Ajaokuta Steel Company Limited V. Greenbay Investment & Securities Limited (2019)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division, hereinafter referred to as the lower Court, in appeal No.CA/A/718/2016 delivered on 18th December 2017, setting aside the ruling of the Federal High Court, the trial Court, in suit No. FHC/ABJ/M/03/2007 delivered on the 18th November, 2016.

By the said ruling, the trial Court had discharged the 3rd and 4th respondents as garnishees, set aside the decree Nisi it earlier granted and dismissed the entire garnishee proceedings initiated by the 1st respondent.

Aggrieved, the 1st respondent appealed against the trial Court’s ruling to the lower Court. The lower Court allowed the appeal, set-aside the ruling of the trial Court and remitted the matter to the latter to hear 1st respondent’s garnishee proceedings and determine whether or not the order Nisi be made absolute.

Dissatisfied, the appellant has appealed against the lower Court’s decision to this Court on a notice filed on 16th March, 2018 containing two grounds. The facts relevant to the appeal are as stated below;

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On the 3rd day of May 2001, the trial Court sitting in Lagos, Sanyaolu J., presiding, concluded its judgment in Suit No. FHC/L/CS/1223/99: GREENBAY INVESTMENT & SECURITIES LTD., VS AJAOKUTA STEEL COMPANY AND SEVEN OTHERS, in favour of the 1st respondent, the plaintiff, against the appellant, the 2nd respondent thereat thus:-

“In the circumstances therefore I hold that the plaintiff is entitled to judgment and I hereby enter judgment in favour of the plaintiff against the 2nd Defendant as follows: –

(i) The sum of USD 1,672,351.50 or its equivalent in Naira at the prevailing Central Bank of Nigeria Exchange Rate on 23/2/94 being that (sic) date of actual delivery and supply of 667.591 Chrome Magnesite Bricks by the plaintiff to the 2nd Defendant as shown in Exhibit C

AND

(ii) 21% interest accruing on the said sum from the 24th day of April 1994 till date or the date of payment of the debt whichever is earlier.”

Consequent upon the foregoing, the 1st respondent on the 10th October 2006 received through his agent the sum of one hundred and forty-two million naira (N142,000,000.00k) in Bond Security.

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To realize the balance of the judgment sum and interest thereon put at US $17,187,511.89, from the appellant, the 1st respondent commenced garnishee proceedings in suit No. FHC/ABJ/M/03/07 at the trial Court sitting at Abuja and presided by Okon Abang J.

The appellant, the 2nd and 4th respondents, by their respective preliminary objection and/or motions, challenged the competence of 1st respondent???s garnishee proceedings inter-alia on the ground that, having been fully paid the judgment debt, the proceedings was incompetent and unmaintainable.

The trial Court, in its ruling delivered on 18th November, 2016, upheld the objections raised by the appellant, the 2nd and 4th respondents and dismissed the 1st respondent’s garnishee proceedings.

The success of 1st respondent’s appeal against the trial Court’s ruling at the lower Court informs the instant appeal to this Court on two grounds filed on 16th March 2018.

The lone issue distilled in the appellant’s brief as having arisen for the determination of the appeal reads: –

“Whether the learned justices of the Court below properly construed the judgment of the Federal High Court in suit FHC/L/CS/1223/99

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GREENBAY INVESTMENT & SECURITIES LTD V. FEDERAL MINISTRY OF MINES & POWER AND AJAOKUTA STEEL COMPANY LTD in arriving at its decision that the appellant herein remains indebted to the 1st Respondent herein with regards to the judgment debt awarded in favour of the 1st respondent against the Appellant.”

The issue the 1st respondent formulated and desires that the appeal be determined upon its resolution reads:-

“Whether the learned justices of the Court below were right when they made their computations on the outstanding judgment debt based on the prevailing CBN exchange rate as at the time the sum of N142 million in securities was paid by the appellant to the 1st respondent and with 21% interest calculated up to the time of the payment.”

The 2nd, 3rd and 4th respondents having filed no brief of argument in the appeal urged nothing on the Court.

The respondent has raised and argued a preliminary objection to the competence of the appeal in its brief adopted and relied upon at the hearing of the appeal.

