IME FRIDAY UDOTIM & ANOR v. UYO UDO IDIONG & ORS (2013)

IME FRIDAY UDOTIM & ANOR v. UYO UDO IDIONG & ORS

(2013)LCN/6584(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of December, 2013

CA/C/43/2013

RATIO

WHETHER THE RIGHT EXERCISE OF DISCRETION BY A JUDGE IS A QUESTION OF LAW OR OF FACT

Discretion, according to settled authorities, is not an indulgence of a judicial whim. It is the exercise of judicial judgment based on facts and guided by the law or equitable decisions, UBA Ltd v. Stalibau GMBH and Co. K. G. (1989) LPELR-3400(SC). It is the court’s epistemological tool for winnowing solid truth from windy falsehood; for dichotomizing between shadow and substance and distilling equity from colourable glosses and pretences. By its very character, judicial discretion does not brook any capricious exercise of power according to private fancies and affections. We find support for this opinion in Rook’s case (1598) 5 Co. Rep. 996, cited in Ayantuyi v. Governor of Ondo (2005) 14 WRN 67, 91.

In particular, the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact depending on the facts and circumstances of each case. Whether he exercised it rightly, in any particular case, is at least a question of mixed law and fact, Ifediora and Ors. v. Ume and Ors [1988] 2 NWLR (pt 74) 5, 16, per Nnaemeka-Agu, JSC. PER CHIMA CENTUS NWEZE, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. IME FRIDAY UDOTIM

2. SUNDAY AKPAN AKAKA

(Suing for themselves and as Representative of Ufuku village) – Appellant(s)

AND

1. UYO UDO IDIONG

2. CHIEF DOMINIC AKAM ENENE

3. SUNDAY AKPAN ENANG

(Suing for themselves and as Representative of Ikot Etor village) – Respondent(s)

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): At the High Court of Akwa Ibom State, holden at Ikot Ekpene, the appellants in this appeal [as plaintiffs] commenced action in a representative capacity against the respondents [as defendants], also, in a representative capacity. That was way back in 1995, eighteen years ago! Subsequently, the original counsel whom the appellants engaged died, necessitating the engagement of another counsel. The numerous applications from both sides occasioned many adjournments in the matter.

At a point, parties were granted the indulgence to attempt an out-of-court settlement. It failed. When the matter resumed in court, pleadings were amended. It would appear that the matter was destined to have a chequered history. The learned trial Judge went on a national assignment that took him away for over eight months.

What prompted the ruling that culminated into this appeal was an application which the appellants’ new counsel filed for leave to amend the pleadings which the previous counsel filed. The respondents, vigorously, opposed the said application. In its ruling of November 15, 2012, the court [hereinafter referred to as “the lower court”] refused to oblige the appellants with their supplication for amendment, pages 90-95 of the record.

Aggrieved by this interlocutory application, wherein the lower court declined to exercise its discretion in their favour, the appellants appealed to this court, vide their Notice and Grounds of Appeal, pages 96-99 of the record. Their appeal was woven around two grounds tagged error in law. Instructively, in appealing against the said interlocutory ruling concerning the lower court’s exercise of discretion, counsel neither sought the leave of the lower court nor that of this court. They formulated two issues for the determination of their appeal. They were couched thus:

ISSUE 1

Whether the trial Court was right in law to have refused applicants’ application to amend?

ISSUE 2

Whether in law it is proper to visit the mistakes of a counsel (sic) on a litigant?

On their part, the respondents set out a sole issue for the resolution of this appeal. It reads thus:

Whether the trial court was right in law to have refused the applicants’ application to amend their pleadings?

In the ordinary course of events, we would have proceeded to the determination of this appeal by considering the effervescent submissions of the appellants’ counsel spanning pages 1-8 [paragraphs 3.01 -5.00] of the appellants’ brief of argument filed on March 22, 2013; their reply brief, pages 4-6 [paragraphs 2.01-3.00] and the arguments of the respondents’ counsel, pages 5-9 [paragraphs 2.04 – 3.00] of their brief filed on April 26, 2013.

