UNIVERSAL PROPERTIES LTD v. PINNACLE COMMERCIAL BANK & ORS (2022)

UNIVERSAL PROPERTIES LTD v. PINNACLE COMMERCIAL BANK & ORS

(2022)LCN/5168(SC)

In The Supreme Court

On Friday, April 08, 2022

SC.332/2008

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Between

UNIVERSAL PROPERTIES LTD APPELANT(S)

And

1. PINNACLE COMMERCIAL BANK 2. NIGERIAN JOINT AGENCY LIMITED 3. PROFESSOR ERIC AGUME OPIA 4. HERITAGE BANK LTD 5. NATHANIEL OLADIMEJI FATOGUN RESPONDENT(S)

RATIO:

NOTICE OF APPEAL

It is not in doubt that a notice of appeal, being an originating process in an appeal process, is a very important document. It is the foundation of an appeal. If it is defective, the appellate Court has no choice than to strike it out on the ground that it is incompetent. I need to emphasis that the question of whether or not a proper notice of appeal has been filed in Court is a question which touches on the jurisdiction of the appellate Court. If no proper Notice has been filed, then there is no appeal for the Court to entertain. See FBN PLC v TSA Industries Ltd (2011) 15 NWLR (pt.1216) 247, Anadi v Okoti (1972) 7 SC page 57, Central Bank of Nigeria v Okojie (2004) 10 NWLR (pt.882) 488, Olanrewaju v BON Ltd (1994) 8 NWLR (pt.364) 622, Abubakar v Waziri (2008) 14 NWLR (pt.1108) 507. JOHN INYANG OKORO, J.S.C.

LIQUIDATION

Liquidation is a special circumstance which affects the concerned company and triggers the provision of Section 417 of CAMA, 1990, now Section 580 of CAMA, 2020 which makes it mandatory (by the use of the word “shall”) for leave of either the Court of Appeal or this Court to be sought and obtained by the Appellant for there to be a valid appeal. It is trite that where the law has stipulated in a mandatory provision applicable in specified circumstances, same must be given effect to. It is usually referred to as a condition precedent. This Court has properly elucidated the expression “condition precedent” in J. S Atolagbe & Ors v Alhaji Muhammadu Awuni & Ors (1997) 9 NWLR (pt.522) 537 at 565 per Uwais CJN thus:-
“Condition is a provision which makes the existence of a right dependent on the happening of an event; the right is then additional as opposed to an absolute right A true condition where the event on which the existence of the right depends is in the future uncertain, A “Condition Precedent” is one that delays the vesting of a right until the happening of an event” JOHN INYANG OKORO, J.S.C.

SYMPATHY IN HEARING OF AN APPEAL

It is to be noted that sympathy has no place in the hearing of an appeal as there is the need to comply with the rules of the Court. See Asalu v. Dakan (2006) 5SC (Pt. 111) 120 at 129-131. Where there is non-compliance, an exercise of the Court’s power in accordance with the Rules made for doing justice cannot be labelled as improper or unjust. JOHN INYANG OKORO, J.S.C.

APPELLANTS DUTY

It is the duty of the Appellant to obey the rules of Court. It is also the duty of the Appellant to prosecute his case diligently. See Nueana v. Feda (2007) ALL NWLR (P.376) 611 at 627 paras E-F(S), (2007) 11 NWLR (Pt.1044) 59 at 79. It is the duty of the Appellant to obey the rules of Court. It is also the duty of the Appellant to prosecute his case diligently. See Nueana v. Feda (2007) ALL NWLR (P.376) 611 at 627 paras E-F(S), (2007) 11 NWLR (Pt.1044) 59 at 79. JOHN INYANG OKORO, J.S.C.

THE COURT HAS THE DISCRETION TO DISMISS AN APPEAL

Where the Court has the discretion to dismiss an appeal for want of diligent prosecution, the Court can look into the conduct of the party in breach of the rule right from the time the writ was issued as an appeal in law is a continuation of the original cause of action. Ajayi v Omoregbe (1993) 6 NWLR (Pt.310) 512 at 527. JOHN INYANG OKORO, J.S.C.

UNAMBIGOUS LANGUAGE

It is also settled that where the language used in the legislation or statute or Constitution is clear, explicit, and unambiguous, the Court must give effect to it as the words used speak for themselves – see Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227. Amina Adamu Augie, J.S.C.

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on 14th of April, 2008 wherein the lower Court dismissed in limine the appeal filed by the Appellant which was pending before the said Court for want of diligent prosecution. The Appellant’s brief was not before the Court although the Court had granted the Appellant extension of time to file the said brief. A summary of the facts leading to this appeal are as stated hereunder.

The 1st Respondent (now under liquidation by the Nigeria deposit Insurance Corporation) as plaintiff on 14th July, 1992 commenced an action at the High Court of Lagos State against the 2nd and 3rd Respondents as 1st and 2nd Defendants respectively by a special endorsed Writ of Summons claiming the sum of N5,417,746.43 (Five million four hundred and seventeen thousand, seven hundred and forty-six naira, forty-three kobo only), interest on the said sum at 34% until judgment and thereafter until satisfied, resulting from a credit facility which it extended to the 1st Defendant and was guaranteed by the 2nd Defendant. Judgment was given in favour of the 1st Respondent but was not satisfied. The 1st Respondent, because of the inability of the 1st and 2nd Defendants (now 2nd and 3rd Respondents) to satisfy their indebtedness, applied and sold the immovable properties of the 3rd Respondent known as 12A and 12B Ladipo Oluwole Street, Lagos, titled number No. 0646.

The Appellant and 4th Respondent, upon becoming aware of the existence of the judgment including steps taken by the 1st Respondent to levy execution upon the properties of the 3rd Respondent, applied and were joined as parties to the suit. The 4th Respondent claimed it had an interest and mortgage over the property.

