ALLIANCE & GENERAL LIFE ASSURANCE PLC V CORPORATE AFFAIRS COMMISSION

ALLIANCE & GENERAL LIFE ASSURANCE PLC V CORPORATE AFFAIRS COMMISSION



IN THE COURT OF APPEAL IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS

ON WEDNESDAY, 13TH JUNE, 2018


Suit No: CA/L/70/2015

CITATION:

Before Their Lordships:

MOHAMMED LAWAL GARBA, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

JAMILU YAMMAMA TUKUR, JCA


BETWEEN

ALLIANCE & GENERAL LIFE ASSURANCE PLC
(APPELLANT)

AND

CORPORATE AFFAIRS COMMISSION
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Right of Appeal – The position of the law on the right of appeal to the Court
Nature of general right of appeal as of right from the decision of the High Court to the Court of Appeal

Very recently, I have had an opportunity to restate the law on the right of appeal to the Court from the decisions of the High Court; Federal and State, provided for under Section 241(1) of the Constitution; in the Appeal No. CA/A/57/2018; Dr. Okonkwo v. INEC & ORS. Judgment in the Appeal was delivered on the 7th of May, 2018 at the Abuja Division of the Court and in my supporting contribution to the lead judgment I said, inter alia that: –

“By the provisions of Section 241(1)(a) of the Constitution, the right of appeal to the Court from the final decision of a High Court: Federal and State, in any civil or criminal proceedings, is as of right, sitting as a first instance Court. The right of appeal as of right vested by the provision of Section 241(1) (a) is one which the party or person can exercise at his will and on his own power or authority so long as it is exercised in compliance with other relevant statutory provisions. Because the right of appeal is as of right in a party, he has the discretionary authority to file an appeal without seeking for permission, order or leave of either the trial or appellate Court to do so, if it is filed in accordance with the relevant statutory requirements provided for in an Act of the National Assembly. Similarly, under the provision of Section 241(1)(b) an appeal against the decision of a High Court, Federal or State, in any civil or criminal proceedings, is as of right and can be filed by a party without the need to seek for or obtain the prior permission, order or leave from the trial or appellate Court to do so, where the ground(s) of the appeal involves/involve question(s) or issue(s) of law alone. Because the provisions of Section 241(1)(a) provide for a right of appeal against a final decision of the High Court to the Court, the provisions of Section 241(1)(b) which did not specifically name the nature of the decision against which the right of appeal is provided for as of right, it can, in relation to the earlier provision, reasonably be said to provide for a decision by the High Court which is not final in any civil or criminal proceedings. A decision of the High Court, or any other Court of law, which is not final in any civil or criminal proceedings, is an intermediate or interlocutory decision in the course of such proceedings on an issue which does not dispose of the dispute between and rights and obligations of the parties to the proceedings, completely and finally. See Akinsanya v. UBA Ltd. (1986) 4 NWLR (35) 273; Ajani v. Giwa (1986) 3 NWLR (32) 796 @ 803-4; Nwadike v. Ibekwe (1987) 4 NWLR (67) 718, (1987) 11 -12 SCNJ, & 2: Metal constr. (W.A. Ltd. v. Migliore In Re: Miss C. Ogundare (1990) 2 SCNJ, 20, (1990) 1 NWLR (126) 229 @ 314; Nwosu v. Offor (1997) 2 NWLR (487) 274, (97) 1 SCNJ, 193.

A decision in relation to a Court, by dint of Section 318(1) of the Constitution, means any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. In these premises, under both sub-paragraphs (a) and (b) of Section 241(1) of the Constitution, the right of appeal provided for is one as of right which can be exercised freely and without hindrance by a party or person, in accordance with the laid down law on procedure and practice which regulate and govern the exercise of the right. In particular, under sub-paragraph (b), where the ground(s) of an appeal is are/on questions/issues of law alone, the nature of the decision by a High Court against which the right of appeal is provided, is immaterial, as the determining factor is whether or not the ground(s) involves/involve question(s) of law alone. In other words, the nature of the grounds rather than the nature of the decision is the determinant and a precondition for the exercise of the right of appeal as of right as provided for under the provisions of Section 242 (1)(b). Total Int. Ltd. v. Prince Awogboro (1994) 4 NWLR (337) 147; Adamu v. A.G., Borno State (1996) 8 NWLR (456) 203; NNPC v. Fawehinmi (1998) 7 NWLR (559) 598; Anoghalu b. Oraelosi (1999) 10 SCNJ, 1; Welle v. Bogunjoko (2007) 1 NWLR (1029) 123; Ogbimi v. Niger Construction Co. Ltd. (2006) 9 NWLR (986) 373., Inyang v. Ebong (2002) 2 NWLR (2002) 2 NWLR (751) 284; FHA v. Kalejaiye (2010) 19 NWLR (1226) 147; FBN, Plc. v. Fashar (2000) 6 NWLR (662) 573; Camptel Int. SPA v. Dexton Ltd (1996) 7 NWLR (459) 170; Nwaolisah v. Nwabufoh (2011) LPELR-2115(SC), in addition to the cases cited in the Appellant’s Reply to 3rd Respondent’s objection, referred to in the lead judgment, on the points.” Per GARBA, JCA. read in context

2. Grounds of Appeal – How to determine what constitutes a ground of appeal
Guiding principles in determining whether a ground of appeal is that of law, fact(s) or mixed law and facts

The guidelines for the identification and determination of what constitutes a ground of pure law or law alone and the distinction between a ground of law alone and one of mixed law and facts or of facts alone have been firmly established in the authorities cited by the learned Counsel for the parties supra, and countless others. Although the line of difference between the two is thin and so may be difficult to be drawn, the criteria for distinguishing a ground of law alone from one of mixed law and facts, has been identified and settled by the apex Court for a long time now. The established principles for the purpose were restated by Muhammad, JSC in the case of Akinyemi v. Odu’a Invest. Co. Ltd. (2012) 17 NWLR (1329) 209 @ 230-1, as follows: –

(1) The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.

(2) Where a ground complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.

(3) Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.

(4) A ground which raises a question of pure fact is certainly a ground of fact.

(5) Where the lower Court finds that particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.

(6) Where admissible evidence has been led, the assessment of that evidence is entirely for that Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.

(7) Where the lower Court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.

(8) Where the lower Court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.

(9) Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the Appeal Court will assume that there has been a misconception of the law. This is a ground of law.

(10) Where the conclusion of the lower Court is one of possible resolutions but one which the Appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.

(11) Where a trial Court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law not of fact.

(12) When the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not of lav.

(13) Where the Appeal Court interferes in such a case and there is a further appeal to a higher Court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of appeal is a ground of law not of fact.

(14) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a Court of appeal or a further Court of appeal).”

