FIRST BANK OF NIGERIA PLC. V T. S. A. INDUSTRIES (NIG) LTD    

AREAS OF LAW: APPEAL, COURT, JUDGEMENT AND ORDER, JURISDICTION, LEGAL PRACTITIONER, PRACTICE AND PROCEDURE, WORDS AND PHRASES.
SUMMARY OF FACTS
The Appellant herein was the Defendant at the Lagos State High Court in an action instituted by the Respondent. The trial court entered judgment for the Respondent. The Appellant applied for a stay of execution which finally culminated at the apex court with an order to deposit the judgment sum in an interest yielding account in the name of the Chief Registrar of the court below.
The Appellant contended that two years later, the Deputy Sheriff of the Lagos State High Court, executed a writ of fieri facias dated 22nd May, 2006 for an alleged balance of N84, 206,487.67 of the judgment debt. This was while the Appellant erroneously thought its appeal was pending but the appeal had been dismissed by the Court of Appeal for failure to file briefs. The Appellant in an attempt to stay the execution of the writ of fife issued a cheque which was dishonoured. The Appellant not relenting, hence, filed an application challenging the order made to deposit the value of the cheque into Zenith on the ground that it was made without jurisdiction and to set aside the writ of fieri facias upon which the cheque was issued. The Court dismissed the application on the ground of noncompliance; and held that the Appellant failed to comply with the order of court sought to be set aside for want of jurisdiction. The Appellant has herein appealed against the dismissal of the application. The Respondent in response to the appeal filed his reply brief and preliminary objection seeking an order dismissing the appeal on the grounds that the Court lacked jurisdiction to entertain some grounds of appeal. The Judgement Creditor/Cross Appellant also filed a cross appeal.
HELD
Preliminary Objection Dismissed, Appeal Partly Allowed, Cross Appeal Partly Allowed
ISSUES FOR DETERMINATION
PRELIMINARY OBJECTION
Ø  Whether or not there is a valid and subsisting appeal upon which the court can assume jurisdiction.
MAIN APPEAL
Ø  Whether a party seeking the setting aside of an order made against it on the ground of nullity is disentitled from doing so without first complying with the said order?
Ø  Whether the writ of fieri facias dated 22nd May, 2006 supercedes the judgment of court dated 2? January 2001; and if not, whether the decision of the Honourable Justice F.O. Atilade dismissing the Appellants application and refusing to set aside the writ of fieri facias issued against the Appellant as well as set aside the order directing the appellant to pay the sum contained in the writ of fieri facias into an interest yielding account (pending nothing) is or is not perverse.
CROSS APPEAL
Ø  Whether it was right for the learned trial Judge to have refused a prayer or a relief that was not sought for by either party in the case;
Ø  Whether it was right for the learned trial Judge to find that “…It is quite glaring that it took the Claimant about seven (7 yrs) after the delivery of the Judgment of Longe J. for it to realize that it wrongly calculated the interest rate…”when there was no application before the Court seeking to correct the interest rate awarded on the Judgment”.
Ø  Whether the decision of the learned trial Judge at Page 8 of that part of the Ruling being cross-appealed against that;-
“…on the submission of the parties’ views as regards the calculation of the Judgment Debt with the interest, in my candid opinion, the Claimant’s claim that it wrongly calculated the Judgment sum at the time it obtained the Writ of Fieri Facias does not hold water. That the said Judgment awarded 21% interest rate of the Judgment sum and that the total amount due on the Judgment Debt is N514,012,000.00 which was revised to N710,165,274 strictly following the 21% could not be the fact and intention of the learned Judge.
After perusing the whole Judgment of my learned brother, Longe J. dated 23d January, 2001 attached as Exhibit OF/1,1 find in Pages 46 & 47 of the Judgment where the learned Judge held that though the Plaintiff pleaded interest rate of 21% on the Judgment Sum, he however gave a Judgment of 1% interest rate on the Judgment sum from 31/12/92. December 1996 and 21% interest rate from 1996 – January, 1998 (the emphasis is mine) the day the Writ of Summons was filed and 6% interest rate from that day of Judgment till the amount is liquidated…”
Is not tantamount to a review of the said final Judgment, when there was no application before the Court seeking a review of the said final Judgment.
