AFANGIDEH & ANOR v. ALETOR & ANOR (2021)

AFANGIDEH & ANOR v. ALETOR & ANOR

(2021)LCN/15170(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/233/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. BARR. PETER AFANGIDEH (Carrying On Legal Practice Under The Name And Style Of Afangideh & Associates) 2. CITIGATE MILLENIUM INVESTMENT LIMITED APPELANT(S)

And

1. MRS. LYNDA ALETOR 2. MRS. YVONNE ASARI ADESINA (Administratrixes Of The Estate Of Mrs. Aminatu Lanval Asomugha) RESPONDENT(S)

RATIO

WHETHER OR NOT LEAVE OF COURT IS REQUIRED ONLY WHEN THE JUDGEMENT SOUGHT TO BE APPEALED AGAINST IS NOT FINAL JUDGEMENT

It is the law that leave to appeal is required only when the judgment sought to be appealed against is not a final judgment or the appeal is on grounds other than law. See Anachebe v. Ijeoma & Ors. (2014) LPELR – 23181 SC. Where the Court has to look at the surrounding circumstances in order to determine whether the Court below exercised its discretion judicially or arbitrarily, such questions necessarily raise issues of mixed law and fact. See Metal Construction (West Africa) Ltd v. Migliore & Ors (1990) LPELR – 1869 SC. See also Garuba & Ors. v. Omokhodion & Ors. (supra) cited by learned senior counsel for the Respondents. PER ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 17th May, 2017 in the High Court of Cross River State sitting at Calabar.

In the High Court (the Court below), the Respondents’ application for extension of time within which to file their counter affidavit and written address against Defendants’ preliminary objection to Respondents’ suit was granted.

Before 7th June, 2017, the date fixed by the Court below for the hearing of the Appellants’ preliminary objection to the suit of the Respondents, the Appellants on 25th May, 2017, appealed against the ruling of the Court below.

The notice of appeal contains four grounds of appeal all described as errors in law. From the four grounds of appeal, the Appellants presented the following four issues for determination in the Appellants brief of argument filed on 31st July, 2017:
“(i) Whether granting an Application to amend, which was not asked for on the motion paper before proceeding to consider the Relief that was asked for – that is Extension of time, is not a gross violation of Appellants right to

fair hearing.
(ii) Whether the trial High Court did not overshoot the bar when it failed to decide on the crucial question if it had the jurisdiction to grant the Respondents motion for extension of time in view of the looming question of abuse of Court process canvassed by the Appellants before it. (Distilled from ground two of the Notice of Appeal).
(iii) Whether the Lower Court was right in law and was not in violation of Appellants’ right to fair hearing when it suo motu found and held without hearing from the Appellants as follows:- “I have read through all the processes filed in this Application and I find that Respondents (Appellants) has filed a Counter Affidavit out of time and without the leave of Court”. (Distilled from ground 3).
(iv) Whether the Lower Court acted judicially and judiciously in granting the Respondents’ Application for extension of time when the Affidavit in support was bereft of any material averment for such exercise of discretion or put differently, is the grant of Application for extension of time a birth right of every prospective Applicant without any substance even in the face (sic) a serious opposition as

to its competence? (Ground 4) of Notice of Appeal.”

The Respondents in the Respondents’ brief filed on 9th August, 2019 and deemed duly filed on 4th November, 2020 distilled this single issue for determination:
“Whether having regards to the settled facts of this case the Lower Court exercised its discretion judiciously and judicially.”

The Respondents had however earlier filed a notice of preliminary objection to the hearing of the interlocutory appeal on 9th August, 2019 upon the following grounds:
(a) The Appellants herein have failed to obtain the leave of the Lower Court or this Honourable Court before filing their Notice of Appeal against an Interlocutory decision of the lower Court delivered on 17th May, 2017.
(b) The Interlocutory Appeal filed by the Appellants herein has been lodged without compliance with the mandatory provisions of Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and
(c) By reason of (a) and (b) above, this Honourable Court does not have jurisdiction to entertain the Appellants’ Appeal and grant the relief sought by the

Appellants.”

Respondents’ senior counsel argued the preliminary objection at page 5-11 of the Respondents’ brief.

Learned senior counsel for the Respondent submitted that the decision of the lower Court made on 17th May, 2019 was an interlocutory decision pursuant to the Respondents’ motion on notice dated 28th April, 2017 for extension of time within which to file their counter affidavit and written address to the Appellants’ preliminary objection. It was submitted that the four grounds of appeal raised by the Appellants against the decision of the Court below in exercise of its discretionary power required the leave of Court. It was submitted that failure of the Appellants to seek and obtain leave of Court renders the present interlocutory appeal incompetent and liable to be struck out.

It was submitted that an appeal against an interlocutory decision other than on grounds of law requires the leave of Court. The Court was referred to Sections 241(1) and 242 of the 1999 Constitution FRN (as amended). These provisions, it was submitted, have set out when an appeal can be lodged as of right or with leave of Court.