Being a challenge to the Court’s exercise of jurisdiction over the appeal, it is necessary that the preliminary objection be heard and determined first.

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This is so because of the fundamental nature of jurisdiction in the adjudication process. Jurisdiction remains a central issue to any matter before any court. Once challenged, the Court is duty bound to determine whether it has jurisdiction first before proceeding to determine the case. It is long settled that judicial proceedings conducted by a Court that is lacking of the necessary jurisdiction, no matter how well same were otherwise conducted, would be ab initio null and void. See OKIKE V. L.P.D.C. (NO 2) (2005) 7 SC III 75 AND ADESOLA V. ABIDOYE & ANOR (1999) LPELR-153 (SC) and MADUKOLU V. NKEMDILIM (1962) 1 SCNLR 341.

1st respondent has formulated two issues as calling for resolution in the determination of its preliminary objection at paragraph 3, page 5 of its brief as follows:-

“(i) Whether this appeal is not incompetent in its entirety and ought to be struck out together with the lone issue. Distilled and argued in the Appellant’s brief of argument.

(ii) Assuming without conceding that the appeal is competent whether, the portion of the Appellant???s brief of argument challenging the power of the trial Court to award interest

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rate allegedly higher than as provided in the Rules is not liable for striking out.”

On the two issues for the determination of its preliminary objection, learned senior counsel for the respondent submits that the two grounds of the appellant’s notice of appeal filed on the 27th February, 2018 involve questions of mixed law and fact; that the grounds require leave of either the Court below or this Court to appeal against the decision of the lower Court delivered on 18th December 2017; that appellant’s lone issue in its brief filed on 30th May 2018, being anchored on the two incompetent grounds, is equally incompetent; that arguments pursuant to the incompetent issue inter-alia raise a fresh issue which neither hinges on any of the two incompetent grounds nor leave in respect of same having been sought and obtained from this Court or the Court below; that the appellant is not consistent with its case. These shortcomings, learned senior counsel for the 1st respondent/objector O.I. Olorundare SAN contends, render the appeal incompetent and liable to be discountenanced in its entirety with substantial costs.

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Arguing the two issues, learned senior counsel contends that it is not what the appellant asserts the two grounds are that make them either of law, mixed law and fact or fact alone. It is immaterial that the appellant herein has couched the two grounds as being errors relating to the construction of the judgment of the trial Court. To determine their true nature, the two grounds as well as the particulars in their support, it is further argued, must be jointly and closely examined. Learned senior counsel relies on BARBEDOS VENTURES LTD VS. F.B.N. PLC (2018) 4 NWLR (PT 1609) 241 AT 286.

Ground 1 of the appellants notice of appeal, it is submitted, conveys appellant’s complaint against the lower Court’s finding on the balance owed the 1st respondent after discounting N142 Million Naira in securities paid to it by the appellant which finding is a finding of fact. The particulars of the ground, it is further contended, dwell on the error pertaining the prevailing Central Bank of Nigeria’s exchange rate as at October 2006 applied by the lower Court in determining the naira equivalent of the judgment sum of US $1,672,315.50 to the 1st respondent which at best is question of mixed law and fact.

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Appellant’s 2nd ground of appeal, learned counsel contends, is a complaint against the interest on the judgment sum the lower Court granted the 1st respondent. By the ground of appeal, the lower Court is alleged to have ordered interest to be paid to the 1st respondent beyond the date it is otherwise entitled to. This ground too, learned counsel submits is purely a ground of fact.

The two grounds which flirt on facts and are at best on mixed law and fact, it is submitted, are not appealable as of right by virtue of Section 233 (3) of the 1999 Constitution as amended. The appellant having filed the grounds without first seeking and obtaining the necessary leave of this Court or the Court below, learned senior counsel submits, appellant’s incompetent appeal is liable to be dismissed. Learned counsel relies on NZEI VS. U.N.N. (2017) 6 NWLR (PT.1561) 300, UMANAH (JNR) VS. NDIC (2016)14 NWLR (PT 1533) 458, EKANEM VS. UMANAH (2006) 11 NWLR (PT. 992) 510 and FASUYI VS. PDP (2018) NWLR (PT 1619) 426 AT 449. Further relying on OKECHUKWU VS. INEC (2014) 17 NWLR (PT. 1436) 255 AT282, learned counsel urges that appellant???s issue distilled from the two

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incompetent grounds of appeal, being equally incompetent, be struck out as well.