However, there is a snag here. As noted above, in appealing against the said interlocutory ruling concerning the lower court’s exercise of discretion, counsel neither sought the leave of the lower court nor that of this court. Expectedly, counsel for the respondents entered a preliminary objection against the appeal for being incompetent. Their terse and pungent submissions in support of the said objection are just in two paragraphs of their brief, [paragraph 101 (sic, 1.01), pages 1-2 of the said brief].

THE RESPONDENTS PRELIMINARY OBJEGTION

We are under obligation to resolve the radical issue which the respondents raised in their above objection. It cannot be otherwise for there is authority for the view that a preliminary objection is a pre-emptive strike; its resolution will determine whether or not the appeal will be determines on the merit, per Ngwuta, JSC in Jim-Jaja v. C.O.P. Rivers State and Ors. (2012) LPELR-20621 (SC) 10 paragraph F.

Indeed, we are in the cherished company of reliable authorities for the view that we have a duty to determine the respondents’ challenge to the jurisdiction of this court to hear this appeal, through their preliminary objection, before taking any further step in the determination of this appeal, Okoi v. Ibiag [2002] 10 NWLR (Pt. 776) 455,468; UBA Plc v. ACB [2005] 12 NWLR (Pt. 939) 232; Goji v. Ewete [2001] 15 NWLR (Pt. 236) 273, 280.

The reason is not far to seek. If we uphold the said objection, the consequential result would be a finding as to the incompetence of the appeal. There would be, thus, no outstanding live issues for determination. As my noble Lord, Garba, JCA held in L. M. Ericsson Nig. Ltd v. Aqua Oil Nig. Ltd. (2011) LPELR-8807 (CA) 15, paragraphs C-F, once a preliminary objection on the competence of an appeal succeeds, the proceedings in the appeal would become aborted and the need to consider the issues raised therein would automatically abate, citing Ananeku v. Ekeruo [2002] 1 NWLR (Pt. 748) 301, 30; NPA v. Eyamba [2005] 12 NWLR (Pt. 939) 409; UBN v. Sogunro [2006] 16 NWLR (Pt. 1006) 504,521-2.

ARGUMENTS ON THE OBJECTION

ARGUMENTS OF THE RESPONDENTS/OBJECTORS

When this appeal came up for hearing on October 22, 2013, counsel for the respondents intimated the court of the subsistence of the said preliminary objection which was argued in the said respondents’ brief filed on April 26, 2013, pages 1-2 thereof. When availed the opportunity, counsel adopted the brief and the arguments therein as his arguments in the appeal.

With particular reference to the objection, he submitted that the appeal was incompetent. He explained that it was an interlocutory appeal which was not based on ground of law alone. He cited sections 242 (2) and 242 (1) (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which prescribe that, in an interlocutory appeal not based on grounds of law, the appellants must seek and obtain the leave of either the High Court or of this court before filing the appeal against the said interlocutory decision.

He maintained that, since the appellants herein did not obtain either the leave of the lower court or of this court before filing this appeal, it [meaning, this appeal] was, therefore, incompetent and ought to be struck out, citing Kaine v. Ojukwu (2000) FWLR (Pt. 28) 2231, 2234; Kano ile v. Gloede and Hoff Ltd [2005] 22 NSCQR 3440; Effiom v. CRS INEC [2010] 43 NSCQR 339, 346.

APPELLANTS’ REPLY TO THE OBJECTION

Counsel for the appellants, at the hearing of this appeal, adopted both the main brief filed on March 22, 2013 and the reply brief filed on May 14, 2013. In the said reply brief, he took the view that it was not enough for a party to allege that aground of appeal was of mixed law and facts without more. He maintained that such a party had a burden to establish the tenor of the grounds of appeal as being of mixed law and facts, citing Ehinlanwo v. Oke [2008] 16 NWLR (Pt. 113) 357, 374; 395.

He drew attention to the guiding principles which the apex court laid down for the classification of grounds of appeal, Uboaja v. Akitoye-Sowemino [2008] 16 NWLR (Pt. 1113) 278, 281; Ehinlanwo v. Oke (supra); Jim-Jaja v. C.O.P. Rivers State (supra) at 233. According to him, the guidelines laid down in the above cases support the appellants’ grounds of appeal in this appeal.