From all the authorities, the basic requirement is that the Court shall closely look at the grounds along with all the particulars set out for them on the Notice of Appeal in order to find the real questions raised therein. Generally, a ground which questions a misunderstanding of the law or its application to admitted or proved facts, is one of law and a ground which raises questions on the appraisal and evaluation of the facts before application of the law, it is one in the nature of mixed law and fact. Again, a ground which questions the jurisdiction of a Court on the basis of the law, is a ground of law alone; see G. E. C. v. Akande (2010) 18 NWLR (1225) 596, but where it is predicated on the facts, it is not a matter of law, per-se, but of mixed law and facts on the authority of Nigerite Ltd v. Danlami (1992) 7 NWLR (253) 288 @ 296. See also Comex Ltd. v. NAB Ltd (1997) 3 NWLR (496) 643 @ 656; Ajuwa v. SPDCN Ltd. (2011) 18 NWLR (1279) 822; (2011) 22 MJSC (special Edition); FBN, Plc v. TSA Ind. (supra); Ibiyeye v. Fojule (2006) ALL FWLR (302) 156; Ogbimi v. Niger Const, Ltd (2006) ALL FWLR (317) 390; Nwadike v. Ibekwe (1987) 11-12 SCNJ, 72; NNSC Ltd v. Establishment of Sima of Vaduz (1990) 21 NSCC (Pt. 3) 526, Calabar Co-Op, Ltd v. Ekpo (2008) 1 SC, 229 @ 273-5. Per GARBA, JCA. read in context

3. Grounds of Appeal – What classification of grounds of appeal depend on
Whether a ground of appeal is classified simply by the name given to it

I should perhaps restate the law that it is not the appellation or name tag given to a ground of an appeal by Counsel in the formulation, couching or rendition as a ground of law that makes it such a ground, in law. See Lovleen Toys Ltd. v. Komolafe (2000) ALL FWR (310) 1753; Maduabuchukwu v. Maduabuchukwu (2006) ALLIWLR (318) 404; Odunukwe v. Ofomata (2010) 18 NWLR (1225) 404; NNSC Ltd. v. Establishment of Sima of Vaduz (2005) 7 SC (Pt. 3) 526; Chief of Air Staff v. Iyen (2005) 1 SC (Pt. II) 121. As I have stated earlier, the classification of a ground of appeal depends on the real complaint and question raised in the body of the ground, considered along with the particulars thereof. B.A.S.F. Nig. Ltd. v. Faith Ent. Ltd (2010) 4 NWLR (1183) 104. Per GARBA, JCA. read in context

4. Leave of Court – Instances failure to acquire leave of Court can invalidate a Notice of Appeal
Circumstances where leave of Court must be sought and obtained to file an appeal and effect of failure to obtain same

Looking calmly at the Ground 1 along with the particulars, it can easily be seen that while particulars (a) and (b) are statements of facts, particulars (c) and (f) are arguments to support the body of the ground. This ground does not raise a real question or complaint of pure law alone to qualify as a ground of law. Particulars (a) and (b) of ground 2 are statement of facts while particular (c) is an argument. On its part, while the body of ground 3 raises the question of law on whether the trial Court was functus officio to set aside it earlier order, the particulars are all arguments on the earlier order sought to be set aside.

In my view, only ground 3 may pass the determination of being one of law alone for the purpose of the exercise of the right of appeal against the decision contained in the Ruling by the trial Court. Grounds 1 and, 2 are, at the best, grounds of mixed law and facts for the purpose of the appeal against the said Ruling. In the premises, while ground 3 can be filed as of right against the interlocutory decision of the trial Court pursuant to the provisions of Section 241, (1) (b) of the Constitution, grounds 1 and 2 require, as a condition precedent for validity, prior leave of Court to be brought against the said decision, being of mixed law and facts, under Section 242 of the Constitution. In the absence of the requisite prior leave before they were filed or brought, grounds 1 and 2 of the Appellant’s Notice of Appeal are invalid and incompetent in law. Ferodo Ltd v. Ibeto Ind. Ltd (2004) 2 SC (Pt. 1); Otu v. ACB (2008) 3 MJSC, 197; UBN Plc. v. Sogunro (2006) ALLFWLR (337) 502; Arowolo v. Adimula (1991) 8 NWLR (212) 753. Per GARBA, JCA. read in context

5. Issues for Determination – The position of the law where issues are distilled from competent and incompetent grounds
Effect of an issue for determination based on an incompetent ground of appeal

I have noted that the Appellant’s Issue 1 is indicated to have been distilled from the incompetent ground 1 and the competent ground 3. In the case of Ayalogu v. Agu (1998) 1 NWLR (532) 12, it was held that it is not the duty of the Court to sift submissions on issues raised from competent and incompetent grounds of appeal. See also Nwadike v. Ibekwe (1987) 4 NWLR (67) 775; Ngige v. Obi (2006) 14 NWLR (999) 1 @ 165; Korede v. Adedokun (2001) 16 NWLR (736) 438; Asogwa v. PDP (2013) 7 NWLR (1353) 207 @ 274, paras. G-H, 275, paras. C-D. I have also observed that the arguments by the Appellant’s Counsel under issue 1, which appear from page 3 to page 12 of the Appellant’s brief, do not contain any point raised on the question or issue of complaint in the competent ground that the trial Court was wrong to hold that it was functus officio to set aside the Ruling of 27th February, 2014. In the circumstance, even the position of this Court in the case of Anatogu v. Anatogu (1997) 9 NWLR (519) 49 @ 63, that the Court would, in the interest of justice, see if the arguments or submissions on issue distilled from the competent and incompetent grounds are severable and then excise them, would not avail the Appellant, since the entire arguments/submissions on Issue 1 are on the incompetent ground 1 alone.
In the above circumstances, the arguments on the Issue 1 are liable to be discountenanced since the ground on which they are premised, is incompetent. Per GARBA, JCA. read in context

B. PRACTICE AND PROCEDURE
6. Preliminary Objection – The requirements to be fulfilled before raising preliminary objection
Procedure for raising a preliminary objection

Another issue was raised in addition to these issues, in the Respondent’s brief filed on the 13th July, 2016 and in response thereto, the Appellant filed the Appellant Reply Brief on the 21st, October 2016, deemed on the 3rd October, 2017. The additional issue raised by the Respondent’s Counsel is: –

“Whether this Court has the jurisdiction to entertain this Appeal.”

It is clear that the issue is one which challenges or questions the jurisdiction of the Court to adjudicate over the appeal and so is a preliminary objection to the hearing of the appeal, the procedure for the proper raising of which, has been specifically provided for in Order 10, Rule 1 of the Court of Appeal Rules, 2011, as well as the 2016 Rules. The Provisions say that –

“1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with registry within the same time.”

These provisions are simple, straight forward and unambiguous and so present no difficulty in their purport and requirement. They require that a Respondent to an appeal before the Court intending to rely upon a preliminary objection to the hearing of the appeal,

“shall give the Appellant three clear day’s notice before the hearing ….. and shall file such notice together with twenty copies thereof with the registry within the same time.”

