7-UP Bottling Company Ltd. & Ors v. Abiola and Sons Bottling Company Ltd.

This case has had a chequered history. The action which is an off shoot of another action (KWS/215/88) was instituted in 1989 and remained unheard until recently due to an interlocutory application made by the defendants herein (who are now appellants in this Court) for a dismissal of the action on the ground of want of jurisdiction, etc. of the trial High Court.

P.15

The trial High Court ruled that it had jurisdiction to hear and determine the action. The defendants appealed unsuccessfully to the Court of Appeal against that decision and have now further appealed to this Court. With the dismissal of the appeal by us the case would have had to go back to the trial High Court for determination on its merits 12 years after its institution! Happily, however, the trial court proceeded with the hearing of the suit which it decided in plaintiffs favour in 1998.

The facts leading to the action are that the plaintiff who is respondent in this appeal, took some banking facilities from the 3rd defendant for the purpose of its business. Following its failure to pay up, the 3rd defendant, in purported exercise of its powers under the mortgage debenture deed between the parties, appointed the 2nd defendant a receiver/manager of the plaintiff. The 2nd defendant, in the course of its duties as receiver/manager sold the plaintiff’s factory to the 1st defendant. The plaintiff went to Court in suit KWS/215/88 to challenge the acts of the defendants. The plaintiff applied to the court and obtained exparte an interim order of injunction restraining the defendants from selling plaintiff’s properties in the factory pending the determination of the motion on notice for the substantive order of interlocutory injunction. While the interim order was still subsisting and notwithstanding the said order, a number of the plaintiffs properties such as vehicles and plants were sold by the 2nd defendant. The plaintiff brought committal proceedings for contempt which finally failed in the Court of Appeal in November 1990.

Meanwhile, the plaintiff brought the present action before the Kwara State High Court claiming damages for its properties in the hands of the receiver/manager allegedly sold in violation of the order of interim injuncton made in the original suit KWS/215/88.

P.16

By paragraph 19 of its statement of claim, it specifically claimed:
“1. A declaration that the removal, sale and/or disposal of the said 44 vehicles, and/or plants by the defendants in disregard of the court order restraining same is illegal, null and void;
2. A sum of N18,031 ,980.00k being the market value of its vehicle and/or plants illegally sold by the defendants as at the time of sale;
3. General Damages of N132,919, 181.00k being the current cost of purchase of such vehicles and/or plants illegally sold by the defendants;
ALTERNATIVELY
4. Restitution of the said 44 vehicles and/or plants in the working conditions they were before the defendants illegally sold them”
Pleadings in the new action were filed and exchanged. In their joint statement of defence, the defendants pleaded –
“17. The defendants shall by way of preliminary objection contend that the suit is incompetent in that conditions precedent to the exercise of the jurisdiction of the court has not been fulfilled.
18. The defendants shall also contend that the suit is an abuse of the court’s process as the cause of action in this suit is substantially the same and or can be subsumed in suit No. KWS/2l5/88 ABIOLA & SONS BOTTLING CO. LTD. V. 7UP BOTTLING COMPANY LTD. AND ORS. and suit No. KWS/122/91 ABIOLA & SONS BOTTLING CO. LTD. & ANOR. V. FIRSTCITY MERCHANT BANK LTD. & 2 ORS. all of which are still pending.
19. The defendants shall further contend that this Honourable Court has no jurisdiction to try this case.”
Subsequent to the filing of their statement of defence, the defendants brought an application before the Court for:

P.17

“1. AN ORDER setting down for hearing and disposal before trial the issue of law concerning the jurisdiction of the court as raised in paragraphs 17, 18 and 19 of the statement of defence.
2. AN ORDER permitting argument of the issues of law raised in paragraphs 17, 18 and 19 of the statement of defence to be argued on this motion to wit:
(a) The condition precedent to exercise of the jurisdiction of the court has not been fulfilled, that is to say, leave of the court to sue the receiver/manager in respect of the property in receivership was not obtained before the issuance and service of the writ of summons.
(b) That the issue of the validity, legality and correctness/or otherwise of the appointment of the 2nd defendant as a receiver/manager pleaded in paragraphs 2 and 3 of the statement of claim are the same cause of action in Suit No. KWS/215/88, Abiola & Sons Bottling Company Ltd. v. 7up Bottling Company & Ors. Kws/122/91, Abiola & Sons Bottling Company Limited v. First City Merchant Bank Limited.
(c) The High Court of Justice of Kwara State has no jurisdiction to hear and determine the plaintiff’s claim which concerns and relates to the management of the properties of the plaintiff in receivership by the receiver/manager.”
upon the grounds, that is to say:
“1. No leave or order of the court was sought, obtained or granted before the plaintiff issued and served the writ of summons and other processes on the 2nd defendant who was at all material times the receiver/manager of the plaintiff.
2. The issue of validity, legality and correctness of the appointment of the 2nd defendant as the receiver/manager of the plaintiff are causes of action in other suits pending in the other courts.

