⦿ CASE SUMMARY OF:
Coscharis Motors Ltd v Capital Oil and Gas Ltd [2016] – CA
by NSA PaulPipAr
⦿ LITE HOLDING
⦿AREA OF LAW
– Administrative Law
⦿ TAG(S)
– ground of appeal.
⦿ PARTIES
APPELLANT
Coscharis Motors Ltd v Capital Oil and Gas Ltd.
v.
RESPONDENT
1. CAPITAL OIL AND GAS LTD
2. MR IFEANYI PATRICK UBAH
3. ACCESS BANK PLS
⦿ CITATION
[2016] NGCA 23.
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Abimbola Osarugue Obaseki-Adejumo, JCA
⦿ APPEARANCES
* FOR THE APPELLANT
* FOR THE RESPONDENT
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⦿ FACT (as relating to the issues)
The 1st and 2nd Respondents’ (Plaintiffs at the Trial Court) counsel sought to tender from the bar an order of the English Court made on 23rd January, 2013 in Suit No. 2012, Folio 1300 Access Bank Pic v. Rofos Navigation Ltd & 5 Ors before submitting viva voce that the Appellant and the 3rd Respondent were in breach of the order of the lower court made on 12th January, 2012.
He thereafter applied for an order restraining the Appellant from enforcing the order made by the English Court. This was vehemently opposed by the Appellant and the 3rd Respondent.
The trial judge adjourned to 28th January, 2013 to determine the admissibility of the photocopy of the order of the English Court sought to be tendered. On the adjourned date, the learned trial judge in a considered Ruling admitted the copy of the order of the English Court and made other orders, the basis of which the Appellant has filed an appeal against the Ruling of the lower court vide a Notice of Appeal.
⦿ ISSUE(S)
**PRELIMINARY OBJECTION
i. The grounds of appeal is argumentative.
**MAIN ISSUES
1. Whether the Learned trial court was right in granting injunctive reliefs against the Appellant based solely on oral application made by the counsel to the Respondents.
2. Whether the trial court was right in law when it made orders directing the Appellant to carry out certain decisions of the trial court in relation to case No. 2012 Folio. Access Bank Pic v Rofos Navigation & 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the court that the Appellant was not a party to the said London suit.
3. Whether the trial court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Pic v. Rofos Navigation & 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order.
4. Whether the trial court was right in law when it in essence decided the Appellant’s motion on notice to set aside the order of injunction made by the trial court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open court.
⦿ RESOLUTION OF ISSUE(S)
[PRELIMINARY OBJECTION: OVERRULED]
RULING:
i. While I am conscious of the settled position of law earlier stated that a ground of appeal must arise from live issues determined by the lower court, a careful study of the Notice of Appeal vis a vis the Ruling of the trial court appealed against by the Appellant before us shows that all the grounds arose from the issues that were considered by the trial court. I am of the {#a6} rm view that the other grounds, 1, 2, 3, 5, 6 and 7 of the Notice of Appeal with respective their particulars are related. They have been couched in a manner which is clear and devoid of any ambiguity. Even though the 1st and 2nd Respondents’ counsel is challenging the competence of the some of the particulars (not all) of grounds 1, 3, 5 and 7, assuming the objections are proper, which I am unable to hold as such, it is obvious that there are other particulars which can sustain the respective grounds as contained in the Notice of Appeal.
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE 1ST & 2ND RESPONDENTS.
RULING:
i. In the first place, as I have earlier noted, the proceedings before the lower court leading to the instant appeal is sui generis, a special one based on allegation of contempt against one or two parties before the lower court. While it may be argued that the order of the lower court was made in favour of the 1st and 2nd Respondents, the order allegedly violated is “an order of the court” and not necessarily that of the parties (though made in their favour), which possesses the judicial authority and cannot be displaced except by the court itself. Therefore, where a court is faced with set of facts and circumstances as in the instant case, the court has an inherent power to ensure that the sanctity of the court is not eroded. This it can do on the application of any of the parties, either orally or by formal application. This however does not prejudice the court itself to raise the issue suo motu. To accept the contention of the Appellant that the lower court can only give a Ruling bothering on whether its positive and subsisting order had allegedly been violated upon the filing of an application by the parties vide a motion or summons is to leave the court at the mercy of the litigants in protecting its most prized property its judgment or orders. It is typical of a court of justice to preserve the integrity of the Judiciary and the sanctity of the order of Court and this can be achieved by whatever means and procedure that falls within the ambit of the inherent powers of the court. To this extent, I am of the firm view that the lower court cannot and should not be said to have erred in the conclusion it reached as per the noncompliance with the provision of Order 28 of the Federal High Court (Civil Procedure) Rules, 2009, which I earnestly believe will not be utilized as a clog in the exercise of the inherent powers of the court as protecting its sanctity. Therefore, the learned trial judge was right in law in entertaining the reliefs sought by the 1st and 2nd Respondent geared towards compelling obedience to the subsisting order of the court based on oral application made by the 1st and 2nd Respondents.