It may be observed that the word “shall” was employed and used twice or two (2) times in the concise provisions of the Rule. In the case of Onochie v. Odogwu (2006) 2 SCNJ, 96 @ 114, it was held that: –

“The use of the word “shall” in a statute or Rules of Court makes it mandatory that the provision or rule must be observed. “Shall” is used to express a command or exhortation, or what is legally mandatory.”

See also Kato v. CBN (1991) 9 NWLR (274) 216; Nig. LNG Ltd v. African Dev. Insurance Ltd (1995) 8 NWLR (416) 677; Amokeodo v. IGP (1999) 6 NWLR (607) 467; Nwankwo v. Yar’adu (2010) 12 NWLR (1209) 518 @ 580.
In the above provisions, the deliberate use of the word “shall” twice therein shows that a duty and legal obligation is thereby imposed about which no discretion is envisaged in compliance. This Court, in the case ofDonier Aviation Nig. Ltd. v. Capt. Oluwadare (2007) 7 NWLR (1033) 336, citing Emir of Kano v. Agundi (2006) 2 NWLR (965) 572 @ 587, A-E and Oforkire v. Maduike (2003) 5 NWLR (812) 166 @ 178, per Kekere-Ekun, JCA (now JSC) stated that:-

“The provision of Order 3, Rule 15(1) above, is mandatory and failure to comply therewith is fatal to the objection. The Respondent in this appeal failed to file a notice of preliminary objection at least three clear days before the hearing of the appeal as required by the rules. The objection raised and argued in the Respondent’s brief is therefore incompetent.”

Order 3, Rule 15(1) of the 2002 Court of Appeal Rules referred to by the Learned Law Lord, was Order 10, Rule 1 of the 2011 Court of Appeal Rules, applicable to the appeal. See also the Supreme Court case of Ameen v. Amao (2073) LPELR-20086 (S ) on compliance with the provisions of Order 2, Rule 9 of the Supreme Court Rules, 2005 (as amended), which are impari materia with the provisions of Order 10, Rule 1. The Apex Court referred to the cases of Onwuka v. Ononuju (2009) 5 SCNJ, 85 and Okafor v. A. G. Anambra 1999) 7 SCNJ, 192 @ 201, for the position. See in addition, the earlier cases of Okolo v. UBN Ltd (1988) 2 NWLR (539 ) 618; Arewa Textiles, Plc v. Abdullahi & Brothers Musawa Ltd (1988) 6 NWLR (554) 508; Sec. and exchange Comm. V. Kasunmu ( 009) 10 NWLR (1150) 509, decisions of this Court and Nwaolisah v. Nwabufor (2011) 14 NWLR (1268) 600; another apex Court decision on the position.
The Rules of Courts bind both the parties and the Courts and each has a duty to obey and ensure compliance therewith in the conduct of proceedings of all matters that come before them.
In the case of Dingyadi v. INEC (No. 2) (2010) 18 NWLR (1224) 154, the apex Court, per Muhammad, JSC, has stated that –

“… … it must be appreciated that where the exercise of a right is circumscribed or limited by a rule of practice, and except where it is satisfactorily shown that compliance with such rule has been waived, then that rule must be complied with Court Rules are meant to be obeyed. Where there is non-compliance, such non-compliance may result into any step taken to be a nullity.”

Mukhtar, JSC (later CJN) in the case of Abia State Transp. v. Quorum Consort Ltd (2009) 3-4 SC, 187, (2009) 9 NWLR (1145) 1, put it poignantly that: –

“The settled law is that rules of Court of each Court are not made for fun, but to be obeyed. Once such rules are in place, they must be adhered to and not contravened or ignored.”

See also Oyegun v. Nzeribe (2010) 7 NWLR (1194) 577; Anyah v. African Newspapers, Nig. Ltd (1992) 7 SCNJ 47, (1992) 6 NWLR (247) 319; Ajayi v. Omorogbe (1993) 7 SCNJ (Pt. 1) 68, (1993) 6 NWLR (301) 512; FBN, Plc v. T. S. A, Industries Ltd (2010) 15 NWLR (1216) 247; Univ. of Lagos v. Aigoro (1985) 1 NWLR (1) 143.
However, over the years, the Courts have evolved the principle that the provisions of Order 10 Rule 1 are aimed at giving an Appellant to an appeal and the Court, reasonably adequate notice of the nature and essential details of any preliminary objection the Respondent intends to rely upon to the hearing of the appeal, before the hearing of the appeal to enable him have sufficient time to prepare and answer or respond to it at the hearing. In that regard, the Courts, for some time now, accept that the provisions would be substantially complied with where a Respondent raises the preliminary objection in the Respondent’s brief which would be served on the Appellant, allowing for adequate notice and sufficient opportunity to prepare and to answer the objection before the date of hearing the appeal, thereby preventing the element of surprise or ambush. See for instance, Salami v. Mohammed (2000) 9 NWLR (673) 469; Uwazurike v. A. G., Federation (2007) 8 NWLR (1035) 1; R. M. A. & F.C. v. Units Env. Sciences Lts (2011) 9 NWLR (1252) 379; Fayemi v. Oni 010) 17 NWLR (1222) 326; Kaydee Ventures Ltd. v. Min. of FCT (2010) 7 NWLR (1792) 171.; Ali-Ucha v. Elechi (2012) 3 MJSC (Pt II).

In the present appeal, I have observed that the Respondents Counsel did even clearly and distinctly set out or raise the objection and the specific grounds upon which it is premised, but merely raised it as an issue for determination in the appeal and proceeded to argue it in the Respondent’s brief. Apparently, either oblivious of or deliberately ignoring and disregarding the provisions of the Rules of Court specifically providing for the procedure for raising such an objection as well as the now accepted practice of giving of the notice, raising, setting out the grounds and arguing the objection in the Respondent’s brief. The manner in which the objection was raised and argued in the Respondent’s brief does not comply with even the liberal attitude of the Courts in accepting that it could be so raised and argued by a Respondent to an appeal. Counsel should not be encouraged to ignore and even disregard the Rules of Court in the conduct of their cases and be parted on the back for the disobedience and noncompliance with the Rules, by being indulged on processes which do not comply with such Rules. Rather, they should be made to face strict penalties of non-compliance and disobedience with the Rules so as to make than be more alert to their legal obligation and duty to obey and comply with the Rules in respect of all the processes they file in the Courts.

In the present appeal, since the Respondent’s brief in which the objection was argued, was served on the Appellant in July, 2016 and the Appellant has filed a Reply brief in which the objection was answered or responded to, in October, 2016, I am prepared to hold that the notice and sufficient opportunity and time to prepare to respond to the objection before the hearing of the appeal in substantial compliance with the intendment and spirit of the provisions of Order 10 Rule 1, was afforded to the Appellant and so it is not taken by surprise.

In addition, since the issue involves, touches and questions the jurisdiction of the Court to entertain and hear the appeal, the law permits it to be raised by either of the parties or the Court, suo motu, due to its fundamental nature and crucial effect on the proceedings in the appeal. In the case of Mil. Gov., Ondo State v. Kolawole (2008) 5 SCNJ, 37, the apex Court stated that the issue of jurisdiction –

“… by whatever name or under any shade, can be raised at any stage. It can be raised viva voce or the Court can raise it suo motu.”

