UNITY BANK PLC v. PETER ONUMINYA
(2019)LCN/13261(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of May, 2019
CA/L/992/2011
RATIO
JURISDICTION: THE MATTER CAN BE RAISED FOR THE FIRST TIME AT ANY TIME EVEN ON APPEAL
It seems to me that the law is now settled beyond peradventure that an issue of jurisdiction can be raised at any time, even for the first time on appeal at the apex Court, with or without leave of Court, provided that it is raised in a manner that the opposite party is not taken by surprise. See PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHNICAL CO. LTD (1992) LPELR (2915) 1 at 23-24, OLUTOLA vs. UNILORIN (2004) LPELR (26632) 1 at 10, ELABANJO vs. DAWODU (2006) 15 NWLR (PT 1001) 76, ONI vs. CADBURY PLC (2016) ALL FWLR (PT 827) 605 at 621-622 and OSIGBEMEH vs. EGBAGBE (2014) ALL FWLR (PT 744) 58 at 73.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JURISDICTION: THE ISSUE CAN BE FILED AND ARGUED WITH OR WITHOUT LEAVE OF COURT
The issue on jurisdiction can thus be filed and argued with or without the leave of the Court, even if it is being raised as a fresh issue on appeal.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
CONTRACT: ILLEGAL CONTRACT: THE COURT WILL NOT COME TO THE AID OF A PERSON WHO ENGAGES IN ILLEGAL CONTRACT
It is no doubt trite law that the consequence of illegality of a contract is that a Court will not come to the assistance of any party to an illegal contract who wishes to enforce it. In other words, a Court will not give its aid to a cause tainted with illegality. The Latinism is ex turpi causa non oritur actio (an action cannot arise from a bad or base cause). See PAN BISBILDER NIG LTD vs. FIRST BANK (2000) 1 NWLR (PT 642) 684, IBRAHIM vs. OSUNDE (2009) 6 NWLR (PT 1137) 382 and CORPORATE IDEAL INSURANCE LTD vs. AJAOKUTA STEEL CO. LTD (2014) LPELR (22255) 1 at 39. The duty to ensure that a party who is in delict does not get a relief from the Court is on the Court itself and it is of no moment if the other party did not raise it, or in the circumstances of this matter, did not attend Court to raise it. In AJIBOLA vs. SOGEKE (2001) 23 WRN 68 at 96, Adekeye, JCA (as he then was) stated as follows on the duty of a Judge:
It has to be borne in mind that a Judge exists to determine disputes and to examine with due care and microscopic sense all matters before him in pursuit of justice. A trial Court must not close its eye to any irregularity latent or patent on the record without suo motu dealing with it, as it could amount to injustice …PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPEAL: INSTANCES WHEN A GROUND OF APPEAL DOES NOT ARISE FROM THE DECISION APPEALED AGAINST
While it is undoubtedly the law that a ground of appeal should arise from the of the decision appealed against, this is not exactly so in all instances. In AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464-465, Muhammed, JSC stated as follows:
Although many authorities lay emphasis that a ground of appeal must stem from the of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd v. D.A. Migliore and Ors. In Re-Miss C. Ogundare (1990) All NLR 142 at 148, (1990) 1 NWLR (Pt. 126) 299; F.M.B.N. v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
(a) from the of the decision appealed against (ipsissima verba).
(b) from the procedure under which the claim was initiated
(c) from the procedure under which the decision was rendered or
(d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
(e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPEAL: AN INCOMPETENT GROUND OF APPEAL CANNOT GIVE RISE TO A COMPETENT ISSUE FOR DETERMINATION
An incompetent ground of appeal cannot give rise to a competent issue for determination. See AGBAKA vs. AMADI (1998) LPELR (231) 1, FASORO vs. BEYIOKU (1988) 2 NWLR (PT 76) 263 and EGBE vs. ALHAJI (1990) 1 NWLR (PT 128) 546 at 590. Concomitantly, the issue for determination distilled from the incompetent ground three as well as the ground itself are hereby struck out.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JURISDICTION: ESSENTIAL ELEMENTS FOR A COURT TO HAVE JURISDICTION
In the oft-cited case of MADUKOLU vs. NKEMDILIM (supra) the apex Court held that a Court is competent when:
i. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
ii. the subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
iii. the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JURISDICTION: JURISDICTION OF THE FEDERAL HIGH COURT: SIMPLE CONTRACTS DON’T FALL WITHIN THE JURISDICTION OF THE FEDERAL HIGH COURT
The law is now ensconced that disputes founded on simple contract do not come within the enumerated jurisdiction of the Federal High Court (the lower Court):ONUORAH vs. KPRC LTD (supra), SOCIO-POLITICAL RESEARCH DEVELOPMENT vs. MINISTRY OF FEDERAL CAPITAL TERRITORY (2018) LPELR (45708) 1 at 55, ADELEKAN vs. ECU-LINE NV (2006) LPELR (113) 1 at 20-21, SPDC vs. NWAWKA (2003) LPELR (3206) 1 11 and ROE LTD vs. UNN (2018) LPELR (43855) 1 at 13.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COMPANY: INSTANCES WHEN A COMPANY IS ALLOWED TO COMPENSATE A DIRECTOR FOR LOSS OF OFFICE OR RETIREMENT FROM OFFICE
Now, Section 271 of CAMA enacts:
It shall not be lawful for a Company to make to any director of the Company, any payment by way of compensation for loss of office, or as a consideration for or in connection with his retirement from office, unless particulars with respect to the proposal and the amount, have been disclosed to the members of the Company and the proposal is approved by the Company.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
UNITY BANK PLC – Appellant(s)
AND
PETER ONUMINYA – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Lagos Division, Coram Judice: Shakarho, J. in SUIT NO. FHC/L/CS/315/2007: PETER ONUMINYA vs. UNITY BANK PLC delivered on 12th December 2007. The Respondent, who was the Plaintiff at the lower Court claimed the following relief against the Appellant, the Defendant at the lower Court:
?WHEREOF the plaintiff claims against the defendant as follows:
(i) The sum of N57.7 Million (Fifty-Seven Million Five Hundred Thousand Naira Only) being the amount agreed upon by the Centre-Point Merchant Bank Plc (one of the Banks that meagre [sic] to become the defendant) to be paid to the plaintiff in consideration of the meritorious service of turning the Bank into profitability.
