The Honourable Femi Gbajabiamila V. The Central Bank Of The Federal Republic Of Nigeria & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The appeal complains about the decision of the Federal High Court sitting in Lagos (the court below) by which it struck out the originating summons filed by the appellant against the respondents on the grounds sponsored by the 1st – 2nd respondents on a preliminary objection that the originating summons had no affidavit to support it as the paragraphs of the affidavit that accompanied it were defective and were struck out together with the originating summons.

The pith of the dispute that brought about the filing of the originating summons at the court below was that the 1st respondent in the course of auditing under capitalized banks which financially were impaired and required to be revamped therefore the 1st respondent decided to infuse N620 billion naira into the ailing banks to keep them financially afloat and avert their collapse.

The appellant, an honourable member of the Federal House of Representatives representing the Surulere 1 Constituency of Lagos State and also the Minority Whip in the Federal House of Representatives launched the originating summons action on 13.10.2009 at the court below seeking declaratory and injunctive reliefs against the 1st respondent from disbursing the N620 billion on the main plank that the 1st respondent did not obtain the approval of the National Assembly by way of Appropriation for using the public funds of N620 billion for bail out of the affected ailing banks.

The court below held that the appellant as an honourable member of the National Assembly had the locus standing to bring the originating summons; but that as the paragraphs 5 – 14 of the affidavit that should

have supported the originating summons were defective and had been struck out by the court below, the originating summons had no legs to stand on. Consequently, the court below struck out the originating summons. Concerning the preliminary objection to the remaining issues the court below held that it was taken care of by the ruling on the incompetence of the suit and that the applicant’s interlocutory injunction could no longer call for determination on account of the striking out of the action.

Unhappy with the ruling of the court below striking out the originating summons, the appellant filed a notice of appeal containing six (6) grounds of appeal on 17.5.2010. A brief of argument was filed on 22.10.10 by the appellant.

At the hearing of the appeal, the 1st respondent moved its preliminary objection to grounds 1, 2 and 6 of the notice of appeal filed on 27.4.11. The 1st respondent adopted the arguments for the preliminary objection in pages 1 – 9 of the 1st respondent’s brief of argument filed on 31.3.2011 but deemed properly filed on 21.3.2012 to the effect that ground 1 of the notice of appeal on Order 16 of the Federal High Court (Civil procedure) Rules, 2009 (the Rules of the court below) was nor raised in argument in the preliminary objection at the court below, not did the court below rule on it, so it did not arise from the ruling of the court below and should be struck out together with issue 3 of the appellant’s issues for determination citing in support the cases of Nwankwo v. E.D.C.S.U.A (2007) 5 NWLR (Pt.1027) 377 at 395, Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 183 – 184, UBA Plc v. BTL Ind. Ltd. (2006) 19 NWLR (Pt.1013) 61 at 107, Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (pt. 326) 252 at 261, Akpan v. Bob (2010) 5 – 7 MJSC (Pt.111) 42 at 72, Agbaka v. Amadi (1998) 11 NWLR (Pt.572) 16 at 24 and Nwachukwu v. State (2007) 17 NWLR (Pt.1062) 31 at 61 – 62.

The preliminary objection attacked ground 2 of the notice of appeal on the premise that the particulars do not flow from nor relate to the ground of appeal and should be struck out along with issues 1, 2 and 3 of the appellant’s issues for determination citing in support the cases of Honika sawmill (Nig) Ltd. v. Hoff (supra), Laah v. Opaluwa (2004) 9 NWLR (1978) 558 at 569 – 570, Nwachukwu v. state (supra), Korede v. Adedokun (2001) 15 NWLR (Pt.236) 483 at 500.

The complaint on the appellant’s ground 6 of the notice of appeal hinged on the issue that the particulars 6.1, 6.2, 6.5 and 6.6. thereof do not have nexus with the ground of appeal and should be struck out together with issue 4 of the appellant’s issues for determination ties to it citing in support Honika Sawmill (Nig) Ltd. v. Hoff (supra), Laah v. Opaluwa (supra) and Nwachukwu v. State (supra).

The 1st respondent concluded by urging for the appellant’s brief as well as the appeal itself to be struck out as issues 1, 2, 3, 4 and 5 thereof are not covered with competent grounds of appeal citing in support the cases of Adehi v. Atega (1995) 5 NWLR (Pt.398) 656 at 666 – 667.

The appellant reacted to the preliminary objection in a reply brief filed on 27.3.12 but deemed properly filed on 15.10.12 in which it was argued that the 1st respondent introduced the issue of Order 16 of the Rules of the court below in the preliminary objection it took at the court below and the issue affected the competence of the court below to take the preliminary objection when the respondents did not file defence to the action. Anwadike v. Administrator-General, Anambra State (1997) 7 NWLR (Pt.460) 315 at 332 on the need to obey rules of court, Madokolu v. Nkemdilim (1962) 1 All NLR 587 at 589 on the competence of the preliminary objection, Disu v. Ajilowura (2006) 14 NWLR (1000) 783 at 809 and Tabiowo v. Disu (2008) 7 NWLR (Pt.1087) 533 at 550. On the impropriety of raising an issue of locus standing without filing defence to an action where it should be raised; and that even if Order 16 is a fresh issue, being an issue of jurisdiction it may be raised and argued for the first time on appeal without the leave of the court vide Obiakor v. State (2012) 10 NWLR (Pt.776) 612 at 626 and 627 and Uor v. Loko (1988) 2 NWLR (Pt.77) 430.

The appellant further replied that a cursory look at ground 4 of the notice of appeal reveals that the particulars thereof flow from the ground of appeal, or that, in the alternative, only the particulars that do not tally with the ground of appeal should be struck down in the spirit of substantial justice vide Ushie v. Edet (2010) 6 NWLR (pt. 1190) 386 at 402, Adekeye v. Adesina (2010) 18 NWLR (pt.1225) 449 AT 472, Ozigbo v. P.D.P. (2010) 1 NWLR (Pt.1200) 601 at 631, Akpan v. Bob (2010) 17 NWLR (Pt.1223) 421 at 516 – 517.

The appellant finally urged that issues 1, 2, 3, 4, and 5 of the appellant’s brief and grounds 1, 4, and 6 of the notice of appeal are competent and should not be struck out.