Eco Bank Nigeria Limited V. Dr. Oba Otudeko (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The appeal is with respect to the decision of the Federal High Court sitting in Lagos (the Court below) by which it scheduled to hear the application questioning its jurisdiction first before hearing the other applications pending before it.

Put shortly, the appellant filed a bankruptcy petition against the respondent for neglecting and/or failing to defray the indebtedness of Honeywell Flour Mills Plc, Siloam Global Services Limited and Anchorage Leisure Limited. An ex parte application for preservative orders accompanied the petition. The Court below (Abang, J.) ruled on 06-11-15 that it was inclined to hear the respondent on the ex parte application which it converted to a motion on notice.

Aggrieved, the appellant filed the present appeal contained in a notice of appeal with four grounds of appeal in pages 346 – 360 of the record. The respondent took a preliminary objection to the appeal in a notice to that effect dated and filed on 13-04-16 on the following grounds ?

“(i) The appeal is in respect of the exercise of discretion by the lower Court

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on the priority of hearing of motions.

(ii) Further to (i) above, the appellant ought to have first sought and obtained the leave of this Court pursuant to Section 233 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution).

(iii) Grounds 1, 3 and 4 in the notice of appeal are grounds of facts, or at best grounds of mixed law and facts.

(iv) Issue 2 in the brief of argument does not arise from grounds 3 and 4 in the notice of appeal from which it has been formulated.

(v) Grounds 2 and 4 as well as the relief in the notice of appeal are misrepresentations of the decision of the lower Court as there was no application to hear the motion on notice dated 16th day of October, 2015 alongside any other application as contained in the said ground and/or any consideration of same in the lower Court’s ruling.

(vi) Further to (v) above, Grounds 2 and 4 as well as the relief in the notice of appeal are not rooted in the application made at the lower Court the decision on which is on appeal herein and the said grounds and reliefs do not also arise from the decision of the lower Court.”

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The preliminary objection was argued in the respondent’s brief of argument dated and filed on 13-04-16 to the effect that grounds 1 and 2 of the notice of appeal centre on the exercise of discretion by the Court below to be persuaded by the decision of Abang, J. to determine the issue of jurisdiction before taking any further step in the action and grounds 3 and 4 thereof relate to the exercise of the discretion of the Court below in deciding to determine the issue of jurisdiction first before taking any other application; and being a decision as to the priority of the applications pending before it, the exercise of the discretion by the Court below would generate grounds of mixed law and fact which required the leave of the Court first sought and obtained before the grounds of appeal would be competent; and that not having obtained the said leave, the grounds 1 ? 4 of the notice of appeal are incompetent which has rendered the appeal itself incompetent citing in support the cases of Honeywell Flour Mills Plc v. Ecobank Nigeria Ltd. (unreported) Appeal No.: CA/L/1247/2015 delivered on 30-03-15, Diapianlong v. Dariye (2007) 8 NWLR (Pt.1036) 239, UBN Plc v.