Ø  Whether it was right for the learned trial judge to arrive at the decisions in that part of the Ruling being cross-appealed against without first calling on Counsel on both sides to address the Court on those issues.
RATIONES
GROUND OF APPEAL- MEANING OF GROUND OF APPEAL
“A ground of appeal is simply the complaint of the Appellant against the decision of a lower court. As required, it must relate to the decision appealed against and should be a challenge to the validity of the ratio decidendi of the decision arrived at. see Chief Peter Amadi Nwankwo & Anor V Ecumenical Development Cooperative Society (2007) 5 NWLR (PT. 1027) 377.” PER Y.B. NIMPAR, J.C.A
JURISDICTION OF COURT – BASIS OF THE JURISDICTION OF THE COURT OF APPEAL
“Jurisdiction of the Court of appeal is derived from the Constitution and Section 240 in particular, which states thus:
“Subject to the provision of Constitution, the Court of appeal shall have jurisdiction to the exclusion of any court of law in Nigeria to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital territory, Abuja, High Court of a State…”
The court’s jurisdiction therefore is limited to areas conferred on it by the Constitution and the Notice of Appeal relevant herein is against a decision of the Lagos State High Court which was duly filed.” PER Y.B. NIMPAR, J.C.A
ABUSE OF COURT PROCESS- EFFECT OF AN ABUSE OF COURT PROCESS
“Fundamentally, abuse of court could manifest in different ways. Agreed that some of the ways could have jurisdictional implications but largely it results in the process either struck out or dismissed when the process of court has not been used bona fide. The arguments advanced here tend more to estoppel rather than abuse of court process. If the Respondent contends that a decision has been taken and the Appellant cannot be heard in respect of same, then it qualifies as estoppel.” PER Y.B. NIMPAR, J.C.A
GROUND OF APPEAL – BASIS OF A GROUND OF APPEAL
“Generally, a ground of appeal must arise from the decision appealed against, that is not the complaint of the respondent in the preliminary objection taken and even if that is part of the objection, a careful review of the grounds clearly situates them in the decision appealed against”. PER Y.B. NIMPAR, J.C.A
COURT PROCESS- WHETHER VALUE CAN BE ATTACHED TO A PROCESS THAT WAS STRUCK OUT?
“It is also wrong to ascribe value to a process which was withdrawn and struck out.” PER. Y.B NIMPAR, J.C.A
ORDER OF COURT- WHETHER A PARTY IN DISOBEDIENCE TO AN ORDER OF COURT CAN BE HEARD BY THE COURT
“The general principle of law is that all orders of court must be obeyed and a party in disobedience of court orders, cannot be heard while still in disobedience. See Barrister Orker Jev V Sekav D. Iyortyom (2014) LPELR- 23000 (SC) and Rossek V ACB (1993) 8 NWLR (PT 312) 382 which held thus:
“The law has been laid down as long ago as 1846 by Lord Cottenham LC IN Chuck v Cremer, Cooper temp. Cott. 338 at 342; 47 ER 884 as follows: ‘a party, who knows of an order, whether null or valid, regular, Irregular cannot be permitted to disobey it. It did not even signify whether the order was drawn up. That there were many cases in which a party had been held to have committed a contempt for disobeying an order, which had not only not been served, but have not even been drawn up. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether It was regular or Irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.”