Subsequent upon being joined, the Appellant applied to the trial Court for extension of time to apply to set aside the sale of their alleged properties by the 1st Respondent in the execution of the judgment against the 2nd and 3rd Respondents, an order setting aside the sale of the said properties and certificate of sale issued pursuant to the sale. The aforestated application was refused and dismissed by the learned trial Judge on 6th October, 2000. The Appellant being dissatisfied with the aforesaid ruling of the trial Court, appealed against the said decision to the Court of Appeal, Lagos Division.

At the Court of Appeal, the Appellant filed a motion on notice dated 5th June, 2002 for leave to file additional grounds of appeal, extension of time to bring in a supplementary record of appeal, an order deeming the supplementary record of appeal already compiled and served as duly filed and served, extension of time to file the Appellant’s brief of argument and an order deeming these processes as duly filed and served.

The Court of Appeal on 18th January, 2005 heard the Appellant’s motion dated 5th June, 2002 and extended the time allowed the Appellant to bring in the supplementary record, leave to file additional grounds of appeal which notice should be filed within fourteen (14) days from the date of Court order together with the Appellant’s brief of argument.

On 25th May, 2006, the Appellant filed a motion on notice dated 22nd May, 2006 praying the lower Court for extension of time to comply with the orders made in favour of the Appellant on 18th January, 2005. When this motion on notice came up for hearing on 3rd July, 2006 the lower Court observed that the 2nd and 3rd Respondents thereat had not been served. The learned counsel for the Appellant applied to withdraw the motion which was granted by the Court below.

On 30th January, 2007, the 5th Respondent filed a motion on notice dated 25th January, 2007 urging the Court to dismiss the appeal for lack of diligent prosecution by the Appellant. The learned counsel for the Appellant filed a counter affidavit to oppose the said motion.

On 25th September, 2007, the Appellant filed an application dated 24th September, 2007 praying the Court to further extend the time within which to file additional grounds of appeal, Appellant’s brief of argument and to deem the processes filed as properly filed. The Appellant also sought to substitute the 1st Respondent with its liquidator – the Nigeria Deposit Insurance Corporation (NDIC) and also Spring Bank Plc for the 4th Respondent respectively. This motion was however not served on the 2nd 3rd and 4th respondents and was adjourned to 16th October, 2007 for hearing.

At the hearing of the motion on 14th April, 2008, the Appellant again, applied to withdraw its motion dated 24th September, 2007, and filed on 25th September, 2007. The other parties did not object to the Appellant’s application to withdraw the said motion. The said prayer was granted by the lower Court and the motion for further extension of time was struck out.

Thereafter, the learned counsel for the 5th Respondent applied to the Court to be allowed to move the pending motion to dismiss the appeal for lack of diligent prosecution. The said motion was brought pursuant to Order 17 Rule 10 of the Court of Appeal Rules 2007. The lower Court acceded to the application of the learned counsel for the 5th Respondent. After the motion was successfully moved, the Court below granted the prayer by invoking the provision of Order 17 Rule 10 of the Court of Appeal for want of diligent prosecution.

Dissatisfied with the decision of the Court below, the Appellant filed Notice of Appeal on 12th May, 2008. The said Notice of Appeal has three grounds out of which the Appellant has distilled two issues for determination to wit:-
1. Whether in the circumstances of the appeal, the decision contained in the ruling of the Court of Appeal dismissing the appeal for want of prosecution was properly made under Order 17 Rule 10 of the Court of Appeal Rules, 2007,
2. Whether in the circumstances of the appeal, the dismissal of the appeal in limine by the Court of Appeal did not amount to denial of fair hearing to the Appellant.

For the 1st Respondent, its learned counsel, Ogechi Ogbonna Esq, who settled its brief, distilled two similar issues but couched differently as follows:-
1. Whether the Honourable Court of Appeal was right to dismiss the appeal filed by the Appellant for lack of diligent prosecution,
2. Whether the Appellant was granted an opportunity to be fairly heard by the Court of Appeal in the determination of Appeal No. CA/C/394/2011 filed by the Appellant.

The 2nd Respondent’s counsel, Lawrence C. Ohineme, Esq also distilled two issues thus:-
1. Whether the dismissal of the Appellant’s appeal by the Court below on ground of indolent based on Order 17 Rule 10 of the Court of Appeal Rules, 2007 was proper.
2. Whether the Court below denied the Appellant fair hearing in the dismissal of its appeal,

Mr. Godson C. Ugochukwu, learned counsel for 3rd Respondent also formulated two issues to wit:-
1. Whether the lower Court was right to dismiss the Appellant’s appeal for want of diligent prosecution in line with Order 17 Rule 10 of the Court of Appeal Rules, 2007.
2. Whether the Appellant was not afforded fair hearing by the lower Court before the appeal was dismissed.

Learned counsel for the 4th Respondent, Chinasa Unaegbunam Esq, married the two issues and rendered them as follows:-
“Whether the Court below was right in its decision to dismiss the Appellant’s appeal based on Order 17 Rule 10 of the Court of Appeal Rules, 2007 was proper (sic) given the circumstances of the case including the Appellant’s right to fair hearing.”

In respect of the 5th Respondent, his counsel, Dr. George O. A. Ogunyomi, who settled the brief, adopted Appellant’s first issue and added his own version of issue two as follows:-
“Whether the Court of Appeal in dismissing the appellant’s appeal after the Appellant withdrew its pending application for regularization of its brief of argument and in the absence of any appellant’s brief of argument, did not accord the parties fair hearing.”

Before taking a closer look at the issues submitted for the determination of this appeal, I propose to entertain the preliminary objection raised by the 1st Respondent against the hearing of this appeal. Notice of preliminary objection was filed on 4th January, 2022 and same is argued on pages 5-8 of the 1st Respondent’s brief filed on 30th October, 2020 but deemed properly filed on 17th November, 2020.

Learned counsel for the Appellant C. O. Ekezie, Esq has filed argument in opposition to the 1st Respondent’s preliminary objection. It was filed on 17th November, 2020. And upon receipt of Appellant’s reply brief, the 1st Respondent filed reply on points of law (on the preliminary objection) on 19th November, 2020.