P.18

3. That the plaintiffs cause of action arose from the operation of the plaintiff as a Company in receivership.”
   They sought the following reliefs:
   “1. AN ORDER striking out the issuance and service of the writ of summons and other processes on the second defendant.
   2. AN ORDER striking out paragraphs 2 and 3 of the statement of claim or in alternative AN ORDER staying hearing of the validity, legality or correctness of the appointment of the 2nd defendant as receiver/manager of the plaintiff company.
   3. AN ORDER striking out the suit for lack of jurisdiction, in the alternative.
   AN ORDER transferring the case to the Federal High Court within jurisdiction”The learned trial judge, in his ruling dismissing the application held, inter alia, that:
   “1. This is an action for conversion in tort between same parties. The State High Court has unlimited jurisdiction to try it by virtue of Section 236(1) of the 1979 Constitution. I am persuaded by SADENI FARMS LTD. (Supra). I find it apposite and I respectfully apply it.”
   2. “This case at hand is in all respects dissimilar to the previously subsisting suit or suits, and it is to that extent not duplicitous as the instant case constitutes distinct latent heads of claim which, not existing at the onset, procedurally, could not be joined with claims in the earlier suit.”
   On appeal to the Court of Appeal, the defendants raised four issues for determination, that is:-
   “1. Whether the court has jurisdiction when plaintiffs claims arose from the management of a property of a company in receivership or a civil cause or matter arising from the operation or management of a company under Company’s Act and not mere violation of a court order.

P.19

Even if the suit arose from an alleged disobedience of court order, whether the court still has jurisdiction to entertain the suit.
2. Whether the court was competent to adjudicate on this case when there existed cases pending between the parties on the same or substantially the same cause of action.
3. Whether the condition precedent to exercising jurisdiction by the court was satisfied by the respondent/plaintiff.
4. Whether the learned trial Judge ought to entertain the claim of the plaintiff which was capable of being subsumed into Suit No. KWS/215/88 whose order was allegedly disobeyed by way of amendment.
The parties proffered arguments in their respective briefs on the four issues formulated. In his lead judgment (with which Umaru Abdullahi J.C.A. as he then was and LT. Muhammad J.C.A. agreed) Ogebe J.C.A. after reviewing the arguments of the parties on Issue 1, went  on to say:
“After carefully considering all the Issues formulated in this appeal, it appears to me that the resolution of the first Issue alone will determine the outcome of the appeal. See Anyaduba & Anor. v. Nigerian Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt.243) 535 at p.561. The other issues are manifestly academic and can only properly arise after full hearing of the matter in the court below and either of the parties chooses to appeal from the final decision of the court. A Court of Appeal must be wary of going into issues that may arise in the substantive appeal when it is considering an appeal from an interlocutory decision of a lower court like the present appeal. See Eperokun & Ors. v. University Of Lagos (1986) 4 NWLR (Pt.34) 162 and Saraki & Anor. v. Kotoye (1992) 9 NWLR (Pt.264) 156 at p. 185″.

P.20

The learned Justice of the Court of Appeal considered Issue 1 and concluded:
“The respondent’s claim as averred in Para. 19 of the respondent’s statement of claim which was reproduced earlier in this judgment is a claim of conversion on tort. This cause of action arose because the appellants were said to have gone ahead and violated an earlier court order in Suit No. KWS/215/88 in which an interim order was made restraining the appellants from selling the properties of the respondent. There is nothing in the respondent’s claim as presently constituted to show that the matter in dispute has to do with receivership. It is the appellants who by their statement of defence brought in the question of receivership. Since they are not counter claiming for anything one cannot look at their statement of defence to determine the matter of jurisdiction.
I have read the case of Akinbobola & Sons v. Plisson Fisko (Nig.) Ltd. In Receivership and Others (1986) 4 NWLR (Pt.37) 621. That was a clear case of receivership appointed by the court and is entirely different from the facts of the present case in which the appellants are being sued for conversion. In my respectful view the trial court has jurisdiction to try the matter. Accordingly, I dismiss this appeal and remit the case to the High Court for continuation of the trial.”

It is against this decision that the defendants have further appealed to this Court upon four grounds of appeal. And in their brief of argument they formulated the following four issues for the determination of the appeal:
“1. Whether their Lordship of the Court of Appeal were right in failing to consider properly all the issues and matters submitted to the court and if their Lordship were not right in their approach, can the Supreme Court consider these issues.

