Globestar Engineering Company (Nigeria) Limited V. Malle Holdings Limited (1999)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

By a motion on Notice dated 8/2/99, and filed in this Court the same day, the Defendant/Appellant, sought for the following relief:-

“An order granting stay of execution of that part of the order of the Honourahle High Court delivered on 27th November, 1998 particularly the order asking the Defendant/Appellant to deposit 2/3 of US$1,800,000.00 or its Naira equivalent into the High Court Registry within two days pending the hearing and determination of the appeal against the ruling and order to the Court of Appeal.”When this motion was served on the plaintiff/respondent/respondent, before the date fixed for the hearing of the motion, the plaintiff/respondent/respondent, filed a notice of preliminary objection to the hearing of the motion on notice. The preliminary objection was dated 22/2/99 and filed in this Court on the same date. The objection reads:

“TAKE NOTICE that this Honourable Appellate Court will be moved on … the … day of … 1999 at the hour of 9 O’clock or so soon thereafter as counsel can be heard on behalf of the Plaintiff/Respondent/Objector by way of Argument upon a Preliminary OBJECTION to the COMPETENCY of the Defendant/Appellant/Applicant’s PURPORTED APPEAL filed in the lower court on the 30th November, 1998, and attached to the Defendant/Appellant/Applicant’s SUPPORTING AFFIDAVIT and marked as EXHIBIT “D” as well as the PROPRIETY of the ENTERTAINMENT and/or the COMPETENCE of the Defendant/Appellant/Applicant’s MOTION for STAY of EXECUTION by this Honourable Appellate Court while the said Defendant/Appellant/Applicant remains in Contempt of the ORDERS of the LOWER COURT by REFUSING and/or NEGLECTING to pay the sum of US$1,200,000.00 (One Million, Two Hundred Thousand U.S. Dollars) into Court as SECURITY for COST being an ORDER of CONDITIONAL STAY of EXECUTION of the lower court’s order dated 16th November, 1998, the Defendant/Appellant/Applicant having been ADJUDGED as about to ABSCOND with its ASSETS from JURISDICTION in 2(two) SUCCESSIVE RULINGS of the lower Court dated 16th and 27th November, 1998 respectively and FURTHER TAKE NOTICE that the GROUNDS of this PRELIMINARY OBJECTION are as set out in the SCHEDULE hereunder.”

“SCHEDULE

1. The PURPORTED NOTICE OF APPEAL FILED on the 30th November, 1998 against the UNDOUBTED INTERLOCUTORY RULING of the lower court dated 27th November, 1998, which raises QUESTIONS of PURE FACTS and/or MIXED LAW and FACT is incompetent because it was filed without PRIOR LEAVE sought and OBTAINED by the Defendant/Appellant/Applicant either in the lower court or for that matter from this Honourable Appellate Court.
2. After the said order of the CONDITIONAL STAY of EXECUTION dated 27th November, 1998, of its earlier RULING dated 16th November, 1998 was made in FAVOUR OF THE Defendant/Appellant/Applicant; the Defendant/Appellant/Applicant had 15 (fifteen) days from that 27th November, 1998, it was dissatisfied with the said order of CONDITIONAL STAY of EXECUTION to make a SIMILAR APPLICATION to this Honourable Court for BETTER and more FAVOURABLE TERMS rather than file its FUNDAMENTALLY DEFECTIVE and INCURABLY INCOMPETENT MOTION for STAY of EXECUTION dated 1st of December, 1998. When the lower court had become FUNCTUS OFFICIO since 27th November, 1998, after its said RULING of the same date.
3. In view of the GROUND (2) SUPRA, this APPLICATION is HOPELESSLY OUT OF TIME and therefore in the ABSENCE of PRIOR LEAVE sought and obtained for EXTENSION of TIME as MONUMENTALLY INCOMPETENT and a FLAGRANT ABUSE of the PROCESS of this HONOURABLE COURT which is INCURABLY BAD.
4. The Defendant/Appellant/Applicant’s motion ought not be entertained by this Honourable Appellate Court while the Defendant/Appellant/Applicant is in CONTEMPT SUBSISTING and/or VALID ORDERS of the HONOURABLE lower court made in FAVOUR of the Defendant/Appellant/Applicant on the 27th November, 1998, varying its earlier ORDER made on the 16th November, 1998, both ORDERS having been EXHIBITED to the Defendant/Appellant/Applicant’s SUPPORTING AFFIDAVIT and marked as EXHIBITS “A” & “B” respectively.”

The Defendant/Appellant/Applicant, who are now the respondent in the preliminary objection did not file any document in respect of the objection. Moving the preliminary objection on 19/4/99 Mr. O. M. Odje, learned counsel for the plaintiff/respondent/respondent, commenced his submission, by informing the court that the plaintiff/respondent/respondent, is raising a preliminary objection to the hearing of the Defendant/Appellant/Applicant’s application because the appeal on which it is based is incompetent. He informed the court that on 16/11/98, Warri High Court, ordered the appellant (applicant) to deposit $1.8 Million U.S. Dollars as security for costs to abide by the eventual judgment of court, having been satisfied that defendant was about to abscond from the jurisdiction of the court. Learned counsel for the respondent, further stated that the applicant was dissatisfied with the decision contained in Exhibit “B” so he filed his Notice of appeal Exhibit “C” on 31/11/98, which the learned counsel for respondent, described as “a purported appeal”. That the applicant filed a motion for stay of execution and leave to appeal against its ruling of the 16/11/98. In its order granting conditional stay ordered the applicants to deposit $1.2 Million U.S. Dollars pending the determination of the appeal. The learned counsel submitted that the order of the trial court granting conditional stay is not appealable, contending that what the applicant should do is to come to this Court for better conditions instead of appealing against the order.

