F. A. Akinbobola Vs Plisson Fisko Nigeria Ltd & Ors (1991)

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S. KAWU, J.S.C.

On the 22nd October, 1990 when this appeal came before this court, after hearing arguments of counsel on both sides, I allowed this appeal. I then indicated that I would give my reasons for the judgment today which I now do.

Briefly stated, the facts which gave rise to this appeal are as follows:-

The appellant in this court was the plaintiff in the Kwara State High Court where he had instituted an action against the 1st respondent for “money had and received.” At the time of the institution of the suit, the 3rd respondent was in possession of the 1st respondent’s assets, having been appointed a receiver and manager by the 2nd respondent. The 2nd and 3rd respondents were joined as parties when the appellant realised that the assets of the 1st respondent were being sold by the 3rd respondent at the instance of the 2nd respondent.

The appellant then sought and obtained an ex parte order from the Kwara State High Court restraining the 3rd respondent from selling all the plants, machinery and equipment of the 1st respondent, or in the alternative an order directing the 1st respondent to deposit the sum of N100,000 in court pending the determination of the case. Subsequently, learned counsel for the respondents filed a motion in the High Court praying the court to set aside the ex parte order on the ground that the Kwara State High Court had no jurisdiction to hear the substantive suit.

The court refused to do so holding that it had jurisdiction to hear the matter. Consequently, the respondents appealed to the Court of Appeal which court ruled that the Kwara State High Court had no jurisdiction to hear the matter. The Appeal Court then directed that the case be heard by the Judge of the Federal High Court, llorin. All the relevant papers filed in the State High Court relating to the case and the sum of N100,000 deposited in that court were subsequently transferred to the Federal High Court, Ilorin.

Before embarking on the hearing of the case, the learned Judge of the Federal High Court Ilorin (Jinadu, J.) invited counsel on both sides to address him on the issue of jurisdiction. After counsel’s addresses, the Judge came to the conclusion in his ruling that his court lacked jurisdiction to hear the case and he therefore struck it out. He also ordered that the deposit of N100,000 which had been transferred to his court should be returned to the 3rd respondent if no appeal was lodged within the prescribed period.

He further ordered that the 2nd and 3rd respondents be struck out of the case. The appellant, being dissatisfied with the ruling of the Judge of the Federal High Court appealed to the Court of Appeal, contending in that court that having held that he had no jurisdiction to hear the case the learned Judge of the Federal High Court was wrong when he proceeded to strike out the substantive case, instead of transferring the suit to the appropriate State High Court for hearing. He also contended that the learned Judge of the Federal High Court was also wrong in striking out 2nd and 3rd respondents as parties and that the order directing the return of N100,000 was also wrong.

In its judgment, the Court of Appeal upheld the appellant’s appeal but went further to direct that as it had previously held in the previous appeal before it, the N100,000 deposit in court should be returned to whoever had paid the deposit. The court also made no order as to costs.

The appellant, again being dissatisfied with the decision of the Court of Appeal has further appealed to this court on two issues.

Mr. Akintoye’s first complaint in this court on behalf of the appellant is about the order of the Court of Appeal directing the refund of the N100,000 deposit. It was learned counsel’s submission that the Court of Appeal was wrong in making the order which was not applied for by any of the parties, in citing in support of his submission the case of Awoyegbe v. Ogbeide (1988) 1 NWLR (Pt. 73) 695.

In his reply, Mr. Eno, learned counsel for the respondent, contended that the order made by the Court of Appeal was proper being a consequential order which the Court of Appeal was competent to make. His submissions on this point at page 9 of his brief read as follows:-

“It is therefore not correct to assert as Akinbobola has done in Ground 1 of his argument that the Court of Appeal gave a consequential order which was not specifically asked for. When therefore in the final summing up the Court of Appeal in Suit No.CA/K/200/87 held

“This appeal succeeds and is hereby allowed except as regards the question of payment of N100,000 into court which we still say should be refunded to whoever paid it (whether the company or the receiver) in accordance with the previous ruling of this court”.