The case of NDIC v. CBN (2002) 7 NWLR (766) 272 @ 292 was referred for the position of the law.
Furthermore, NNPC v. Orhiowasele (2013) 13 NWLR (1271) 211 @ 214 and Hamzat v. Sanni (2015) 5 NWLR (1453) 386 are authorities that the issue of jurisdiction can be raised in a brief of argument by a party. In these premises, I would consider the Notice Preliminary Objection argued in the Respondent brief as Issue 1, in the interest of justice. Per GARBA, JCA. read in context


LEAD JUDGMENT DELIVERED BY GARBA, JCA


By a petition dated the 14th March 2013, filed at the Federal High Court, (trial Court) the Respondent sought for the following reliefs against the Appellant: –

“1. That the Alliance & General Life Assurance Plc may be wound up under the provisions of the Companies and Allied Matters Act.

2. That the amount due from the Respondent in favour of the Petitioner, being the sum of N443,225,466.99 (four hundred and forty three million two hundred and twenty five thousand, four hundred and sixty six naira, ninety five kobo) plus 10% interest from 31st December 2011 until payment be paid from the proceeds of sale of the assets of the Respondent.

3. Further or other orders as the Court may deem fit to make in the circumstances.”

The facts which gave rise to the petition are set out in paragraphs 5, 6 and 7 of the Petition as follows:-

“5. The company is indebted to your Petitioner in the sum of being N443,225,466.95 (four hundred and forty three million two hundred and twenty five thousand, four hundred and sixty six naira, ninety five kobo) plus 10% interest from 31st December 2011 until payment be paid from the proceeds of sale of the assets of the Respondent.

6. Your Petitioner has made application to the company for the payment of its debt, but the company has failed and neglected to pay the same or any part thereof.

7. The company is insolvent and unable to pay its debts.”

The Petition was supported by a 30 paragraph Affidavit, to which were annexed several documents as Exhibits; correspondences between the parties in respect of the subject matter of the Petition, and an Affidavit verifying the Petition, both of which were sworn to by a Manager of the Respondent one Lawal Ibrahim, on the 19th March, 2013.

In reaction to the Petition, the Appellant filed a Notice of Preliminary Objection dated the 29th April, 2013 and sought for orders thus: –

1. AN ORDER SETTING ASIDE and or/striking out the entire petition on the ground that the Respondent/Applicant is not a juristic and not known to law and this Court has no jurisdiction to adjudicate upon it as constituted.

2. AN ORDER that the petition of the petitioner is an abuse of the process of the Court.

3. AN ORDER that the action of the petitioner is incompetent.
And for such further order or other orders as this honorable Court may deem fit to make in the circumstance.”

The grounds upon which the above reliefs were premised are stated to be: –

1. The Respondent/Applicant is not a company known to Law as it has merged with another company and sanctioned by Federal High Court-Lagos, O. O. Okeke J on 30th January which merger was duly registered with Corporate Affair Commission Abuja on 27th Feb. 2012 and therefore the Respondent has no legal existence any longer capable of maintain or be sued in its name as constituted.

2. There exist a pending suit between the petitioner and the Respondent before a Court of competent jurisdiction over the same subject matter of dispute over payment of debts or not in respect of Retirement pension scheme in suit No . FHC/AHJ/CS/537/2013 between Alliance & General Insurance Life Assurance Plc AND Corporate Affairs Commission.

3. The Petitioner failed, refused or neglected to make demand for payment and offer particulars of debt as required by Section 409 of CAMA (Companies and Allied Matters Act) and as condition precedent.

4. Uncertainty of sum owed before Application for winding up.”

A sixteen (16) paragraphs Affidavit deposed to by the Company Secretary/legal Adviser of the Appellant; Oke Okpomo, on the same 29th April 2013 was filed in support of the Notice of Preliminary Objection, along with a Written Address. A number of documents were attached to the Affidavit in support of the Notice of Preliminary Objection and marked as Exhibits.

Meanwhile the Respondent had filed a motion dated the 4th June 2013 for the advertisement of its Petition in the Official Gazette and two (2) Newspapers published and circulated in Nigeria.

Subsequently, on the 3rd July, 2013 a Counter-Affidavit to the Appellant’s motion of 29th April, 2013 deposed to by a Legal Practitioner in the Law Firm of the Respondent’s Counsel, was filed to oppose it and copies of documents were attached thereto. A written Address was also filed in support of the Counter-Affidavit.

In a Ruling delivered on the 27th February, 2014, the trial Court refused a request for the adjournment of the Respondent’s motion dated the 4th June 2013, to which the Appellant did not react, granted it as prayed and adjourned the Petition for hearing on the 3rd April, 2014.

Then, on the 28th February 2014, another Notice of Preliminary objection was filed by the Appellant praying the trial Court for –

“1. AN ORDER staying execution and/or giving any effect whatsoever to the order of this Honourable Court made on the 27th day of February, 2014 granting leave to the Petitioner to advertise the Petition for winding up pending the determination of this Application

2. AN ORDER setting aside and discharging the order of this Honourable Count granting leave to advertise the petition made on the 27th of February, 2014.

3. AN ORDER declaring that the petition upon which leave was granted for the petition to be advertised is an abuse of Court process.

4. AN ORDER declaring that the Court has no Jurisdiction and/or ought not to exercise Jurisdiction to entertain this Petition.

5. AND ORDER striking out and/or dismissing this suit.

6. AN ORDER restraining the Petitioner from taking any further or other proceedings or steps whatsoever and howsoever upon the said Petition or from publication of the proceedings or presenting any further Petition upon the alleged debt.

7. AN ORDER that the Petitioner/Respondent should pay the costs of this motion.”

These reliefs are based on seventeen (17) grounds set out on the motion paper. They are: –

i. The order for leave to advertise granted to the Petitioner by this Honourable Court was granted without jurisdiction.

ii. There are no parties nor proper parties to this action.

iii. At the time of the presentation of the petition and making the said order for advertisement, there was a subsisting Suit No: FHC/ABJ/CS/537/12 pending before the Federal High Court sitting at the Federal Capital Territory, Abuja on the debt; the subject matter of this petition.

iv. There is no demand under the hand of the company properly so called with the proper meaning and intendment of that expression under Section 409(a) of Companies and Allied Matters Act, 2004.

v. There is no debt due within the true and proper meaning under Sections 408 & 409(a) of the Companies and Allied Matters Act, 2014.

vi. On the facts stated in the Petition, the Respondent/Applicant has not for three weeks thereafter neglected to pay same within the true and proper meaning and intendment of Section 409(1) of CAMA the same being a subject matter of litigation between the same parties in Suit NO: FHC/ABJ/CS/537/12.

