Onward Entreprises Ltd V. M. V Matrix & Ors (2022)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the Federal High Court, holden at Lagos, the appellant, by way of Writ of Summons, sought to enforce a contract of affreightment dated March 25, 2002, against the respondents. By its Amended Statement of Claim, the appellant claimed as follows:
Whereupon the plaintiff claims as endorsees the sum of US$650,000 only or its equivalent in Naira with interest at 21% per annum until payment, being damages suffered by the plaintiff by reason of the defendant’s breach of contract of affreightment and/or bailment and by reason of the defendants’ negligence in their care of the plaintiff’s cargo of rice, as well as Admiralty costs and legal expenses.
The matter proceeded to the trial stage. At the trial, the appellant also filed a motion-exparte, for the arrest and detention of the first respondent and same was granted. The respondents, in turn, filed two (2) applications: one for the release of the respondents’ vessel, and the other sought to shift the vessel to anchorage, pending the hearing of the former for release. Both processes were filed on June 15, 2002. The appellant consented to the release of the respondents’ vessel and filed a consent to release on July 26, 2002.
During the course of the proceedings, the respondents filed a motion for stay of proceedings on July 11, 2003, pending reference to arbitration in London. The motion was supported by affidavits. In response, a Counter-affidavit, in opposition to the application, was filed by the appellant.
The trial Court, in its ruling, delivered on August 11, 2004, found in favour of the respondents, granting their application for stay of proceedings and referred the parties to arbitration in London.
Dissatisfied with the trial Court’s ruling, the appellant appealed to the Court below via a Notice of Appeal containing two (2) grounds of appeal.
The lower Court, by its judgment delivered on June 27, 2008, upheld the ruling of the trial Court, and consequently dismissed the appeal.
The appellant being dissatisfied with the judgment of the lower Court, appealed to this Court via a Notice of Appeal. The said Notice of Appeal, at pages 310- 312 of the record of appeal, contains the following three grounds of appeal:
The learned Justices of the Court of Appeal mis-directed themselves when they applied the case of Sonnar (Nig) Ltd v Partenreederi M.S. Norwind Vol. 3 NSC 175 at 192, without correctly testing the facts of this case against the ratio.
The learned Justices of the Court of Appeal erred in law when they held at page 15 of their judgment that as rightly submitted by respondents’ counsel even if the claim to be submitted before the arbitrator is time barred the same provision i.e. Article 3 Rule 6 of The Hague/Visby Rules reproduced supra relied upon by the appellant allows for extension of time. Appellant is entitled to explore that opportunity.
- In the absence of evidence that time extension pursuant to Article 3 Rule 6 of The Hague/Visby Rules had been granted a claim cannot be validly submitted before the Arbitrator in London.
- There was no evidence before the Court that an extension of time had been granted.
- Under Clause 40 of the Charter party dated 7th March, 2002, the claim must have been made in writing and the Claimant’s application for arbitration made within 6 months of redelivery of the vessel.
- There is a distinction between the submission of the claim and the appointment of the Arbitrator.
- The appellant has by this decision been permanently deprived of a remedy in the London Arbitration proceedings because there was no evidence before the Court that Article 3 Rule 6 of The Hague/Visby Rules has been activated by the Respondents to grant time extension to the Appellant.
The learned Justices of the Court of Appeal erred in law when they held at page 19 of their judgment that in the instant case appellant who had the onus to advance compelling reason as to why this Court should interfere with the discretionary power of the trial judge had failed to do so.
There was un-controverted evidence before the Court that the claim was time barred in London.
RESOLUTION OF THE ISSUE
The Supreme Court, like other Courts of the land, is a creation of statute. A Court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. Any proceedings conducted without jurisdiction is a nullity, no matter how well- conducted or how sound the decision or orders made therein are, Madukolu v Nkemdilim  2 SCNLR 341, Bronik Motors Ltd and Anor v Wema Bank Ltd  1 SCNLR 296, Petrojessica Ent. Ltd v Leventis Tech Co. Ltd  5 NWLR (pt. 244) 675, Dapianlong v Dariye 4 SC (pt. III) 118, Attorney-General, Lagos State v Dosunmu  3 NWLR (pt. 111) 552, 567, N.C.C v Motophone Ltd  14 NWLR (pt. 1691) 1, Nzei v University of Nigeria, Nsukka  6 NWLR (pt. 1561) 300.