Therefore, the right of appeal against an interlocutory decision is not automatic.
None of the four (4) grounds of appeal of the Appellants is on ground of pure law, it was submitted.

In determining whether or not a ground of appeal irrespective of how it is christened is a ground of law or law and fact, the ground of appeal together with its particulars will be considered to determine the question the ground of appeal raises or complains about.

It was submitted that upon a careful examination of the four (4) grounds of appeal raised by the Appellants in their notice of appeal, it is clear that the Appellants are questioning the exercise of discretion by the Court below, thus questioning the evaluation of evidence/facts made by the Court below. It was submitted that there is no doubt that the four grounds of appeal are a product of exercise of discretion and so are of mixed law and facts. It is settled law, it was submitted, that a ground of appeal questioning the exercise of discretion by a lower Court is not a ground of law but a ground of mixed law and facts. The Court was referred to Garuba & Ors. v. Omokhodion & Ors (2011) Vol. 46

(pt. 11) NSCQR 876 at 914 – 911 and Nzei & Anor v. U.N.N. & 4 Ors (2016) Vol. 98 (pt.1) NSCQR 367 at 395.

It was submitted that failure to comply with strict and mandatory provisions of the Law is fatal to this appeal and same is incompetent and robs the Court of jurisdiction.
The Appellants did not reply to the preliminary objection of the Respondents to the interlocutory appeal.

Arguing the appeal, learned counsel for the Appellants contended that the Court below proceeded to hear the motion for extension of time in the absence of Appellants’ counsel but Appellants’ counsel appeared at about 11.00am and was asked to adopt his written address in support of Appellants’ counter affidavit.

That after the Appellants’ counsel got the ruling of the Court below he discovered that the Court below had granted a prayer for the amendment of the Respondents’ motion. This, submitted learned counsel for the Appellants, amounted to breach of right to fair hearing.

Learned counsel for the Appellants submitted that the Court below did not give the Appellants a hearing at all before the decision to amend

and grant the application was arrived at.

On issue 2, learned counsel for the Appellants contended that evidence of abuse of Court process was supplied to the Court below but it looked the other way. These included (i) That the counter affidavit sought to be deemed as having been properly filed in opposition to the Appellants’ preliminary objection was sworn to by “LAWYER – ATTORNEY” as a former solicitor with the Respondents counsel’s firm.

It was submitted that the Court below erred when it failed to consider the issue of abuse of Court process even though it was brought before it. The only recourse open to the lower Court was to have struck out the offending application; it was submitted.

It was contended that the Court below failed to decide whether it had jurisdiction to consider the application for extension of time before going into the merit of the application.

On issue 3, learned counsel for the Appellants contended that Appellants were not given the opportunity to be heard before the Court below stated in the ruling that Appellants’ counter affidavit was filed out of time.

On issue 4, learned counsel for the Appellants argued that the affidavit in support of the application was in conflict with each other and altogether was not sufficient to grant the application.

Furthermore, it was argued, failure of the Respondent to pay default sum of N13,400.00 rendered the application incompetent as the Respondent was in violation of Order 5 Rule 4 of the High Court (Civil Procedure) Rules 2008 of Cross River State.
Respondents’ senior counsel argued the single issue formulated by the Respondents and argued separately the four issues submitted by the Appellants for determination.

Arguing the single issue formulated by the Respondents, it was contended that as a matter of law, a Court has the discretion to grant or not to grant an application and an appellate Court will not generally question or interfere with such exercise of discretion unless:
a) Such discretion was wrongly exercised; or
b) The exercise was tainted with some illegality or substantial irregularity; or
c) It is in the interest of justice to so intervene or
d) If the exercise of discretion was in clear breach of the law.

The Court was referred to Azubuike v. P.D.P. (2014) Vol. 57 (pt. 11) NSCQR 826 and Nigerian Laboratory Corporation v. Pacific Merchant Bank Limited (2012) Vol. 50 (pt. 1) NSCQR 402 at 408.

In the instant case, it was argued, the Court below exercised its discretion judicially and judiciously in the interest of justice by granting Respondents’ motion for extension of time in order to allow the Respondents an opportunity to file their counter affidavit. This was to prevent a situation where the case of the Respondents will suffer as a result of the inadvertence of their counsel and in the protection of the Respondents right to fair hearing, it was argued, at a stage when the substantive motion filed by the Appellants’ counsel had not been argued. Such exercise of discretion was not prejudicial to the Appellants neither did the Appellants suffer any miscarriage of justice by the grant of the application, it was argued.

Having regards to the undisputed facts, it was submitted, the Appellants’ right to fair hearing was not violated by the Court below.

It was submitted that the requirement of fair hearing implies that each party to a dispute must

be given adequate opportunity to state his own case. The Court was referred to Achuzia v. Ogbomah (2016) Vol. 67 (pt. 2) NSCQR 795; Danladi v. Dangiri & 6 Ors (2015) Vol. 61 (pt.1) NSCQR 469 at 489; Magit v. University of Agriculture Makurdi (2006) 133 LRCN 46 and Olowu v. The Nigerian Navy (2012) Vol. 49 (pt. 2) NSCQR 1157 at 1160.