vii. The Petition is not supported by a Verifying Affidavit as mandatorily required under Rule 18(1) of the applicable Companies Winding-Up Rules 2001.

viii. The fulfillment of the said conditions stated in paragraphs (iii) – (vii) herein constitutes conditions precedent to the Court exercising jurisdiction to entertain the Petition.

ix. The Petitioner/Respondent has failed to fulfill the said conditions precedent and as such the Court has no jurisdiction and/or ought to exercise jurisdiction to entertain the Petition.

x. The Petition does not disclose any reasonable cause of action.

xi. In all the circumstances stated, the Federal High Court has no jurisdiction and/or ought not to exercise jurisdiction to entertain the Petition.

xii. Alternatively to the above, and only in the alternative, the Respondent/Applicant has the capacity to pay the alleged debt, if any.

xiii. Having regards to the pendency of the earlier Suit No. FHC/ABJ/CS/537/12 between the parties on the subject matter of this suit at the Federal High Court sitting in Abuja, the instant Petition filed by the Petitioner constitutes a gross abuse of Court process.

xiv. The Petition was brought mala fide and is designed to put improper pressure on the Respondent/Applicant.

xv. The Petition is not bona fide and it is calculated to use the Court as a debt collecting agency.

xvi. The circumstances of this case amply justify the grant of the prayers sought in this application.

xvii. This suit is wholly incompetent.”

The motion was supported by an Eighteen (18) paragraphs Affidavit, copies of documents annexed thereto and a written Address.

Not done yet, the Appellant filed on the same 28th February 2014, a motion which prayed the trial Court to set aside the Ruling dated 27th February, 2014 for the advertisement of the petition and order that it has no jurisdiction to determine the Petition and to make the order. The motion was supported by an Affidavit of Seventeen (17) paragraphs and a Written Address, as well as copies of some documents attached to the Affidavit.

Fifteen (15) paragraphs Counter-Affidavit to which were annexed copies of documents and a Written Address were filed for the Respondent to oppose the Appellants Notice of Preliminary Objection of 28th February, 2014. A Fourteen (14) paragraphs Counter-Affidavit to oppose the Appellant’s motion of the same date, was also filed. As usual, copies of documents were attached to the Counter-Affidavit and a Written Address in support of same was filed.

On the 5th September, 2014 the trial Court delivered a Ruling on the Appellant’s Notice of Preliminary Objection and dismissed if for lacking in merit. This appeal is against the decision by the trial Court in the said Ruling and is brought on four (4) grounds contained on the Notice of Appeal dated the same day with the Ruling.

Two (2) issues are said to arise from the grounds of appeal for decision by the Court, in the Appellant’s brief filed on the 19th June, 2016, deemed on the 14th June, 2016. The issues are in the following of terms: –

“2.01 Whether the lower Court had jurisdiction to have entertained the Winding up Petition?

2.02 Whether in all the circumstances, the Petition was presented in abuse of process of Court?”

Another issue was raised in addition to these issues, in the Respondent’s brief filed on the 13th July, 2016 and in response thereto, the Appellant filed the Appellant Reply Brief on the 21st, October 2016, deemed on the 3rd October, 2017. The additional issue raised by the Respondent’s Counsel is: –

“Whether this Court has the jurisdiction to entertain this Appeal.”

It is clear that the issue is one which challenges or questions the jurisdiction of the Court to adjudicate over the appeal and so is a preliminary objection to the hearing of the appeal, the procedure for the proper raising of which, has been specifically provided for in Order 10, Rule 1 of the Court of Appeal Rules, 2011, as well as the 2016 Rules. The Provisions say that –

“1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with registry within the same time.”

These provisions are simple, straight forward and unambiguous and so present no difficulty in their purport and requirement. They require that a Respondent to an appeal before the Court intending to rely upon a preliminary objection to the hearing of the appeal, “shall give the Appellant three clear day’s notice before the hearing ….. and shall file such notice together with twenty copies thereof with the registry within the same time.”

It may be observed that the word “shall” was employed and used twice or two (2) times in the concise provisions of the Rule. In the case of Onochie v. Odogwu (2006) 2 SCNJ, 96 @ 114, it was held that: –

“The use of the word “shall” in a statute or Rules of Court makes it mandatory that the provision or rule must be observed. “Shall” is used to express a command or exhortation, or what is legally mandatory.”

See also Katto v. CBN (1991) 9 NWLR (274) 216; Nig. LNG Ltd v. African Dev. Insurance Ltd (1995) 8 NWLR (416) 677; Amokeodo v. IGP (1999) 6 NWLR (607) 467; Nwankwo v. Yar’adu (2010) 12 NWLR (1209) 518 @ 580.

In the above provisions, the deliberate use of the word “shall” twice therein shows that a duty and legal obligation is thereby imposed about which no discretion is envisaged in compliance. This Court, in the case of Donier Aviation Nig. Ltd. v. Capt. Oluwadare (2007) 7 NWLR (1033) 336, citing Emir of Kano v. Agundi(2006) 2 NWLR (965) 572 @ 587, A-E and Oforkire v. Maduike (2003) 5 NWLR (812) 166 @ 178, per Kekere-Ekun, JCA (now JSC) stated that:-

“The provision of Order 3, Rule 15(1) above, is mandatory and failure to comply therewith is fatal to the objection. The Respondent in this appeal failed to file a notice of preliminary objection at least three clear days before the hearing of the appeal as required by the rules. The objection raised and argued in the Respondent’s brief is therefore incompetent.”

Order 3, Rule 15(1) of the 2002 Court of Appeal Rules referred to by the Learned Law Lord, was Order 10, Rule 1 of the 2011 Court of Appeal Rules, applicable to the appeal. See also the Supreme Court case of Ameen v. Amao (2013) LPELR-20086 (SC) on compliance with the provisions of Order 2, Rule 9 of the Supreme Court Rules, 2005 (as amended), which are impari materia with the provisions of Order 10, Rule 1. The Apex Court referred to the cases of Onwuka v. Ononuju (2009) 5 SCNJ, 85 and Okafor v. A. G. Anambra (1999) 7 SCNJ, 192 @ 201, for the position. See in addition, the earlier cases of Okolo v. UBN Ltd (1988) 2 NWLR (539 ) 618; Arewa Textiles, Plc v. Abdullahi & Brothers Musawa Ltd (1988) 6 NWLR (554) 508; Sec. and exchange Comm. V. Kasunmu (2009) 10 NWLR (1150) 509, decisions of this Court and Nwaolisah v. Nwabufor (2011) 14 NWLR (1268) 600; another apex Court decision on the position.

The Rules of Courts bind both the parties and the Courts and each has a duty to obey and ensure compliance therewith in the conduct of proceedings of all matters that come before them.
In the case of Dingyadi v. INEC (No. 2) (2010) 18 NWLR (1224) 154, the apex Court, per Muhammad, JSC, has stated that –

“…it must be appreciated that where the exercise of a right is circumscribed or limited by a rule of practice, and except where it is satisfactorily shown that compliance with such rule has been waived, then that rule must be complied with Court Rules are meant to be obeyed. Where there is non-compliance, such non-compliance may result into any step taken to be a nullity.”

