In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
Before Their Lordships
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYAJustice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBUJustice of The Court of Appeal of Nigeria
ACCESS BANK PLCAppellant(s)
(Trading under the name & style of Tonyfon Ventures)Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Uyo delivered on 29th day of July, 2015 by Hon. Justice Augustine D. Odokwo wherein the lower Court ordered the appellant to produce all books of account and documents relating to or pertaining to the overdraft facility granted the respondent by the appellant for a proper account to be taken.
The respondent as plaintiff before the lower Court commenced a civil action against the appellant (then Intercontinental Bank Plc) seeking for declaratory and injunctive reliefs as follows:-
(a) A declaration that the plaintiff does not owe the Defendant the sum of N3,418,000.00 claimed by the Defendant as the outstanding overdraft indebtedness of the plaintiff to the defendant.
(b) A declaration that the defendants claim of N3,418,000.00 from the plaintiff is outrageous and in total negation of the approved guidelines of Central Bank of Nigeria on permissible charges by commercial banks in Nigeria on loans and overdraft.
(c) An order directing the Defendant to submit to the Court all books of account and documents relating or pertaining to the overdraft facility granted the plaintiff by the defendant for a proper account to be taken and
(d) A perpetual injunction restraining the defendant, her agents and privies from selling the plaintiffs property described as No 13, Ntido Street Uyo, being the subject matter of certificate of occupancy No/UY/3708 2002 except as directed by the Court.
Pleadings were filed and exchanged. At the end of the trial, learned trial judge found inter alia at page
250 of the record of appeal as follows:-
The claimant states his indebtedness to the defendant is N3,000,000.00, the defendant is demanding for N3,418,000.00. The only issue in controversy therefore is the exact amount the claimant owes the defendant. This is the gravamen of the case of the claimant. What then is the solution to the seeming controversy in the circumstance? This Court has powers to order for an account in the circumstance of this case by invoking and I so invoke the provisions of Order 27 of the High Court Civil Procedure Rules of Akwa Ibom State 2009.
That being the case, the justice of this case enjoins the defendant who has custody of the records of account of the claimant as a customer to the defendant, to reconcile the overdraft facility account with the claimant so that the exact indebtedness of the claimant can be known and I so hold.
Being dissatisfied, appellant appealed to this Court by filing a notice of appeal on 21/10/2015. The said notice of appeal contains three grounds of appeal.
Parties filed and exchanged briefs. Appellant formulated a lone issue as follows:-
Whether the pronouncement in the judgment that the Appellant should submit the Books of account and other documents relating or pertaining to the overdraft facility granted the respondent by the appellant was not an order made beyond the jurisdiction of the lower Court, parties having not made the issue subject of determination by the Court.
The respondent has adopted the appellant lone issue. In addition, the respondent raised a preliminary objection challenging the grounds of appeal and the issue formulated therefrom.
Arguing the lone issue, learned counsel for the appellant, Edidiong Akpanuwa, Esq. contended that there is nowhere in the respondents pleadings where it was pleaded that the appellant should submit all books of account, and documents relating to the respondents overdraft in the appellant. He submitted that having not pleaded facts touching on or relating to the said books of account and documents, the respondent cannot rely on the relief to secure judgment on the issue of books of account relating to or pertaining to the overdraft advanced to him by the appellant.He referred to JEKPE & ORS V ALOKWE & ORS (2007) 19 WRN 105 at 122 to the effect that evidence must be led to support the averment in a statement of claim.
Still in argument, learned counsel submitted that Order 27 of the High Court Civil Procedure Rules of Akwa Ibom State being relied upon by the trial Court is untenable as same is incapable of making that aspect of the judgment enforceable. Order 27 of the extant rules only relates to issue of inquiries, accounts and references to referees.
He submitted further that by this order in the judgment under appeal, the trial judge gave to the respondent what he did not claim from the Court. He referred to EKPENYONG V NYONG (1975) 2 SC 71.