After summarizing the facts leading to this interlocutory appeal, learned senior counsel for the Respondents submitted that on the facts, the Appellants’ right to fair hearing was not violated by the Court below.

It was submitted that the Court below heard the Appellants’ counsel and fully considered his adopted arguments before delivering its ruling on 17th May, 2017. The Court was referred to page 194 of the record of appeal.

Responding to Appellants issue 1, learned senior counsel for the Respondents referred the Court to the writ of summons and statement of claim in suit No. HC/361/2016 leading to the present appeal wherein the names of the claimants are correctly stated. But that on a motion paper, the secretary, a staff of the Appellants’ solicitor, inadvertently added to the subsisting

parties the name of Anthony A. Eyo Esq. which was a misnomer that did not mislead the Appellants as to the identity of the claimants or applicants in the motion.

It was submitted that Courts have the power to amend or rectify minor mistakes that work no injustice to the other party. It was submitted that the Court below in granting the Respondents’ application to amend the misnomer on the motion paper as to the correct names of the claimants rightly relied on Order 15 Rule 2 of the High Court of Cross River State (Civil Procedure) Rules 2008. The amendment, it was submitted, did not occasion a miscarriage of justice against the Appellants.

On Appellants’ issue 2, learned senior counsel for the Respondents contended that the application for extension of time was not an abuse of Court process and the Court below had jurisdiction to entertain it. It was contended that matters said to constitute abuse of Court process are matters to be considered at the hearing of the preliminary objection which has not yet been argued. It was contended that it is only when the Court below considers the preliminary objection that the issues now being

canvassed by the Appellants could be rightly considered. The Court was referred to James SAN v. I.N.E.C. & 4 Ors (2015) Vol. 64 (pt. 2) NSCQR 968 at 986; Braithwaite & 3 Ors v. Dalhatu (2016) Vol. 66 (Pt. 1) NSCQR 212 and F.R.N. v. Borishade (2015) Vol. 61 (pt. 11) NSCQR 1266.
It was submitted that arguments of the Appellants on this issue are premature.

On Appellants’ issue 3, learned senior counsel for the Respondents pointed out that the counter affidavit in opposition to the motion for extension of time was not struck out suo motu by the Court below but after the attention of the Court below was drawn to the fact by Respondents’ counsel Chief Eyo. The Court was referred to page 193 of the record of appeal.

Responding to Appellants’ issue 4, learned senior counsel for the Respondents submitted that the arguments touching on the merits of the counter affidavit are premature as the preliminary objection has not been argued. It was contended that if the Court entertains any arguments touching on the preliminary objections, that would be prejudicial to the Respondents.

On the alleged non-payment of adequate fees, it

was submitted that it does not rob the Court of jurisdiction and a party cannot be made to suffer for lapses of the Court registry whose duty it is to assess every document for filing and ensure that the correct fees are paid. The Court was referred to Ogwe v. I.G.P. & 2 Ors. (2015) Vol. 61 (pt. 11) NSCQR 627.

The purpose of a preliminary objection is to terminate the appeal in limine or at the outset. When the preliminary objection is upheld it terminates the appeal. See Muhammed v. I.G.P. & Ors (2019) 4 NWLR (pt. 1663) 492 at 507. I will in the circumstances consider the preliminary objection of the Respondents first.

– 1869 SC. See also Garuba & Ors. v. Omokhodion & Ors. (supra) cited by learned senior counsel for the Respondents.

I have examined the four grounds of appeal in this interlocutory appeal and I agree with learned senior counsel for the Respondents that the Appellants are questioning the lower Court’s exercise of discretion in making the interlocutory orders complained of by the Appellants. The appeal is therefore on grounds of mixed law and facts.

As I pointed out earlier, the Appellants did not reply to the preliminary objection. Instead learned counsel for the Appellants busied himself with trying to get a stay of proceedings pending another interlocutory appeal by the Appellants to the Supreme Court against the refusal by this Court to grant him an application for stay of proceedings.

It is clear therefore that the Appellants appealed to this Court on grounds of mixed law and facts without the leave of Court.
The appeal is therefore incompetent and should be struck out. It is hereby struck out.

The Court cannot proceed to determine the appeal on merits even though a penultimate Court because as learned senior counsel

for the Respondents pointed out, some of the issues raised in the interlocutory appeal are premature and cannot be considered by this Court before the Court below considers the preliminary objection of the Appellants on the merits. Apart from this, the interlocutory appeal does not constitute a final resolution of the main dispute between the parties.

From the conduct of the Appellants so far in this matter, the Appellants will appeal to the Supreme Court and ask the Apex Court to stay its proceedings.
Respondents are awarded N100,000.00 costs to be paid by the Appellants.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree

MUHAMMED LAWAL SHUAIBU, J.C.A.: I agree entirely.

Appearances:

G. Onah Esq. For Appellant(s)

O. E. Ekong, SAN, with him, Chief A. A. Eyo For Respondent(s)