Mukhtar, JSC (later CJN) in the case of Abia State Transp. v. Quorum Consort Ltd (2009) 3-4 SC, 187, (2009) 9 NWLR (1145) 1, put it poignantly that: –

“The settled law is that rules of Court of each Court are not made for fun, but to be obeyed. Once such rules are in place, they must be adhered to and not contravened or ignored.”

See also Oyegun v. Nzeribe (2010) 7 NWLR (1194) 577; Anyah v. African Newspapers, Nig. Ltd (1992) 7 SCNJ 47, (1992) 6 NWLR (247) 319; Ajayi v. Omorogbe (1993) 7 SCNJ (Pt. 1) 68, (1993) 6 NWLR (301) 512; FBN, Plc v. T. S. A, Industries Ltd (2010) 15 NWLR (1216) 247; Univ. of Lagos v. Aigoro (1985) 1 NWLR (1) 143.

However, over the years, the Courts have evolved the principle that the provisions of Order 10 Rule 1 are aimed at giving an Appellant to an appeal and the Court, reasonably adequate notice of the nature and essential details of any preliminary objection the Respondent intends to rely upon to the hearing of the appeal, before the hearing of the appeal to enable him have sufficient time to prepare and answer or respond to it at the hearing. In that regard, the Courts, for some time now, accept that the provisions would be substantially complied with where a Respondent raises the preliminary objection in the Respondent’s brief which would be served on the Appellant, allowing for adequate notice and sufficient opportunity to prepare and to answer the objection before the date of hearing the appeal, thereby preventing the element of surprise or ambush. See for instance, Salami v. Mohammed (2000) 9 NWLR (673) 469; Uwazurike v. A. G., Federation (2007) 8 NWLR (1035) 1; R. M. A. & F.C. v. Units Env. Sciences Lts (2011) 9 NWLR (1252) 379; Fayemi v. Oni (2010) 17 NWLR (1222) 326; Kaydee Ventures Ltd. v. Min. of FCT (2010) 7 NWLR (1792) 171.; Ali-Ucha v. Elechi (2012) 3 MJSC (Pt II).

In the present appeal, I have observed that the Respondents Counsel did even clearly and distinctly set out or raise the objection and the specific grounds upon which it is premised, but merely raised it as an issue for determination in the appeal and proceeded to argue it in the Respondent’s brief. Apparently, either oblivious of or deliberately ignoring and disregarding the provisions of the Rules of Court specifically providing for the procedure for raising such an objection as well as the now accepted practice of giving of the notice, raising, setting out the grounds and arguing the objection in the Respondent’s brief. The manner in which the objection was raised and argued in the Respondent’s brief does not comply with even the liberal attitude of the Courts in accepting that it could be so raised and argued by a Respondent to an appeal. Counsel should not be encouraged to ignore and even disregard the Rules of Court in the conduct of their cases and be parted on the back for the disobedience and noncompliance with the Rules, by being indulged on processes which do not comply with such Rules. Rather, they should be made to face strict penalties of non-compliance and disobedience with the Rules so as to make than be more alert to their legal obligation and duty to obey and comply with the Rules in respect of all the processes they file in the Courts.

In the present appeal, since the Respondent’s brief in which the objection was argued, was served on the Appellant in July, 2016 and the Appellant has filed a Reply brief in which the objection was answered or responded to, in October, 2016, I am prepared to hold that the notice and sufficient opportunity and time to prepare to respond to the objection before the hearing of the appeal in substantial compliance with the intendment and spirit of the provisions of Order 10 Rule 1, was afforded to the Appellant and so it is not taken by surprise.

In addition, since the issue involves, touches and questions the jurisdiction of the Court to entertain and hear the appeal, the law permits it to be raised by either of the parties or the Court, suo motu, due to its fundamental nature and crucial effect on the proceedings in the appeal. In the case of Mil. Gov., Ondo State v. Kolawole (2008) 5 SCNJ, 37, the apex Court stated that the issue of jurisdiction –

“… by whatever name or under any shade, can be raised at any stage. It can be raised viva voce or the Court can raise it suo motu.”

The case of NDIC v. CBN (2002) 7 NWLR (766) 272 @ 292 was referred for the position of the law.

Furthermore, NNPC v. Orhiowasele (2013) 13 NWLR (1271) 211 @ 214 and Hamzat v. Sanni (2015) 5 NWLR (1453) 386 are authorities that the issue of jurisdiction can be raised in a brief of argument by a party.

In these premises, I would consider the Notice Preliminary Objection argued in the Respondent brief as Issue 1, in the interest of justice.

Respondent Issue One (1)

The Respondent’s arguments on the Notice of Preliminary Objection are that the Ruling of the trial Court was an interlocutory decision and that all the grounds of appeal are of mixed law and facts, which by the provisions of Section 242 of the 1999 Constitution, require leave of either the trial or this Court to be validly filed. Sections 241 and 242 of the Constitution were referred to and it is argued that since leave of Court was not sought for and obtained before filing the Notice of Appeal, it is incompetent and the Court lacks the jurisdiction to entertain the appeal.

Cases includingAnoghalu v. Oraelosi (1999) 13 NWLR (634) 297 @ 308 and Ugboaja v. Akintoye-Sowemimo (2008) 16 NWLR (1113) 278 on the definition of and how to determine grounds of law alone and Kherekholo v. Uda (2011) 3 NWLR (1234) 327 @ 334 and Min. FCT v. M. H. Nig. Ltd (2011) 9 NWLR (252) (sic), 282 @ 290 on the effect of failure to obtain leave to appeal where it is necessary, were cited and the Court is urged to strike out the Notice of Appeal for being incompetent.

For the Appellant, it is submitted on the Notice of Preliminary Objection that the objection is inconceived because all the grounds of appeal involve questions of law alone and so no leave of Court is required to file the Notice of Appeal as the appeal is as of right under the provisions of Section 241(1)(b) of the Constitution. Several cases that include the cases cited above on the determination of a ground of law alone and on demonstration that the grounds of appeal challenge jurisdiction and abuse of Court process which are said to be grounds of law alone, where referred to and it is maintained that no leave is required for the appeal. Learned Counsel also pointed out the ground 4 of the Notice of Appeal has been abandoned since no issue was distilled and argued from it in the Appellant’s brief.

Very recently, I have had an opportunity to restate the law on the right of appeal to the Court from the decisions of the High Court; Federal and State, provided for under Section 241(1) of the Constitution; in the Appeal No. CA/A/57/2018; Dr. Okonkwo v. INEC & ORS. Judgment in the Appeal was delivered on the 7th of May, 2018 at the Abuja Division of the Court and in my supporting contribution to the lead judgment I said, inter alia that: –

“By the provisions of Section 241(1)(a) of the Constitution, the right of appeal to the Court from the final decision of a High Court: Federal and State, in any civil or criminal proceedings, is as of right, sitting as a first instance Court.