PRELIMINARY OBJECTION:-
The kernel of the 1st Respondent’s objection to the hearing of this appeal, is that this Court lacks the jurisdiction to hear this appeal commenced by a Notice of Appeal dated 12th May, 2008 and filed same date. The objection, according to learned counsel for the 1st Respondent is based upon the failure of the Appellant to seek for and obtain leave of the Court in line with extant provisions of Section 417 of the Companies and Allied Matters Act, 1990 before filing the appeal against the decision of the Court of Appeal delivered on 14th April, 2008 to dismiss the appeal filed by the Appellant to the Court below. That the said Companies and Allied Matters Act, 1990 was the operative law at the time this appeal was filed.

Learned counsel submitted that the Notice of Appeal filed to commence this appeal is incompetent, being a process filed to commence action against a company undergoing liquidation at the material time but without the leave of this Court first sought and obtained.

It was further contended that the health status of the 1st Respondent including the fact that the 1st Respondent is under liquidation was fully known to the Appellant, which, prior to the dismissal of the appeal by the Court below, had admitted that the 1st Respondent was since under liquidation in paragraph 3(a) of the affidavit in support of the motion on notice dated 24th September, 2007 and filed on 25th September, 2007 seeking for leave of the Court below to substitute the 1st Respondent with its liquidator, the Nigeria Deposit Insurance Corporation, referring to page 412 of the record of appeal. He submits that Section 650 of CAMA defines Court to include Court of Appeal and the Supreme Court. It is his view that the Appellant ought not to have commenced this appeal without leave first sought and obtained, relying on Onwuchekwa v NDIC (2002) 5 NWLR (pt. 760) 371.

In conclusion, learned counsel submitted that the Appellant failed to commence this appeal by due process of law and failed to fulfill a mandatory statutory condition precedent before filing this appeal. Referring to the case of Madukolu v Nkemdilim (1962) 2 SCNLR 341, he submitted that this Court lacks the jurisdiction to entertain this appeal and that it should be struck out.

Responding, the learned counsel for the Appellant in their reply brief submitted that the preliminary objection is misconceived and unmeritorious as the said provision of CAMA under which the 1st Respondent brought this objection is inapplicable to the facts of this appeal. He submitted that as shown in paragraph 2 of the 1st Respondent’s brief of argument under “facts of the matter”, it was the 1st Respondent that commenced the proceedings that gave rise to this appeal and secondly, the matter was commenced at the High Court of Lagos State and not the Federal High Court. He relies on the case of Onwuchekwa v NDIC (supra) also relied upon by the 1st Respondent and the case of Agro Allied Development Ent. Ltd v Northern Reefer & 2 Ors (2009) 5 – 6 SC (pt.1) 110 at 123.

Learned counsel further submitted that Section 417 of CAMA relevant to this issue applies only to matters commenced before the Federal High Court, as “the Court” referred to in that provision is the Federal High Court, not a State High Court.

He contended further that the fact that the Appellant filed Notice of Appeal against the decision of the lower Court in the matter commenced at the trial Court by the 1st Respondent, has not detracted from the fact that this suit was commenced by the 1st Respondent since an appeal is a continuation of an action and not the commencement of a fresh action.

Learned counsel for 1st Respondent filed a reply on points of law. Firstly, he submitted that by Section 650 of CAMA, the Court of Appeal and Supreme Court are part of the Courts envisaged in Section 417 of the Act. Secondly, that an appeal being a continuation of hearing does not remove the duty and burden imposed upon the Appellant by law to comply with mandatory requirements of obtaining leave where the concerned company goes into liquidation as stipulated in Section 417 of CAMA. He urged the Court to hold that part of the judgment of Onnoghen, JSC (as he then was) in Agro Allied Development Ent Ltd v Northern Reefer & 2 Ors (supra) was at most obiter dicta which does not change the position of this Court inOnwuchekwa v NDIC (supra). He urged the Court to uphold the preliminary objection.