P.21

2. Whether the respondent’s (a Company under receivership) claim for damages wrongful sale of its assets in the hands of the receiver/manager is justiciable in the High Court of Justice of Kwara State or the Federal High Court in view of section 7 of the Federal High Court Act.
   3. Whether their Lordship of the Court of Appeal were right in holding that the respondent’s claim as contained in the statement of claim was a mere tort of conversion, the claims though arising from suit No. KWS/215/88 whereby the Kwara State High Court can properly exercise jurisdiction.
   4. Whether the case was not an abuse of court process when suit No. KWS/215/88 whose order was allegedly violated and other pending cases between the same parties, on the same or substantially the same cause of action, were subsisting, and the claim for damages was capable of being subsumed into suit No. KWS/215/88 whose order was allegedly violated and which was capable of enforcing its orders and award damages.”At the oral hearing of the appeal, Mr. Adeyele, learned counsel for the plaintiff disclosed to the Court that the action from which this appeal arose had been heard and determined by the trial court in 1998. This information notwithstanding, Mr. Okunloye, learned counsel for the defendants was of the view that they could still pursue the appeal. In view of the nature of the issues raised in this appeal I think he is right.

   Mr. Adeyele raised an objection to Issue 4 which, he submitted, was not covered by any ground of appeal. Mr. Okunloye, in reply, conceded that there was no specific ground of appeal on abuse of process of court but submitted that the issue was properly raised based on ground 3. I think he is again right. Ground 3 reads:

P.22

“III. The learned Justices of the Court of Appeal erred in law when they denied the appellants their constitutional rights to fair hearing in the determination of their appeal against the decision of the High Court of Justice of Kwara State when their Lordship completely ignored and failed to consider and pronounce on all the vital issues submitted to the court throughout their consideration of the appeal.
PARTICULARS OF ERROR IN LAW
I. The appellants as defendants complained in their grounds 5 and 6 of the grounds of appeal that the plaintiff’s action constitute an abuse of court process.
2. The issue was fully addressed in the brief of argument and the court ignored consideration of the issue in the judgment.
3. The appellants addressed the court on the issue of alleged conversion as being mere ancillary to the principal claim and the court did not consider it.
4. The appellants addressed the court on the issue of non compliance with rules of court and the incompetence of the suit, the issue was not touched throughout the judgment.
5. The failure of the court to consider these issues denied the appellant their rights to fair hearing as these issues were decisive of the appeal.”
The issue of abuse of process of court was raised in the Court below but was not pronounced upon by that court. If this Court agrees with the defendants that the court below was wrong in not pronouncing on it, then we will need to examine it in order to decide whether a miscarriage of justice arose as a result of the failure of the court below to consider and pronounce on that issue.

Having disposed of the preliminary issue raised at the oral hearing of this appeal I now turn to its consideration.

P.23

Issue I
It is the submission of Mr. Okunloye that the court below had a duty to consider and pronounce on all issues submitted to it for adjudication and that it failed in that duty in this case. He urged this Court to examine and pronounce on those issues not considered by the court below.

It is submitted on behalf of the plaintiff that the court below having held that the trial court had jurisdiction to try the case, it was under no obligation to consider the other issues raised in the appeal in the court below. Reliance is placed on Anyaduba v. Nigerian Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt.243) 535 at 561 d-e for this submission. It is further submitted, relying on Bakare v. ACB Ltd. (1986) 3 NWLR (Pt.26) 47 at 58, that “an appellate court should not pour the totality of its own mind on the merits of a matter on which it is not going to make a final decision on the merits.” It is finally submitted that no miscarriage of justice was occasioned by the failure of the court below to pronounce on all the issues raised before it as that failure did not substantially and materially affect the decision of that court. Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) 164 at 175 and Adeyeri II v. Atanda (1995) 5NWLR (Pt.397) 512 at 528 are cited in support.

This Court has said it times without number that it is the duty of a court to give its decision on issues raised before it – see Okhideme v. Toto & Anor. (1962) 2 SCNLR 8; (1962) ANLR (Pt. 1) page 307; Okonji v. Njokanma (1991) 7 NWLR (Pt.202) 131 at p. 146A:
“As it was held in Ebba v. Ogodo and Anor (1984) 1 SCNLR 372, (1984) NSCC (Vol. 15) 25 5, that a Court of Appeal should not deal with issues not before it; so also when a party submits an issue to the court for determination the court must make a pronouncement on that issue except where the issue is subsumed in another issue.”