The right of appeal as of right vested by the provision of Section 241(1) (a) is one which the party or person can exercise at his will and on his own power or authority so long as it is exercised in compliance with other relevant statutory provisions. Because the right of appeal is as of right in a party, he has the discretionary authority to file an appeal without seeking for permission, order or leave of either the trial or appellate Court to do so, if it is filed in accordance with the relevant statutory requirements provided for in an Act of the National Assembly.

Similarly, under the provision of Section 241(1)(b) an appeal against the decision of a High Court, Federal or State, in any civil or criminal proceedings, is as of right and can be filed by a party without the need to seek for or obtain the prior permission, order or leave from the trial or appellate Court to do so, where the ground(s) of the appeal involves/involve question(s) or issue(s) of law alone. Because the provisions of Section 241(1)(a) provide for a right of appeal against a final decision of the High Court to the Court, the provisions of Section 2 1(1)(b) which did not specifically name the nature of the decision against which the right of appeal is provided for as of right, it can, in relation to the earlier provision, reasonably be said to provide for a decision by the High Court which is not final in any civil or criminal proceedings. A decision of the High Court, or any other Court of law, which is not final in any civil or criminal proceedings, is an intermediate or interlocutory decision in the course of such proceedings on an issue which does not dispose of the dispute between and rights and obligations of the parties to the proceedings, completely and finally. See Akinsanya v. UBA Ltd. (1986) 4 NWLR (35) 273; Ajani v. Giwa (1986) 3 NWLR (32) 796 @ 803-4; Nwadike v. Ibekwe (1987) 4 NWLR (67) 718, (1987) 11 -12 SCNJ, & 2: Metal constr. (W.A. Ltd. v. Migliore In Re: Miss C. Ogundare (1990) 2 SCNJ, 20, (1990) 1 NWLR (126) 229 @ 314; Nwosu v. Offor (1997) 2 NWLR (487) 274, (97) 1 SCNJ, 193.

A decision in relation to a Court, by dint of Section 318(1) of the Constitution, means any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.

In these premises, under both sub-paragraphs (a) and (b) of Section 241(1) of the Constitution, the right of appeal provided for is one as of right which can be exercised freely and without hindrance by a party or person, in accordance with the laid down law on procedure and practice which regulate and govern the exercise of the right. In particular, under sub-paragraph (b), where the ground(s) of an appeal is are/on questions/issues of law alone, the nature of the decision by a High Court against which the right of appeal is provided, is immaterial, as the determining factor is whether or not the ground(s) involves/involve question(s) of law alone. In other words, the nature of the grounds rather than the nature of the decision is the determinant and a precondition for the exercise of the right of appeal as of right as provided for under the provisions of Section 242 (1)(b). Total Int. Ltd. v. Prince Awogboro (1994) 4 NWLR (337) 147; Adamu v. A.G., Borno State (1996) 8 NWLR (456) 203; NNPC v. Fawehinmi (1998) 7 NWLR (559) 598; Anoghalu v. Oraelosi (1999) 10 SCNJ, 1; Welle v. Bogunjoko (2007) 1 NWLR (1029) 123; Ogbimi v. Niger Construction Co. Ltd. (2006) 9 NWLR (986) 373., Inyang v. Ebong (2002) 2 NWLR (2002) 2 NWLR (751) 284; FHA v. Kalejaiye (2010) 19 NWLR (1 26) 147; FBN, Plc. v. Fashar (2000) 6 NWLR (662) 573; Camptel Int. SPA v. Dexton Ltd (1996) 7 NWLR (459) 170; Nwaolisah v. Nwabufoh (2011) LPELR-2115(SC), in addition to the cases cited in the Appellant’s Reply to 3rd Respondent’s objection, referred to in the lead judgment, on the points.”

The guidelines for the identification and determination of what constitutes a ground of pure law or law alone and the distinction between a ground of law alone and one of mixed law and facts or of facts alone have been firmly established in the authorities cited by the learned Counsel for the parties supra, and countless others. Although the line of difference between the two is thin and so may be difficult to be drawn, the criteria for distinguishing a ground of law alone from one of mixed law and facts, has been identified and settled by the apex Court for a long time now. The established principles for the purpose were restated by Muhammad, JSC in the case of Akinyemi v. Odu’a Invest. Co. Ltd. (2012) 17 NWLR (1 29) 209 @ 230-1, as follows: –

(1) The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.

(2) Where a ground complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.

(3) Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.

(4) A ground which raises a question of pure fact is certainly a ground of fact.

(5) Where the lower Court finds that particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.

(6) Where admissible evidence has been led, the assessment of that evidence is entirely for that Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.

(7) Where the lower Court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.

(8) Where the lower Court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.

(9) Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the Appeal Court will assume that there has been a misconception of the law. This is a ground of law.

(10) Where the conclusion of the lower Court is one of possible resolutions but one which the Appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.

(11) Where a trial Court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law not of fact.

(12) When the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not of lav.

(13) Where the Appeal Court interferes in such a case and there is a further appeal to a higher Court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of appeal is a ground of law not of fact.

(14) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a Court of appeal or a further Court of appeal).”

From all the authorities, the basic requirement is that the Court shall closely look at the grounds along with all the particulars set out for them on the Notice of Appeal in order to find the real questions raised therein. Generally, a ground which questions a misunderstanding of the law or its application to admitted or proved facts, is one of law and a ground which raises questions on the appraisal and evaluation of the facts before application of the law, it is one in the nature of mixed law and fact. Again, a ground which questions the jurisdiction of a Court on the basis of the law, is a ground of law alone; see G. E. C. v. Akande (2010) 18 NWLR (1225) 596, but where it is predicated on the facts, it is not a matter of law, per-se, but of mixed law and facts on the authority of Nigerite Ltd v. Danlami (1992) 7 NWLR (253) 288 @ 296.

See also Comex Ltd. v. NAB Ltd (1997) 3 NWLR (496) 643 @ 656; Ajuwa v. SPDCN Ltd. (2011) 18 NWLR (1279) 822; (2011) 22 MJSC (special Edition); FBN, Plc v. TSA Ind. (supra); Ibiyeye v. Fojule (2006) ALL FWLR (302) 156; Ogbimi v. Niger Const, Ltd (2006) ALL FWLR (317) 390; Nwadike v. Ibekwe (1987) 11-12 SCNJ, 72; NNSC Ltd v. Establishment of Sima of Vaduz (1990) 21 NSCC (Pt. 3) 526, Calabar Co-Op, Ltd v. Ekpo (2008) 1 SC, 229 @ 273-5.

Since ground 4 of the Notice of Appeal was abandoned by the Appellant, the subsisting grounds are (1) (2) and (3). It is expedient to set them out fully for a proper appreciation of the complaints and questions raised therein. Here they are: –

“1. The learned Trial Judge erred in law when he exercised jurisdiction on the Petition for Winding up filed by Respondent in this matter.