In support of his submission, learned counsel referred the court to the case of U.B.N. v. Fajebe Foods (1994) 5 NWLR (Pt.344) 325 at 352. On his 2nd ground of objection, learned counsel for the respondent, submitted that the applicant being in contempt of the lower court by refusing to comply with the order of the lower court cannot be heard on this application for stay, citing Elf Marketing (Nig.) Ltd. v. Oyeneyin and Sons Ltd. (1995) 7 NWLR (Pt.407) 371 at 379, Lawal Osula v. Lawal Osula (1995) 3 NWLR (Pt.382) 128 at 132-134 and Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt.412) 129 at 132-134. In support of his submission to the said ground of objection. The 3rd ground of objection of the respondent is that the grounds of appeal on the Notice of Appeal are grounds of facts or mixed law and facts for which leave to appeal is required.

Learned counsel for the respondent, pointed out that by virtue of the provisions of Section 25 of the Court of Appeal Act, an appeal must be filed within 14 days and referred the court to the case of Consolidated Oil (Nig.) Ltd. v. Sumeroidd (Nig.) Ltd. (1998) 8 NWLR (Pt.561) 184 at 191 – 192.

Learned counsel for the respondent concluded by urging the court to hold that there is no valid appeal, uphold his preliminary objection and strike out the application.

Respondent, Okpoko, learned Senior Advocate of Nigeria, for the defendant/appellant/applicant, submitted that the objection on the three grounds lack merit and ought to be overruled. He said Exhibit “8”, attached to the application is the ruling of the lower court of 27/11/98, That the ruling embodied the decision of the court against which the applicant is entitled to appeal, under section 220 of the 1979 of the Constitution, Learned Senior Advocate further submitted that the contention of the learned counsel for the respondent that the applicant ought to have come to this Court under Order 3, rule 3 of the Rules of this Court is not correct and read out the provisions of Order 3 rule 1(3). He pointed out that “refusal” is a condition precedent under Order 3 rule 3(3) for coming before the Court of Appeal within 15 days of the refusal and referred the court to page 7 of the ruling Exhibit “B”. Learned Senior Advocate, argued that Order 3 rule 3(3) does not apply to the present case. He pointed out that the amount being deposited is not a judgment debt but amount to be deposited as security for costs. That the application was granted conditionally. He said the decision of the lower court granting conditional stay of the order is a decision as defined under section 277 of the Constitution of the Federal Republic of Nigeria. Learned senior counsel said, the order that payment of deposit of 1.2 million dollars to be paid within 2 days is also a decision of the court and that part of order being a decision, the applicant has the right to Appeal against it. He explained that in this case the appellant has appealed by his Notice of Appeal Exhibit “D” and having appealed the applicant has the right to apply for stay of the order of the lower court. He further submitted that since the lower court has refused the application, the applicant is before this Court by virtue of Order 3 rule 3(3) of the Rules of this Court. Learned Senior Advocate contended that the two grounds of appeal are grounds of law which do not require leave and nothing about nullity was contained in the two grounds of appeal.

The learned Senior Advocate submitted on the grounds of appeal that the fact that the respondent conceded that the grounds of appeal are grounds of fact or mixed law and facts means that the right of appeal has been conceded. He said the record shows clearly that the parties were not heard on the orders made by the lower court and they are not the orders sought by the applicant. Learned Senior Advocate contended that by virtue of the provision of Section 220(1)(b)(c) of 1979 Constitution, the applicant has the right of appeal as of right and referred the court to the case of Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744, Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484. On the ground of contempt, learned Senior Advocate submitted that applicant does not have to comply with the order of the lower court before coming to the Court of Appeal on appeal asking for stay and referred the court to the cases of Rastico Nig. Ltd. v. Societe Generale De Surveillance (1990) 6 NWLR (Pt.158) 608 at 615 – 616; Incar (Nig.) Plc. & Anor v. Bolex Enterprises Nig. Ltd. (1996) 6 NWLR (Pt.454) 318. He finally urged the court to dismiss the preliminary objection. I think it is trite law that Rules of court are Rules of procedure. They do not by themselves and of themselves alone confer jurisdiction. They merely regulate the exercise of a jurisdiction conferred aliunde. This point was clearly brought out by Brett, F. J. in Ogunremi & Another v. Adeniyi Dada: Asiyanbi & Others (1962) 2 SCNLR 417; (1962) 1 All NLR 663 at 671. See also Brett, M. R. in Cropper v. Smith (1883) 24 Ch. D. 305. Now the jurisdiction – the legal capacity or legal jurisdiction – to grant leave to appeal on grounds of fact or mixed law and fact was conferred on the Court of Appeal not by Supreme Court Rules 1985 but by Section 213(3) of the Constitution as amended, I must have recourse to section 220(1)(b)(c) of the 1979 Constitution of the Federal Republic of Nigeria relied upon by the learned Senior Advocate of Nigeria, which he submitted gives the applicant the right to appeal against the ruling of the court delivered on 27/11/98 granting the applicant a conditional stay of execution being a final decision. The section reads:-

“Section 220(1) An appeal shall lie from decisions of a High Court to the Federal Court of Appeal as of right in following cases –

(a) a final decisions in any civil or criminal proceedings before the High Court sitting at first instance;

(b) where the ground of appeal involves questions of law alone, decisions in civil or criminal proceedings;