Eco Bank Nigeria Limited V. Siloam Global Service Limited (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The appeal is from the decision of the Federal High Court sitting in Lagos (the Court below) whereby it ruled that it would hear the motion on notice challenging its jurisdiction to entertain the petition filed by the appellant before taking further step in the proceedings with respect to the ex parte motion for preservative remedy by the appellant.

In a nutshell, the appellant filed a petition for the dissolution of the respondent, an incorporated body, on 16.10.15. An ex parte motion for interim restraint or injunction was also filed on 16.10.15 by the appellant with respect to the fixed and movable assets of the respondent. The Court below heard the ex parte application and ruled on 06.11.15 that the respondent be placed on notice before the application for preservative orders would be determined.

Upon service of the processes mentioned above on the respondent, she filed a motion on 07.12.15 or the dismissal and/or striking out of the petition on sundry grounds including abuse of the process of the Court below and that the originating processes were filed

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and served before leave to issue them was granted.

At the resumed hearing of the Court below the appellant urged the Court below to hear the preliminary objection together with the motion for interim injunction. The Court below, however held that it would hear the preliminary objection first and by itself.

The appellant was dissatisfied with the decision of the Court below occasioning the present appeal contained in a notice of appeal with four (4) grounds of appeal filed on 23-02-16.

The respondent filed a notice of preliminary objection to the appeal on the grounds that as the appeal is in respect of the exercise of the discretion of the Court below and grounds 1, 3 and 4 of the notice of appeal are grounds of fact or at best grounds of mixed law and facts, the appellant not having obtained the leave of the Court the appeal is incompetent and should be struck out. The said preliminary objection was so argued in the respondent’s brief of argument filed on 13-04-16 but deemed as properly filed on 29-06-16, wherein the respondent cited the cases of Honeywell Flour Mills Plc v. Ecobank Nigeria Ltd: Appeal No. CA/L/1247/2015 delivered on

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30-03-16, Re: The Vessel M.B. Lupex (1993) 2 NWLR (pt.278) 670 at 683, Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (pt.126) 299 at 312 and 326, Diapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 239, Sections 233(1)(a) and 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and the cases of Ahmed v. SMB Ltd. (2015) 13 NWLR (pt.1476) 403 at 424 – 429, Adejumo v. Agumagu (2015) 12 NWLR (pt.1472) 1 at 27 – 29 and Garuba v. Omokhodion (2011) 14 NWLR (pt.1269) 145 at 183 cited in the list of additional authorities of the respondent dated 27-09-16; upon which the respondent urged that grounds 1, 2, 3 and 4 of the notice of appeal should be struck out vide the cases of MV “Arabella” v. Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (pt.1097) 182, Western Union Money Transfer Service Ltd. v. Col. Roy M.D. Alli and Ors. (2012) LPELR 1930 (CA) at 12.

It was also argued on the preliminary objection in the respondent’s brief that grounds 2 and 4 of the notice of appeal did not arise from the decision of the Court below and should be struck out on that ground vide Iloabuchi v. Iloabuchi (2000) 5 NWLR

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(pt.656) 178 at 203, Daily Times v. DSV Ltd. (2014) 5 NWLR (pt.1400) 327 at 351, African Petroleum Plc v. Adoniyi (2011) 15 NWLR (pt.1271) 560 at 585, Ngige v. Obi (2006) 14 NWLR (pt.999) 1 at 20, BOSIEC v. Kachala (2006) 1 NWLR (pt.962) 587 at 617 – 618.