PARTICULARS

(a) The Winding up petition is not supported by a Verifying Affidavit as mandatorily required under Rule 18(1) of the applicable Companies Winding-Up Rules 2001.

(b) The Court admitted that the Counsel to the Appellant applied for an adjournment to enable the Appellant file her response to the application to advertise the Winding up Petition.

(c) It is settled that an application that seeks to save a case ought to be upheld by a Court against another that terminates the matter.

(d) The Appellant’s application for adjournment to enable her respond to the Application was to save the suit.

(e) A winding up Petition kills a Company/determines the existence of a Company.

(f) Had the Court given due effect to the consideration of the proceeding of 27th February, 2014, the Order to advertise the Petition for winding up of the Applicant would have been set aside.

2. The Learned Trial Judge erred in law for refusing to set aside and discharge its Order granting leave to the Petitioner to advertise the Petition for winding up pending the determination of this Application.

PARTICULARS

a. There was at the time of the presentation of the petition and making the said order for advertisement, of Court on 27th February, 2014, a subsisting Suit No: FHC/ABJ/CS/587/12 pending before, the Federal High Court sitting at the Federal Capital Territory, Abuja on the debt; the subject matter of this petition.

b. That there is a contention on the amount standing the Respondent’s credit.

c. It can be gleaned from the Petition that pursuant to the true and proper meaning and intendment of Section 409(1) of CAMA the same being a subject matter of litigation between the same parties in Suit NO:FHC/ABJ/CS/537/12, the Respondent has not neglected to pay any debt to the parties.

3. The trial Judge erred gravely in law when he held that he was functus officio in respect of the application to set aside its nil order.

PARTICULARS

a. The affected party is entitled ex debito Justiciea to apply to set aside nil order of Court

b. The Order made on the 27th February, 2014 being Order made without Jurisdiction is a nullity and liable to be set aside.

c. The Court cannot be functus officio to set aside nill Order.”

I should perhaps restate the law that it is not the appellation or name tag given to a ground of an appeal by Counsel in the formulation, couching or rendition as a ground of law that makes it such a ground, in law.

See Lovleen Toys Ltd. v. Komolafe (2000) ALL FWR (310) 1753; Maduabuchukwu v. Maduabuchukwu (2006) ALLIWLR (318) 404; Odunukwe v. Ofomata (2010) 18 NWLR (1225) 404; NNSC Ltd. v. Establishment of Sima of Vaduz (2005) 7 SC (Pt. 3) 526; Chief of Air Staff v. Iyen (2005) 1 SC (Pt. II) 121. As I have stated earlier, the classification of a ground of appeal depends on the real complaint and question raised in the body of the ground, considered along with the particulars thereof. B.A.S.F. Nig. Ltd. v. Faith Ent. Ltd (2010) 4 NWLR (1183) 104.

Looking calmly at the Ground 1 along with the particulars, it can easily be seen that while particulars (a) and (b) are statements of facts, particulars (c) and (f) are arguments to support the body of the ground. This ground does not raise a real question or complaint of pure law alone to qualify as a ground of law.

Particulars (a) and (b) of ground 2 are statement of facts while particular (c) is an argument. On its part, while the body of ground 3 raises the question of law on whether the trial Court was functus officio to set aside it earlier order, the particulars are all arguments on the earlier order sought to be set aside.

In my view, only ground 3 may pass the determination of being one of law alone for the purpose of the exercise of the right of appeal against the decision contained in the Ruling by the trial Court. Grounds 1 and, 2 are, at the best, grounds of mixed law and facts for the purpose of the appeal against the said Ruling.

In the premises, while ground 3 can be filed as of right against the interlocutory decision of the trial Court pursuant to the provisions of Section 241, (1) (b) of the Constitution, grounds 1 and 2 require, as a condition precedent for validity, prior leave of Court to be brought against the said decision, being of mixed law and facts, under Section 242 of the Constitution. In the absence of the requisite prior leave before they were filed or brought, grounds 1 and 2 of the Appellant’s Notice of Appeal are invalid and incompetent in law. Ferodo Ltd v. Ibeto Ind. Ltd (2004) 2 SC (Pt. 1); Otu v. ACB (2008) 3 MJSC, 197; UBN Plc. v. Sogunro (2006) ALLFWLR (337) 502; Arowolo v. Adimula (1991) 8 NWLR (212) 753.

For the above reasons, I find merit in the objection by the Respondent in respect of grounds 1 and 2 of the Notice of Appeal and uphold it. In consequence, the said grounds are hereby struck out for being incompetent along with issues derived therefrom.

The object fails in respect of ground 3 of the Notice of Appeal and it is overruled accordingly.

I have noted that the Appellant’s Issue 1 is indicated to have been distilled from the incompetent ground 1 and the competent ground 3. In the case of Ayalogu v. Agu (1998) 1 NWLR (532) 12, it was held that it is not the duty of the Court to sift submissions on issues raised from competent and incompetent grounds of appeal. See also Nwadike v. Ibekwe (1987) 4 NWLR (67) 775; Ngige v. Obi (2006) 14 NWLR (999) 1 @ 165; Korede v. Adedokun (2001) 16 NWLR (736) 438; Asogwa v. PDP (2013) 7 NWLR (1353) 207@ 274, paras. G-H, 275, paras. C-D.

I have also observed that the arguments by the Appellant’s Counsel under issue 1, which appear from page 3 to page 12 of the Appellant’s brief, do not contain any point raised on the question or issue of complaint in the competent ground that the trial Court was wrong to hold that it was functus officio to set aside the Ruling of 27th February, 2014. In the circumstance, even the position of this Court in the case of Anatogu v. Anatogu (1997) 9 NWLR (519) 49 @ 63, that the Court would, in the interest of justice, see if the arguments or submissions on issue distilled from the competent and incompetent grounds are severable and then excise them, would not avail the Appellant, since the entire arguments/submissions on Issue 1 are on the incompetent ground 1 alone.

In the above circumstances, the arguments on the Issue 1 are liable to be discountenanced since the ground on which they are premised, is incompetent. In the final result, for being incompetent, the appeal is hereby struck out.

There shall be costs, assessed at Two Hundred Thousand Naira (N200,000.00) in favour of the Respondent to be paid by the Appellant.

IKYEGH, JCA

I had the honour of reading in draft the exhaustive judgment prepared by my learned brother, Mohammed Lawal Garba, JCA (Hon. P.J.), with which I agree and adopt as my judgment.

TUKUR, JCA

I read before today a draft copy of the lead judgment just delivered by my learned brother MOHAMMED LAWAL GARBA, JCA and I agree with the reasoning and conclusion in the judgment and I join my learned brother in striking out the appeal and I abide by the order made as costs.

Appearances:

M. J. C. Ezike with him, M. O. Olokgwu For Appellant(s)

S. E. Elina, SAN with him, Andrew Onum, Lanre Ogunyemi and U. I. Egonu For Respondent(s)a