CELTEL NIGERIA BV v. ECONET WIRELESS LIMITED & ORS
(2014)LCN/6861(CA)
RATIO
PRACTICE AND PROCEDURE: TRADITIONAL AND PRIMARY ROLE OF A RESPONDENT IN AN APPEAL
It is trite from the cases cited by the 1st respondent (supra) that the traditional and primary role of a respondent in an appeal is to defend the judgment appealed against, not to use a respondent’s brief to shore up or bolster an appellant’s brief for the purpose of setting aside the judgment appealed against. See in addition the cases of Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377 at 417, Lagos City Council v. Ajayi (1970) 1 All NLR 290, Eliochin v. Mbadiwe (1936) 1 NWLR (Pt.14) 47, Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511 and Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt.191) 266.
However, there appears to be a shift from the position stated above by the introduction of a new dimension to the state of the law that a respondent who files an appeal or cross-appeal against the judgment complained of may use a respondent’s brief to align with an appellant’s brief for the purpose of the reversal of the judgment appealed against. Thus in Adenuga v. Odumeru (supra) for example, it was pointed out that because the 4th-7th respondents to that appeal did not file an appeal against the judgment on appeal, they could not use their brief to attack the judgment appealed against by way of aligning themselves with the appellant in the said appeal. Then, in Eta v. Dazie (2013) 9 NWLR (Pt.1359) 248 at 262, it was held per the lead judgment of Ngwuta, J.S.C., that – “The traditional role of learned counsel for the respondent, in contradistinction to that of learned counsel for the appellant, is to support the judgment appealed against. Where, however, learned counsel for the respondent cannot, in good conscience support the judgment appealed against, he should make his position known to his client with a view to either conceding the issues raised by the appellant or withdrawing from the appeal if his client persists in his pursuit of same”. (My emphasis).
The case of Yongbush and Ors. v. Bulus and Anor. (1997) 2 NWLR (Pt.489) 621 at 630 – 631 decides it (per the lead judgment of Edozie, J.C.A., concurred in by Oguntade and Muntaka-Coomassie J.J.C.A.) that a respondent wishing to advance arguments in the respondent’s brief in support of the reversal of the judgment appealed against must cross-appeal against the said judgment first.
Also, the case of Imoniyame Holdings Ltd. and Anor. v. Soneb Enterprises Ltd. and Ors. (2010) 4 NWLR (Pt.1185) 561 at 579 decides it by the lead judgment of Onnoghen, J.S.C., (concurred in by Mohammed, Chukwuma-Eneh, Muntaka-Coomassie and Adekeye, J.J.S.C.) that a respondent who did not file an appeal or cross-appeal against a judgment cannot deploy respondent’s brief to attack the judgment; showing a respondent who filed an appeal or cross-appeal can utilize respondent’s brief to attack the judgment appealed against. For the sake of emphasis, I quote a portion of the judgment of Adekeye, J.S.C., in page 585 of the Law report thus – “The traditional role of a respondent in an appeal is to do everything to support the judgment. He is not supposed to attack the judgment except he has filed a cross-appeal”. (My emphasis).
Further, in Ozigbo v. P.D.P. (2010) 9 NWLR (Pt.1200) 601 at 634, it was held by the Court (Abuja Division) per the lead judgment of Abba Aji, J.C.A., (concurred in by R. D. Muhammad and Lokolu-Sodipe, J.C.A.) that a respondent intending to question the correctness of the judgment appealed against must express his dissatisfaction with the said judgment by filing an appeal against it. Per JOSEPH SHAGBAOR IKYEGH, J.C.A
WHETHER AN ARBITRATION REMOVES THE JURISDICTION OF THE REGULAR COURTS
Arbitration does not remove the jurisdiction of regular courts. It is only a stop-gap process to settle disputes. See Magbagbeola v. Sanni (2002) 4 NWLR (Pt.756) 193 at 205 following Confidence Insurance Ltd, v. Trustees of the Ondo State College of Education (1999) 2 NWLR (Pt.591) 373 at 386. It follows that a dispute referred to arbitration merely has the effect of staying proceedings in the regular court in respect of a pending suit over the same subject matter. The avowed aim of settling the dispute by arbitration did not, therefore, have any ulterior or unlawful motive. So, it cannot be said it was an abuse of process. Per JOSEPH SHAGBAOR IKYEGH, J.C.A
