The Ground of Appeal that Needs not Arise from the Decision of the Lower Court

 Most times when we are confronted with this rather knotty area of law, the conclusion is quite straight forward. It goes thus: "The Ground of Appeal is incompetent, having not arose from the decision of the Lower Court." This position is replete from decisions of our courts and it is in keeping with another similar principle of law that a party should not be allowed to change his case on appeal. The case must be the same. Otherwise, litigants would clearly turn courts to play grounds where theories and fantasies could be entertained.

More often than not however, and under the particular instance that I wish to restate in this post, that salient position might not be regarded as an altruism. The Rules of Court in clear terms do not restrict the Court to a particular number of Grounds of Appeal, as the Courts are allowed to raise such grounds in resolving an appeal. This is also clearly made not to stifle or bind the hands of the court and prevent it from doing justice. However, courts seldom make recourse to this principle. The one stated above remains sacrosanct and almost like they say, the rock of Gibraltar.

Perhaps I should go straight to that point. Well, in direct terms, this principle relates to issues of jurisdiction of a court. Once a ground of appeal exists which challenges the jurisdiction of a court to entertain a suit, such ground of appeal need not arise from the decision of the lower court for it to enjoy the validity of being treated at the appellate court. It would, in the circumstances, not be clogged by that principle in the first paragraph above, nor would it be referred to as being outside the decision of the court. It is merely in keeping with the position of the law that the issue of jurisdiction can be raised at any particular time, and in any particular manner. 

Finally, the Supreme Court restated this position of the law in the case of AGWU & ORS V. JULIUS BERGER (NIG) PLC (2019) LPELR-47625(SC) where the Court held as follows:

 "The first arm of the argument of the Learned Counsel for the appellant is based on the general rule that a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. This is a well settled proposition of Law in respect of which there can hardly be a departure. See Egbe v Alhaji (1989)1 NWLR (Pt.128) 546, Saraki v Kotoye (1992)9 NWLR (Pt.264)156. For every general rule there is an exception, in order to accommodate certain unforeseen circumstances. Where a ground of appeal questions the jurisdiction of a Court, it does not matter whether the issue of jurisdiction constituted the ratio of that decision or not, such a ground of appeal cannot be said to be incompetent by reason that it does not arise from the decision and constitute a challenge to its ratio decidendi. In Kalejaiye v LPDC & 1 Or  (unreported Appeal No.SC.429/2015) delivered on 15th March, 2019 the issue of change in the quorum of the LPDC was not the ratio of the decision of the LPDC, yet it was the only ground upon which the appeal was determined by this Court.

The ground of appeal against which the Appellants hinge their argument complained that the lower Court had no jurisdiction to decide substantive matter at interlocutory stage. This Court in a number of decisions has held that Courts are not allowed to delve into or decide the main complaint at an interlocutory stage. See FSB International Bank Nig. Ltd v Imam Nig. Ltd (2000)11 NWLR (Pt.678) 620 at 639, A.G. Kwara State & Anor. v Lawal & Ors (2017) LPELR-4234 (SC); Egbe v Onogun (1972) 1 All NLR (Pt.1)95, Ojukwu v Governor of Lagos State (1986)3 NWLR (Pt.26)35, Olaniyi v Aroyehun (1991)5 NWLR (Pt.194)652, Madubuike v Madubuike (2001)9 NWLR (Pt.719)698 at 707.

Before the trial Court were substantive suit initiated by writ of summons and a motion on notice which were filed on the 1st of July 1999. Both processes prayed for injunctive orders restraining the Respondent from declaring the Appellants redundant and ejecting them from their official quarters. The motion of 4th of October, 2000 sought for reinstating the Appellants and deeming them as employees of the Respondent. Clearly the writ of summons, and the motion of 1st July 1999 as well as the motion of 4th October 2000 sought to perpetuate the Appellants on their jobs. The language used in the three process is a matter of semantics, as there does not seen to be so much difference in the prayers. It is therefore not out of place if any of the parties complained that the trial Court decided the claims endorse on the writ when it ruled on the application of 4th October, 2000. As I have stated elsewhere in this judgment, the first ground of appeal at the lower Court being a jurisdictional question, or issue, same can be raised at any stage of proceedings including the appellate Court for the first time. See Nwankwo & Ors v. Yar'adua & Ors (2010)12 NWLR (Pt.1209) 518. In FHA v Kalejaiye (2010)19 NWLR (Pt.1226)149 at 164 para b, this Court, per Rhodes Vivour JCS said:-

"The issue of jurisdiction can be raised for the first time in any Court and at any stage of the proceedings and in the Supreme Court for the first time."