In the instant appeal, the contention of the 1st Respondent is that the Notice of Appeal dated and filed by the Appellant on 12th May, 2008 is incompetent, being a process filed to commence action against a company undergoing liquidation at the material time but without the leave of this Court being first sought and obtained vide Section 417 of the Companies and Allied Matters Act (CAMA) 1990 being the Act in force at the time of filing this appeal. Let me quickly state that Section 417 of Companies and Allied Matters Act, 1990 is in all fours with Section 580 of Companies and Allied Matters Act, 2020.
Now Section 417 of Companies and Allied Matters Act, 1990 provides:-
“…if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company except by leave of the Court.”
The above provision is very clear and unambiguous. It means clearly that if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company undergoing liquidation. The intendment of the said provision is not to stop an aggrieved party from proceeding against the company which has been issued a winding up order or which a provisional liquidator has been appointed, but that leave of Court must be sought and obtained before commencing the action or proceedings.
As was pointed out by the learned counsel for the 1st Respondent, the health status of the 1st Respondent including the fact that the 1st Respondent was under liquidation was fully known to the Appellant, which prior to the dismissal of the appeal by the Court below had admitted that the 1st Respondent was since under liquidation in paragraph 3(a) of the affidavit in support of the Motion on Notice dated 24th September, 2007 and filed on 25th September, 2007 seeking for leave to substitute the 1st Respondent with its liquidator – the Nigeria Deposit Insurance Corporation as found in page 412 of the record which states:-
“3(a) The 1st Respondent, Pinnacle Commercial Bank Limited has since been under liquidation by the Nigerian Deposit Insurance corporation whose head office is at Mamman Kontagora House, 23A Marina Lagos. Further, that all the assets and liabilities of the said 1st Respondent have been taken over by the said NDIC ”
The above position has not been denied by the Appellant. And in any case, the record of this Court and/or any other Court is binding on the Court and the parties. It is trite that a crucial fact which is admitted does not require further proof as no person would admit a fact which could work against his interest unless it is true. See Sapo v Sunmonu (2010) 11 NWLR (pt.1205) 374, Adeusi v Adebayo (2012) 3 NWLR (pt,1288) 534 at 558 paragraph B, INEC v Oshiomole (2009) 4 NWLR (pt.132) 607 at 662. It is my well considered view that as at the time the Appellant filed its notice of appeal in this case, it knew that the 1st Respondent was under liquidation and that a liquidator i.e. NDIC had been appointed.
My Lords, the Appellant does not say it did not know that the 1st Respondent had fallen into liquidation and that a liquidator had been appointed. All it is saying is that the Supreme Court is not one of the Courts referred to in Section 417 of the CAMA, 1990. This, with due respect, is not correct. Section 650 of CAMA, 1990 which is retained in Section 868 of CAMA, 2020, defines “Court” or “the Court” as used in relation to a company under liquidation as ‘the Federal High Court, and to the extent to which application may be made to it as a Court includes the Court of Appeal and the Supreme Court of Nigeria.” Thus the argument of learned counsel for the Appellant that “Court” as used in Section 417 of CAMA, 1990 does not include the Court of Appeal and the Supreme Court, does not fly at all. It is my well considered opinion that the requirement of obtaining leave stipulated by Section 417 of CAMA, 1990 includes obtaining leave of the appropriate appellate Court to appeal against any decision made in any suit in which a company under liquidation is a party since Section 650 of CAMA defines Courts to include the Court of Appeal and the Supreme Court.
Luckily for us, this is not the first time this Section of CAMA is to be considered by this Court. In Alex O. Onwuchekwa v Nigeria Deposit Insurance Corporation (Liquidator of Co-operative and Commerce Bank Nig. Ltd) (2002) 5 NWLR (pt760) 317, this Court held that by virtue of the provision of Section 417 of the Companies and Allied Matters Act, 1990, if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company except by leave of the Court. It added that what that section prohibits is action against the company without leave of Court and not the company proceeding against another person. This decision demolishes the Appellant’s argument that after all, it was the 1st Respondent that commenced the proceedings that gave rise to this appeal. See also Agro Allied Development Ent. Ltd v Northern Reefer & 2 ors (2009) 5-6 SC (pt.1) 110.
Learned counsel for the Appellant argued that because an appeal is a continuation of hearing of a case and as such, there was no need to obtain leave. This is, with respect, not tenable. It is my view that an appeal being a continuation of hearing does not remove the duty and burden imposed on the Appellant by law to comply with mandatory requirement of obtaining leave where the concerned company goes into liquidation as stipulated in Section 417 of CAMA, 1990.
On the whole, I agree entirely with the learned counsel for the 1st Respondent that liquidation is a special circumstance which affects the concerned company and triggers the provision of Section 417 of CAMA, 1990, now Section 580 of CAMA, 2020 which makes it mandatory (by the use of the word “shall”) for leave of either the Court of Appeal or this Court to be sought and obtained by the Appellant for there to be a valid appeal. It is trite that where the law has stipulated in a mandatory provision applicable in specified circumstances, same must be given effect to. It is usually referred to as a condition precedent. This Court has properly elucidated the expression “condition precedent” in J. S Atolagbe & Ors v Alhaji Muhammadu Awuni & Ors (1997) 9 NWLR (pt.522) 537 at 565 per Uwais CJN thus:-
“Condition is a provision which makes the existence of a right dependent on the happening of an event; the right is then additional as opposed to an absolute right A true condition where the event on which the existence of the right depends is in the future uncertain, A “Condition Precedent” is one that delays the vesting of a right until the happening of an event”
By the same token in this case in hand, the seeking and obtaining of leave is the condition precedent that would first take place before the vesting of the right to approach this Court. The condition must be met before the Appellant’s right to ventilate in this Court would inure. See Attorney General of Kwara State & Anor v Alhaji Saka Adeyemo & Ors (2016) LPELR-41147 (SC), Drexel Energy & Natural Resources Ltd & Ors v Trans International Bank Ltd & Ors (2008) 18 NWLR (pt,1119) 388, Capt, Amadi v NNPC (2000) 10 NWLR (pt,674) 76, Niger care Development Company Limited v Adamawa State Water Board & Ors (2008) 8 NWLR (pt.1093) 498.
Finally, the Appellant, having failed to obtain leave as prescribed in Section 417 of the CAMA, 1990 before filing this appeal, the said notice of appeal is incompetent and liable to be struck out. Once the law has stipulated the procedure for achieving an end, same has to be complied with. A litigant who fails to observe such provision cannot activate the jurisdiction of this Court as you cannot put something on nothing and expect it to stand. It will certainly and surely collapse. SeeMacfoy v U.A.C. (1961) 3 All ER 1169, Madukolu v Nkemdilim (1962) 2 SCNLR 341. This appeal commenced without the leave of this Court is null and void. The preliminary objection to the hearing of this appeal is thus upheld. Accordingly, this appeal is hereby struck out.
I make no order as to costs.
Appeal struck out.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, John Inyang Okoro, JSC and to underscore the support in the reasonings from which the decision came about, I shall make some remarks.

On the 14th April, 2008, the Court of Appeal, Lagos Division or Court below or lower Court, Coram: Adamu, Mukhtar JJCA and A. Jauro JCA (as he then was), dismissed the appeal filed by the Appellant under Order 17 Rule 10 of the Court of Appeal Rules 2007 (Order 19 Rule 10 Court of Appeal Rules 2016) for failure of Appellant to file his brief of argument after hearing counsel for both parties upon the application of counsel for the 5th Respondent to dismiss the appeal for want of diligent prosecution.

The fuller details of the facts are well set out in the leading judgment and nothing will be gained in repeating them save for reference to any part when it becomes necessary.