The appellant, it is further contended, never raised the issue of construing the judgment of the trial Court delivered on 3rd May 2001 in suit No.FHC/L/CS/1223/99 either in the garnishee proceedings in suit No. FHC/ABJ/03/2007 or at the lower Court. The issue before the lower Court that arose in the appeal against the decision of the trial Court delivered on 18th November, 2016 by Okon Abang J., in suit No. FHC/ABJ/03/2007 is inter-alia, the effect of the indemnity executed by 1st respondent’s agent on the quantum of debt owed to the former by the appellant and not on the construction of the trial Court’s judgment in suit No. FHC/L/CS/1223/99 delivered on 3rd May 2001. The appellant, it is argued, cannot now take advantage of the lower Court’s finding on the outstanding judgment debt owed the 1st respondent as determined by the trial Court in suit No. FHC/L/CS/1223/99 to make a totally new case of asking this Court to construe the trial Court’s judgment in the earlier suit. Relying on ATANDA VS. COMMISSIONER FOR LANDS AND HOUSING KWARA STATE (2018) 1 NWLR (PT. 1599) 32 AT 58

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– 59 AND UHUNMWANGHO VS. OKOJIE (1989)5 NWLR (PT 122) 471 AT 487, learned counsel entreats that appellant’s wrong effort be dissuaded and condemned. In any event, being a case different from the one agitated at both Courts below by any of the parties, learned 1st respondent submits, this makes the issue a fresh one. Again, it is submitted, appellant is disentitled by virtue of Section 233 (1) of the 1999 Constitution as amended to raise any complaint against the trial Court’s decision. The issue the appellant distilled and argued is totally unrelated to the decision being appealed against which fact makes the issue all the more incompetent. Citing OLAKUNLE VS. STATE (2018) 6 NWLR (PT 1614) 91 and ZACCALA VS. ADOSA (2018) 6 NWLR (PT 1616) 528 AT 543, learned 1st respondent’s senior counsel urges that, as a whole, their preliminary objection be sustained and appellant’s entire appeal dismissed.

On being served, the 1st respondent’s brief wherein its preliminary objection challenging the competence of the appeal and by extension this Court’s jurisdiction to determine same, the appellant filed its reply brief partly in answer to the queries raised against the appeal.

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Responding to the arguments on the preliminary objection, learned senior counsel to the appellant, Adetunji Oyeyipo, SAN, submits that 1st respondent’s objection is not only misleading and unfounded but most unnecessary. Appellant’s two grounds of appeal challenge the construction the lower Court placed on the judgment of the trial Court in suit No. FHC/L/CS/1223/99 which, learned senior counsel contends, does not in the least raise issues of fact.

The 1st ground of appeal, it is submitted, questions the lower Court’s conclusion as to the balance of the judgment sum owed the 1st respondent arising from the Court’s wrong appraisal of the sum awarded the judgment creditor by the trial Court in its judgment in suit No. FHC/L/CS/1223/99.

The 2nd ground of appeal, it is further submitted, challenges the lower Court’s wrong conclusion as to the applicable interest on the judgment debt. All that it takes, learned senior counsel submits, is a simple comparison of what the trial Court said in its judgment of 3rd May 2001 and what interpretation the lower Court places on the trial Court’s position on appellant’s indebtedness to the 1st respondent and the applicable interest on the debt.

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Cumulatively, the two grounds of appeal challenge the lower Court’s basis, given its wrong understanding of the trial Court’s decision of 3rd May, 2001 on the exchange rate of the dollar applicable to the debt due to the 1st respondent as well as the period within which the judgment debt shall attract 21% interest. The lower Court’s extension of the period within which the debt attracts the 21% interest rate, it is submitted, signifies an improper understanding of the import of the trial Court’s finding on the same issue. Relying on ANAMBRA STATE HOUSING DEVELOPMENT CORPORATION VS. JCO EMEKWUE (1996) 1 NWLR (PT 426) 505, IFEDIORAH VS. UME (1988) 2 NWLR (PT 74) 5, U.B.A. VS. STAHLBAU (1989) 6 SC (PT 1) 22, NWADIKE VS. IBEKWE (1987) 4 NWLR (PT 67) 718 AT 729 and OJEMEN VS. MOMODU II (1983) SCNLR188, learned appellant???s counsel concludes that appellant’s two grounds being of law alone require no leave of Court for their competence. Further relying on BRITTANIA – U (NIG) LTD VS. SEPLAT DEV. CO. LTD (2016) 4 NWLR (PT 1503), ANUKAM VS. ANUKAM (2008) 1- 2 SC 34 AT 42 AND OBASI VS. MIKSON ESTABLISHMENT