He canvassed the view that mistakes; oversights and omissions of counsel should not be visited on litigants. He submitted that, striking out this appeal on the ground of the appeal being of mixed law and facts coupled with the failure to obtain the requisite leave, would amount to visiting the mistakes of counsel on the appellants, Fidelity Bank Plc v. Monye [2012] 10 NWLR (Pt. 1307) 1, 10; EFP Coy Ltd v. NDIC [2002] 9 NWLR (Pt. 1039) 216, 229.

He explained that courts are now inclined to substantial justice rather than technical justice. He posed certain rhetorical questions and submitted that a ground of appeal is the complaint of the aggrieved party [appellants herein] against the ruling of the lower court, C.S.S. Bookshops Ltd. v. RTMCRS [2006] 11 NWLR (Pt. 992) 530, 545; Uboaja v. Akitoye-Sowemino; Ehinlanwo v. Oke (supra). He urged the court to discountenance the said objection.

RESOLUTION OF THE ARGUMENTS IN THE OBJECTION

As noted above, counsel for the appellants argued that the objectors had the obligation to establish that the grounds were of mixed law and facts. True, indeed, in Ehinlanwo v. Oke (supra) Onnoghen, JSC held that:

I have to point out that apart from the respondents’ stating that the grounds of appeal are either of fact or of mixed law and fact and thereby requiring the leave of the court, they have not gone further to demonstrate to the court why the said grounds are said to be of facts; or of mixed law and fact. The actual examination of the grounds is left for the court to do so as to arrive at a decision. I hold the view that it is the duty of counsel who objects to the competence of a ground of appeal to establish the complaint as it is settled law that he who alleges must prove. The instant case is a clear situation where learned counsel shifted his responsibilities to the bench, which is very unfortunate. However, a look at page 395 of the judgment [in Ehinlanwo v. Oke (supra)] would reveal that, although the eminent jurist [Onnoghen, JSC] expressed his disgust or indignation at the approach of counsel, His Lordship still, “carefully, [went] through the grounds of appeal together with their particulars…” Put differently, it comes to this. It is irresponsible of counsel to shift the responsibility of demonstrating why the said grounds could be said to be grounds of facts or mixed law and facts. That notwithstanding that shoddy approach, the court would still go through the grounds of appeal together with the particulars.

Now, the complaints of the appellants against the said interlocutory ruling were erected on two grounds which were christened “error of law, pages 96-99 of the record. In actual fact, however, their main grouse was against the lower court’s exercise of discretion in the said interlocutory ruling. Only one instance may be cited here to illustrate being made. Paragraph (c) of the particulars of the “error of law” of Ground Two, page 98 of the record, was framed thus:

The learned trial Judge (sic) refusal to grant leave to amend the pleadings filed in the suit with patent errors by the former counsel to the appellants will over-reach the respondents who are already aware of the errors/mistakes as so canvassed in their argument/affidavit opposing the application to amend.

[see, also, paragraphs (iii) and (iv) of the Particulars of Error in respect of Ground one, page 97 of the record]. In our view, these paragraphs exemplify the fact that the gravamen of the appellants’ complaint was directed at the lower court’s exercise of its undoubted discretion.

NATURE OF DISCRETIONARY POWER

GROUNDS OF LAW; GROUNDS OF MIXED LAW AND FACTS

As noted above, appellants’ counsel had drawn attention to the guiding principles which the apex court laid down for the classification of grounds of appeal, Uboaja v. Akitoye-Sowemino [2008] 16 NWLR (Pt. 1113) 278, 281; Ehinlanwo v. Oke (supra); Jim-Jaja v. C.O.P. Rivers State (supra) at 233. According to him, the guidelines laid down in the above cases support the appellants’ grounds of appeal in this appeal.

As a preliminary remark, we note here, as this court held in Kwara State Water Corporation and Ors v. A.I.C. Nig. Ltd and Anor (2009) 47 WRN 90; (2009) All FWLR (Pt. 485) 1738 [per Nweze, JCA], that the courts have very often confessed their difficulty in distinguishing a ground of law from a ground of mixed law and fact, citing Ogbechie v. Onochie (1986) 1 NWLR (Pt. 70) 370 [where Eso, JSC approvingly adopted the scintillating expose on the subject by C. T. Emery and Professor B. Smythe in their article titled, “Error of Law in Administrative Law”, in Law Quarterly Review Vol. 100 (October 1984); UBA Ltd v. Stahlbau Gmbh & Co. (1989) 3 NWLR (110) 374, 391-392; Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 531, 548; MDPDT v. Okonkwo (2001) 3 KLR (Pt. 117) 739 etc.