P.24

Per Olatawura, J SC; p. 151 C-D, “Until all or any of the grounds are either successfully objected to or abandoned, it is the duty of the Appeal Court to examine the issues formulated on them, …. “per Wali JSC; p. 155A “The Court of Appeal was under a duty to consider and determine all issues placed before it for determination.” per Nwokedi JSC. See also Ojogbue & Ors. v. Ajie Nnubia & Ors (1972) 1 All NLR  (Pt.2) page 226 at 232, (1972) ANLR 664 at 664; Jamgbadi v. Jamgbadi (1963) 2 SCNLR 311, (1963) NSCC 281 at 282; Bayol v. Ahemba (1999) 10 NWLR (Pt.623) 381 at 392-393; Ifeanyi Chukwu (Osondu) Co. Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR (Pt.656)  322 at 251 F-R where I observed:
“Before I proceed further I like to comment briefly on the course taken by the Court of Appeal in this case.
Ogebe JCA in his lead judgment said:
‘The answer to the first issue is a capital YES. Since this issue disposes of this appeal, I shall not engage in an academic exercise in discussing the other issues.’
This approach to the issues placed before the court is, to say the least, unfortunate. The course taken, while permissible with the final Court of Appeal is not always the proper course for an intermediate court to take. Unless in the clearest of cases, an intermediate court should endeavour to resolve all issues put before it.”
The reason for this principle is not far-fetched. It is, as Coker JSC put it in Ojogbue & Ors. v. Ajie Nnubia & Ors (supra): 
“A judgment of the court must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the results of such an exercise.”
And in Odunayo v. The State (1972) 8-9 SC.290,296 Sowemimo JSC, as he then was, explained it further when the learned Justice of the Supreme Court said:

P.25

“There must be, and there are a number of cases where it is most desirable, especially in the case of an intermediate court of appeal, that the final Court of Appeal, which is the Supreme Court of Nigeria, should have the benefit of the opinion of that court on points raised before it, should it come up for further consideration by this Court.”

It is however submitted for the plaintiff that as the court below had held that the trial court had jurisdiction to entertain the suit before it, it was under no obligation to pronounce on the other issues argued as an appellate court would not pour the totality of its own mind on the merits of a matter on which it is not going to make a final decision on the merits. Anyaduba v. Nigerian Renowned Trading Co. Ltd. R (supra) and Bakare v. A. C.B. (supra) are cited in support of this submission. In ANYADUBA, Omo JSC in his lead judgment observed at page 561 of the report:
“An appellate court has a duty to consider all the issues placed before it vide Okonjiv. Njokanma (1991) 7NWLR  (Pt.202) 13 1. But in the instant case the issue on which the appeal was decided was the most important “live” issue before it challenging as it does the order of non-suit on the claim for declaration of title. If a Court of Appeal is of the view correctly that a consideration of one issue is enough to dispose of the appeal, it is not under any obligation to consider all the other issues posed. If however it is erroneous in its decision, the consequence may be the setting aside of its decision on appeal with an order for re-hearing. The Court of Appeal was right in its decision here, and its failure to consider those other issues has not led to miscarriage of justice.”

P.26

A reading of the judgment of Omo JSC will disclose that all the issues that were not pronounced upon by the Court of Appeal in that case were subsumed in the issue relating to title to the land in dispute in the case and as that issue was resolved in favour of the defendant in the case, it was considered unnecessary to go into other issues which were in any event, dependent on the issue resolved by the Court of Appeal. The observation of Omo JSC must therefore be seen in the light of the facts of that case. It is, therefore, no authority for the proposition put forward by learned counsel on behalf of the plaintiff in this case. In a case where the Court of Appeal is ordering a retrial before the trial court, prudence may dictate that other issues raised before it may not be pronounced upon if so to do, will prejudice the retrial. I would think that it is in the clearest of cases that an intermediate court of appeal would refrain from determining all issues argued before it if one issue would suffice to determine the appeal. I think the court below should bear in mind at all times the observation of Sowemimo JSC, as he then was, in Odunayo v. The State (supra) earlier quoted by me in this judgment. And to this I add the observation of Nnaemeka-Agu JSC in Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527 at pp. 550-551 to the following effect:
“It is left for me to say a few words about the submission of learned counsel for the respondents that the Court of Appeal should have considered other issues raised before it and that if it did, it would have dismissed the case instead of ordering a retrial. The short point to it is that the appellant, who raised ground 7 and issue number 5, did not raise them in the alternative but cumulative with other grounds. If a consideration of them made it unnecessary for other issues raised by him to be considered, I do not see how he can complain.