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INDUSTRIES LTD (2016) 16 NWLR (PT 1539) 335 AT 378, learned counsel urges that the two grounds as well as their particulars, on being meticulously examined, will be found to be outside the realm of facts. Learned senior counsel entreats that the unmeritorious objection be overruled.

Now, the right of appeal the appellant asserts is conferred by the 1999 Constitution as amended which in Section 233 (1), (2) and (3) provide as follows:-

“Section 233

(1) The Supreme Court shall have jurisdiction to the exclusion of any other Court of Law in Nigeria to hear and determine appeals from the Court of Appeal.

(2) An appeal shall lie from the decisions of the Court of Appeal as of right in the following cases

(a) Where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.

(3) Subject to the provision of Subsection (2) of this section, an appeal shall be from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.” (underlining supplied for emphasis).

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By its preliminary objection, 1st respondent contends that appellant’s two grounds in the instant appeal which do not raise questions of law alone as provided for under Section 233 (1) of the 1999 Constitution as amended, but, rather, being complaints of facts or at best mixed law and fact by virtue of Section 233 (3) of the 1999 Constitution as amended, require leave of either the Court of Appeal or the Supreme Court for their competence.

In response, learned senior counsel to the appellant contends otherwise.

Counsel are one, and rightly so, that any ground of appeal that is either of fact or mixed law and fact, not being a ground of law alone, if filed without the leave of either the Court of Appeal or the Supreme Court, is incompetent and liable to be struck out. Such a ground of appeal, both counsels are also right, being incompetent can neither give rise to a competent issue nor, in turn, a competent appeal.

By the interpretation this Court placed on Section 233 (3) of the 1999 Constitution as amended in a plethora of its decisions it is long settled that the Court has no jurisdiction to entertain an appeal on ground(s) of fact or mixed law and fact unless leave has been obtained from either

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the Court of Appeal or the Court. Thus, if indeed the two grounds of the instant appeal are all grounds of fact or mixed law and fact and filed without the necessary leave of either of the two Courts having been sought and obtained, not only the incompetent ground(s) but the issue purportedly distilled from the incompetent ground(s) as well as the appeal sought to be argued on the basis of same, all being incompetent, must be struck out. See FALEYE V. OTAPO (1987) 4 NWLR (PT. 64) 186, CBN V. OKOJIE (2002) 8 NWLR (PT 768) 48 SC and JIMOH V. AKANDE (2009) 5 NWLR (PT 1135) 549.

An equally potent submission made by learned senior counsel to the 1st respondent is that, a ground of appeal as well as the issue distilled from it for the determination of an appeal must relate to the decision being appealed against. It indeed follows that only an issue pronounced upon by a lower Court is subject of a competent appeal. See SARAKI V. KOTOYE (1992) 11-12 SCNJ 26 and ADMIRAL MURTALA NYAKO V. ADAMAWA STATE HOUSE OF ASSEMBLY (2016) LPELR-41822 (SC).

The need arises straight away to determine, firstly, whether, as contended by senior counsel to the 1st respondent, the

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grounds of appeal herein relate to the judgment being appealed against and if they do whether the grounds are of pure law, mixed law and fact or fact alone.

My Lords, the two grounds of appeal, the competence of which the 1st respondent challenges by its objection span pages 1773 -1775 of vol. 3 of the record of appeal and are hereinunder supplied along with their particulars for ease of reference: –

“3. GROUNDS OF THE APPEAL

GROUND 1

The Honourable Justices of the Court of Appeal erred in law when they misconstrued the judgment of the Federal High Court in Suit No: FHC/L/CS/1223/99 delivered on 3rd May, 2000 and arrived at the wrong conclusion that the Appellant remained indebted to the 1st respondent notwithstanding that it had received the sum of N142 Million since October 2006 and thereby arrived at a manifestly wrong decision which occasioned a miscarriage of justice.