All the same, it is now, fairly, settled that it is neither its cognomen nor its designation as “Error of Law” that determines the essence of a ground of appeal, Abidoye v. Alawode (supra) 927; UBA Ltd v. Stahlbau Gmbh & Co. (1989) 3 NWLR (110) 374, 377; Ojemen v. Momodu (1983) 3 SC 173. On the contrary, our courts have formulated a guiding principle which may be summed up thus. It is the essence of the ground; the main grouse: that is, the reality of the complaint embedded in that name that determines what any particular ground involves, Abidoye v. Alawode (2001) 3 KLR (Pt. 118) 917, 919; NEPA v. Eze (2001) 3 NWLR (Pt. 709) 606; Ezeobi v. Abang (2000) 9 NWLR (Pt. 672) 230; Ojukwu v. Kaine (2000) 15 NWLR (Pt. 691) 516, see, generally, per Nweze, JCA in Kwara State water Corporation and Ors v. A.I.C. Nig. Ltd and Anor (supra).

In this appeal, we take the humble view that, notwithstanding the appellants’ designation of the two grounds as “error of law,” the reality of the complaint embedded in that name was a complaint against the lower court’s exercise of discretion. Whether the said court exercised its said discretion rightly, in the case before it, is, in our view, at least a question of mixed law and fact, Ifediora and Ors. v. Ume and Ors (supra) at 16, per Nnaemeka-Agu JSC. We so hold.

WOULD THE MISTAKE OF COUNSEL BE A VALID PLEA

The appellants’ counsel would seem to have conceded that it was his error or mistake in couching the grounds of appeal as shown above. He, however, quipped that striking out this appeal, on the premise that the grounds of appeal were of mixed law and fact and yet no leave was obtained as aforesaid, would amount to visiting the mistake/oversight of counsel (if any) on the appellants, Fidelity Bank Plc. v Monye [2012] 10 NWLR (Pt. 1307) 1, 10; EFP Coy Ltd. v. NDIC [2007] 9 NWLR (Pt. 1039) 216, 229.

With due respect, respondents’ counsel, in our humble view, cited the above cases out of con. There are authorities for the view that the exercise of the right of appeal must be in strict compliance with the statutory requirements which govern the very existence of an appeal. Under the 1999 Constitution of the Federal Republic of Nigeria (as amended, of, rather, as altered), one of such requirements is the imperative of the obtainment of the leave of court, in the prescribed manner, as agitated by counsel for the objectors. It is common ground here that the appellants were in dereliction of this mandatory requirement.

Contrary to the postulations of their counsel that his mistakes should not visited on them [the appellants], the implication of that omission on the status of the appeal, being impugned, has been settled beyond per adventure by superior authorities. In a word, it, simply, means that there is no valid appeal before this court, Mosuro and Anor. v. Akinyele 13 WACA 112-113; Shaka v. Salisu [1996] 2 NWLR (Pt. 428) 22, 23; Yakubu v. The Gov. of Kogi State and Ors [1995] 3 NWLR (Pt. 383) 367; Okotie-Eboh v. Okotie-Eboh [1986] 1 SC 479, 487; Co-operative and Commercial Bank Ltd. v. Ogwuru [1993] 3 NWLR (Pt. 284) 630; [1993] 3 SCNJ 54.