Jurisdiction is a threshold issue and it is so fundamental in that where a Court has no jurisdiction to determine an issue, the entire proceedings and judgment will be an exercise in futility. Once the issue of jurisdiction is raised, the Court is bound to examine whether it is spurious or genuine ground. In the instant case, the lower Court was right when it overruled the preliminary objection in order to consider the complaint embedded in the first ground of appeal."  Per GALUMJE ,J.S.C (Pp. 11-14 paras. D-D)

Again, I'll leave you with this quote. I hope you enjoyed reading it half as much as I enjoyed typing this.

Life Chairman of the Board of Directors or Managing Director? Give it a second thought!

 The decision in U.O.O. NIG PLC V. OKAFOR & ORS (2020) LPELR - 49570 (SC) has handed down another perspective to the way we see corporate governance. Just about a day before, a colleague had hinted on why not have a life managing director of a company, it protects the those with high stakes in the company and prevents future mishaps that could arise in corporate governance. 

Well, that was what happened in the case, the Articles of Association made provisions for it, giving a life position to the Managing Director of the company. Unfortunately, that choice of having it in the Articles of Association of the Company could not save the position. As held by the Supreme Court, only 'Director for Life' is allowed, who can still be removed from office. The Supreme Court concluded in the following words:

"It needs be stated that any clause in the Memorandum and Articles of Association which purported to make a person a Managing Director for Life or Board Chairman for Life contrary to the express provisions of the law, is an illegal contract and therefore unenforceable. Such clause is ab initio illegal and does not require a formal amendment to deprive it of the force of law. The court does not enforce an illegal contract and one cannot place something upon nothing or rely on an illegality"

It needs be stated therefore that the position of the law is quite clear. Do you have such provisions in your Articles of Association? What's the way out? 

NOTES ON REMOTE COURT HEARINGS, PRACTICE DIRECTIONS AND GUIDELINES

All practice Directions mentioned in the post can be downloaded at the end of the post. Please all opinions are those of the writer of the post

Welcome to my new post. The COVID-19 pandemic has literally affected every part of our lives and the Courts and access to justice is not spared. There are quite a lot of literature online on the next thing to happen with law practice, particularly litigation. Access to court as guaranteed by Section 6 of the Constitution has been hit with a challenge – the pandemic and the antecedent lockdown of courts and public gatherings. The use of the word ‘public’ in my last sentence has a sort of tone to denote physical presence, and would fall right in place with those who believe virtual proceedings cannot be situated in Section 36 (3) of the Constitution. They therefore call for an amendment before we go on. Afterall, cases like ALIMI & ORS v. KOSEBINU & ORS (2016) LPELR-42557(SC) among other cases of such nature have shown us the bitter part of it.

Webinar

Must hearing notices be served on each date of adjournment?

It is perhaps one of the core aspects of litigation for hearing notices to be served on the other party. It is indeed rooted in the principle of fair hearing which is the guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 ( as amended). The plaintiff / claimant / Appellant / Applicant who is to move the court may however be faced with situations where non-service of hearing notices would stall the proceedings.

oniguguru.com: A Few Burning Questions on Enforcement of Fundamen...

oniguguru.com: A Few Burning Questions on Enforcement of Fundamen...: Just like previous posts, I don't intend to bore the reader. Just straightforward discourse. We are all aware that with the amendme...

A Few Burning Questions on Enforcement of Fundamental Rights in National Industrial Court

Just like previous posts, I don't intend to bore the reader. Just straightforward discourse. We are all aware that with the amendments to the Constitution, the National Industrial Court (NIC) has now been upgraded to a Superior Court of Record. The implication of this upgrade is to 'move' all labour - related complaints to this special court. The Constitution therefore donates exclusive jurisdiction to the NIC in that regard under Section 254(C). Important to this post however is Section 254 (C) (d) which provides as follows;