PARTICULARS OF ERROR

1. The Court below had earlier in its judgment captured the relevant portion of the judgment of the Federal High Court wherein it entered judgment in favour of the Plaintiff (1st Respondent herein) against the 2nd Defendant [Appellant herein]

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in the sum of US$1,672,351.50 or its equivalent in Naira at the prevailing Central bank of Nigeria Exchange Rate on 23rd February, 1994.

2. The Court below however in its judgment applied the prevailing Central Bank of Nigeria Exchange rate as at October 2006 in determining the Naira equivalent of the judgment sum of US$1,672,351.50.
3. The error of the Court as to the applicable date for the determination of the prevailing Central Bank of Nigeria Exchange Rate led the Court below to arrive at the conclusion that the sum of N142 Million paid to the 1st Respondent herein by the Appellant did not fully satisfy the judgment debt of US$1,672,351.50 entered against the Appellant in favour of the 1st Respondent.

GROUND 2

The Honourable Justices of the Court of Appeal erred in law and misconstrued the judgment of the Federal High Court in Suit No: FHC/L/CS/1223/99 delivered on 3rd May 2000 when they extended the period when interest ran on the judgment debt beyond the date the judgment was delivered and thereby occasioned a miscarriage of justice.

PARTICULARS OF ERROR

1. The trial Court had entered judgment in favour of the 1st Respondent against the Appellant thus:

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“21% interest accruing on the said from the 24th day of April, 1994 till date or the date of payment of the debt whichever is earlier.”

2. The award of interest made by the trial Court was in the terms claimed by and subscribed on the Writ of Summons filed by the 1st Respondent as Plaintiff in the High Court.
3. The Court below had found that interest continued to accrue on the judgment sum up to October, 2006 when the 1st respondent was paid N142 Million Naira.
4. The finding of the Court below resulted in granting the 1st Respondent in excess of its claim before the trial Court as stated in Particular 1 above.
5. A Court ought not to grant more than what has been claimed by parties before it.
6. The honourable Court below acted without jurisdiction when it made the order being complained above.” (Underlining supplied for emphasis).

It is evident from the record of appeal that the lower Court’s judgment being appealed against herein is in respect of appeal No. CA/A/718/2016 against the trial Court’s rulings in suit No.FHC/ABJ/M/03/2017 dismissing 1st respondent’s application seeking the order Nisi

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granted against the appellant be made absolute. The judgment in appeal No. CA/A/718/2016 was delivered on 18th December, 2017.The lower Court’s judgment in appeal No. CA/A/718/2016 on which the instant appeal predicates, it is instructive to note, is not in respect of the trial Court???s decision in suit No.FHC/L/CS/1223/99 delivered on 3rd May 2001. Indeed, no appeal has yet been lodged against the said judgment in suit No. FHC/L/CS/1223/99 delivered by Sanyaolu J.

In Suit No. FHC/ABJ/M/03/2007, the 1st respondent/judgment creditor applied pursuant to the trial Court’s extant adjectival provisions inter-alia for:-

“3 An order of Court making the orders of garnishee Nisi made on 7th November 2007 and 28th May 2008 in this suit absolute against the garnishee to pay over the judgment debt and accrued interest to date immediately to judgment creditor or through her solicitors Merss Okunade Olorundare & Co.”

The appellant herein by its preliminary objection dated 31st March, 2016 challenged the competence of 1st respondent’s garnishee proceedings. The 3rd ground on which the objection was based reads: –

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“This Court lacks jurisdiction to entertain garnishee proceedings in respect of a judgment debt that has been fully liquidated.”

At page 1221 of vol. 2 of the record of appeal, the Court enthused at the beginning of its ruling thus:-

“The outcome of the Court’s findings on the 2nd respondent’s preliminary objection will determine whether the Court will make findings on the judgment creditor’s substantive application on the merit.”

