Access Bank V. General Telephone Electronics Limited (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Lead Ruling)

The Appellant/Applicant filed a Notice of Motion dated and filed on 27/6/2014 for the following:

1. An Order of this court extending the time within which the Appellant may seek leave to appeal on additional grounds of mixed law and facts and/or facts simpliciter, against the decision of the High Court of Lagos State, Lagos Judicial Division as contained in the ruling delivered by Onyeabo, J. on 4th April, 2014.
2. An Order of this Court granting leave to Appellant to appeal against the ruling on grounds of mixed law and facts and or facts simpliciter.
3. An Order of this Court for an extension of time within which the Appellant may file the additional grounds of appeal reproduced in the schedule to the application which are grounds of mixed law and facts or facts simpliciter.
4. An Order granting leave to the Appellant to amend the Notice of Appeal dated 14/4/14 by incorporating additional grounds of appeal to the grounds of appeal reflected in the Proposed Amended Notice of Appeal.
5. An Order extending the time within which Appellant may file its Brief of Argument in respect of the present appeal.
6. Such further order or other orders this Court may deem fit to make in the circumstance.

As indicated above, the said Motion on Notice was filed on six grounds and a schedule of the additional grounds of mixed law and facts together with an affidavit of 19 paragraphs deposed to by Adedunmade Onibokun. Also annexed to the motion on notice are Rulings of 4th April, 2014 marked Exhibit FOF 1; Notice of Appeal marked Exhibit FOF 2 and Proposed Notice of Appeal marked Exhibit FOF 3.

The Appellant’s counsel, Fagbohungbe SAN moved in terms of the application. Respondent’s counsel G. K. Abdusalam Esq. who came in at the end of the submission of Appellant counsel referred to the following processes filed.

(a) A Preliminary Objection filed on 6/8/14;

(b) Further and Better Affidavit of 7 paragraphs in support of Notice of Preliminary Objection dated and filed 25/6/15; and

(c) Counter Affidavit of 8 paragraphs dated and filed on 6/8/14 and deposed to by Thompson Ashojo.

Learned Abdusalam Esq. then submitted that the Notice of Appeal is defective and therefore incompetent since the grounds of appeal are on mixed law and facts and leave was not obtained. It will amount to curing a defect if the application is granted. He submitted that it is an interlocutory appeal. He relied on FBN v. MAIWADA [2013] 5 NWLR (PT.1348) 444; NALSA & TEAM ASSOCIATION v. NNPC [1991] 8 NWLR (PT.212) 652 at 656; UWAZURIKE v. AGF [2007] 8 NWLR (PT.1035) 1 at 77.

He urged the court to refuse the application.

Fagbohungbe SAN in reply urged the court to discountenance the preliminary objection as premature and submitted that all the grounds are grounds of law. He referred to ODUNUKWE v. OFOMATA [2010] 18 NWLR (PT.1225) 404; EHINLAWO v. OKE [2008] 16 NWLR (PT.113) 357 to submit that an examination of the grounds would show what it is; at the substantive of the appeal stage counsel is required to file objection in the Respondent’s brief.

It is trite that once a preliminary objection is filed, it must be dispensed with first as to know the destiny or fortune of the substantive appeal. See ISIAK & ANOR v. OPOBIYI [2012] LPELR-8540 (CA); ODEDO v. INEC [2008] 17 NWLR (PT.1117) 554; SPDCN LTD. v. AMADI [2011] 14 NWLR (PT.1266) 157, ADELEKAN v. ECU-LINE NV. [2006] 12 NWLR (PT.993) 33; OKOLO v. UBN LTD. [2004] 3 NWLR (PT.859) 87.

The preliminary objection filed by the Respondent is as follows:

a. An Order of this Court dismissing the appeal herein in its entirety for being grossly incompetent.

b. An Order of the court declining jurisdiction to entertain the appeal herein.