On the 10th day of January, 2022, date of hearing, learned counsel for the Appellant, Celestine O. Ejezie adopted the brief of argument filed on 30/10/2020 and deemed filed on 17/11/2020 and reply briefs to the arguments against the briefs of 1st, 2nd, 3rd, 4th, and 5th Respondents respectively. He crafted two issues for determination as follows:-
1. Whether in the circumstance of the appeal, the decision contained in the ruling of the Court of Appeal dismissing the appeal for want of prosecution was properly made under Order 17 Rule 10 of the Court of Appeal Rules 2007 (Grounds 1 and 3)
2. Whether in the circumstances of the appeal, the dismissal of the appeal in limine by the Court of Appeal did not amount to denial of fair hearing to the appellant (Ground 2)

Learned counsel for the 1st Respondent, Ogechi Ogbonna Esq adopted the brief of argument filed on 4/9/2019 and raised two issues for determination, in the event of the Preliminary Objection argued in the brief was not upheld. The issues are thus:
1. Whether the Honourable Court of Appeal was right to dismiss the appeal filed by the appellant for lack of diligent prosecution.
2. Whether the appellant was granted an opportunity to be fairly heard by the Court of Appeal in the determination of Appeal No. CA/L/394/2011 filed by the appellant.

Learned counsel for 2nd Respondent, Lawrence C. Ohineire Esq adopted the brief of argument filed on 4/11/2020 and deemed filed on 17/11/2020 and conceded the appeal.

Learned counsel for the 3rd Respondent, Godson C. Ugochukwu adopted the brief of argument filed on 4/11/2020 and deemed filed on 17/11/2020 and conceded the appeal.

Chinasa Unaegbunam Esq, learned counsel for the 4th Respondent adopted the brief of argument filed on 15/12/2020 and conceded the appeal.

Dr. George O.A. Ogunyomi, learned counsel for the 5th Respondent adopted the brief of argument filed on 16/11/2020 and deemed filed on 17/11/2020 and adopted Appellant’s issue 1 and crafted his on Issue 2 thus:
2. Whether the Court of Appeal in dismissing the appellant’s appeal after the appellant withdrew its pending application for regularisation of its brief of argument and in the absence of any appellant’s brief of argument did not accord the parties fair hearing.

I shall utilise the issues crafted by the 1st Respondent as they are seen simply put together and apt.

ISSUES 1 & 2
1. Whether the Court of Appeal was right to dismiss the appeal filed by the appellate for lack of diligent prosecution.
2. Whether the appellant was granted an opportunity to be fairly heard by the Court of Appeal in the determination of Appeal No. CA/L/394/201 filed by the appellant.

Canvassing the stance of the Appellant, learned counsel contended along the path hereunder stated thus:
The fact that the Appellant had filed, albeit out of time, both the Appellant’s brief of argument and Appellant’s Reply Brief at the Court below before the date of the dismissal of the appeal was sufficient evidence of the appellant’s readiness to prosecute the appeal.
1. The Court below failed to properly evaluate the evidence placed before it by the Appellant before arriving at its decision to dismiss the appeal for want of prosecution. It also gave much weight to irrelevant matters in arriving at its decision.
2. The Court below failed to take cognisance of the fact that the Appellant had filed and served an application for the regularisation of the Appellant’s brief of argument which had been filed out of time which application was withdrawn upon a defect being highlighted by the Court below for the purpose of the correction of the defect on the face of the motion paper after the Court below had refused to allow the Appellant’s counsel to argue only part of the prayers of the motion not tainted by the said defect.
3. The 5th Respondent’s motion to dismiss the appeal for want of prosecution was heard and granted by the Court below notwithstanding that it had not been served on some of the parties and the hearing notice for same was also not served on all the parties contrary to the order of the Court below given at an earlier sitting of the Court.
4. By dismissing the appeal in limine for the failure of the Appellant’s counsel to have filed the appellant’s brief of argument within the time extended by the Court below for doing same, which failure was attributed to the inadvertence of the sins of its counsel.
5. Any reasonable man who had watched the proceedings of the Court below on the day that the appeal was dismissed would have left the Court with the conclusion that the Appellant had not been given a fair hearing. The Court below failed to allow the Appellant any time to correct the error the Honourable Court had spotted on the Appellant’s motion to regularise the processes which had been filed out of time before hearing and granting the motion to dismiss the appeal for non-filing of the Appellant’s brief.
The lower Court no doubt mechanically applied Order 17 Rule 10 of the Court of Appeal Rules 2007 in a manner to suggest that the said rule has taken away the discretion of the Honourable Court in the matter.
6. The general rule that if a principle of natural justice is violated, it does not matter whether, if the proper thing had been done the decision would have been the same, the proceedings would still be null and void is applicable to this appeal. He cited the following authorities among others, thus:-
1. A.G. Anambra State v Okeke (2002) FWLR (pt. 112) 175 at 195-196.
2. Bello Akanbi & Sons V Mamudu Alao & Anor (1989) 5 SC 1.
3. Ibodo v Enarofia (1980) 4-7 SC 42
4. Salu v Egeibon (1994) 6 NWLR (pt.348) 23 at 43
5. Enyibros Foods Processing Co. Ltd & Anor v NDIC (2007) 3 SC (pt.ll) 175 at 210
6. Ntukidem & Ors v Asuquo & Ors (1986) 3 NWLR (pt.45) 905 at 931.

