Central Bank Of Nigeria V. Dr. Erastus B. O. Akingbola & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

A ruling by the Federal High Court of Justice holden at Lagos (the court below) to hear the preliminary objection of the appellant qua 2nd defendant at the court below to the originating motion together with the originating motion occasioned the appeal.

In summary, the 1st respondent brought an originating motion at the court below challenging the special examination of the banker’s books kept by the then Intercontinental Bank Plc under the 1st respondent as the Group Chief Executive (G.C.E.) of the defunct Intercontinental Bank in the course of which the 1st respondent was indicted and subsequently removed as the G.C.E. of the said bank by the appellant acting in concert with the 2nd respondent and the N.D.I.C. that examined the said bankers books.

Upon service of the originating motion on the appellant, she filed a memorandum of conditional appearance without filing a counter affidavit against the originating motion. The appellant proceeded to file a preliminary objection to the originating motion where she objected to the jurisdiction of the court below to entertain the originating motion under Section 53(1) of the Banks and Other Financial Institutions Act, Cap.B3, Laws of the Federation, 2004; and/or alternatively, that the 1st respondent lacked the locus standi to institute and maintain the action which did not disclose a reasonable cause of action against the appellant.

The court below ruled that it would take the preliminary objection together with the substantive motion and determine both of them together instead of taking the preliminary objection first as submitted before it by the appellant. The appellant was dissatisfied with the ruling of the court below and appealed against it in an original notice of appeal subsequently amended and filed on 18-10-10 containing four grounds of appeal.

Before the appellant would argue her appeal, the 1st respondent moved his preliminary objection filed on 21-05-12 and incorporated in his arguments in the respondent’s brief to the effect that the appeal being an interlocutory one grounds 1, 2, 3 and 4 of the amended notice of appeal which are of mixed law and fact required the leave of the court below or this court first sought and had before canvassing the grounds of appeal on the appeal.

Expatiating on the preliminary objection in the 1st respondent’s brief of argument, the 1st respondent argued that grounds 1, 2, 3 and 4 of the notice of appeal were on exercise of discretion while the 2nd and 3rd particulars of ground 2 are complaints on the evaluation of evidence. Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and the cases of Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 299, Opuiyo v. Omoniwari (2007) 16 NWLR (Pt.1060) 415, UBN v. Sogunro (2006) 16 NWLR (pt.1006) 504, Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (pt.496) 64, Maigoro v. Garba (1999) 10 NWLR (pt.624) 555 at 568, Dairo v. UBN (2007) 16 NWLR (pt.1059) 99 at 130 and Dapianlong v. Dariye (No.1) (2007) All FWLR (pt.373) 1 at 33 – 34, Madukolu v. Nkemdilim (1962) All NLR (pt.2) 581 and Ikwebi v. Ebele (2005) 11 NWLR (pt.936) 397 were cited by the 1st respondent in support of the preliminary objection that the grounds of appeal being on mixed law and facts arising from the exercise of discretion by the court below and its evaluation of evidence in an interlocutory appeal and leave having not been obtained to file and argue them on appeal, the said grounds of appeal are incompetent and should be struck out together: with the appeal.

The 1st respondent also argued that grounds 1 and 3 of the notice of appeal are repetitive and constitute an abuse of the process of the court; and that Ground 3 of the notice of appeal did not arise from the decision appealed against the should be struck out vide the cases of Ikweki v. Ebele (supra) on page 425, Punch (Nig.) Ltd. v. Jumsum (Nig.) Ltd. (2011) 12 NWLR (pt.1260) 162 at 177, Fabunmi v. Ajayi (2008) All FWLR (pt.444) 1458 at 1470.

The appellant’s amended reply brief filed on 06-08, but deemed filed on 21-05-13, contended in response to the preliminary objection that close examination of the grounds of appeal disclose that they are anchored on whether Order 29 rule 1 of the Federal High Court (Civil Procedure) Rules 2009 was breached by the refusal of the court below to hear the preliminary Objection on jurisdiction and/or locus standing of the 1st respondent to file the substantive action first and separate from the substantive action which the appellant argued was a question of law not requiring leave to appeal on them citing in support the cases of Comex Ltd. v. N.A.B. Ltd (1997) 3 NWLR (pt.496) 643, Ossai v. Wakwah (2006) 4 NWLR (pt.969) 208 at 229 to the effect that the absence of counter affidavit does not make an originating motion non-contentious as wrongly held by the court below, Ogbechie v. Onochie (1986) NWLR (pt.23) 8; and that the grounds of appeal said to be repetitive are not so, nor is the contention that Ground 3 of the notice of appeal did not arise from the decision of the court below tenable, therefore the preliminary objection should be overruled.

The notice of preliminary objection filed on 21-05-12 stated that –

“TAKE NOTICE that the 1st Respondent herein, intends at the hearing of this Appeal, to rely upon the following preliminary objection, notice whereof is hereby given to you and shall move this Honourable Court for:

1. An order dismissing the Appellant’s Appeal for being incompetent

AND TAKE FURTHER NOTICE that the ground upon which this preliminary objection is brought is that:

(i) The decision of the lower court which is the subject matter of the present appeal is an interlocutory decision.

(ii) Ground 1, 2, 3 and 4 of the Appellant’s Grounds of Appeal as contained in the Amended Notice of Appeal dated 18th October, 2010 and filed on 31st January, 2011 are grounds of fact or at best of mixed law and fact.