In determining whether or not 1st respondent’s garnishee proceedings is maintainable against the 3rd respondent herein, the trial Court, Abang J., presiding, circumscribed what the proceedings related to, see page 1238 of vol. 2 of the record of appeal, thus:-

“At the risk of being repetitive, this Court Lagos Division on 3rd May, 2001 entered judgment in this suit in favour of the judgment creditor against the 2nd respondent in the sum of $1,672,351.50 or equivalent in naira at the prevailing Central Bank of Nigeria Exchange Rate on 23rd February, 1994 being the date of actual delivery and supply of 667,591 chrome Magnesite Bricks by the plaintiff to the 2nd defendant. The Court also awarded 21% interest on the said sum from the 24th day of April, 1994 till date or the date of payment of the debt whichever is earlier.”

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The trial Court having found further that the 1st respondent herein as judgment creditor had appointed Dr. Soso Nuhu on the 24th November, 2004 to negotiate, demand and receive the judgment debt of $1,672,351.50 on its behalf per the judgment of that Court dated 3rd May, 2001; that Dr Soso Nuhu had negotiated between November and December 2004 with the view to settling the debt and accepted on behalf of the judgment creditor the payment of 142 million naira which sum was to be securitized through the Debt Management Office as full and final payment; that an indemnity was executed by the judgment creditor through its appointed agent and that the agent had admitted, on the 10th October, 2006, receiving a letter of allotment issued by the Debt Management Office of the Federal Government, the court concluded:-

“My Lords, there is no evidence before the Court that the agent acted alone without concurrence or acceptance of the judgment creditor to accept 142 million naira as full and final sum in settlement of the judgment debt.

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It cannot lie in the mouth of the Chief Executive officer of the the judgment creditor to say that the agent acted outside the scope and bound of his authority…. if he did not agree and that the fact of receipt of 142 million came to him as a surprise, he would have reacted timeously either by rejecting the offer outrightly or immediately informing Federal Government that the 142 million naira was only part payment of the principal sum excluding interest.”

The trial Court in a further finding at page 1244 of vol. 2 of the record of appeal held that the 1st respondent had by concealing the fact of its being paid 142 million naira through its agent, in full and final payment of the debt, misrepresented facts to the Court when it obtained the order Nisi attaching the account of the 3rd respondent. The Court concluded its ruling thus: –

“The order Nisi dated 7th November 2007 and 28th May 2008 were made in want of jurisdiction and are liable to be set-aside as a nullity. I have jurisdiction to set-aside an order made by a brother judge or a judge of coordinate jurisdiction which is a nullity as in this case???The motion dated 29th March, 2016 filed by the judgment creditor is incompetent and same is struck out.

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In the final analysis, an order is hereby made discharging the garnishee order Nisi granted by this Court though differently constituted on 7th November 2007 and 28th May 2008 and they are accordingly set-aside and struck out.

An order is hereby made dismissing the instant garnishee proceedings. Central Bank of Nigeria and Debt management Office are accordingly discharged.”

It is against the foregoing ruling of the trial Court that the 1st respondent herein appealed to the lower Court on ten grounds of which, see pages 1261 -1266, none complained of Abang J’s reference to the Court’s earlier judgment in suit No. FHC/L/CS/1223/99 delivered on 3rd May 2000.

The record of the instant appeal bears out 1st respondent’s contention that the appellant herein neither cross appealed nor filed any notice entreating the lower Court to affirm the trial Court’s ruling in suit FHC/ABJ/M/03/2017, from which the instant appeal emanated, on other grounds.

It is also significant to note that neither the appellant nor any of the respondents herein made the extent of appellant’s indebtedness to the 1st respondent or the interest that accrued on same an issue

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either at the trial Court or the lower Court. The trial Court in fact neither addressed the issue nor determined it in its ruling appealed against to the lower Court, the instant appeal being a further appeal by one of the respondents’ at the Court below.

The twin issue of the extent of appellant’s indebtedness and accrued interest on same was needlessly raised suo motu by the lower Court in the course of resolving issues 3 and 6 formulated by the 1st respondent herein as appellant thereat.

The issues are hereinunder reproduced for ease of reference:-

3. Whether any agent of a disclosed principal can act beyond the scope of his employment and whether the appellant was in the circumstances of this case bound by the alleged negotiation, compromise, waiver and indemnity between her agent and the 1st and 2nd or 4th respondents in this case.
4. Whether the decision of the lower Court dismissing the garnishee proceedings was not perverse occasioning miscarriage of justice to the appellant.”