The slant of the 1st Respondent’s counsel went along the following lines:
1. The Apex Court lacks jurisdiction because of the failure of the Appellant to seek and obtain leave of this Court before filing the appeal in line with Section 417 Companies and Allied Matters Act (CAMA)
2. The Court of Appeal rightly and correctly invoked the provisions of Order 17 Rule 10 of the Court of Appeal Rules, 2007 on the 18th April, 2008 to dismiss Appeal NO.CA/L/304/2001, upon the application of the 4th Respondent in view of the failure of the Appellant who applied for extension of time to file their Brief of Argument and was granted same prayer on 18th January, 2005; Ukangwu v Pitt (supra), Chinwe v Ude (supra), Kraus Thompson v National Institute for Policy and Strategic Studies (supra), Ogbu v Urum (supra).
3. The application by the Appellant on 18th April, 2008 to withdraw their motion for further extension of time to among others filed their Brief of Argument which was granted in the absence of any objection by the other parties, and the subsequent moving of the application by the 4th Respondent to dismiss the appeal dated 30th January, 2007 and duly filed before the Honourable Court below, left the Court of Appeal with no other option but to dismiss the appeal in exercise of its powers pursuant to Order 17 Rule 10 Court of Appeal Rules, 2006.
4. The Appellant cannot complain nor allege that it was denied the right to be fairly heard, since it was given the opportunity to file its brief of argument and related processes but failed to do so even within the extended period allowed by the Court of Appeal for the Appellant to file same sequel to the Appellant’s prayer. We rely on the decision in Buhari vs Obasanjo (2003) 17 NWLR part 850, page 510.
5. The Appellant exercised their right to fair hearing by failing to file their Brief of Argument even within the extended period, despite being given all opportunity to file their Brief of Argument and related processes, and thereby waived their right to file. We rely on the decision inFasade vs. Babalola (2003)11 NWLR part 830 page 26.
6. The waiver by the Appellant (failure to file their Brief of Argument within time) estopps the Appellant from alleging denial of their right to fair hearing by the Court of Appeal, having waived the same right by their failure to file their Brief of Argument within 14 days as ordered by the Court of Appeal on 18th January, 2005.
7. The Appellant has come to equity with unclean hands, having failed to obey the Rules of Court, and the ruling of the Court of Appeal to file within time and thereby do equity by filing their Brief of Argument within the extended period ordered by the Court of Appeal. The Appellant cannot benefit from his wrong. We rely on the decisions in: Ibrahim vs Osunde (2009) 6 NWLR part 1137 page 382, at page 404 paragraphs D-E, Okpala vs Okpu (2003) 5 NWLR part 812 page 183, Ola vs Williams (2003) 5 NWLR part 812 page 48, Ezeanah vs Attah (2004) 7 NWLR part 873 page 468, Oforkire vs Maduike (2003) 5 NWLR part 812, page 166.
8. The Appellant is guilty of abuse of Court process and that their appeal should be dismissed on that ground since it failed to obey the Order of the Court of Appeal which was granted further to their prayer for extension time to file their Brief of Argument. We rely on the decision in Arubo vs Aiyeleru (1993)3 NWLR 280 at 126.

Learned counsel for the 5th Respondent argued along the lines stated hereunder, viz:
– The appellant had before the Court of Appeal when his appeal was dismissed an incompetent brief and reply brief.
– That there was proper evaluation of the evidence placed before it by the Court of Appeal,
– The respondent moved his application for dismissal of the appeal for want of diligent prosecution when the applicant had withdrawn his application to regularise the brief filed out of time.
– That applicant has been negligent in the prosecution of his appeal. The inadvertence or negligence of his counsel should be visited on the appellant.
– The appellant it is submitted has been given a fair hearing.
– The Court of Appeal rightly applied the provision of Order 17 Rule 10 of Court of Appeal Rules 2007, did not violate the principles of natural justice or the provisions of the constitution of the Federal Republic of Nigeria in dismissing the appeal.

He cited the cases thus:-
1. Adehi v Atega (1995) 5 NWLR (pt.398) 65 at 66.
2. Asalu v Dakan (2006) SC (pt.ll) 120 at 127-129.
3. Newswatch Communications Ltd v Atta (2006) All FWLR (pt.318) 580 at 601.
4. Alon v Dandrill (Nig) Ltd (1997) 8 NWLR (pt.517) 495.
5. Chime v Ude (1996) 7 NWLR (pt.461) 379.
6. Zakari v Muhammad (2017)17 NWLR (pt.1594) 181.
7. Asani v Adeosun (1966) NMLR 268.