2. ISSUE 2 IS RESOLVED PARTLY, IN FAVOUR OF THE APPELLANT.
RULING:
i. While it may be conceded as held that the Appellant is a beneficiary of the order of the English Court; I must say that the fact that a party is a beneficiary of the consequence of the act or conduct of another party is not sufficient enough to hold it liable for the act or omission of the latter party. In the instant case, before the Appellant can be held to have flouted a subsisting order of the lower court, there must be evidence on record to show that it indeed acted in contravention of the order so made. This is not so here. Consequently, I am of the firm view that the finding of the trial court that the Appellant indeed flouted its subsisting order is perverse.
ii. As the Appellant’s counsel rightly noted, every court is under the bounden duty to ensure that it refrain from making any order or giving any direction to any party, which is incapable of being obeyed by whom it is directed at. Orders of court ought not to be made in vain but must be of such nature that it is susceptible of being obeyed by the subject. In the case at hand, the learned trial judge made sundry orders against the Appellant and the 3rd Respondent on the premise that the Appellant and the 3rd Respondent jointly and severally violated the subsisting order of the court. As earlier noted, the learned trial judge erred in this regard.
iii. The Appellant lacks the requisite legal capacity to discontinue the proceeding as it will be deemed a meddlesome interloper by the English court unless it will attempt to make an application to be joined as a party therein, which no doubt will be contrary to the subsisting order of the lower court which the court is forcefully but rightly protecting vide the orders it made on the 28th January, 2013. Nonetheless, having been a beneficiary of the order of the English Court, the learned trial judge was right to have restrained the Appellant from enforcing the said order. This no doubt is conceded by the Appellant as its complaint is directed solely at the order to discontinue under the extant issue.
3. ISSUE 3 WAS ADJUDGED TO BE ACADEMIC.
4. ISSUE 4 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENTS.
RULING:
i. The learned judge erred when he made pronouncement on the Appellant’s pending application which upon no argument had been canvassed by parties thereon.
⦿ REFERENCED
Order 6 of the Court of Appeal Rules, 2011.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In OLORUNTOBA-OJU & ORS. v. ABDURAHEEM & ORS [2009] 13 NWLR (PT 1157) 83 SC; [2009] LPELR 2596 (SC), the Apex Court, per ADEKEYE, JSC, echoed thus: “An appeal is a challenge against the judgment of a trial court and it is never predicated on what a court has not decided in its judgment or ruling. Therefore, a ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by the appellant. In other words, a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against… According to the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point, that as soon as it is read, the error and misdirection complained against be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading particulars. It should also not be argumentative. The particulars must relate to and flow from the grounds of appeal. Where a ground of appeal cannot stand as a result of its incompetent particular that ground of appeal is defective and it ought to be struck out.”
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⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
Evidently, the essence of ground of appeal is [to] indicate the error of law or facts alleged by the Appellant as the defect in the judgment appealed against and upon which the Appellant seeks to set aside. – Obaseki-Adejumo, JCA. Coscharis v. Capital (2016)
Therefore, this court will not readily hold out as incompetent, grounds of appeal that essentially states the complaints of the Appellant containing the reasons for which the Appellant considers the decision of the lower court to have been reached wrongly, unless same is not a reflection of the matters dealt with by the trial court or matters which ought to have been considered and pronounced upon having been properly brought before the court. – Obaseki-Adejumo, JCA. Coscharis v. Capital (2016)
It is elementary principle of adjudication that where a court is faced with circumstances, as in the instant case, where it is obligated to make certain findings and orders, same must be founded on the ground upon which it has received argument from the parties. In essence, the decisions of a court must be restricted to the matters specifically brought before it by the parties but where such matters are raised suo motu by the court, the parties must be heard before any pronouncement is made thereon. – Obaseki-Adejumo, JCA. Coscharis v. Capital (2016)
* SUBSTANTIVE