In the course of resolving the two issues, the Court after quoting extensively from Abang J’s ruling (not Sanyaolu’s judgment delivered on 3rd May 2000 in

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suit No.FHC/L.CS/1223/99), see pages 1740 -1743 of vol.3 of the record of appeal, proceeded at page 1745 of the record thus:-

“The appellant’s agent had in his letter of 18-1-2017 contended that the 142 million naira paid to the appellant covered only the principal debt and inadvertently omitted the accrued interest. The appellant itself in its letter requesting for the payment of the balance of the judgment debt stated that out of the principal debt of $1,672,351.00, the N142,000,000.00 paid to it covers only $1,014,285.70 leaving a balance as at October, 2006 of $658,065.80. It also stated therein that interest on the said principal debt at 21% of the amount from 24/4/94 to October, 2006, which stood at $16,529,446.09, remained unpaid and that the total balance of debt due and payable to it was $17,187,511.89. The trial Court did not resolve this dispute. This may be due to its view that having undertaken in the indemnity to accept the payment of the 142 million naira as full and final of the judgment debt, the appellant was precluded from contending that any part of the judgment debt was remaining unpaid.

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There is a clear need to solve that issue in view of the undertaking of appellant in the indemnity to make good any over payment or wrongful payment as a result of the payment of this 142 million naira and the issue of whether the judgment debt had been fully settled and so there was no basis for the garnishee proceedings.” (Underlining supplied for emphasis).

My Lords, the foregoing passage introducing the extent of appellant’s indebtedness arising from the prevailing Central Bank rate of exchange and interest applicable to the judgment debt made the basis of the two grounds in appellant notice of the instant appeal, as demonstrated, is not predicated on the trial Court’s judgment in suit No. FHC/L/CS/1223/99. The point alluded to in the passage, learned senior counsel to the lst respondent is right that, to the extent the issues were not raised by the parties and when raised suo motu by the Court parties were not heard on them, no competent grounds of appeal can arise on such issues proceeded upon without jurisdiction. On this, learned senior counsel to the 1st respondent is on a very strong wicket.

It is an elementary principle of the determination of disputes between parties that judgment

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must be confined to the issues raised by the parties. The Court is not competent to suo motu make a case for either or both of the parties and proceed to give judgment on the case contrary to the case of the parties before it. See BENUE STATE & ANOR V. DEVCON DEVELOPMENT CONSULTANTS LTS & ANOR (1988) 3 NWLR (PT 83) 407 AND AKANBI AGBEJE & ORS V. CHIEF AGBA AKIN JOSHUA AJIBOLA & ORS (2002) LPELR-237(SC) and MATHEW OKECHUKWU ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA PLC (2006) LPELR-1140 (SC). In IKENTA BEST NIGERIA LTD V. AG RIVERS STATE (2008) 6 NWLR (PT 1084) 612 AT 642 this Court has held:-

“A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exist in the litigation. A judge by the nature of this adjudicatory functions, can draw inferences to reverse side of page 41 from stated fact in a case and by such inference, the judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu.”

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Certainly, in suit No. FHC/ABJ/M/03/2007 which led to the lower Court’s judgment in appeal No. CA/A/718/2016 that brought about the instant appeal the extent of appellant’s indebtedness as affected by the prevailing exchange rate of the dollar at the Central Bank and the applicable interest were never in contention between the parties. The issue between the parties was solely the competence of 1st respondent’s garnishee proceedings given appellant/judgment debtor’s objection that the judgment creditor who, through his agent, has been fully paid, is owed nothing by the garnishee, particularly the 3rd respondent. It must be conceded to the 1st respondent/objector these are very weighty issues the lower Court raised on its own and outside the case of the parties both at the trial Court as well as in the appeal before the former. The lower Court’s findings purportedly based on such issues that are manifestly outside litigation, the case of parties, raised by the Court suo motu cannot give rise to competent grounds of appeal against the lower Court’s overall judgment.