RESOLUTION
In tackling the question of the implication of the Court of Appeal’s right to dismiss the appeal filed by the Appellant for lack of diligent prosecution, the Court is guided by the Court of Appeal Rules which Order 17 Rule 10 of the Rules of 2007 now Order 19 Rule 10 Court of Appeal, Rules, 2016 has provided for. It stipulated thus:-
“Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution.
(2) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution.”
In this instance, the Appellant had neglected to file his brief of argument within time despite the clear provisions of the Rules of the Court and the time and indulgence earlier given to it and the 5th Respondent applied to have the appeal dismissed for want of diligent prosecution. The Appellant filed a second application for extension of time to file its brief but withdrew the application on the date it came up for hearing. Since time was not further extended by the Court, as the Appellant’s counsel withdrew his second application for extension of time to file its brief of argument out of time, the purported brief filed out of time by the Appellant was incompetent. Counsel for the 5th Respondent moved his said application to dismiss the appeal for want of diligent prosecution, the Court granted same and the appeal stands dismissed as there was no brief of argument before the honourable Court. Since the Appellant’s brief, as rightly held by the Court of Appeal, was filed out of time and incompetent, the Respondent’s Briefs of Argument filed served no useful purpose there being no Appellant’s Brief of Argument to respond to.
The Rules of the Court below on what the Court should do faced with a failure of the appellant to file the brief of argument are clear hence that failure would occasion a dismissal by the Court either suo motu or through the grant of an application by the Respondents for a dismissal. It needs be emphasised that the appellate Court is empowered and duty bound to ensure that parties comply with the Rules of Court in filing briefs. The implication of a dismissal in circumstances as above described is that the appeal stands dismissed for all time and cannot be relisted. See the cases of Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255;Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt.583) 632 at 648 paras B-C (SC) Ajayi v. Omorogbe (1993) 6 NWLR (Pt.301) 512 at 534 (SC); UBN Ltd. V. Odusote Book Stores Ltd (1995) 6 NWLR (Pt.421) 538 at 576 (SC), (1995)12 SCNJ 175; Tsokwa v. UTC (Nig) Ltd. (2000) 7 NWLR (Pt.66) 654 at 660-661.; Adehi v. Atega (1995) 5 NWLR (Pt.398) 65 at 66 (SC), (1995) 65 SCNJ 44; Ajayi v. Omorogbe (1993) 6 NWLR (PT.301) 512.
The provision of Order 6 Rules 10 Court of Appeal Rules 2002 is similar toOrder 17 Rule 10 Court of Appeal Rules 2007 and Order 19 Rule 10 Court of Appeal Rules 2016 and the decision of this Court in applying Order 6 Rule 10 Court of Appeal Rules 2002 should guide this Honourable Court in applying Order 19 Rule 10 Court of Appeal Rules 2019 in the instant case. See Asalu v. Dakan (2006) SC (Pt.II) 120 at 127-129; Chukwuka & Ors v. Ezulike & Ors(1986) 5 NWLR (PT.901) 44 at 59, (2004) 5 SC; Kraus Thompson Org. v. N.I.P.SS (2004) 17 NWLR (Pt.538) 367; Akujinwa v. Nwaonuma (1998) 11-12 SC 112, (1998) 13 NWLR (Pt.583) 63; Ekpeto v. Wanogho (2004) 28 NWLR (Pt.905) 395 at 412-413; Babayagi v. Bida (1998) 1 SCNJ 108 at 116.
It is to be noted that sympathy has no place in the hearing of an appeal as there is the need to comply with the rules of the Court. See Asalu v. Dakan (2006) 5SC (Pt. 111) 120 at 129-131. Where there is non-compliance, an exercise of the Court’s power in accordance with the Rules made for doing justice cannot be labelled as improper or unjust.
It is the duty of the Appellant to obey the rules of Court. It is also the duty of the Appellant to prosecute his case diligently. See Nueana v. Feda (2007) ALL NWLR (P.376) 611 at 627 paras E-F(S), (2007) 11 NWLR (Pt.1044) 59 at 79.
In reiteration, parties to litigation need be reminded that rules of Court are instruments of justice and when they are applied as the case at hand, pandering to sentiments have no place. Therefore, a recourse to the doctrine of fair hearing in the situation is akin to pouring water on top of a stone as the fair hearing concept is not available to indolent or lazy litigants who push to foist a fait accomplish on the Court and other parties by willfully disobeying the rules even after indulgences have been granted them as Appellant has done. I rely on Newswatch Communications Ltd v Atta (2006) All FWLR (pt.318) 580 at 601.
The Appellant refused to prosecute the appeal he filed since year 2001 wherefore the Court of Appeal had to put an end to the Appellant’s antics in keeping Order 17 Rule 10 of the Court of Appeal Rules 2007.
It was the 5th Respondent that compiled records of appeal and yet the appellant did not file his brief of argument. The 5th Respondent’s counsel letter Exhibit Attached to pages by the 5th Respondent’s counsel to state that the Appellant had refused to comply with the Court Order and that the Respondent was suffering from injustice because of the delay caused by the Appellant’s counsel. Evidently, the Appellant was in possession of the property in dispute, it is posited that this is an appropriate case in which the indolence of the Appellant’s counsel was visited on the Appellant who stood to benefit from the delay while remaining in possession of the property that had been sold to the Respondents in execution of the judgment of the High Court of Lagos State.
The Appellants’ counsel at the Court of Appeal objected to the Respondents’ application for dismissal of the appeal but the Court took the trouble to consider the merit of the application and opposition thereto. It follows that the Appellant who failed or neglected to file his brief of argument certainly has not complied with the necessary condition for hearing of his appeal and cannot cry that there was a lack of fair hearing. See Chime v Ude (1996) 7 NWLR (pt.461) 379; Oyeyipo v Oyinloye (1987) 1 NWLR (pt.50); First Bank of Nig. Ltd v T.S.A. Ind. Ltd (2007) All FWLR (pt.352) 1719 at 1745 (CA).
The Court of Appeal, in applying the provision of Order 17 of Court of Appeal Rules 2007 in this case, ensured that the Appellant had been given the opportunity of being heard. The Court, in applying the rules of Court, had created for the Appellant an environment of fair hearing but the Appellant failed to utilise the abundant opportunity given by the Rules and the Court. See, Eke v. Ogbonda (2007) ALL FWLR (Pt.351) 1456 at 1479; BCC LT. V. Imani & Sons Ltd & Shell Trustees Ltd (2007) ALL FWLR (Pt.348) 806 at 817.
Therefore, the Appellant herein, who refused to make good use of the opportunity for fair hearing but engaged in delay tactics, pranks and antics, cannot complain thereafter of a breach of fair hearing in the circumstances.
The non-compliance with the order of the Court of Appeal by the appellant’s counsel was not due to mistake of law but a factual blunder which the Appellant as owner of the facts of the case must accept full responsibility and not pass the buck to counsel. See National Inland Waterway Authority v. the Shell Petroleum Dev. Co. Ltd (2008) Vol. 49 WRN 1 at 19 lines 25-35 per Tobi, JSC. The Appellant’s conduct in causing the delay in complying with the Court order was meant to overreach the Respondents, and frustrate the intention of the Respondent to have the appeal determined within a reasonable time so that he can enjoy the fruits of litigation if he wins, especially as the Appellant and the 2nd and 3rd Respondents have clung to possession of the said property sold to the 5th Respondent.

For a fuller appreciation of what ensued in this matter, I shall at the risk of repetition draw attention to what transpired at the Court below, the Court of Appeal was right in what it did. The Respondent moved an application after failing to prosecute the appeal by filing a brief of argument as at the time of dismissal of the appeal is an obvious case of injustice to the 5th respondent. The Appellant who had 14 days to take necessary steps in prosecuting the appeal did not obey the gracious order of Court given at its instance from 18th January, 2005 until 25th day of May, 2006. The Appellant deliberately filed its brief out of time and withdrew the application to regularise same, thereby putting no argument before the Court to be weighed on the imaginary scale of justice.

On the alleged unchallenged affidavit evidence.
At paragraph 5.04 of its Brief of Argument, the Appellant accused the Court below of “failing to make any mention whatsoever of the uncontroverted facts deposed to on behalf of the Appellant as contained in the affidavit of Razaq Oshinaya in opposition to the affidavit in support of 4th Respondent’s motion to dismiss the suit for want of diligent prosecution.” The said accusation is unfair because the alleged “affidavit” is actually a further and better affidavit in support of the Motion dated 24/9/2007 and filed on 25/9/2007 by the Appellant and not a counter-affidavit to the 5th Respondent’s Motion filed on 30/01/2007 and praying the Court below to dismiss the appeal for want of diligent prosecution. The Court below had no reason to consider a further affidavit filed by the Appellant in support of Appellant’s motion, which had been withdrawn as the further affidavit died with the withdrawal of the motion it was intended to further support.