It was finally submitted on behalf of the appellant that having delivered judgment on the case presented by the respondent; the Court had no legal power to order the appellant to present document before it as it was functus officio. In aid, learned counsel relied on the authorities in the cases of WIMPEY LTD V BALOGUN (1986) 3 NWLR (pt 28) 324, EDEM V AKAMKPA LOCAL GOVERNMENT (2000) 3 NWLR (pt 651) 70 and AYOADE V SPRING BANK PLC (2014) 4 NWLR (pt 1396 93 at 132. He also referred to the cases of UBN PLC V EDAMKUE (2004) 4 NWLR (pt 863) 221 and BENAPLASTIC IND. LTD V VASILYEV (1999) 10 NWLR
(pt 624) 620 in submitting that the order of the trial judge in the circumstance amounted to an abuse of court process.
I have stated that the respondent has also filed a Notice of Preliminary objection and the grounds of which are produced hereunder as follows:-
(a) That the prior leave of either the High Court nor the Court of Appeal was not obtained before the filing of the notice of appeal.
(b) That the said notice and grounds of appeal is fundamentally defective and incompetent in the absence of leave to appeal in that all the grounds of appeal therein are either mixed law and fact or facts.
(c) That the appellant fails to comply with Order 8 Rules 1 and 4, Order 18 Rule 2 of the Court of Appeal Rules 2011.
Arguing the notice of preliminary objection, learned counsel for the respondent Akanimo E. Hanson Esq. argued that when one examine the grounds of appeal and their respective particulars, they all question the evaluation of the facts and evidence by the lower Court. He therefore submitted that where the grounds of appeal raises issues of mixed law and facts, the leave of Court must be sought and obtained. And the failure to obtain leave is a substantial irregularity which affects the props and foundation of the appeal. He referred to ANUKAM V ANUKAM (2008) 1 2 SC 34 at 36, GARUBA V OMOKHODON (2011) 15 NWLR (pt 1269) 146 AFRIBANK V AKWARA (2006) 136 LRCN 1258 and OLATUBOSUN V TEXACO (NIG) PLC (2012) 14 NWLR (pt 1319) 200.
On the formulation of issue for determination, learned counsel contended that no issue was formulated from ground (a) which complains that the judgment is against the weight of evidence. He referred to MOGAJI V ODOFIN (1978)1 LNR 212.
In further contention, learned counsel argued that grounds (b) and (c) of the appellants grounds of appeal do not raise the issue of jurisdiction of the lower Court as same, must be pointly raised in the ground of appeal to formulate issue therefrom. He submitted that any ground of appeal from which no issue is distilled and which no argument is canvassed, shall be deemed abandoned. He referred to IYOHO V EFFIONG (2007) 11 NWLR (pt 1004) 31 and EFCC V AKINGBOLA (2015) 11 NWLR (pt 1470) 249 at 301.
It was finally argued that ground (b) is a mere declaration and order made by the lower Court and being a repeatition and or quotation of a passage of the judgment contravenes the requirement of precision in Order 6 Rule 2 (2) and (3) of the Court of Appeal Rules.
On the main appeal, learned respondents counsel referred to the averments in paragraphs 2, 3, 8, 9 and 10 of the amended statement of claim in contending that same disclosed reasonable cause of action which grounded the relief granted by the lower Court. He therefore submitted that in considering whether a Court has jurisdiction to entertain a matter or make an order therefrom, the Court is guided by critically looking at the Writ of Summons and the statement of claim. He referred to GAFAR V GOVERNMENT OF KWARA STATE (2007) ALL FWLR (pt 360) 1415, COTECNA INTL LTD V CHURCHGATE (NIG) LTD (2011) ALL FWLR (pt 575) 252 and LUFTHANSA AIRLINES V ODIESE (2006) 7 NWLR (pt 978) 34.
The respondent also argued that there is no ground of appeal on the applicability of Order 27 of the High Court Civil Procedure Rules of Akwa Ibom State and equally too, the issue for determination does not capture the said Order 27. He referred to JALLCO LTD V OWONIBOYS TECH SERVICES LTD (1995) 4 NWLR (pt 391) 531 and ISIAKA V AMOSUN (2016) 9 NWLR (pt 1518) 417 at 435.
It was finally submitted that the empowerment or use of judicial process is only regarded as an abuse when a party improperly uses the issue of juridical process to the irritation and annoyance of his opponent. That the order of the trial Court directing the appellant to submit books of account cannot be an abuse of Court process same having been canvassed by the parties.
