.

Preliminary objection upheld in part.

Appearances

Chief F.R.A Williams, SAN (with him, F.R.A Williams Jnr.) For Appellant

AND

K.E. Mozia For Respondent

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