Again to be said is that the Appellant who had been negligent in prosecuting his appeal, cannot hide behind the principle that counsel’s inadvertence should not be visited on him. This is because that principle is not open ended and not available to the Appellant whose conduct in the Court below fell short of what is expected. I would take solace in the case of NNPC v Samfadek & Sons Ltd (2018) 7 NWLR (pt.1617) 1 at 10-11 per Eko, JSC thus:
“Where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant cannot escape such blunders committed by his counsel and his client would take full credit.
Neither mischief, ineptitude nor strategic blunders are envisaged by the rule that inadvertence of counsel should not be visited on the litigant The rule cannot be applied to foist injustice on another party. Nor will the rule apply in a clear case of abuse of Court’s process as in the instant case, Akanbi v Alao (1989) 3 NWLR (Pt.108) referred to.”
In this case, the Court below did not fall for the pranks of the Appellant’s counsel law clerk who deposed to an affidavit claiming that the Appellant’s Chief Executive Officer had bad health conditions without attaching a medical certificate or giving cogent evidence for the non- prosecution of the appeal. The Appellant is a limited liability company who has other principal officers who could prosecute the appeal, but no reason was adduced why any of them did not do so or even explain their failure to furnish counsel with the requisite information for prosecuting the Appellant’s appeal. From all fronts, the Appellant has not only been careless or negligent but engaged in antics to overreach the 5th Respondent. See University of Lagos v Aigoro (195) 1 SC (1985) 1 NWLR (pt. 1) 143.

There is nothing upon which a favourable viewing of the Appellant’s side can be made as the appeal lacks merit.
I therefore dismiss it and abide by the consequential orders made.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Okoro, JSC, and I agree with him that the Preliminary Objection raised by the first Respondent to the hearing of this appeal must be sustained. A Preliminary Objection is an objection that if upheld, would render further proceedings before a Court impossible or unnecessary – Black’s Law Dictionary, 9th Ed. See also Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421, wherein this held –
An objection in law portrays a formal opposition of an objector against the happenings of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A Preliminary Objection seeks to provide an initial objection before the actual commencement of the thing being objected to.

In this case, the first Respondent’s contention is that the Notice of Appeal filed to commence this appeal is incompetent because the Appellant failed to seek and obtain leave of the Court in line with the provisions of Section 417 of the Companies and Allied Matters Act 1990, which applies in this case.
The importance of a notice of appeal is enormous as it is the substratum of the appeal, and if the notice of appeal is defective, it must be struck out on the ground that it is incompetent – see First Bank V. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247.

The said Section 417 says:
If a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the Company except by leave of the Court.
The operative words therein, as far as this appeal is concerned, are – no action shall be proceeded with against the Company “except by leave of the Court”.
The words used in Section 417 of CAMA “speak for themselves”, and it follows, therefore, that since the Appellant failed to obtain leave of Court before filing this appeal, the Notice of Appeal is incompetent, and it must be struck out.
In the circumstances, this appeal commenced without the leave of Court being sought and obtained, is null and void.

The Preliminary Objection raised by the first Respondent to the hearing of this appeal is, therefore, upheld, and this appeal is hereby struck out. I also make no order as to costs.

ABDU ABOKI, J.S.C.: I had a preview of the lead judgment prepared by my Learned Brother, JOHN INYANG OKORO, JSC, just delivered. I am in entire agreement with the reasons and conclusion arrived thereat.

The Preliminary Objection filed by the 1st Respondent herein, attacks the Notice of Appeal for being incompetent and that the defects are fundamental enough to divest the Court of jurisdiction. Jurisdiction is a fundamental necessity for any adjudication and it is a threshold matter which has received judicial attention.
See :
Idisi vs Ecodriil (Nig.) & ors. (2016) LPELR- 48158(SC), where Nweze, JSC in reemphasizing the importance of jurisdiction said thus:
”In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing. Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is simply a nullity.”

The 1st Respondent, in challenging the jurisdiction of this Court, contended that the Notice of Appeal is invalid, thus divesting this Court of jurisdiction.

It is the law that a Notice of Appeal, being an initiating process, must be valid and competent to bestow jurisdiction on the Court. Thus, a Notice of Appeal is highly fundamental in an appeal as it is the lifeline on which any appeal stands. Once it is defective, it robs the Court of the jurisdiction to hear the appeal. See: Stirling Civil Engineering Ltd v. Fidelity Bank Plc (2013) LPELR-22634.

In this case, by the provisions ofSection 417 of the Companies and Allied Matters Act, 1990, (which was the operative law at the appeal was filed), is apposite. It provides that:
“…If a winding up order is made or, a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company, except by leave of Court.”
The consequence for not seeking for and obtaining leave, where leave is required, vide Section 417 of the CAMA 1990, is fatal to the instant appeal.

It is on account of this and the fuller reasons of in the lead judgment prepared by my Learned Brother, JOHN INYANG OKORO, JSC, that I also find this appeal to be incompetent and it is hereby struck out.
I abide by the Order as to cost.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I agree with the reasoning eloquently expressed in the judgment just delivered by my learned brother, the Hon. Justice John Inyang Okoro, JSC, to the conclusive effect that the present appeal is incompetent.

Hence, I too hereby strike out the said appeal for incompetence.
Appeal struck out.

Appearances:

C. O. Ejezie, Esq. For Appellant(s)

Ogechi Ogbonna, Esq. with him, Bossan Swanta, Esq. and Folmi Yohana, Esq. – for 1st Respondent.

L. C. Olineme Esq. – for 2nd Respondent

Chinasa Uneegbunam with him, Paschal Ukah – for 4th Respondent.

Dr. George Ogunyomi – for 5th Respondent For Respondent(s)