THE CONSEQUENCE OF FAILURE TO SEEK LEAVE

Being an appeal against the lower court’s exercise of discretion, the appellants were under obligation to seek leave, Diab Nasr v. Complete Home Enterprises (Nig.) Ltd. [1977] 5 SC 1, 11. What emerges from our survey of case law is that an appeal against the exercise of the discretionary power of a lower court is a question of mixed law and fact, Central Bank of Nigeria v. Okojie [2002] 8 NWLR (Pt. 768); Maduabuchukwu v. Maduabuchukwu (2006) All FWLR (Pt. 318) 695, 712; Abbey v. Alex [1991] 6 NWLR (Pt. 198) 459; Coker v. UBA Plc [1997] 2 NWLR (Pt. 490) 643.Indeed, as we observed above, the highlighted paragraphs, clearly, exemplify the fact of the challenge of the exercise of the lower court’s exercise of its undoubted discretion. The implication is that, since the appellants were minded to interrogate such an exercise of discretion by way of an appeal, they were under obligation to seek and obtain either the leave of the lower court or of the appellate court before filing his Notice of Appeal. The dereliction of this obligation means, in effect, that an essential pre condition for the activation of the appellate court’s jurisdiction has not been fulfilled.

In the circumstance, this appeal court is robbed of the jurisdiction to take the main appeal, Saleh v. Monguno [2003] 1 NWLR (pt. 801) 221; Madukolu v. Nkemdilim (2001) 46 WRN 1; [1962] 1 All NLR (pt. 4) 587; [1962] 2 NSCC (Vol. 2) 374; A-G., Anambra State v. A-G., Federation [1993] 6 NWLR (Pt. 302) 692; [1993] 7 SCNJ 245. In one word, we agree with the respondents’ contention that this appeal is incompetent, Oshatoba v. Chief Olujitan [2000] 5 NWLR (Pt. 655) 159; [2000] 2 SCNJ 159; Abidoye v. Alawode (2001) FWLR (Pt. 43) 322; The Nigerian Air Force v. Wing Commander T.L.A. Shekete (2002) 12 SC (Pt. 11) 52. We have no choice than to strike it out, Ogechie v. Onochie [1986] 3 SC 54, 56; Williams v Mokwe [2005] 7 SC (Pt. 11) 153; NEPA v. Eze [2001] 3 NWLR (Pt. 701) 606.

The ultimate fate of this incompetent appeal is predictable: it is liable to be struck out, Nigerian Air Force v. Shekete [2002] 18 NWLR (Pt. 798) 129; Hassan v. Atanyi [2002] 8 NWLR (Pt. 770) 581; Okan v. Ekanem [2002] 15 NWLR (Pt. 789) 106; Nigerian National Supply Company Limited v. Establishment Sima Vaduz [1990] 7 NWLR (Pt. 164) 38; [1990] 3 NSCC 526, 527; Ifediorah v. Ume [1988] 2 NWLR (Pt. 74) 5, 16; UBA v. G.M.B.H. [1989] 3 NWLR (Pt. 110) 374, 582.

In the circumstance, we take the view that the two questions which the appellants formulated in their brief, page 3 and adumbrated on pages 4-8 of the said brief are, at best, inchoate; or, at worst, academic for now, Olori Motors Co. Ltd. v. UBN Plc [2006] 10 NWLR (Pt. 989) 580, 686.

We, entirely, agree with Garba, JCA, L. M. Ericsson Nig. Ltd. v. Aqua Oil Nig. Ltd (supra) at 15, paragraphs C-F that, with the success of this preliminary objection to the competence of this appeal, the proceedings in this appeal have been aborted. In consequence, the need to consider the issues which the appellants and respondents raised in the main appeal would automatically abate, citing Ananeku v. Ekeruo (supra) 301; NPA v. Eyamba (supra); UBN v. Sogunro (supra) 521-2. The resolution of the said issues would abide the origination of a competent appeal. Appeal struck out. N50,000.00 assessed and awarded in favour of the respondents.

UZO I. NDUKWE-ANYAWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Centus Chima Nweze, JCA. I agree with his reasoning, that the court was robbed of jurisdiction when the Appellant failed to obtain leave to appeal against the discretionary powers of the lower court.

I also adopt all the consequential orders in the lead judgment.

ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in advance, the Judgment just delivered by my learned brother, Chima Centus Nweze, JCA, striking out this appeal. I am in agreement with his reasoning and conclusion; and, have nothing further to add.

I abide by the orders mode in the lead Judgment, including the Order as to costs.

Appearances

Alex UmohFor Appellant

AND

A. Ime-Udoh, with Mkpadia MkpadiaFor Respondent