P.27

While it is true that such a course has its own risks because a Judge of utmost sincerity and optimum honesty, as well as profound industry and knowledge of the law could reach a decision which could turn out to be wrong on appeal, it is equally true that where, from the nature of the issue which an appellate Court has accepted, it is inclined to order a retrial, it is advisable to say as little as possible on the merits of other facts of the case which are not relevant to the order of retrial and which may prejudice the retrial. Once an appellate Court bears these two principles in mind” it cannot go far wrong. It is a question of balancing these two considerations at all times.”

Turning now to the case on hand, the four issues placed before the court below have been set out in an earlier part of this judgment; they are jurisdiction of the trial court, competence of that court to adjudicate when there existed cases pending between the parties on the same or substantially the same cause of action, whether condition precedent to exercise of court’s jurisdiction was satisfied and whether the trial court ought to entertain the claim which was capable of being subsumed into KWS/215/88. I think the court below was in serious error when it, per Ogebe JCA, held that a resolution of the first issue, that is, jurisdiction alone would determine the outcome of the appeal.
It cannot be said that the other three issues are subsumed in the question of jurisdiction which is which court as between the Federal High Court and the Kwara State High Court had jurisdiction to entertain the matter. The second issue raised the question of abuse of court’s process for if there were cases pending between the same parties on the same or substantially the same cause of action, it would be abuse of process of court for the plaintiff to institute yet another action in the same court against the same defendant while these other cases were still pending.

P.28

This is an issue different from the first issue of jurisdiction. The same consideration goes for the other two issues.
The Court below ought to have pronounced on each of these issues. It is dereliction of duty for it to refrain from pronouncing on the other three issues; it is however not a case of lack of fair hearing. Issue 1 must therefore be resolved in favour of the defendants.

Having now concluded as above, what order must this Court make. Ordinarily, the case ought to be sent back to the Court below to determine the issues not pronounced upon by it. But these issues are now raised in this appeal as Issue 4. And it is essentially issue of law. Desirable as it is that this Court should have the benefit of the opinion of the court below on these issues, I think it is a matter we can consider here without that benefit. And learned counsel for the defendants have urged us so to do. This interlocutory matter is already 12 years old. The interest of justice requires that an end be put to it now. I will, therefore, proceed to consider Issue 4. And as the facts on which Issues 2-4 are based dovetail into each other, I shall consider them together.

Issues 2-4:
On Issues 2 and 3, the Court below found that plaintiffs cause of action in the case on hand was in the tort of conversion and that, therefore, the Kwara State High Court had jurisdiction to entertain the suit. The defendants challenge this finding in this appeal. It is their contention that on a proper reading of the plaintiffs statement of claim his grouse was against the exercise by the 2nd defendant of his powers of receiver/manager of the plaintiff, a limited liability company and the action therefore, should be brought in the Federal High Court.

P.29

I have read the statement of claim, particularly paragraphs 4, 7, 14 and 15 and other paragraphs highlighted in the brief of the defendants; I have no reason to disagree with the finding of the two courts below that plaintiffs action is grounded in the tort of conversion and has nothing to do with the official management of plaintiff company by the 2nd defendant. The plaintiff was not complaining about the sales of its assets by the 2nd defendant prior to the court’s order of interim injunction but the sales made in disobedience of that order. On the making of that order the 2nd defendant could no longer sell until the order was discharged; he became a custodian of those assets. Any sale made by him while the injunction subsisted could not be in lawful exercise of his powers of receiver/manager.
I, therefore, resolve Issues 2 and 3 against the defendants.

On Issue 4, it is the contention of the defendants that the cause of action in the present case was the same as the cause of action in KWS/215/88. That cannot be correct. The latter action was for various declarations, orders, damages and injunction in respect of the debenture deed and appointment of the 2nd defendant as a receiver/manager. The present action was for damages for alleged wrongful sales of plaintiff ‘s assets. The learned trial Judge was right when he held that the causes of action were dissimilar. The present action cannot, therefore, constitute an abuse of the process of court. Issue 4 is resolved against the defendants.

On Issue 3 raised before the court below and on which no pronouncement was made by it, I have considered the arguments advanced in support thereof in the brief of the defendants in the Court of Appeal.

P.30

It was contended on their behalf that the plaintiff should have sought and obtained the leave of the High Court before instituting the present case against the 2nd defendant who was its receiver/manager. The failure to do so was fatal to the action, it was submitted.

As I have observed above, the 2nd defendant was sued as custodian of plaintiffs assets which he allegedly sold unlawfully. He was, therefore, sued as tort feasor and not as receiver/manager. I know of no rule of law, and our attention has not been drawn to any which requires that leave to sue must be obtained in the circumstances of this case. I, therefore, would resolve that issue against the defendants.