By virtue of Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court; where the Grounds of Appeal involve questions of law alone. Where the questions involve facts or mixed law and facts, the leave of this Court or the Court of Appeal must first be sought and obtained. Where leave is required and not obtained, the affected Grounds of Appeal would be incompetent and liable to be struck out, Utoo v A.P.C  12 NWLR (pt. 1634) 507; Allanah and Ors v Kpolokwu and Ors  LPELR- 40724 (SC); BASF (Nig.) Ltd v Faith Entreprises Ltd.  1 SC (pt. II) 186, 202 – 203; Nigeria National Supply Co. Ltd v Establishment of Sima of Vaduz  LPELR – 2004 (SC). It follows then that it is only through a competent appeal can the Court’s jurisdiction be invoked.
Admittedly, this Court has held in a plethora of cases that there is difficulty in distinguishing between a ground of law simpliciter and a ground of mixed law and fact, as there is a very thin line of disparity between both, Ogbechie v Onochie (No.1)  2 NWLR (pt. 23) 484, Nwadike and Ors v Ibekwe and Ors  LPELR-2087 (SC) 42-42 U.B.A Ltd v Stahibau GMBH and Co.  3 NWLR (pt. 110) 374, 391-392, Ajibade v Pedro  5 NWLR (pt. 241) 257, Obatoyinbo and Anor v Emmanuel Oshatoba and Anor  LPELR-2156 (SC).
In England, this difficulty was acknowledged as early as 1919, if not earlier, Clarke v Edingburgh, etc Tramways (1919) SC (H.L) 35, Currie v Inland Revenue Commissioners (1921) 2 KB 332, Cooper v Stubbs (1925) 2 KB 753, Benmax v Austin Motors Co., Ltd (1955) 1 All ER 326; Edwards (Inspector of Taxes) v Bairstows and Anor (1955) 3 All ER 48. This state of affairs prompted the very scintillating expose on the subject by C. T. Emery and Professor B. Smythe in their article titled, “Error of Law in Administrative Law,” in Law Quarterly Review, Vol. 100 (October, 1984).
Happily, however, this Court has ingeniously fashioned out guiding principles for navigating through the nuances of characterization of grounds of appeal. They include the following:
a. Where the ground of appeal complains of an error involving a misunderstanding or misapplication of the law to prove admitted facts, it is a ground of law;
b. A ground of appeal which complains of the lower Court’s exercise of its discretion necessarily involves the appellate Court’s consideration of the peculiar facts and circumstances upon which the discretion was exercised and so is one of facts. But where the ground complains of the lower Court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the wrong principle and therefore one of law alone;
c. A ground of appeal which complains of the lower Court’s evaluation of evidence and alleged insufficiency of the evidence, is one of facts or at best mixed law and facts.Where however, the ground of appeal does not complain about the evaluation but only about the inference to be drawn from the established or admitted facts, it is one of law. Similarly, where the ground of appeal alleged that there is no evidence upon which the lower Court could reach its decision, it is a ground of law.
d. Where the Court is being invited to investigate the existence or otherwise of certain facts upon which judgment was based, such a ground of appeal is a ground of mixed law and fact.
e. A ground of appeal which challenges the finding of fact made by the trial or lower Court or involves issues of law and fact can only be argued with the leave of the appellate Court.
f. Where the evaluation of facts established by the trial Court or lower Court before the law in respect thereof is applied is under attack or question, the ground of appeal is one of mixed law and facts.
g. Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact.
Enyibros Food Processing Company (Nig) Ltd and Anor v N.D.I.C and Anor  LPELR – 55330 (SC); Standard IBTC Bank v Longterm Global Capital Ltd and Anor  18 NWLR (pt. 1598) 431; F.B.N Plc v T.S. A Industries Ltd  15 NWLR (pt. 1216) 247; Maigoro v Garba  10 NWLR (pt. 624) 555; Motunwase v Sorungbe  5 NWLR (pt. 92) 90; Obatoyinbo v Oshatoba  5 NWLR (pt. 450) 531.