In his reply brief, learned appellants counsel submitted that the lone issue formulated by the appellant flows from the grounds of appeal. And in order to ascertain the complaint of the appellant in the ground(s) of appeal, the Court must consider the particulars in support of such ground(s). He referred to SPLINTERS (NIG) LTD V OASIS FINANCE LTD (2013) 18 NWLR (pt 1385) 188.
Still in argument, learned counsel submitted that where a trial court on its own pronounced on issue not canvassed and without inviting parties to address it, such findings was without the jurisdiction of the Court. That even where a ground of appeal is defective in form, it would not be struck out in the interest of justice.
Turning to the respondents preliminary objection, the appellants grounds of appeal was attacked on many fronts, the first being the failure of the appellant to seek and obtain leave of either this Court or the lower Court. Learned counsel for the respondent had contended that the said grounds raises issues of mixed law and fact.
The important consideration in the determination of the nature of a ground of appeal is not the form of the ground but the question it raises.
In OGBECHIE V ONOCHIE & ORS (1986) 2 NWLR (pt 23) 484 Kayode ESO, JSC said at pages 491 492:-
There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see
whether the grounds reveal misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.
The Supreme Court in EKUNOLA V CBN (2013)15 NWLR (pt 1377) 224 at 260 has held that in determining whether a ground of appeal is one of law or of facts or of mixed law and facts, the substantive ground of every ground of appeal has to be read and considered conjointly with their respective particulars of error to ascertain the real issue or complaint as encompassed in the said ground. In other words, the Court is not to place undue reliance or emphasis on the form or in the manner the ground is couched as the gravamen or form of a ground of appeal for purpose of determining whether a ground is a ground of law or mixed law and facts or facts alone goes beyond the mere words used in concluding or prefixing the grounds to the more serious question of identifying the real issue or the core of the complaint as encompassed in the ground.
In the light of the above, I will now proceed to examine the appellants ground of appeal which are reproduced hereunder as follows:-
(a) The judgment is against the weight of evidence.
(b) ERROR IN LAW
The learned trial judge erred in law by ordering at final judgment that the Appellant should submit to Court books of account and document relating to or pertaining to the overdraft facility granted the respondent for proper account to be taken.
PARTICULARS OF ERROR
i. Having delivered judgment in the matter presented by parties, the Court lacked jurisdiction to have made an order directing at re-opening the case.
ii. The Court became funtus officio on delivering its judgment.
iii. An order directed to the appellant to produce document for further consideration by the Court was an order made to re-open the case.
iv. Decision of Court touching on production of books of account was not founded on law and evidence.
(C) ERROR IN LAW
Order of the learned trial judge that document not pleaded be produced after judgment of Court had been delivered was vague and incapable of being enforced.
PARTICULARS OF ERROR
i. Parties did not join issue on documents ordered to be produced by the appellant, yet the Court made order for their production.
ii. Order of Court must flow from pleadings and evidence tendered by parties.
iii. An Order of Court must be devoid of vagueness.
iv. A vague order or any order of Court remains valid and binding until set aside.
In this case, it is evident that in grounds (b) and (c), the appellant is questioning the evaluation of facts by the lower Court in arriving at its decision in making the said order. Where ground raises a complaint or real issue is founded on disputed or unascertained facts then it is a ground of mixed law and fact requiring leave of the Court pursuant to Section 242 (1), of the 1999) Constitution as amended.
The next germane issue is whether or not the decision on appeal is a final decision in which leave of Court is not required. The provisions of Section 241 (1) (a) of the Constitution states:-
(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court sitting at first instance.
Thus, by virtue of the above, leave of Court is not required irrespective of the nature of the ground (s) once an appeal is against a final decision of the High Court sitting at first instance.