The sum total of all I have said above is that although the court below was wrong not to have pronounced on Issues 2-4 placed before it for determination, those issues (including the issue of jurisdiction determined by that court) having now been resolved against the defendants, the error has not occasioned any miscarriage of justice.

It is for the reasons contained in this judgment that I have come to the same conclusion as my learned brother Onu JSC, a preview of whose judgment I had the advantage of ere now, that this appeal fails and it is dismissed by me. I award N 10,000.00 costs to the plaintiff.

I have had the privilege of a preview of the draft of the judgment which has just been delivered by my learned brother Onu, J.S.C. I agree with him that the appeal fails.

P.31

The plaintiff who is the respondent in this court applied for and obtained loan and overdraft facilities from the 3rd defendant who is the 3rd appellant before us. The 3rd defendant pursuant to the deed of debenture mortgage over the plaintiff’s fixed and floating assets appointed the 2nd defendant receiver/manager of the plaintiff company. In the view of the 3rd defendant the loan is due and payable. The plaintiff contends that it is not due for repayment and the appointment of receiver/manager is irregular and premature. As a result, the plaintiff instituted an action in the High Court of Kwara State (suit No. KWS/215/88) questioning the legality of the action of the 3rd defendant in appointing the 2nd defendant receiver/manager. In the meantime the receiver/manager proceeded to sell part of the assets of the plaintiff to the 1st defendant.

The plaintiff obtained an order exparte restraining the defendants from selling its assets pending the determination of the motion on notice for the substantive order. Notwithstanding the pending order of court, 2nd defendant .continued with the sale of the assets of the plaintiff. Committal proceedings were commenced in the High Court and when it failed on appeal to the Court of Appeal, plaintiff instituted the action leading to this appeal in the Ilorin High Court claiming as follows:
“1. A declaration that the removal, sale and/or disposal of the said 44 vehicles and/or plants by the defendants in disregard of the court order restraining same is illegal, null and void;
A sum of N18,031,980. 00 being the market value of its  vehicles and/or plants illegally sold by the defendants as at the time of sale; General damages of N132,919,181.00 being the current cost of purchase of such vehicles and/or plants illegally sold by the defendants;
ALTERNATIVELY
Restitution of the said 44 vehicles and/or plants in the working conditions they were before the defendants illegally sold them”

P.32

The defendants filed a statement of defence in reply to the plaintiff’s statement of claim and subsequently brought an application before the High Court for:
“AN ORDER permitting argument of the issues of law raised in paragraphs 17, 18 and 19 of the statement of defence to be argued on this motion to wit:
(a) The condition precedent to exercise of the jurisdiction of the court has not been fulfilled, that is to say, leave of the court to sue the receiver/manager in respect of the property in receivership was not obtained before the issuance and service of the writ of summons.
(b) That the issue of the validity, legality and correctness/or otherwise of the appointment of the 2nd defendant as a receiver/manager pleaded in paragraphs 2 and 3 of the statement of claim are the same cause of action in suit Nos. KWS/215/ 88, Abiola & Sons Bottling Company Ltd. v. 7up Bottling Company Ltd. and Others; KWS/122/91 Abiola & Sons Bottling Company Ltd. v. First City Merchant Bank Ltd.
(c) The High Court of Justice of Kwara State has no jurisdiction to hear and determine the plaintiffs claim which concerns and relates to the management of the properties of the plaintiff in receivership by the receiver/manager. ”

Gbadeyan, J. heard arguments of counsel and in a reserved ruling dated 20th September, 1995 dismissed the preliminary objection and held that the High Court has jurisdiction to entertain the claim. The defendants who were not satisfied with the ruling appealed to the court below. The following four issues were formulated by the defendants for determination by the court below:

P.33

“1. Whether the court has jurisdiction when plaintiff’s claims arose from the management of a property of a company in receivership or a civil cause or matter arising from the operation or management of a company under Company’s Act and not mere violation of a court order.
Even if the suit arose from an alleged disobedience of court order, whether the court still has jurisdiction to entertain the suit.
2. Whether the court was competent to adjudicate on this case when there existed cases pending between the parties on the same or substantially the same cause of action.
3. Whether the condition precedent to exercising jurisdiction by the court was satisfied by the respondent/plaintiff.
4. Whether the learned trial Judge ought to entertain the claim of the plaintiff which was capable of being subsumed into Suit No. KWS/215/88 whose order was allegedly disobeyed by way of amendment.”

