Union Bank Of Nigeria Plc V. Mr. Olusoji Sogunro (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

This is an appeal against the decision of the Court of Appeal, Lagos Division delivered on 14th February, 2001 whereby it struck out the appellant’s appeal on the ground that it is incompetent as leave was neither sought by the appellant nor granted/obtained before the said appeal was filed. Dissatisfied with the said decision, the appellant has appealed to this court on three (3) grounds of appeal. Without their particulars, they read as follows:

Ground One

“The Court of Appeal erred in law in striking out the appellant’s appeal on the basis of the 1st respondent’s objection without considering the appellant’s counsel’s arguments on the objection as canvassed on 22-11-2000”.

Ground Two

The Court of Appeal erred in law when it held per AMIRU SANUSI, J.C.A. as follows:

“From the facts of the instant case, it is not in dispute that this appeal is on interlocutory matter since it is not on final judgment of the court. It is trite law that an appeal against a decision of High Court on interlocutory matters lies in the Court of Appeal as of right where it relates to question of law. But where the appeal is on the ground other than that of law, only then, prior leave of the High Court or the Court of Appeal must be sought and obtained. Failure to obtain such leave would render the appeal incompetent (sic) (see sectian 221) (1) of the 1999 Constitution. See also Akwuwu Motors Ltd. v. Sangonuga (1984) 5 SC 184; Anaghelu v. Oraelosi (supra). Nwosu v. Offor (supra). It is equally clear from the fact of this case that the appellant in this case did not seek for and obtain leave of the lower court or this court before bringing this appeal which as I said is on an interlocutory matter. Thus, in the light of all that I have said above.

I see merit in the first leg of the preliminary objection. I therefore uphold the 1st leg of the respondent’s objection. I, as such, hold that the appellant’s failure to obtain leave from either the lower court or this court renders the appeal incompetent. I therefore uphold the objection and strike out the appeal.”

Ground Three

The Court of Appeal erred in law when it held per AMURT SANUSI, J.C.A. as follows:

“Having so hold (sic) I do not see any use in dealing with the issues for determination raised by the appellant in the appeal. I therefore hereby strike out the appeal with N5,000.00 cost against the appellant in favour of the respondent.” The facts of the case briefly stated are that the 1st respondent was an employee of the appellant. Allegations of financial misappropriation and/or improper and unapproved grant of overdraft facilities to some named customers at the Branch where the 1st respondent worked were made. The 1st respondent who was on leave was recalled to appear and answer questions from the Auditors of the appellant. He duly attended and after hearing from him he was later interdicted and placed on suspension during which period he was asked to report to the Police – i.e. the 2nd respondent. On the strength of the allegations, the Police detained the 1st respondent in the course of their investigation. Eventually, the police found the said allegations against the 1st respondent not substantiated Whether an appeal against the decision of a High Court granting leave to enforce the fundamental right to personal liberty is as of right or must be with leave under the 1999 Constitution.

Whether the 1st respondent’s action in the High Court of Lagos State would not have been liable to be struck out if the court below had considered the merits of the appeal before it. On its part, the 20th and 3rd respondents formulated also two (2) issues for determination, namely,

“1. Whether the sole ground of appeal at the court below was of mixed law and fact such as to require the leave of that court or of the trial court for the appeal which was an interlocutory appeal to be competent. Whether the court below was duty bound to pronounce on all issues raised in the substantive appeal after upholding the preliminary objection to the competence of the appeal before it.” I note that the subject-matter of the application to enforce an alleged fundamental right is strictly one of master and servant. But and in consequence, released him.

On his release, the 1st respondent took out an originating motion ex-parte at the High Court of Lagos seeking the leave of that court to enforce his fundamental right to personal liberty. On 18th October, 1999, that court granted leave to him to apply to enforce his said fundamental right. The appellant, dissatisfied with the said grant or decision, appealed to the Court of Appeal (hereinafter called “the court below”) on a lone ground of appeal. Briefs were filed and exchanged. In the 1st respondent’s brief, he raised and argued a preliminary objection as to the competence of the appeal on the ground that the said one ground of appeal having regard to the “particulars of error” was one of mixed law and fact. That since no prior leave of the court was neither sought nor obtained, the court below was urged by the 1st respondent to strike out the appeal. After hearing the learned counsel for the parties on 22nd November, 2000, the court below in its said judgment upheld the preliminary objection and accordingly struck out the appeal of the appellant. It is against that decision that the appellant has appealed to this court.