Also in determining whether an order is final or interlocutory, what should be considered is what effect the order appealed against has on the rights of the parties. If the order determines finally the rights of the parties then it is a final order. If not, it is an interlocutory order. However, to determine whether the decision of Court is final or interlocutory, this must be related to the lis inter partes and confined to the function of the Court. The respondent complaint against the appellant at the lower Court was the arbitrary charges on the overdraft facility advanced to him by the appellant. The lower Court having found that the claimant has failed to show the arbitrariness of the interest rate charged by the appellant, the said decision in my humble view has finally determined the rights of the parties. Thus a final order which is appealable without leave pursuant to Section 241 (1) (a) of the Constitution. See AYU V MADUGU (1991) 2 NWLR (pt 92), OLATUNDE V O.A.U (1998) 4 SC 91 at 95 and ORGAN V N.L.N.G LTD (2013) 16 NWLR (pt 1381) 506.
Learned counsel for the respondent also faulted the formulation of the lone issue by the appellant contending that same was not distilled from any of the grounds of appeal.
An issue in an appeal must be a preposition of law or fact so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court. The object of formulating an issue for determination is therefore to fix and delimit question to be decided by the appellate Court. Also in formulating issues for determination in an appeal, counsels are only
confined within the parameters of appeal filed.
I have reproduced both the grounds of appeal and the lone issue distilled therefrom. From the grounds of appeal as stated earlier the part of the judgment complained of and the particulars of error are not out of line. It can be seen that the question raised in the appellants lone issue flows from ground (b) and (c) of the notice of appeal, though it was not so specifically stated. The respondent is not misled or misdirected, neither did he not know what he was called upon to defend.
The appellant in my view could not be penalized for inadvertence or clear mistake of counsel in failing to indicate the grounds from which he formulated the issue. Once the appellants issue relates to even a single ground of appeal, is simple and direct, to the point and clearly reveals the real grievance of the appellant, it should be considered by the appellate Court for determining the appeal. See DANIEL V INEC (2015) 9 NWLR (pt 1463) 113.
The respondents preliminary objection has therefore failed and is accordingly overruled.
On the substantive appeal, the main contention is whether the lower Court can grant relief to wit, directing the appellant to submit to Court all books of account and documents relating or pertaining to the overdraft facility after it has already delivered its judgment.
I have already set out the respondents claim before the lower Court and same include an order directing the appellant to submit to the Court all books of account and documents relating or pertaining to the overdraft facility granted the respondent for proper account to be taken.
The trial Court has found as a fact that having examined the statement of claim and the evidence of the respondent as claimant, the respondent has not prove his indebtedness to the appellant but went further to direct the production of the books of account in order to reconcile the overdraft facility account with a view of knowing the exact indebtedness.
It is trite that the Court does not grant to a party, orders which the party did not seek from the Court. And for a party to be awarded any relief by a Court of law that party must not only plead with particularity but also proved by credible and convincing evidence that he is indeed entitled to the relief he is seeking. See UNIJOS V IKEGWUOHA (2013) 9 NWLR (pt 1360) 478.
All the vital facts regarding production of books of account and other documents by the respondents must not be vague and lacking in particulars and same must be proved by evidence. The respondents principal order sought in the suit having been refused by the lower Court, no incidental order can be granted. It is also settled that neither the trial nor the appellate Court has an omnipotent authority to make order. Therefore, the Court acts within the limits of its powers and the powers do not include for instance, assuming and declining jurisdiction in the same case or to reverse itself as if sitting on appeal over its judgment.
In this case, the lower Court after finding that the respondent has not established his claim, cannot afterwords, order for production of books of account as if it was going to start the suit all over again. The lower Court having delivered its judgment, it becomes functus officio. I completely agree with the appellants submission that the lower Courts order directing the production of books of account was vague and unenforceable. The lone issue is accordingly resolved in favour of the appellant.
In the final analysis, the appeal succeeds and it is hereby ordered that the order of the lower Court directing the appellant to produce books of account and other documents relating to or pertaining to the overdraft facility granted the respondent is hereby set aside.
I however make no order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading the draft of the judgment delivered by my learned brother M. L. Shuaibu, JCA I also agree that the appeal be allowed.
I abide by the consequential orders.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in draft, the concise leading judgment delivered by my learned brother: Muhammed L. Shuaibu, J.C.A. I am in total agreement with the reasoning and conclusion of the well-articulated judgment. I, too, allow the appeal. I abide by the consequential orders decreed in the leading judgment.
Edidiong Akpanuwa.For Appellant
Respondent’s counsel was served on 10/12/2018 through phone call.For Respondent.