–         PER Y.B. NIMPAR, J.C.A
ORDER OF COURT – EXCEPTIONAL INSTANCES WHERE A PARTY IN DISOBEDIENCE OF A COURT ORDER MAY BE HEARD BY A COURT
“However, there are exceptions to the general rule and these are stated in the judgment of the apex court Chief Ujile D. Ngere & Anor V Chief Job William Okuruket ‘XIV & ors (2014) LPELR- 22883 (SC) thus:
“Parties are thus bound to obey court orders that are clear and unambiguous, notwithstanding the fact that the order may be wrong. So long as a party refuses to implement or obey a court order he would not be given a hearing in any subsequent application. See Odogwu V Odogwu (1992) 2 NWLR (Pt. 225) 5239; Governor Of Lagos State V Ojukwu (1986) 3 NWLR (Pt. 26) 39. There are exceptions to the above. A party in disobedience of a court order may be heard In subsequent application if- (a) the party seeks to appeal against the order of which he is in contempt, (b) he challenges the order on the ground of lack of jurisdiction; (c) the order ought not to be sustained because there were procedural irregularities in the process of making the order.” Per RHODES-VIVOUR, J.S.C
Also in the case of Fame Publications Ltd V Encomium Ventures Ltd (2000) 8 NWLR (PT. 667) 105 the court acknowledged that when a party is in disobedience and had taken steps to set aside the order of court, it can be heard while still in disobedience, it listed the exceptions thus:
i.     Where the party is seeking for leave to appeal against the order of which he is in contempt, Where the opposition to the order is on the ground of lack of jurisdiction.
ii.    Where the contemnor is seeking to be heard in defence of the order.
iii.  Where it can be shown that there were certain procedural irregularities in the making of the orders which irregularities make the order unsustainable.”
 PER Y.B. NIMPAR, J.C.A
JURISDICTION OF COURT- IMPORTANCE OF JURISDICTIONOF COURT
“The importance of jurisdiction cannot be over emphasized and no court should trivialize a challenge to its jurisdiction.” PER Y.B. NIMPAR, J.C.A
JURISDICTION OF COURT –WHETHER A PARTY CHALLENGING THE JURISDICTION OF A COURT CAN BE HEARD WHILE IN DISOBEDIENCE TO THE ORDER OF COURT IT SEEKS TO SET ASIDE?
“Finally, I agree with the Appellant that a party challenging the jurisdiction of the court can be heard while in disobedience to the order of court it seeks to set aside. It is one of the exceptions to the general principle that a party in contempt of an order of court cannot be heard while in contempt.” PER Y.B. NIMPAR, J.C.A
ENFORCEMENT OF JUDGMENT- PROCEDURE FOR CLAIMING INTEREST ACCRUED ON A JUDGEMENT SUM
“A judgment creditor in executing the balance on a judgment sum which accrued as interest does not require another judgment to say so but makes an application for a writ of fifa to issue for the said balance outstanding as interest accrued upon clear computation and that is what happened in this case.” PER Y.B. NIMPAR, J.C.A
JUDGMENT SUM- NATURE OF A JUDGMENT SUM WITH INTEREST AWARDED
“A judgment sum with interest awarded must generate additional sum that can be calculated based on the interest rate as given by the court and therefore, the judgment sum initially awarded by the trial court can never be the actual sum to be paid finally after appeal as interest must have accrued on the judgment sum many years after the trial court has pronounced the judgment. It will keep building up until the entire sum is fully paid.” PER Y.B. NIMPAR, J.C.A
CROSS APPEAL
SLIP RULE- MEANING OF SLIP RULE
“A court is imbued with power to correct error under a principle called the slip Rule, see Enterprises Bank Limted V Deaconess Florence Bose Aroso & Ors (2015) LPELR-24720(SC). It is natural that human beings commit error, including judges because they are not angels but men thus, the rule called Slip Rule. A slip rule connotes accidental slip or omission as clerical mistakes in a judgment or order which is capable of being amended even at times without notice to the other party. It is an error in expressing the manifest intention of the court, see Nwana V FCDA (2007) LPELR- 2101 (SC); Asiyanbi & Ors V Adedeji (1996) NMLR106.” PER. Y.B NIMPAR, J.C.A
DOCTRINE OF SLIP RULE– APPLICABILITY OF THE DOCTRINE OF SLIP RULE
“The doctrine of slip rule is the power of amendment or correction of its records inherent in the jurisdiction of the court and it is very wide but it can only be exercised when the justice of the case demands it, and when there is no miscarriage of justice on the other side. However, matters relating to the facts or law in the judgment itself cannot be a subject of review by the trial court with a view to correcting it. The court in Olurotimi V Ige (1993) 8 NWLR (PT. 311) 257 at 274 held thus:
“The power of a judge to amend his judgment is limited only to where there is a clerical mistake in the judgment or order, or an error arising from accidental slip or omission. And the inherent power of the court to vary its own orders relates to only where it is necessary to carry out its own meaning and to make meaning plain….. The error or omission must be an error in expressing the manifest intention of the court.”