I earlier reproduced the three original grounds of appeal. On the face of the grounds in the notice of appeal before this Court, it is apparent that they are mainly based on fact or mixed law and facts, and not of law simpliciter.
A careful examination of ground 1 of the appellant’s grounds of appeal, in the absence of any particulars thereto accompanying it, reveals that the appellant herein is complaining about a misdirection.
Generally, a ground of appeal may be couched in such a way as to incorporate or contain particulars of error, without necessarily setting them out as usual under a separate heading of particulars, Nsirim v Nsirim  3 NWLR (pt. 138) 285; Global Trans. Oceanico SA v Free Ent (Nig,) Ltd  5 NWLR (pt. 706) 426. However, Order 8 Rule 2 (2) of the Supreme Court Rules mandates that if the grounds of appeal allege misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated. Failure to do comply renders such ground incompetent and liable to be struck out, National Investment Properties Co. Ltd v The Thompson Organisation Ltd and Ors  LPELR – 25547 (SC); MbaNta v Anigbo  7 SC 57, 63; Nsirim v Nsirim  21 NSCC (pt. 11) 302; Anadi v Okeli  All NLR 23; Military Administrator, Benue State v Ulegede  9 -10 SC 180; Adeleke v Asani and Anor  LPELR-115 (SC). Ground 1 constitutes an exception to that general rule. Ground 1 is a novel way of couching grounds of appeal of this nature and it should not be encouraged. It seems clear from the other grounds of appeal filed that learned counsel for the appellant properly filed other grounds of appeal with their particulars of error properly put in place. Ground 1 is accordingly struck out for non-compliance with the rules.
It is also manifest that ground 2 is too blatantly focused on finding of fact. In effect, ground 2 invites this Court to investigate the existence or otherwise of certain facts upon which the judgment of the Court below was based. Such a ground of appeal is a ground of mixed law and fact.
I have read and re-read ground 3 of the appellant’s grounds of appeal. I must confess that its true purport eludes me. It is, however, my respectful view that, at best, this ground may be classified as one of mixed law and fact.
Having now characterized the remaining two grounds of appeal, I am satisfied that, having not being grounds of law alone, they were filed in violation of Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the result, I hold that the remaining two grounds of appeal are incompetent, as the appropriate leave of Court required for their validity, was not obtained.
The fatality of the instant appeal is more glaring consequent upon the fact that only one issue for determination was formulated from the three grounds of appeal in the appellant’s brief of argument.
It follows then that the Notice of Appeal is incompetent for non-compliance with the rules, Irhabor v Ogaiamien  8 NWLR (pt. 616) 517, Asogwa v P.D.P  7 NWLR (pt. 1353) 207, Igwe v Kalu  5 NWLR (pt. 761) 678.
Courts do not condone illegality no matter who is involved by. This appeal was heard on January 25, 2022. The appellant adopted the Amended Brief of Argument filed on December 7, 2020. The appellant alleged that leave was sought to file a purported Amended Notice of Appeal from which the issue for determination was distilled. There is no evidence before this Court that leave was granted to amend this purported Amended Notice of Appeal. The said amended Notice of Appeal contains the three grounds of appeal ipssissimaverba with the offensive three grounds of appeal in the original Notice of Appeal. The purported amendment was procured by a fraudulent hoax played on this Court.
The law is settled that an appeal is incompetent by reason of its being invalid. An appeal that is void ab initio cannot be regularized. It cannot be saved by a purported amendment that is a sham as the instant appeal is, Aderibigbe v Abidoye  LPELR-140 (SC); Atuyeye v Ashamu  1 NWLR (pt. 49) 267; Nsirim v Nsirim (supra). Both the original and purported amended notice of appeal have, each, a common fundamental feature of deficiency.
The lesson should be that, in conceiving a suit or an appeal, adequate care should be taken by counsel to ensure that the suit or appeal does not raise any issue of incompetency of the Court. Where counsel is un- surefooted, he or she could apply for leave to do so for abundans cautela non nocet – abundant or sufficient caution does no harm, F.B.N Plc v T.S.A Industries Ltd  15 NWLR (pt. 126) 247, 292.
In the final analysis, all I have laboured to say above is that this appeal is incompetent and is hereby struck out.