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Learned appellant’s senior counsel needs to be reminded of the decision of this Court in RESSEL L.Y. DAKOLO & ORS VS. GREGORY REWANE-DAKOLO & ORS (2011) LPELR-915(S) at 34-35 where the Court, on the requirements of the content of a ground of appeal, held per Adekeye JSC as follows: –

“[A] ground of appeal should contain precise, clear, unequivocal and direct statement of the decision being attacked. A ground of appeal must give exact particular of the mistake, error or misdirection alleged as parties are bound by their grounds of appeal. Parties are therefore not at liberty to argue grounds which are not related to the judgment appealed against.”

(Underlining supplied for emphasis).

See also LAWAL ABDULLAHI BUBA WASSAH & ORS V. TUKSHAHE & ORS (2014) LPELR-24212 (SC) and ATOYEBI V. GOVT OF OYO STATE (1994) 5 NWLR (PT 344) 296 AT 305.

In the instant case, since the two grounds upon which the appeal purports to stand as well as the issue on the basis of which the appeal is sought to be determined do not arise from the judgment being appealed against, the appeal being incompetent as well, must be struck out. I so hold.

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Consideration of further submissions of counsel as to whether the incompetent grounds are of law alone, mixed law and fact or fact, being an academic exercise, is uncalled for, unnecessary and to no avail. See NDULUE V. IBEZIM (2002) 12 NWLR (PT. 780) 139 and CPC V. INEC (2011) LPELR-8257 (SC).

It is for the foregoing that I uphold 1st respondent???s preliminary objection and strike out the incompetent appeal.

THE CROSS-APPEAL

The appellant/1st cross respondent has raised a preliminary objection to the competence of the cross appeal on the grounds, inter-alia, that inspite of the steps the 1st respondent/cross appellant took on the 6th February, 2018 in furtherance of and compliance with the order of the lower Court, by seeking and obtaining the leave of the trial Court to modify the order Nisi granted to it, the said cross appellant has cross appealed to this Court seeking, in the main, the same reliefs as are still pending at the trial Court. The instant cross appeal, it is argued, is an abuse of the process of this Court. Relying on AG LAGOS. STATE V. AG FEDERATION & 35 ORS (2014) 4 SC (PT II) 1 AT 50, AG ONDO STATE V. AG EKITI STATE (2001) 9-10 SC 116 and FRN V. NWOSU (2016)17 NWLR (PT.1541) 226

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AT 293, learned senior counsel urges that their objection be sustained and the cross appeal dismissed.

The 2nd cross respondent has also raised and argued a similar preliminary objection on the competence of the cross appeal in its brief.

Learned senior counsel to the cross appellant has responded to the submissions of the cross respondents/objectors in their reply briefs to the objectors brief.

The facts on which the cross-respondents found their preliminary objection to the competence of the cross appeal are beyond dispute. It is evident that the cross-appellant is pursuing its garnishee proceedings, seeking to make the decree Nisi he has acquired into a decree absolute simultaneously at the trial Court and in this Court.

The common feature of abuse of Court process is the improper use of judicial process by a party in litigation the most common one being multiplicity of actions on the same issues between the same parties and instituting different actions between the same parties in different Courts. Abuse of the process of the Court may also occur where two similar processes are deployed in the exercise of the same right as

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in the instant case. Abuse of the process of the Court, where it occurs, constitutes a fundamental defect the effect of which results in the dismissal of the abusive process. See ADESANOYE V. ADEWOLE (2000) 9 NWLR (PT 127) 671 and UMEH & ANOR V. IWU & ORS (2008) LPELR-3363 (SC).

Learned cross appellant counsel seems to have no answers to the complaints of the cross respondents on the competence of the cross appeal in the light of appellant’s existing garnishee proceedings at the trial Court virtually seeking the very reliefs the cross-appellant has urged this Court to invoke Section 22 of the Supreme Court Act in order to grant him.

I am in complete agreement with learned counsel for the cross respondents that it is an abuse of the process of this Court for the cross-appellant to seek, by way of its cross appeal, the very same relief it seeks at the trial Court. I find counsel’s reliance on the decision of this Court in AG ONDO STATE V. AG EKITI STATE (supra) apposite. In upholding the cross respondents’ preliminary objections, the cross appeal is hereby resultantly dismissed.

Parties in the appeal and the cross appeal shall bear their respective costs.

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SC.254/2018