The court below heard oral arguments from both learned counsel and in a reserved judgment considered the first issue alone and held as follows:
“This cause of action arose because the appellants were said to have gone ahead and violated an earlier court order in Suit No. KWS/215/88 in which an interim order was made restraining the appellants from selling the properties of the respondent. There is nothing in the respondent’s claim as presently constituted to show that the matter in dispute has to do with receivership. It is the appellants who by their statements of defence brought in the question of receivership. In my respectful view the trial court has jurisdiction to try the matter. ”
The other issues were not considered as they are in the opinion of that court “manifestly academic and can only properly arise after full hearing of the matter in the court below and either of the parties choose to appeal from the final decision of the court.”

P.34

It concluded that the trial court has jurisdiction to try the case. The defendants’ appeal was dismissed. In their further appeal to this court, the defendants have identified four issues and the first issue is whether the Court of Appeal was right in failing to consider properly all the issues and matters submitted to it.

The Court of Appeal being an intermediate appellate court its decisions do not enjoy the finality of those of Supreme Court by virtue of section 235 of the Constitution. Whereas the Supreme Court can determine an appeal on one of the issues submitted to it in an appeal, the Court of Appeal cannot afford to ignore other issues properly placed before it since its decision on one or some of the issues may be faulted on a further appeal to this court. Where, however, an intermediate appellate court rests its decision on one of the issues, it should also express its views and pronounce on the other issues identified for its determination. Even where the intermediate court is of the settled view that the sole issue on which its decision is anchored will be upheld by the Supreme Court, it is prudent to express an alternative view. The purpose of this is to save the expense and delay which will result should the Supreme Court hold a contrary view. See Kato v. C.B.N. (1991) 9 NWLR (Pt.214) 126; Okonji & Ors. v. Njokanma & Ors. (1991) 7 NWLR (Pt.202) 131 and Nipol Ltd. v. Bioku Investment & Property Co. Ltd. (1992) 3 NWLR (Pt.232) 727. 

A careful examination of the writ of summons and the statement of claim reveal that the defendants are sued for conversion, namely, the illegal removal, sale and/or disposal of the plaintiff’s forty four vehicles in total disregard of a subsisting court order restraining the vehicles in total disregard of a subsisting court order restraining the 2nd defendant from doing so.

P.35

There is nothing in the statement of claim suggesting receivership or management of plaintiff’s company by a third party. The learned trial judge and the court below were right in holding that the Kwara State High Court has jurisdiction to determine the case and not the Federal High Court as contended by the defendants.

On the complaint by the appellants that the court below did not consider all the issues placed before it for the determination of the appeal, I have gone through those issues and they would not have made any difference to the outcome of the appeal if the court below had considered them.

On the whole this appeal lacks merit and I also dismiss it and abide by the order as to order as to costs contained in the judgment of my learned brother Onu, J.S.C.

I have read in advance the leading judgment of my learned brother Onu JSC which has been delivered in this appeal. I entirely agree with the reasoning and conclusions reached therein. There is no merit in the appeal and it ought to be dismissed.

The appellants have raised 4 issues for determination by this court and the respondent raised 2. The respondent’s issue (ii) is not dissimilar to the appellants’ issue 3 though the latter added the question of jurisdiction of the trial court to entertain the matter. In my respectful view, this is the crux of the whole case, for it is trite that in all matters before a court the fundamental one is the issue of jurisdiction which must first be determined before anything else otherwise all proceedings relating thereto will be nullity and an exercise in futility. See Alao v. C.O.P. (1987) 4 NWLR (Pt. 64) 199; Alh. Rufai v. Alh. Olugbeja (1986) 5 NWLR (Pt.40) 162; Funduk Engineering Co. v. MC Arthur (1995) 4 NWLR (Pt. 392) 640.

P.36

Still on this issue, and having carefully examined the statement of claim in this case ie No. KWS/270/89, I have no doubt in my mind that the respondent as plaintiff, was suing in conversion of their vehicles sold and or the proceeds of sale thereof and so the case was not based on receivership. I agree with the Court of Appeal when in its judgment, per Ogebe JCA, it said:
” This cause of action arose because the appellant were said to have gone ahead and violated an earlier court  was made restraining the appellants from selling the properties of the respondent. There is nothing in the respondent’s claim as properly constituted to show that the matter in dispute has to do with receivership. It is the appellants who by their statement of defence brought in the question of receivership.”

Therefore since the respondent sued the appellants in conversion, the trial court has in my view, the jurisdiction to entertain the action now pending before it in this matter.

It is well – settled that an appeal court must consider all issues presented before it by the parties. There are however exceptions according to the facts and circumstances of each case. One of such circumstances as laid down by this Court is where the court concerned is of the view that a consideration of one issue is enough to dispose of the appeal, it is not under any obligation to consider all the issues. See Anyaduba v. N.R.T.C Ltd. (1992) 5 NWLR (Pt.243) 535; Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131; Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527.