 PER Y.B. NIMPAR, J.C.A
APPLICATIONS BEFORE THE COURT – METHOD OF FILING APPLICATIONS BEFORE THE COURT
“It is also trite that any application of any nature, particularly after judgment and touching on the judgment delivered should be by way of motion and which must put the other side on notice. The Rules of the court below is relevant, see Order 39 Rule 1(1) (2) 2004 which is in pari material with Order 39 Rule 1(1) (2) of the High Court of Lagos (Civil Procedure) Rules, 2012. It provides that every application shall be by way of motion supported by an affidavit and accompanied by a written address in support of the relief.” PER. Y.B NIMPAR, J.C.A
REVIEW OF JUDGEMENT – WHETHER A COURT OF COORDINATE JURISDICTION HAS THE VIRES TO SIT ON APPEAL OVER THE JUDGMENT OF HIS COLLEAGUE
“On lack of jurisdiction to review the judgment of a court of coordinate jurisdiction, I fully agree and restate the importance of jurisdiction to any adjudication. It is usually donated to each court by the Constitution and or Statute. It is trite that a court of coordinate jurisdiction lacks the vires to sit on appeal over the judgment of his colleague. See Azuh V UBN Plc (2014) LPELR – 22913 (SC).” PER Y.B. NIMPAR, J.C.A
COURTS – COURTS ARE CONFINED TO GRANT ONLY RELIEFS SOUGHT BY PARTIES BEFORE IT.
“A court should not go outside what is before it in making a pronouncement. A court must at all times limit itself to the application and reliefs sought for in the application, see Aisha Jummai Alhassan & Anor V Mr. Darius Ishaku (2016) LPELR-40083(SC) where the apex court held:
“Our adversarial legal system has laid down principles outside of which no court is permitted to venture and that is that no court or Tribunal would grant or award to a party a relief not sought. This is because the court has no jurisdiction to award is confined within the reliefs sought and no more. There are judicial authorities to buttress that point and a few of them are:- Ekpenyoun V Nyong (1975) 2 SC 71; Obioma V Olmu (1978) 2 SC 1; Odofin V Agu (1992) NWLR (Pt. 229) 350.
In fact doing so violates the rights of the parties to fair hear hearing which is fundamental to due trial and it amounts to acting without jurisdiction. It is settled that any step taken or pronouncement made without jurisdiction amounts to a nullity, see Ohakim V Agbaso (2010) 19 NWLR (PT 1226) 172 S.C. The Court is not father Christmas as to give out unsolicited gift PER Y.B. NIMPAR, J.C.A
COUNSEL- DUTY OF COUNSEL IN THE JUDICIAL PROCESS
“Before concluding this judgment, I want to admonish that Nigeria having come this far in practice of the legal profession, counsel should consider their attitude to initiating multiple judicial processes after judgment. Both counsel and parties must submit only issues that are solid and contestable. It impinges on the integrity of the institution and serves to merely frustrate courts and successful parties from reaping the fruit of their judgment” PER Y.B NIMPAR, J.C.A
STATUTES REFERRED TO:
Evidence Act 2011
High Court of Lagos (Civil Procedure) Rules, 2012
Culled from Legalpedia Cigtation: LER[2018}CA/L/553/2008 ]]>

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