(ii) AND the plaintiff claims as per the writ of summons and statement of claim hereof.?
(See page 10 of the Records)
The relief claimed in the Writ of Summons was incorporated by reference in the Statement of Claim and it is therefore an integral part of the relief claimed in the action. The relief as endorsed in
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the Writ of Summons is as follows:
?The plaintiff?s claim is for the sum N57.7 million being the amount agreed to be paid to the plaintiff for his meritorious service of turning the bank into profitability and also as part of his severance allowance by the then Centre-Point Bank Plc, which is one of the banks that merged to form the defendant bank.?
(See page 4 of the Records)
The Appellant was dissatisfied with the decision of the lower Court and upon application was granted extension of time by this Court on 13th September 2011 to appeal against the decision of the lower Court. The Appellant thereafter filed its Notice of Appeal on 26th September 2011. The chafed decision of the lower Court is at pages 86-87 of the Records while the Notice of Appeal is at pages 90-94 of the Records. The Records of Appeal were compiled and transmitted and upon being served the same, the Respondent compiled and transmitted Additional Records of Appeal within the time stipulated by the Rules of Court.
The parties filed and exchanged briefs of argument and the Respondent equally filed a Notice of Preliminary Objection on 30th May 2017,
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challenging the competence of the appeal. The argument on the preliminary objection was incorporated in the brief of argument filed by the Respondent. The briefs of argument which the learned counsel relied upon at the hearing in urging the Court to uphold their respective submissions in the determination of the appeal are as follows:
1. Appellant?s Brief of Argument filed on 27th January 2012.
2. Amended Respondent?s Brief of Argument filed on 13th April 2018 but deemed as properly filed on 5th March 2019.
3. Appellant’s Amended Reply Brief filed on 27th February 2019 but deemed as properly filed on 5th March 2019.
THE PRELIMINARY OBJECTION
As earlier stated, the Respondent filed a preliminary objection. That is where we will start from. The preliminary objection is for the following reliefs:
?1. An order striking out grounds 1, 2 and 3 in the Notice and Grounds of Appeal dated and filed on 26/9/2011.
2. An Order striking out the Appeal for being incompetent.?
The grounds on which the preliminary objection is predicated are as follows:
?a. The two grounds 1 and 2 are new or fresh
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issues, they were never canvassed at the Court of trial.
b. Leave to appeal does not connote raising of fresh issues.
c. Appellant neither sought nor or [sic] obtained leave of this Court to raise fresh or new issues.
d. Ground 3 raises issues of non-service of the Originating Process on the Appellant.
e. The trial Court in its Ruling on application to set aside the default judgement dated 16/12/2009 found as a fact that the Appellant?s Regional Legal Manager was in Court when judgement was delivered on the 12/12/2007 and that the Appellant was duly served with Originating Process.
f. The trial Court also found that by Exhibits PUC I and A – a letter dated 3/10/2007 written by Appellants Regional Legal Manager to Messrs Wole Smith asking the law firm to defend the bank and proof of service by Bailiff Adepitan respectively, the issue of service was proved.
g. There is no appeal against that ruling.
h. The Appellant is bound by Issue Estoppel and cannot raise again the issue of service of Originating Process.
i. The Applicant withdrew issue of want of Jurisdiction.
j. If Grounds 1, 2 and 3 are struck out, there
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is no other ground left to sustain the Appeal.?
The Respondent argued the preliminary objection on pages 5-11 of the Amended Respondent?s Brief. The Respondent argues that subsequent to the decision of the lower Court, the Appellant applied to the lower Court to set aside the decision for, inter alia, want of jurisdiction, but later withdraw the issue of jurisdiction and it was struck out. It was opined that the Appellant had in consequence conceded the issue of jurisdiction and it was no longer in issue. It was stated that the Appellant, having withdrawn the challenge to jurisdiction and the lower Court therefore made no pronouncement on the same, cannot subsequently appeal or raise the same issue except with leave of Court vide C.G.G. NIG LTD vs. AMINU (2015) 7 NWLR (PT 1459) 577 at 591. It was asserted that the Appellant was