P.37

In this appeal, the Court of Appeal dealt with the issue of jurisdiction of the trial court to entertain the case and left the other ancillary issues which it considered as academic. In the light of the above authorities and what I said earlier about the issue of jurisdiction in a case, I think that the Court of Appeal was not wrong in failing to consider the other ancillary issues in the circumstances of this case. There is no miscarriage of justice as a result or denial of fair hearing.

For the above and more detailed reasons given in the leading judgment of my learned brother Onu JSC, I find that there is no merit in this appeal. I dismiss it and affirm the decision of the Court of Appeal. I abide by the consequential orders made in the leading judgment including the order of costs.

I read in advance the judgment of my learned brother Onu JSC. I agree with him that the appeal fails.
The plaintiff/respondent obtained loan from the 3rd defendant/appellant. The loan was outstanding and although the plaintiff claims that it was not yet due for repayment, the 3rd defendant appointed the 2nd defendant as a receiver/manager of the plaintiffs debenture. The plaintiff filed action in Suit No. KWS/215/88 to contest the legality of the debenture and the appointment of the 2nd defendant as a receiver/manager. The action was brought in the Kwara State High Court. In the meantime the 2nd defendant began selling the plaintiffs property including motor vehicles, machines and equipment. The plaintiff then obtained an ex parte injunction against the defendants. It would appear the sale continued notwithstanding the ex parte injunction.

P.38

The plaintiff thereafter filed an action, also in the Kwara State High Court, claiming as follows:
“1. A declaration that the removal, sale and/or disposal of the said 44 vehicles and/or Plants by the defendants in disregard of the Court Order restraining same is illegal, null and void.
2. The sum of N18,031,980.00 being the market value of its vehicles and/or plants illegally sold by the defendants as at the time of sale.
3. General damages of N132, 919, 181.00 being the current cost of purchase of such vehicles and/or plants illegally sold by the defendants.
Alternatively
4. Restitution of the said 44 vehicles and/or plants in the working conditions they were before the defendants illegally sold them.”

The defendants/appellants raised a preliminary objection to the claim that it ought to have been filed in the Federal High Court because it relates to receivership of a company. It should be noted that the preliminary objection was not in respect of the earlier action in which an ex parte injunction was granted. If such objection had been raised in that action, it is clear to me what the result would have been. The learned trial judge held that the present action was based on the tort of conversion and overruled the objection. The appellants appealed to the Court of Appeal and raised four issues for determination, the first of which was whether the court has jurisdiction since the claim arose from the management of the property of a company under receivership. The Court of Appeal dealt with only that first issue holding that the appellants were sued for conversion and that the State High Court has jurisdiction.

P.39

The further appeal to this court is in the main to determine whether the lower court was right.

There is no doubt that the 2nd defendant/appellant acted on the basis that he was appointed a receiver by the 3rd defendant/appellant under a deed of mortgage debenture. That could well be a matter for the Federal High Court. But a subsisting order of court, whether or not issued by the competent court, had restrained him from acting. At that point he ceased in law, albeit temporarily, from being a person acting under a receivership mandate. By selling the plaintiff/respondent’s property as he did, he committed the tort of conversion because he was acting under no authority or excuse for dispossessing the plaintiff/respondent of its property and/or to disposing of them.

One form of conversion is where there has been a positive and unequivocal wrongful act of dealing with goods in a manner inconsistent with the owner’s rights and an intention in so doing to deny the owner’s rights or to assert a right inconsistent with them: see Ashby v. Tolhurst (1937) 2 All ER 837; Moorgate Mercantile Co. Ltd. v. Finch and Another (1962) 2 All ER 467; Howard E. Perry & Co. Ltd. v. British Railways Board (1980) 2 All ER 579; Commissioner of Police v. Oguntayo (1993) 6 NWLR (Pt.299) 259; Ojini v. Ogo Oluwa Motors Nigeria Ltd. (1998) 1 NWLR (Pt.534) 353. Conversion as a cause of action is a tort over which any State High Court has jurisdiction to entertain. It was a different cause of action from the pending Suit No. KWS/215/88.

As I said, the lower court decided the appeal from the trial court’s ruling on the sole issue whether the State High Court has jurisdiction to hear this case. It clearly came to the right decision that it has. Having so correctly decided, it does not matter that it failed to consider the other issues raised by the appellant, which failure is made an issue in this present appeal. I must hold that it was sheer waste of time to raise that issue in this Court. For the above reasons, I too find no merit in this appeal and dismiss it with N10,000.00 costs to the respondent.
Appeal dismissed.

P.40